SUBJECT: Legislation Implementing Decisions of Binational Commissions
This memorandum summarizes research regarding legislation implementing treaties cited in the memorandum prepared by Mr. Kristian Anderson of the Office of General Counsel of the U.S. International Trade Commission, dated November 19, 1987. For purposes of the present memorandum, appropriations bills have not been considered "implementing legislation" unless those bills have also included substantive provisions authorizing or instructing conduct by U.S. officials other than the transfer of appropriated funds from one agency to another.
Summary of Treaties and Relevant Implementing Legislation
Treaty of Amity, Commerce and Navigation, Between His
Britannick Majesty, United States-United Kingdom [Jay's
Treaty], 8 Stat. 116, Treaty Series 105, reprinted in 12 C.
Bevans, Treaties and Other International Agreements of the
United States of America 1776-1949 at 13 (1971) (hereinafter
"Bevans, Treaties"). See Anderson memo at A-1-A-4.
1 Stat. 523. Legislation authorizes the appointment of U.S. commissioners to binational panel and appropriates funds. No language about the implementation of panel decisions.
Boundary Waters Treaty, January 11, 1909, United States-United
Kingdom, 36 Stat. 2448, Treaty Series No. 548, reprinted in 12
Bevans, Treaties 319-27. See Anderson memo at A-1.
No legislation found implementing treaty. In 1902, prior to the treaty, legislation was enacted creating a boundary waters commission. See 32 Stat. 373 (sec. 4). That legislation does not include provisions regarding the implementation of the
Root-Bryce Treaty of 1908, United States-Great Britain, 35
Stat. 2003 (providing for commissioners representing both
parties to determine international boundaries).
No implementing legislation located.
Pettibone v. Cook County, Minnesota, 120 F.2d 850, 853-855 (8th Cir. 1941) ("We think that when the International Boundary Commission had completed its work and filed its plat and its report with the Secretary of State of the United States, the international boundary, as surveyed, located and monumented by it, became fixed as a matter of law. . .). See Anderson memo at A-5, n. 13.
Boundaries: Alaska and Canada, January 14, 1903, United
States-United Kingdom, 32 Stat. 1961, Treaty Series 419,
reprinted in 12 Bevans, Treaties 263. See Anderson memo at A-4.
No implementing legislation found.
Treaty of Amity, Settlement and Limits Between the United
States of America, and His Catholic Majesty, February 22, 1819,
United States-Spain, 8 Stat. 252, Treaty Series 327, reprinted
in 11 Bevans, Treaties 528-536. See Anderson memo at A-5.
No implementing legislation regarding boundary commission.
Treaty of Limits Between the United States of America and the
United Mexican States, January 12, 1828, United States-Mexico,
Article III, 8 Stat. 372, Treaty Series 202, reprinted in 9
Bevans, Treaties 762. ("the result agreed upon by [the
commissioners] shall be considered as part of this treaty, and
shall have the same force as if it were inserted therein.")
See Anderson memo at A-6.
4 Stat. 558. Legislation provides for the appointment of a commissioner and surveyor and the appropriation of funds. includes no provisions regarding the implementation of decisions by the commissioners.
Treaty of Guadalupe Hidalgo, February 2, 1848, United
States-Mexico, Article V, 9 Stat. 922, Treaty Series 207,
reprinted in 9 Bevans, Treaties 795. ("the result, agreed upon
by [the commissioners], shall be deemed a part of this treaty,
and shall have the same force as if it were inserted
therein.") See Anderson memo at A-6.
Gadsden Treaty, December 30, 1853, United States-Mexico, Art.
I, 10 Stat. 1031, Treaty Series 208, reprinted in 9 Bevans,
Treaties 813. (joint boundary determination of commissioners
would be "considered decisive and an integral part of this
treaty, without necessity of ulterior ratification or approval,
and without room for interpretation of any kind by either of
the Parties contracting.") See Anderson memo at A-6.
No implementing legislation located.
Boundary Treaty, April 15, 1838, United States-Republic of
Texas, Art. I., 8 Stat. 511, Treaty Series 356, reprinted in 11
Bevans, Treaties 976-77. ("the result agreed upon by [the
commissioners] shall be considered as part of this convention,
and shall have the same force as if it were inserted
therein.") See Anderson memo at A-7.
5 Stat. 329. Legislation provides for the appointment of a U.S. commissioner and the appropriation of funds. It does not include any provisions regarding the implementation of commission decisions.
Settlement of Claims Agreement, January 19, 1981, United
States-Iran, Article II, reprinted in 81 Col. L. Rev. 898-901
(1981); Commitments of Iran and U.S., January 19, 1981, United
States-Iran, reprinted in 81 Col. L. Rev. 894-98 (1981). See
Anderson memo at A-7-A-12.
Implemented only by Executive Orders. See Executive Orders
Nos. 12276-12285 (46 Fed. Reg. 7913-7932), and 12294 (46 Fed.
Reg. 12111).
Treaty on Settlement of Claims, August 11, 1802, United
States-Spain, at para. 1, 8 Stat. 198, Treaty Series 326,
reprinted in 11 Bevans, Treaties 526-27. See Anderson memo at
No implementing legislation found.
Agreement Creating a Spanish-American Claims Commission,
February 11 and 12, 1871, United States-Spain, 17 Stat. 839,
Treaty Series 328-1, reprinted in 11 Bevans, Treaties 540-43.
See Anderson memo at A-14-15.
No implementing legislation found.
Claims Agreement, July 4, 1868, United States-Mexico, 15 Stat. 679, Treaty Series 212, reprinted in 9 Bevans, Treaties
Legisl.: 20 Stat. 144. Legislation provided:
Sec. 5. "And whereas the government of Mexico has
called the attention of the government of the
United States to the claims hereinafter named, with
a view to a rehearing, therefore be it enacted that
the President of the United [States] be, and he is
hereby, requested to investigate any charges of
fraud presented by the Mexican government
. . it shall be lawful for him to withhold payment of said awards, or either of them, until such case or cases shall be retried and decided in such manner as the governments of the United States and Mexico may agree, or until Congress shall otherwise direct.
Frelinghuysen v. Key, 110 U.S. 63 (1884) (Court decided that it was within the discretion of the President to negotiate with Mexico concerning the claims at issue and that he could properly withhold distribution of an award by the Commission during the period of negotiation).
La Abra Silver Mining Co. v. United States, 175 U.S. 423, 463
(1899) (same case). In this case, U.S. parties who sought
distribution of funds paid by Mexico to the United States in
accordance with a decision of the claims tribunal, challenged a
statute which authorized the President to withhold payment to
those parties. The 1892 statute at issue (27 Stat. 409)
authorized the Attorney General to sue these allegedly
fraudulent parties and prohibited the Secretary of State from
making payments from the Mexican fund during the pendency of
the suit. In part, the claimants argued that Congress was
without authority to control distribution of the fund.
Court rejected this argument. Id. at 460.
Agreement Creating a Mixed Claims Commission, August 10, 1922, United States-Germany, 42 Stat. 2200, Treaty Series 665, reprinted in 8 Bevans, Treaties 149-52. See Anderson memo at
Sec. 2 (a) The Secretary of State shall, from time to time, certify to the Secretary of Treasury the awards of the Mixed Claims Commission, United States and Germany,
(b) The Secretary of Treasury is authorized and directed to pay an amount equal to the principal of each award so certified
Z. & F. Assets Realization Corp. v. Hull, 311 U.S. 470 (1941).
In this case, the Court rejected arguments that the Department
of State's certification of awards was merely ministerial.
stated in support of this conclusion that "There can be no
doubt of the constitutional authority of Congress to lodge with
the Secretary of State the authority to consider and pass upon
the regularity and validity of the awards made by the Mixed
Claims Commission .
Id. at 486.
Claims: Damages Resulting From Operation of Smelter at Trial,
British Columbia, April 15, 1935, United States-Canada, Article
II, 49 Stat. 3245, Treaty Series 893, reprinted in 6 Bevans,
Treaties 60-64. See Anderson memo at A-17-18.
No implementing legislation was located. Appropriations bills
were, however, identified which funded operation of the
arbitration panel. See, e.g., 49 Stat. 1319; 52 Stat. 91
(providing funds "For the expenses of determining and
certifying to the Secretary of Treasury amounts due claimants
from the money received from Canada on account of damage which
occurred in the United States as a result of the operation of
the smelter at Trial, British Columbia."); 53 Stat. 639; 54
Stat. 651.
Agreement Regarding Pecuniary Claims, August 18, 1910, United
States-United Kingdom, 37 Stat. 1625, Treaty Series 573,
reprinted in 12 Bevans, Treaties 344. (Agreement creates a
claims tribunal and provides: "All sums of money which may be
awarded by the tribunal on account of any claim shall be paid
by the one Government to the other, as the case may
be, . . . .") See Anderson memo at A-21.
Legisl.: No implementing legislation located.
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