able to muster a respectable minority in opposition. This might be a group of states whose power or reputation, either worldwide or regionally, is such that on a given issue it is clear that the numerical majority does not have the capability of giving effect to its recommendations.

An example of this situation was the vote at the 1976 General Assembly on the question of Guam. The resolution was regarded as interfering with U.S. domestic processes and calling in question U.S. defense commitments. Although the vote was heavily in favor of the resolution, the number and character of states standing with us subtracted greatly from its authority and standing. It was possible in 1977 with the help of this minority and through efforts both bilaterally and in New York to persuade the majority of U.N. members to work toward a resolution in the 32d General Assembly which took U.S. interests into account.

Another example was the vote on the Charter of the Economic Rights and Duties of States (CERDS) adopted by the 29th General Assembly. Here the group of countries voting against or abstaining on the resolution was of such economic importance as to make it clear that the resolution could not realistically serve as a framework for international economic relationships.

This is not to suggest that such diplomacy will assure avoidance of unacceptable or irritating votes in each case. Recent experience indicates, however, that an atmosphere of hostility and confrontation in the General Assembly which can corrode the possibility of effective resolution of problems can be minimized or dissipated by patient, careful diplomacy.

We would in the future expect to utilize similar opportunities for setting up mechanisms with representational arrangements designed to enable the issues in question to be most effectively addressed. Dept. of State, Reform and Restructuring of the U.N. System, Selected Docs., No. 8 (1978), pp. 22-29; Sen. Comm. Print, Proposals for United Nations Reform, 95th Cong., 2d sess. (1978), pp. 21–29.

See, further, in regard to assessments for technical assistance, discussed ante, the restriction upon U.S. contributions to international organizations set out in Title I of P.L. 95-431, the Depts. of State, Justice, and Commerce, the Judiciary, and Related Agencies Appropriations Act, 1979, Oct. 10, 1978, 92 Stat. 1021, 1022, ante, this Chapter, § 4E, p. 136.

The Agreement establishing the International Fund for Agricultural Development, done at Rome, June 13, 1976, entered into force for the United States, Nov. 30, 1977, is at TIAS 8765, 28 UST 7.

The Charter of the Economic Rights and Duties of States, adopted by the U.N. General Assembly, Dec. 12, 1974, is printed in the 1974 Digest, pp. 497-504, and also in International Legal Materials, Vol. XIV, No. 1, January 1975, pp. 252261. The U.S. voted against adoption of the Charter.

G. LEGAL EFFECTS OF ACTS

United Nations Resolutions and Declarations

On the closing day of the Third United Nations Conference on the Law of the Sea, Ambassador Satya N. Nandan, the Ambassador of

Fiji to the European Communities and Chairman of the Group of 77, set forth the Group's position on unilateral legislation relating to the exploitation (mining) of the resources of the deep seabed, which he stated was contemplated or in the process of enactment in several industrialized countries. Ambassador Nandan advanced, as one reason for the Group's rejection of the "entire basis for such legislation," the argument that the Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction (General Assembly Resolution 2749 (XXV), adopted December 17, 1970) had established a "principle of international law in the precise sense of article 38 of the Statute of the International Court of Justice" and constituted "an authoritative expression of the opinion of the international community on the matter.” Since no legal regime for the seabed had existed, either by custom or treaty, prior to the Declaration of Principles, and since the Declaration had been adopted without dissent, all groups had thus accepted the principle, that the seabed and its resources were the "common heritage of mankind," and unilateral exploitation was incompatible with that principle. The Declaration had created the basis for the legal regime which the Conference had been entrusted to formulate.

In replying to the Chairman of the Group of 77, Ambassador Elliot L. Richardson, Special Representative of the President for the Third United Nations Conference on the Law of the Sea, pointed out that, while the United States was dedicated to concluding a broadly acceptable, comprehensive law of the sea treaty at the earliest possible date, its position had been from the outset of the negotiations that exploration and exploitation of the deep seabed beyond areas of national jurisdiction were freedoms of the high seas enjoyed by all nations. States would become subject to restraints upon such enjoyment when they should adhere to a treaty establishing an international authority to manage and oversee seabed mining. The United States could not accept, however, the suggestion that other states, without its consent, could deny or alter its rights under international law "by resolutions, statements, and the like." He continued:

Specific allegations have been made here concerning the incompatibility of national legislation with United Nations General Assembly Resolution 2574D (XXIV) and 2749 (XXV). With respect to the former, the so-called "Moratorium Resolution," I would first note that, while 62 states voted in favor, the United States and 27 other states voted against, and 28 additional states abstained. Clearly, the resolution cannot be said to have commanded overwhelming support. Moreover, the United States Representative was explicit in his explanation of his government's negative vote:

"The prohibition which the draft resolution contains is without binding legal effect; that is the case with almost any General Assembly resolution, and it is certainly the case for any General Assembly resolution purporting to prescribe standards of conduct for states in the oceans. 99

The United States voted for the "Declaration of Principles" embodied in U.N.G.A. Resolution 2749 along with 107 other states. None was opposed and 14 abstained. While proclaiming the deep seabed resources the "common heritage of mankind," this resolution did not purport to prohibit access to these resources. Indeed, it is clear from the text of the resolution and from statements made at the time of its adoption that it was not intended to constitute an interim deep seabed mining regime, but rather was intended to be a general basis for subsequent negotiation of an internationally agreed regime. Thus, one delegate said that the resolution was "only a basis for the preparation of a regime and must not be interpreted as an interim regime," while another commented that "it is balanced and comprehensive enough to serve as the foundation and framework for an international regime for the seabed beyond national jurisdiction, without attempting to go so far as to substitute either for the regime itself or the international agreement which must give it force and effect." A third, the delegate of the Soviet Union, noted that "adoption of the declaration by the General Assembly cannot create legal consequences for states in view of the well-known fact that decisions of the General Assembly have simply the force of recommendations." The United States Representative, in explaining our affirmative vote, noted our view that the principles constituted a basis for subsequent negotiation of a definitive agreement containing an internationally agreed upon regime. He said:

"The text of the draft declaration before us clearly points the way towards an internationally agreed regime and will be the most useful basis for treaty negotiations. It is because we are confident that this session of the General Assembly will`take appropriate decisive action for convening a new law of the sea conference to reach agreement, among other things, on a new seabed regime with precise limits that it is possible to approach the principles with the conviction that definitive agreement will soon be reached on the matters dealt with in the declaration. Accordingly, it is possible for delegations to compromise on certain aspects of the principles that may be somewhat vague or ambiguous, or imperfectly worded or punctuated, and hence might not be satisfactory if they were to be the final word. The United States is persuaded by the many delegations which have spoken so eloquently regarding the need to preserve this delicately balanced compromise, despite the fact that it is not entirely satisfactory, in order that we may move forward to a conference to establish an internationally agreed regime."

Until last year, successive United States Administrations refrained from supporting congressional efforts to provide a statutory framework for seabed mining, largely because they considered such proposed legislation premature, particularly in view of the

hope which then existed for early success in the Third United Nations Conference on the Law of the Sea. Our position has never been that such legislation might be contrary to international law, but rather that, in view of the existing state of research and development work, legislation could safely be deferred while the negotiations continued. Adhering to this position, a succession of government witnesses in congressional hearings over a period of years counselled restraint and urged Congress to await success in the negotiations.

In October 1977, the executive branch of the United States Government informed two Senate Committees that it was prepared to support movement of appropriate deep seabed mining legislation through Congress. I do not wish to pretend that this shift in position was unrelated to my Government's sense of disappointment with the results of the Sixth Session of the Conference, specifically the texts of Part XI and related annexes issued as part of the Informal Composite Negotiating Text.

Of decisive importance, however, is the fact that the deep seabed mining industry is fast approaching the point where difficult decisions on very large additional investment will have to be made. ...

Negative decisions on further investments would clearly result in an end to the development of seabed mining technology, the dispersal of technology teams, and the reallocation by concerned firms of financial and personnel resources to areas other than seabed mining. The necessity of starting over again when an adequate legal framework was eventually put in place would add substantial costs to an already expensive undertaking and would greatly delay the actual commencement of mining. These are consequences that we must prevent if we can reasonably do so, since we are dealing with the means of access to resources which, as time goes on, will become increasingly important. This, in sum, is why legislation is needed now. This is why legislation cannot any longer be deferred.

Finally, I would point out that support of legislation has made it possible for the executive branch of the United States Government to work with the Congress in framing legislation that would be compatible with our primary goal-the negotiation of a comprehensive law of the sea treaty .... [T]he legislation is now fundamentally consonant with the aims of this Conference

Dept. of State File No. P80 0012-1442.

Art. 38 of the Statute of the International Court of Justice reads:

Article 38

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States;

(b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations;

(d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

2.

This provision shall not prejudice the power of the Court to decide a

a case ex aequo et bono, if the parties agree thereto.

TS 993; 59 Stat. 1060; Bevans, Treaties and Other International Agreements of the United States of America, 1776–1949, Vol. 3 (1969), p. 1187.

Following an invitation from twenty-seven United States Senators to the Reverend Ndabaningi Sithole, Chairman, Executive Council, Transitional Government of Rhodesia, for a delegation of his Government, including Mr. Ian D. Smith, to visit the United States, the Reverend Sithole and Mr. Smith applied for United States visas. The Department of State announced on October 4, 1978, that it had decided to make an exception and grant the requested visas, in the belief that the visit might contribute to achieving a settlement of the Rhodesian conflict. The Department emphasized that its decision to admit Mr. Smith did not mean that the United States would cease to observe its responsibilities under the Security Council's resolution on Rhodesia, nor did it imply recognition of or support for the Rhodesian administration, nor endorsement of the Internal Settlement (Rhodesian Constitutional Agreement of March 3, 1978).

Dept. of State News Briefing, DPC 187, Oct. 4, 1978.

Nevertheless, on October 5, 1978, Tirivafi J. Kangai and three other individuals, all alleging that they were inhabitants of Southern Rhodesia, unable to return there and live in safety because of the Smith "regime" in Southern Rhodesia, and Trans-Africa, Inc., a corporation for informing and organizing public opinion in the United States, brought suit against Secretary of State Cyrus R. Vance and Attorney General Griffin W. Bell, seeking a declaratory judgment that the decision to issue a visa to Mr. Ian Smith of Rhodesia was invalid, void, and of no effect, and also to enjoin its issuance. The plaintiffs also requested a temporary restraining order prohibiting issuance of the visa, and alternatively, restraining the Secretary of State and the Attorney General from permitting Mr. Smith's entry into the United States, pending a hearing and determination upon their complaint.

In their complaint, the plaintiffs alleged that the decision to issue the visa contravened the United Nations Participation Act of 1945, as amended, section 5 (22 U.S.C. 287c) of which provides, in part, that "whenever the United States is called upon by the Security Council to apply measures which . . . [it] has decided, pursuant to Article 41 of... [the U.N.] Charter, are to be employed to give effect to its decisions . . ., the President may .. regulate, or prohibit, . . . means of communication between any foreign country or any national thereof or any person therein... and the