20 CFR 404.460 and 404.463
Questions have been raised concerning the application of the alien non-payment provisions in section 202(t) of the Social Security Act, as amended, to the inhabitants of the trust Territory of the Pacific Islands. These questions concern specifically section 202(t)(2) and 202(t)(3) of the Act, two exceptions to the prohibition on benefit payments to aliens in section 202(t)(1).
Section 202(t)(1) provides that no monthly benefits shall be paid to any individual who is not a citizen or national of the United States for certain months during which such individual is outside the United States. Section 202(t)(3) of the Act provides that section 202(t)(1) shall not apply in any case where its application would be contrary to any treaty obligation of the United States in effect on the date of the enactment of (the) subsection (i.e., August 1, 1956). And, section 202(t)(2) provides that section 202(t)(1) shall not apply to any individual who is a citizen of a foreign country which the Secretary finds has in effect a social insurance or pension system of general application under which benefits are paid on account of old-age, retirement of death, and under which individuals who are citizens of the United States but not citizens of such foreign country and who qualify for benefits under such social insurance or pension system, are permitted to receive benefits without regard to the duration of their absence from such foreign country.
With respect to section 202(t)(3), the issue is whether the trusteeship agreement between the United States and the Security Council of the United Nations may properly be consider a "treaty obligation of the United States" under that paragraph of the Act. In the event of the trusteeship agreement may be considered a "treaty obligation" under section 202(t)(3), there is a further question as to whether the suspension of benefits to individuals who are inhabitants or citizens of the Trust Territory (but not citizens or nationals of the United States) would be contrary to any provision of the trusteeship agreement. (An answer in the negative to either question would mean that the section 202(t)(3) exception could not be applied to citizens or inhabitants of the Trust Territory).
With respect to section 202(t)(2), the question is whether the Trust Territory may be considered a "foreign country" so that its citizens would be "citizens of foreign country" within the meaning of section 202(t)(2). If the Trust Territory is a "foreign country" and its citizens are "citizens of a foreign country" under section 202(t)(2), the nonpayment provisions of section 202(t)(1) would not be applicable to such citizens should the Secretary find that the Trust Territory has a social insurance system which meets the conditions prescribed in section 202(t)(2).
The agreement respecting the trusteeship for the Trust Territory was approved by the Security Council of the United Nations on April 2, 1947. On July 18, 1947, a joint resolution of both Houses of Congress (H.J. Res. 233, 80th Cong. 1st Sess., 61 Stat. 397 (1947) authorized the President of the United States to approve the trusteeship agreement on behalf of the United States. The President approved the agreement on July 18, 1947.
The trusteeship agreement is not a "treaty" within the restrictive constitutional usage of that term. Article II, section 2, clause 2, of the U.S. Constitution provides that the President shall have the power, by and with the advice and consent of the Senate, to make treaties provided two-thirds of the Senators present concur therein. The trust agreement (which was approved by both Houses of Congress by joint resolution prior to presidential approval) did not receive the concurrence of two-thirds of the Senate and therefore is not a "treaty" in the constitutional sense.
This distinction is critical, since the legislative history of section 202(t)(3) indicates that when Congress enacted that paragraph, it had in mind treaties in the constitutional sense (and not executive agreements or other international agreements or compacts). See Hearings on the Social Security System before the Subcommittee on Social Security of the House Committee on Ways and Means, 83rd Cong., 1st Sess., pt 2, pp. 152-168.
Nevertheless, even if the word "treaty" in section 202(t)(3) includes the subject trusteeship agreement, the application of section 202(t)(1) to citizens of the Trust Territory clearly is not contrary to may obligation undertaken by the United States in the subject agreement. The application of the alien nonpayment provisions of section 202(t)(1) would be contrary to provisions of the trusteeship agreement only if such provisions explicitly placed the citizens of the Trust Territory on a parity with American citizens in the application of laws and regulations implementing the United States' social insurance program or in some other manner created for the citizens of the Trust Territory a clear expectancy of benefit payments under the United States social security program. The trusteeship agreement, however, purports to restrict the United States solely in its role as administering authority of the Territory (while discharging its obligations under the United Nations Charter). There are no limitations in the agreement in the agreement on the inherent sovereign power of the United States to establish a social insurance system suitable to its national needs as it perceives them, to prescribe conditions for payment of benefits thereunder, and to treat under that system different classes of individuals differently, subject, of course, to constitutional limitations.
The remaining question is whether the Trust Territory may be considered a "foreign country" for purposes of section 202(t)(2) of the Act. At least two Federal courts have resolved this issue for purposes of another Federal statute, the Federal Tort Claims Act. That Act precludes any recovery for any tort claim which arises in a"foreign country." In a case where a tort claim arose from injuries sustained on an island which is part of the Trust Territory, the United States Court of Appeals for the Second Circuit held that the Trust Territory is a "foreign country"within the meaning of the provision of the Tort Claims Act which precludes claims arising in a "foreign country." Callas v. United States, 253 F.2d 838 (2nd Cir., 1958). See also Burnell v. United States, 77 F.Supp 68, 72 (S.D.N.Y., 1948)
There is further reason for interpreting the words "foreign country" in section 202(t)(2) to include the Trust Territory. It would seem to be of the Trust Territory (who by virtue of such citizenship would not be a citizen or national of the United States) may not be a citizen of a"foreign country." The ostensible purpose of that paragraph is to enable citizens of any internationally recognized political entity to be excepted from the nonpayment provisions of section 02(t)(1) when and if a social insurance or pension system of such entity meets the requirements of section 202(t)(2). It could be said that section 202(t)(2) envisages as a "foreign country" any intentionally recognized political entity for a dependency or territory thereof) which is not geographically part of the "United States," as defined in section 210(i) of the Act.
Accordingly, it is held that the trusteeship agreement between the United States N.U. Security Council providing for administration of the Trustee Territory of the Pacific Islands, does not constitute a "treaty" for purposes of section 202(t)(3) of Social Security Act. It is further held that such Trust Territory is a "foreign country" for purposes of section 202(t)(2) of the Act.
Back to Table of Contents