1998 book - United States Department of State › documents › organization › 139393.pdfA. LAW OF THE SEA AND RELATED BOUNDARY ISSUES 425 1. UN Law of the Sea Resolution 425 2

DIGEST OF

UNITED STATES PRACTICE

IN INTERNATIONAL LAW

1989–1990

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DIGEST OF

UNITED STATES PRACTICE

IN INTERNATIONAL LAW

1989–1990

Margaret S. PickeringSally J. CumminsDavid P. Stewart

Editors

Office of the Legal Adviser

United States Department of State

INTERNATIONAL LAW INSTITUTE

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The Digest of United States Practice in International Law is pub-lished by the International Law Institute under agreement withthe United States Department of State, Office of the Legal Adviser.The contents of the Digest, including selection of documents andpreparation of editorial commentary, are entirely under the aus-pices of the Office of the Legal Adviser.

INTERNATIONAL LAW INSTITUTE

For nearly fifty years the International Law Institute has addressedissues of interest to the international legal community throughresearch, publishing, training, and technical assistance. For infor-mation on the activities of the Institute:

Publishing OfficeInternational Law Institute1615 New Hampshire Avenue, NWWashington, DC 20009

202-483-3036202-483-3029 (fax)ILI homepage: www.ili.org

Commentary prepared by the editors and the format and organ-ization of this book are protected under copyright © by theInternational Law Institute, 2003. All rights reserved. No partsof the book may be reproduced, stored, or transmitted in anyform or by any means, including mechanical, electronic, or photo-copying without prior written permission from the InternationalLaw Institute.

ISBN 0-935328-93-9

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Table of Contents

Chapter 1NATIONALITY, CITIZENSHIP AND IMMIGRATION 1A. NATIONALITY AND CITIZENSHIP 1

1. Parentage Blood Testing in Filiation Claims 1a. Citizenship by birth 1b. Immigrant visas 2

2. Standards for Determining Expatriation 43. Retention of Citizenship 64. Status of Residents of Commonwealth of the

Northern Mariana Islands 95. Other Developments 12

a. Philippine war veterans 12b. Surrogate parentage 12

B. PASSPORTS 131. Reinstatement of Revoked Passport 13

C. IMMIGRATION AND VISAS 181. Exclusion of Aliens with AIDS 182. Visa Denial for Terrorist Activity: Consular

Non-reviewability 213. Nonimmigrant Visa Waiver Pilot Program 264. Status of A and G Visa Holders 285. Immigration Act of 1990: Exclusion of Aliens 30

a. Technology transfer 33b. Terrorism 33c. Foreign policy 34d. Membership in a totalitarian party 37e. Review of exclusion lists 39f. Temporary protected status 39

6. Visa Lottery Rule 40

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D. ASYLUM AND REFUGEE STATUS AND RELATED ISSUES 401. Salvadoran and Guatemalan Asylum Applicants 402. New Asylum Regulations 423. Haitian Refugees 474. Deferred Departure: Nationals of People’s

Republic of China 54E. DEPARTURE CONTROLS 57

1. Federal Aviation Restrictions 572. Departure Control Orders 60

Chapter 2CONSULAR AND JUDICIAL ASSISTANCE ANDRELATED ISSUES 63A. CONSULAR NOTIFICATION, ACCESS AND

ASSISTANCE 631. Consular Agents 632. Consular Functions: Disaster Assistance 64

B. CHILDREN 66International Adoption 66

C. PRISONER TRANSFER AND RELATED ISSUES 72Council of Europe Prisoner Transfer Convention: Italian Request for Terrorist 72

Chapter 3INTERNATIONAL CRIMINAL LAW 77A. EXTRADITION AND OTHER RENDITIONS,

AND MUTUAL LEGAL ASSISTANCE 771. Extradition 77

a. Extradition of Nicaraguan diplomat from Japan 77b. Waiver of the rule of speciality 78c. Rule of non-inquiry 79d. Department of State extradition procedures 88

2. Other Renditions 91Irregular apprehensions of criminal suspects 913. Mutual Legal Assistance and Related Issues 99

a. U.S.-USSR memorandum of understanding on Nazi war criminals 99

b. Admissibility of evidence obtained abroad 100

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B. INTERNATIONAL CRIMES 1081. Terrorism 108

a. U.S. legislation 108b. International counter-terrorism agreements 110

(1) Protocol for the Suppression of Unlawful Acts of Violence at Airports 110

(2) Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and Related Protocol 111

c. U.S. civil cause of action for terrorist acts 1142. Genocide, War Crimes and Crimes Against

Humanity 1193. Narcotrafficking: UN Convention against

Illicit Traffic in Narcotic Drugs and PsychotropicSubstances 128

C. INTERNATIONAL CRIMINAL TRIBUNALS 133International Criminal Court 133

Chapter 4TREATIES AND OTHER INTERNATIONAL AGREEMENTS 137A. CAPACITY TO MAKE 137

1. U.S. Signature: South Pacific Driftnet Convention 1372. Choice of Treaty Form: Treaty on the Final

Settlement with Germany 138B. CONCLUSION, ENTRY INTO FORCE,

APPLICATION AND TERMINATION 1421. Full Powers 1422. Reservation Practice: U.S. Reservations to

Genocide Convention 143

Chapter 5FEDERAL FOREIGN AFFAIRS AUTHORITY 151A. FOREIGN RELATIONS LAW OF THE UNITED

STATES AND THE INDIVIDUAL IN INTERNATIONAL LAW 1511. U.S. Government Employment of Foreign

Nationals in the United States 151

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2. Ambassadorial Functions: Authority 1533. Bipartisan Accord on Central America 156

B. STATUS OF CONSTITUENT ENTITIES 1611. Termination of Trust Territory of the Pacific

Islands 1612. Commonwealth of the Northern Mariana Islands 161

Chapter 6HUMAN RIGHTS 165A. GENERAL 165

Legal Status of the American Declaration of the Rights and Duties of Man 165

B. DISCRIMINATION 168Convention on the Elimination of All Forms ofDiscrimination Against Women 168

C. CHILDREN 171Convention on the Rights of the Child 171D. TORTURE 176

1. United Nations Torture Convention 1762. Torture: U.S. Legislation 190

E. LABOR ISSUES 194Convention on Migrant Workers 194

Chapter 7INTERNATIONAL ORGANIZATIONS AND MULTILATERAL INSTITUTIONS 197A. ISSUES RELATING TO NAMIBIAN

INDEPENDENCE 1971. United Nations Plan for Namibian Independence 1972. Namibia Impartiality Package 2003. U.S. Contributions to Peacekeeping Forces 201

B. STATUS OF PALESTINE LIBERATION ORGANIZATION 203

C. CLAIMS SETTLEMENT AGREEMENT WITH MULTINATIONAL FORCE AND OBSERVERS 206

D. INTERNATIONAL COURT OF JUSTICE INITIATIVE 207

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Chapter 8INTERNATIONAL CLAIMS AND STATE RESPONSIBILITY 211A. GOVERNMENT-TO-GOVERNMENT CLAIMS 211

1. Downing of Iran Air Flight 655 2112. United States-Iraq: U.S.S. Stark 2173. Settlement of Expropriation Claims against

Honduras 2194. Iran-United States Claims Tribunal 220a. Congressional testimony on status of claims 230b. Small claims settlement 230

B. CLAIMS OF INDIVIDUALS 2371. Claims against Nicaragua 2372. Claims against the German Democratic

Republic 238

Chapter 9DIPLOMATIC RELATIONS, CONTINUITY AND SUCCESSION OF STATES 241A. DIPLOMATIC RELATIONS OF THE UNITED

STATES 2411. General 2412. Access to United States Courts: Vietnamese

Nationals 2423. Protection of Lebanese Embassy 2434. Status of Jerusalem 2645. Federated States of Micronesia and the

Marshall Islands 268B. STATUS OF BALTIC STATES 271

Chapter 10IMMUNITIES AND RELATED ISSUES 277A. SOVEREIGN IMMUNITY 277

1. Appearance of USSR in U.S. Sovereign Immunity Case: The Wallenberg Case 277

2. Applicability to Foreign Naval Vessel Engaged inCommercial Activity 291

3. Litigation against United States in Foreign States 2944. Execution against Property of Foreign States 296

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5. Applicability of FSIA to Individuals Sued in theirOfficial Capacity 302

B. HEAD OF STATE IMMUNITY 3111. Suit by Libya against U.S. and U.K. Officials 3112. Divorce Action against President of Foreign

Country 3143. Deposition of Foreign President and Vice

President 3204. Deposition of Foreign Minister 321

C. DIPLOMATIC AND CONSULAR PRIVILEGESAND IMMUNITIES 3231. Diplomatic Privileges and Immunities 323

a. Appointment, accreditation and notification of diplomatic personnel 323

b. Violations of criminal law 324(1) New U.S. policies on abuse of diplomatic

immunity 324(2) Report to Congress on compensation for

victims of crimes 332(3) Waiver of diplomatic immunity in

criminal case in the United States 3382. Consular Privileges and Immunities: Immunity

from Criminal Charges 339D. INTERNATIONAL ORGANIZATIONS 353

Immunity of United Nations Special Rapporteur 353a. Jurisdiction of the Court 354b. Merits 361

E. OTHER ISSUES OF STATE REPRESENTATION 3701. U.S. Custody of Mission at Request of Foreign

Government 3702. Location of Diplomatic and Consular Buildings 374

a. Limitation on diplomatic agents outsideWashington, D.C. 374

b. Embassy property: zoning issues 377(1) Sweden 377(2) Turkey 379

3. Tax Exemptions 381a. Gasoline tax exemption 381b. Utility tax 383

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4. Labor Issues 385a. Dependent employment in the United States 385b. Applicability of U.S. labor law 388c. Applicability of local workers compensation

plans 390Chapter 11TRADE, COMMERCIAL RELATIONS, INVESTMENT AND TRANSPORTATION 395A. TRANSPORTATION BY AIR 395

Transition Agreement for United States Carriers in the Berlin Air Service 395

B. COMMUNICATIONS 396U.S. Radio and Television Broadcasting to Cuba 396

a. U.S. law 396b. Cuban objections and International

Telecommunications Union 399C. OTHER TRADE AGREEMENTS AND RELATED

ISSUES 4101. Taxation 410

a. Council of Europe and Organisation for Economic Co-operation and Development tax treaty 410

b. Conventions on avoidance of double taxation 411(1) U.S.-India 411(2) Other conventions 414

2. Intellectual Property: International Registration of Audio-Visual Works 415

3. Investment 418a. International Court of Justice case against Italy 418b. Prohibition on foreign control of U.S. company 418

Chapter 12TERRITORIAL REGIMES AND RELATED ISSUES 425A. LAW OF THE SEA AND RELATED BOUNDARY

ISSUES 4251. UN Law of the Sea Resolution 4252. Salvage at Sea 427

a. International Convention on Salvage 427b. Sunken warships: The C.S.S. Alabama 429

3. U.S.-USSR Maritime Boundary Agreement 434

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4. Rights and Freedoms of International Community in Navigation 437a. Innocent passage: U.S.-USSR uniform

interpretation 437b. Advance notice 440c. Flag state control 447

(1) U.S. jurisdiction over foreign-flagged vessels 447

(2) Maritime interdiction 448(3) Boarding and search on the high seas 452(4) Responsibility in response to protest 452

5. Limits of the Territorial Sea: Drawing of Baselines 4596. Coastal State Economic Jurisdiction 4637. State Authority over the Contiguous Zone 4658. Straits and Archipelagos 470

a. Cuban ship reporting system and traffic separation scheme 470

b. Archipelagos 472(1) Indonesia 472(2) Cape Verde 475

9. Brazilian Port Visit of U.S. Nuclear Submarine 47610. Marine Scientific Research: U.S. Policy 47711. Maritime Search and Rescue: U.S.-Mexico

Agreement 480B. OUTER SPACE 481

1. Commercial Launch Services: United States-People’s Republic of China 481

2. Application of U.S. Patent Law to Outer SpaceActivities 481

Chapter 13ENVIRONMENT AND OTHER TRANSNATIONAL SCIENTIFIC ISSUES 485

ENVIRONMENT 4851. Marine Conservation 485

a. Intergovernmental Resolution on DolphinConservation 485

b. U.S.-USSR Joint Statement on Bering Sea Fisheries Conservation 487

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c. U.S.-Canada agreement on Fisheries Enforcement 488

2. Marine Environment 489a. U.S.-USSR agreement on pollution in Bering

and Chukchi Seas 489b. South Pacific Regional Environmental

Convention 491

Chapter 14EDUCATIONAL AND CULTURAL ISSUES 499TOURISM AGREEMENTS 499

Chapter 15PRIVATE INTERNATIONAL LAW 501

INTER-AMERICAN CONVENTION ON INTERNATIONAL COMMERCIAL ARBITRATION 501

Chapter 16SANCTIONS 503A. IMPOSITION OF SANCTIONS 503

1. Missile Technology 503a. U.S. legislation 503b. Missile Technology Control Regime guidelines 506

2. Chemical and Biological Weapons 508a. Veto of legislation 508b. Executive order 512

B. LIFTING OF SANCTIONS 5171. Removal of Restrictions on Foreign Assistance 517

a. Hungary 517b. Poland 518c. Czechoslovakia 520d. German Democratic Republic 521

2. Lifting of Sanctions against Namibia 522

Chapter 17INTERNATIONAL CONFLICT RESOLUTION ANDAVOIDANCE 525A. CAMBODIA AND VIETNAM 525

1. Proposed Vesting of Vietnamese Assets 525

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2. Cambodian Settlement 527B. UNITED STATES-CHILE: INVOCATION OF

DISPUTES TREATY 537C. ECONOMIC ASSISTANCE TO EASTERN EUROPE 541

1. Support for East European Democracy Act 5412. U.S. Assistance Policy 5443. U.S.-Poland Joint Commission on Humanitarian

Assistance 546

Chapter 18USE OF FORCE AND ARMS CONTROL 549A. USE OF FORCE 549

1. U.S.-USSR Agreement on Prevention of DangerousMilitary Activities 549

2. Panama 552a. Deployment of U.S. forces to Panama 552b. Prisoners of war 561

3. Measures of Self-Defense 565B. ARMS CONTROL 565

1. U.S.-USSR Agreement on Principles of Implementing Trial Verification and Stability Measures 565

2. U.S.-USSR Agreement on Reciprocal AdvanceNotification of Major Strategic Exercises 566

3. Soviet Compliance with Arms Control Agreements 566a. U.S. report for 1989 566

(1) ABM Treaty 567(2) INF Treaty 569(3) Chemical, Biological, and Toxic

Weapons Convention 570b. U.S. report for 1990 571

(1) ABM Treaty 572(2) INF Treaty 572(3) Chemical, Biological, and Toxic

Weapons Convention 574(4) Limited Test Ban Treaty 574(5) Ballistic Missile Launch Notification

Agreement 575

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(6) Assessment of national security risks of Soviet violations 575

4. Conference on Prohibition of Chemical Weapons 5765. Treaty on Conventional Armed Forces in Europe 578

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Preface

With this volume covering the years 1989-1990, we have takenthe first step in filling the gap between 1988, when the publica-tion of the Digest ceased, and 2000, when annual publication ofthe Digest was renewed. We will complete the task with a set ofconsolidated volumes for 1991–1999, which we hope to publishin 2004.

At the same time, the editors will continue to prepare cur-rent-year volumes. The Institute is very pleased to work with theOffice of the Legal Adviser to make these volumes available forthe use of the international legal community.

Don Wallace, Jr.Chairman

International Law Institute

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Introduction

This volume of the now-revived Digest of U.S. Practice inInternational Law is a kind of “legal prequel.” As many users ofthe Digest know, the previous series of volumes covered the years1973 though 1988, after which publication was suspended for overa decade. The first volume of the current series was issued just ayear and half ago, covering calendar year 2000. The 2001 Digestfollowed quickly. The editors have now turned their efforts to fill-ing in the “gap” between 1988 and 2000, while maintaining theircommitment to produce current annual volumes in a timely fash-ion (the 2002 Digest is already in production). This volume, for1989–90, represents the first step in that “catch up” process.

The material included herein remains topical and, in manyinstances, still timely. The year 1989–90 was a transitional periodin international relations, as the world community continued todeal with implications of the end of the Cold War and theunsteady emergence of a new era. Many of the tensions and ambi-guities of the time are reflected in the documents excerpted inthis volume. For example, the Immigration Act of 1990 wasadopted against the background of domestic U.S. concerns aboutterrorism, admission of refugees and exclusion of aliens—issuesthat continue to be important today. Other significant domesticlaw issues involved reservations to treaties (in this case, the 1948Genocide Convention), the application of doctrines of foreignsovereign immunity (the Wallenberg Case), the interplay betweensanctions and foreign assistance (e.g., Hungary, Poland,Czechoslovakia and the German Democratic Republic), and theallocation of foreign affairs authority in our federal system.

At the same time, the volume records U.S. efforts to deal effec-tively with the legal dimensions of very diverse issues on the inter-national plane, including the Iraqi attack on the U.S.S. Stark, the

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downing of Iran Air Flight 655, the deployment of U.S. armedforces in Panama, maritime interdiction incidents, irregular ren-dition of criminal suspects, and the Treaty on Conventional Forcesin Europe. Concerns about human rights, terrorism, and the waron drugs are indicated by the adoption of domestic legislationimplementing, or relating to the implementation of, the UNConvention on Torture and Other Cruel, Inhuman or DegradingTreatment or Punishment, the UN Convention Against IllicitTraffic in Narcotic Drugs and Psychotropic Substances, theMontreal Protocol on Suppression of Unlawful Acts of Violenceat Airports, and the IMO Convention on the Suppression ofUnlawful Acts Against the Safety of Maritime Navigation (nego-tiated in the aftermath of the Achille Lauro incident) and itsrelated Protocol on Fixed Platforms.

The aim of the Office of the Legal Adviser in renewing pub-lication of the Digest, and particularly in reaching back in timeto fill in the missing years, remains to provide practitioners, schol-ars and the public, as well as governmental officials, with readyaccess to documents and other information regarding U.S. viewsand actions in the most important areas of international law. Asreaders will appreciate, this effort requires a substantial amountof time and resources. We consider it worthwhile and continueto solicit comments and suggestions from those who use theDigest, to make it more useful and more usable.

Once again, I want to express my thanks to the editors of andcontributors to the Digest, in particular this year to Meg Pickering,to whom fell the initial task of drafting this volume, and JamiBorek, whose support and assistance made that undertaking pos-sible. The co-editors of this series, Sally Cummins and DavidStewart, were able to complete the effort, with the exceptionallyable assistance of Joan Sherer, one of the librarians in the Officeof the Legal Adviser.

Even as work progresses on the Digest for the current (2002)annual volume, efforts are well underway to compile the mate-rial for the period 1991–1999, which we and the InternationalLaw Institute hope to publish in 2004.

William H. Taft, IVThe Legal Adviser

U.S. Department of State April 2003

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Note from the Editors

With this volume we begin the process of filling in what we havecome to refer to as “the gap years”: the period from 1989 to1999 during which the Digest of U.S. Practice in InternationalLaw was not published. As always, we want to thank our col-leagues here in the Office of the Legal Adviser as well as ProfessorDon Wallace, Jr. and Peter B. Whitten, both of the InternationalLaw Institute, without whom this volume would not exist.

The Digest 1989–90 is unique in a variety of ways. The vol-ume was initially drafted by Meg Pickering nearly a dozen yearsago. The advantage in that fact is that she was well-positionedto collect documents relevant to the period. Unfortunately, dueto resource limitations, the volume was not published at thattime. In preparing to publish it now, we have reorganized thecontents to follow the subject matter structure introduced inDigest 2000. At the same time, the drafting of individual entriesremains closer to the style of the older Digest volumes.

As readers familiar with the Cumulative Digest 1981–1988are aware, the three volumes of that series were not publisheduntil 1994 and 1995. In the final preparations, a number of issueswere updated through the publication date. Where that updat-ing was comprehensive, entries in Digest 1989–90 are brieferthan their importance might otherwise warrant, with a cross-ref-erence back to the Cumulative Digest.

As with Digest 2000 and Digest 2001, the initial current-yearvolumes in the revived series, we have endeavored in this volumeto provide citations to publicly available sources for the full textof documents excerpted here. Not surprisingly, far fewer of thesedocuments are available on the internet. In addition, due to theevolution of the computer systems in the Department of State,electronic versions of most of the documents do not exist.

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Nevertheless, for documents where there is no readily availablepublic source in print or on the internet, we are again making asmany as possible available on the State Department website atwww.state.gov/s/l. Some documents, such as telegrams, proved tobe too costly to prepare in compliance with regulations on gov-ernment internet postings. We believe, however, that the excerptsin the book are sufficiently extensive so that this omission willnot present any real problems for the reader.

As in previous volumes, selections in this volume reflect ourjudgments about the significance of the issues, their possible rele-vance for future situations, and their likely interest to scholars andother academics, government lawyers, and private practitioners.

Margaret S. PickeringSally J. CumminsDavid P. Stewart

April 2003

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CHAPTER 1

Nationality, Citizenship and Immigration

A. NATIONALITY AND CITIZENSHIP

1. Parentage Blood Testing in Filiation Claims

a. Citizenship by birth

In October 1989 the State Department provided guidance to the U.S.Embassy in Athens, Greece, concerning possible use of blood teststo establish whether a child is the blood issue of U.S. parents andtherefore has a claim to U.S. citizenship by birth abroad to a U.S.citizen parent. The telegram included the following information:

Parentage blood testing provides the claimant with anadditional means of attempting to establish such a claim.Parentage tests involve laboratory procedures performedon blood samples obtained from the child and the puta-tive mother and father. Conclusions in parentage bloodtesting are based upon the principle that the child inher-its genetic markers in his or her blood from each of hisor her natural parents. Parentage blood tests cannot provewith 100 percent certainty that an individual is a child’sparent, but can provide a statistical likelihood of parent-age based on the identification of genetic markers in thegeneral population. Parentage blood tests can establishdefinitively that an individual is not a child’s parent as aresult of the absolute exclusion of the putative parent dueto the absence of genetic markers present in the child’sblood from the samples of either putative parent. At the

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present time, the cumulative exclusion rate of the entiregamut of parentage blood tests is 99.98 percent. There-fore, it is possible that if an individual is not excluded afterall testing is conducted there is only a .02 percent proba-bility that another individual is the child’s parent.

When the Department of State agrees to consider parent-age blood tests as evidence in a citizenship case, the testingmust be conducted in accordance with the joint AmericanMedical Association—American Bar Association guidelineson parentage blood testing, the standards for parentagetesting laboratories of the American Association of BloodBanks and the Department of Health and Human ServicesGuidelines of 1981. Moreover, the testing must be con-ducted at a laboratory accredited by [the] AmericanAssociation of Blood Banks for parentage testing orincluded in the list of blood testing laboratories preparedby the Department of Health and Human Services.

Dept. of State Telegram to U.S. Embassy Athens, Greece, October2, 1989.

b. Immigrant visas

During 1989 and 1990, issues regarding parentage blood testingalso arose in the area of immigrant visa issuance. In response toone U.S. consulate’s inquiry regarding the use of blood tests to ver-ify relationships relied on by applicants to qualify for immigrantvisas, the Department of State noted that blood tests would nor-mally only be explored, where appropriate, by the INS in the courseof petition adjudication, as discussed in 9 FAM 42.41 PN 4. Thetelegram also explained that approval by INS of a petition is itselfconsidered to establish a valid relationship between the petitionerand alien beneficiary. Therefore, the consulate “should not ques-tion approved petitions unless information becomes available thatwas not available to INS at the time of petition adjudication. Inthose cases the petition should be returned to INS for reconsider-ation” under 9 FAM 42.41 N1. Telegram from the Department ofState to U.S. Consulate Guangzhou, May 11, 1989.

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The use of blood tests to combat immigrant visa fraud wasraised by several posts during this period. The U.S. Embassy inManila reported:

The immigrant visa section uses HLA genetic testing as ameans of confirming filiation in cases where the parentageof applicants is in doubt, when there is no independent doc-umentary evidence to substantiate the alleged relationship,and when circumstances of the case suggest that the claimedblood relationship may in fact not exist. . . .

Telegram from U.S. Embassy, Manila, to the Department of State,June 7, 1990.

On October 9, 1990, the State Department authorized the useof DNA “profiling” (genetic fingerprinting) in a specific case as ameans of establishing definitively the relationship between a peti-tioner and beneficiary. The Department provided the follow-ing guidance regarding the use of such blood tests:

Neither the Department nor the INS has as yet estab-lished guidelines for DNA profiling although INS has suchguidelines under consideration. . . .

* * * *

Notwithstanding the lack of established guidelines,Department authorizes post in this case repeat in this caseto suggest genetic profiling to the applicant as a voluntarymeans of establishing identity and entitlement to status. . .. Applicant should be advised that, if he wishes to pursuehis application in view of the documentary anomalies todate, conclusive establishment of his identity is crucial. Tothat end genetic fingerprinting at the expense of the peti-tioner and beneficiary might be one means of establishingentitlement to status. He should also be advised that, if hedeclines to take the test at this time, the petition will bereturned to INS with a memorandum explaining the docu-mentary discrepancies.

Telegram from the Department of State to U.S. Consulate,Karachi, October 9, 1990.

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2. Standards for Determining Expatriation

On April 16, 1990, after years of litigation in which the courtsincreasingly failed to uphold loss-of-nationality determinationsby the Department of State, the Department adopted new admin-istrative standards for determining a U.S. national’s intent, in con-nection with the Department’s adjudication of cases involvingpotential loss of U.S. nationality based on the national’s per-formance of a statutorily established expatriating act. Such actsresult in loss of nationality when performed voluntarily and withthe intention of relinquishing U.S. nationality. Section 349 of theImmigration and Nationality Act (“INA”), 8 U.S.C. § 1481. Asexplained in a State Department telegram to all overseas posts:

Changes in interpretation of citizenship law have made[loss of citizenship] cases progressively more difficult tomanage. In a given case, the facts may yield a number ofdifferent interpretations, or leave conscientious officers inthe field and at the Department unsure of whether thefacts fall just short of or just beyond the applicable stan-dards. The officer reviewing the case, however, is left witha simple and uncompromising choice: loss or retention ofAmerican citizenship.

Telegram from the Department of State, April 16, 1990.The new standards were set out in a public information state-

ment that provided, in pertinent part:

The Department has a uniform administrative standardof evidence based on the premise that U.S. citizens intendto retain United States citizenship when they obtain nat-uralization in a foreign state, subscribe to routine decla-rations of allegiance to a foreign state, or accept non-policylevel employment with a foreign government.

Disposition Of Cases When Administrative Premise IsApplicable

In light of the administrative premise discussed above,a person who:


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(1) is naturalized in a foreign country;(2) takes a routine oath of allegiance; or(3) accepts non-policy level employment with a foreign

government

and in so doing wishes to retain U.S. citizenship, need notsubmit prior to the commission of the potentially expatri-ating act a statement or evidence of his or her intent toretain U.S. citizenship since such intent will be presumed.

When such cases come to the attention of a U.S. consularofficer, the person concerned will be asked to complete aquestionnaire to ascertain his or her intent toward U.S. citi-zenship. Unless the person affirmatively asserts in the ques-tionnaire that it was his or her intent to relinquish U.S.citizenship, the consular officer will certify that it was notthe person’s intent to relinquish U.S. citizenship and, conse-quently, find that the person has retained U.S. citizenship.

Disposition Of Cases When Administrative Premise IsInapplicable

The premise that a person intends to retain U.S. citi-zenship is not applicable when the individual:

(1) formally renounces U.S. citizenship before a consularofficer;

(2) takes a policy level position in a foreign state;(3) is convicted of treason; or(4) performs an act made potentially expatriating by

statute accompanied by conduct which is so inconsis-tent with retention of U.S. citizenship that it compelsa conclusion that the individual intended to relinquishU.S. citizenship. (Such cases are very rare.)

Cases in categories 2, 3, and 4 will be developed care-fully by U.S. consular officers to ascertain the individual’sintent toward U.S. citizenship.


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Applicability Of Administrative Premise To Past Cases

The premise established by the administrative stan-dard of evidence is applicable to cases adjudicated previ-ously. Persons who previously lost U.S. citizenship maywish to have their cases reconsidered in light of this pol-icy. . . . Each case will be reviewed on its own merits tak-ing into consideration, for example, statements made bythe person at the time of the potentially expatriating act.

Dual Nationality

When a person is naturalized in a foreign state (or oth-erwise possesses another nationality) and is thereafter foundnot to have lost U.S. citizenship, the individual consequentlymay possess dual nationality. It is prudent, however, tocheck with authorities of the other country to see if dualnationality is permissible under local law. The United Statesdoes not favor dual nationality as a matter of policy, butdoes recognize its existence in individual cases.

“Advice about Possible Loss of U.S. Citizenship and Dual Nationality,”Bureau of Consular Affairs, U.S. Department of State; reprinted inInterpreter Releases, pp. 1092–94 (October 1, 1990).

3. Retention of Citizenship

In a telegram to all diplomatic and consular posts of February 1,1989, the Department established simplified procedures for adju-dication of cases involving former section 301(b) of the Immi-gration and Nationality Act, 8 U.S.C. § 1401(b). Former section301(b) established requirements for physical presence in the UnitedStates for the retention of U.S. citizenship by certain citizens whoacquired citizenship by birth outside the U.S. and who had onlyone U.S. citizen parent. Due to changes in U.S. citizenship statutes,which determine citizenship as of the time of birth, the provisionwas applicable to persons born between May 24, 1934 andOctober 10, 1952. The telegram addressed the affirmative defensesthat would excuse noncompliance with the physical presence andother retention requirements.


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First, the telegram addressed the affirmative defense of“unawareness,” where the person had not been aware of a pos-sible claim to U.S. citizenship:

[U]nless there is evidence of an applicant’s awareness ofhis claim to U.S. citizenship, we will accept the applicant’scredible and convincing statements of unawareness.

* * * *

In some cases direct evidence of knowledge of a claimcould be imputed to the applicant if an applicant’s siblingpreviously inquired or applied for documentation as anAmerican citizen. However, the use of such evidence tocounter a claim of unawareness would require not only astatement from the sibling, but a thorough developmentof the sibling’s awareness case as well. In this regard, thereis no requirement . . . to query each sibling and parent ofthe applicant. Post should attempt to develop only thatevidence which would appear to refute the applicant’sstatements. In any case, it should not be necessary torequire a personal appearance by any sibling.

Posts may consider evidence which is circumstantial butnevertheless probative in assessing a claim of unawareness.For example, there has been a substantial American pres-ence in the Philippines since late in the last century. Anunawareness claim from an applicant from the Philippineswith an English surname might, therefore, raise questionsthat a similar claim in the United Kingdom would notraise. Thus, there may be, in any case, historical or cul-tural factors which should be taken into consideration.

Next, the telegram addressed the affirmative defense of impossi-bility of performance:

This excuse is most likely to be substantiated in totalitar-ian states where government permission was required todepart the country. (This is not to be confused with aninstance in which a person considered the possibility ofhis or her relocation to the United States to be merely dif-ficult, inconvenient, or financially disadvantageous.)


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* * * *

Since claims of inability often require evidence of pos-itive action on the part of the applicant, they have gener-ally been easier to prove than unawareness claims (whichrequire proving a negative). However, it is not sufficientto merely assert that compliance was attempted.

While cases may not be adjudicated solely under a blan-ket acceptance of inability for periods during which com-pliance is known to have been impossible, posts mayacknowledge that, during certain periods, persons wouldnot have been permitted to leave a country, and that it wascommon knowledge during those periods that efforts toleave the country would entail substantial risk. For exam-ple, we know that emigration from most Eastern Europeancountries was extremely difficult after the second WorldWar. Requests to emigrate still carry substantial politicalrisk in some bloc countries, even in this period of “open-ness.” Thus, [in such countries] should a former Americancitizen present an application based on a credible claim thathe would have traveled to the U.S. to comply with reten-tion requirements but found such travel forbidden, directlyor indirectly, the consular officer should accept that claimas an effective defense to the retention requirements.

Finally, the telegram reviewed the defense of official misinformation:

Noncompliance with the retention requirements willalso be excused in those cases in which the applicant canaffirmatively demonstrate that he was misinformed by anagent of the federal government regarding the retentionrequirements or, in rare cases, the underlying claim to cit-izenship. (In this context, an agent is an employee of thefederal government who might reasonably be expected tohave knowledge of citizenship matters.) Such cases arisevery infrequently. It is incumbent upon the applicant toprovide convincing evidence of misinformation beyond asimple self-serving statement.

One example of a possible misinformation defense isa case where the applicant was issued a full validity pass-


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port when, in fact, the passport should have been limitedfor purposes of compliance with the retention of citizen-ship provisions.

Conversely, an incorrect denial of a legitimate claimto citizenship could lead to a failure to comply with reten-tion requirements. The denial of passport services, forexample, could result in a citizen’s inability to meet reten-tion requirements. That denial would anchor a strong affir-mative defense on retention in the event of a correctadjudication of the underlying claim at some later date.

On occasion, applicants may present official corre-spondence which appears to have inadvertently misrepre-sented retention requirements or other laws, policies orprocedures, resulting in a failure to comply.

4. Status of Residents of Commonwealth of the Northern Mariana Islands

In 1975 the United States and the Northern Mariana Islands, thenpart of the Trust Territory of the Pacific Islands (“TTPI”), whichhad been administered by the United States since 1947, concludedthe Covenant to Establish a Commonwealth of the NorthernMariana Islands in Political Union with the United States,approved by Congress in 1976, Act of March 24, 1976, Pub. L.No. 94-241, 90 Stat. 263 (1976). On November 3, 1986, PresidentRonald Reagan formally terminated the TTPI and, among otherthings, declared effective parts of the covenant with the NorthernMariana Islands, creating the Commonwealth of the NorthernMariana Islands (“CNMI”). Presidential Proclamation 5564, 51Fed. Reg. 40,399 (Nov. 3, 1986). See discussion of developmentsfollowing this action in Chapter 5.B.below and in CumulativeDigest 1981–1988 at 442–455, 503–507.

Under section 301 of the covenant, persons meeting require-ments of birth or residence in the Mariana Islands were deter-mined to be U.S. citizens as of November 3, 1986. On May 31,1989, in order to address certain problems that had arisen in theapplication of section 301’s criteria, the INS issued a memoran-dum attaching a list, agreed to by the Department of State andthe INS, of documentary requirements and procedures for adju-


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dicating applications for citizen identification cards. (Reprintedin Interpreter Releases, pp. 756–61 (July 10, 1989).) The memo-randum noted that certain additional, unresolved questions hadbeen referred to the general counsel of the INS for review.

On June 9, 1989, the general counsel of the INS issued a mem-orandum addressing questions concerning the status of aliens whodo not qualify as “immediate relatives under section 506(c) of theCovenant.” Section 506(c) provided special procedures for imme-diate relatives of U.S. citizens residing permanently in the CNMI,as follows:

With respect to aliens who are “immediate relatives” (asdefined in Subsection 201(b) of [the Immigration andNationality Act]) of United States citizens who are per-manently residing in the Northern Mariana Islands all theprovisions of the said Act will apply, commencing whena claim is made to entitlement to “immediate relative” sta-tus. A person who is certified by the Government of theNorthern Mariana Islands both to have been a lawful per-manent resident of the Northern Mariana Islands and tohave had the “immediate relative” relationship denotedherein on the effective date of this Section will be pre-sumed to have been admitted to the United States for law-ful permanent residence as of that date without therequirement of any of the usual procedures set forth inthe said Act. For the purposes of the requirements of judi-cial naturalization, the Northern Mariana islands will bedeemed to constitute a State as defined in Subsection101(a) paragraph (36) of the said Act. The Courts ofrecord of the Northern Mariana islands and the DistrictCourt for the Northern Mariana Islands will be includedamong the courts specified in Subsection 310(a) of thesaid Act and will have jurisdiction to naturalize personswho become eligible under this Section and who residewithin their respective jurisdictions.

The memorandum concluded that aliens not covered by 506(c)do not enjoy comparable advantages. In pertinent part, the mem-orandum stated:


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The CNMI is a self-governing political entity “in politi-cal union with and under the sovereignty of the UnitedStates.” CNMI Covenant, art. I, section 101. The CNMICovenant grants a considerable degree of protection tothe CNMI’s right to self-government. For example, Federallegislation that “cannot . . . be made applicable to the sev-eral States” does not apply to the CNMI unless Congressexpressly makes the legislation apply to the CNMI. Id.,art. I, section 105. . . .

Immigration is a matter subject to the control of theCNMI Government. With three narrow exceptions, theimmigration and naturalization laws of the United Statesdo not apply in the CNMI. Id., art. V, section 503(a).*The Covenant’s drafting history reveals that the draftersintended section 503(a) to give the CNMI the authorityto enact its own immigration laws. Section-By-SectionAnalysis, reprinted in Hearing on H.J. Res. 549, H.J. Res.550 and H.J. Res. 547 Before the Subcommittee onTerritorial and Insular Affairs of the Committee on Interiorand Insular Affairs, House of Representatives, 94th Cong.,lst Sess., at 626, 642 (Volume XI of Hearings Before theHouse Committee on Interior and Insular Affiars, 94thCong., lst Sess.). Congress knew that its approval of thelanguage of section 503(a) would permit the CNMI toenact its own immigration law. H.R.Rep. 364, 94th Cong.,1st Sess. at 9.

One exception to section 503(a) is relevant to the ques-tions . . . presented. This exception concerns aliens whoare the section 201(b) [of the Immigration and NationalityAct (“INA”)] immediate relatives of United States citizenswho reside permanently in the CNMI. CNMI Covenant,art. V, section 506(c). All of the provisions of the INA


* [Editors’ Note: Section 503 provides, in pertinent part:The following laws of the United States, presently inapplicable tothe Trust Territory of the Pacific Islands, will not apply to theNorthern Marianaa Islands except in the manner and to the extentmade applicable to them by the Congress by law after terminationof the Trusteeship Agreement:

(a) except as otherwise provided in Section 506, the immi-gration and naturalization laws of the United States. . . .]

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apply to these immediate relatives. Id. For the purposesof this exception, the CNMI is deemed to be included inthe INA’s definition of the “United States.” Id., section506(a). The CNMI is also deemed to be a “State” for thepurposes of the residence requirements for the natural-ization of these immediate relatives. Id., section 506(c).The INA does not apply, however, to aliens who do notqualify as section 201(b) immediate relatives, nor to alienswho are the section 201(b) immediate relatives of UnitedStates citizens who do not reside permanently in theCNMI. Id.

Legal Opinion, Office of the General Counsel to Assistant INSCommissioner James A. Puleo, June 19, 1989, reprinted inInterpreter Releases, pp. 894–98 (August 7, 1989).

Accordingly, the Office of the General Counsel concluded thataliens who do not qualify as covenant section 506(c) immediaterelatives could not satisfy the resident requirement for naturaliza-tion as U.S. citizens through residence in the CNMI and could losetheir lawful permanent resident status by residing in the CNMI.

Because an alien “must have been ‘inspected and admitted orparoled into the United States’ in order to qualify for adjustmentof status,” the opinion also concluded that “aliens who are in theCNMI but who do not qualify as section 506(c) immediate rela-tives do not qualify for adjustment of status under Section 245 ofthe Immigration and Nationality Act,” and may not obtain adjust-ment of status under section 245 of the INA if they resided in theCNMI.

Finally, since Congress “conferred jurisdiction to naturalizeon the CNMI courts of record . . . [only for] aliens who are sec-tion 506(c) immediate relatives,” CNMI courts did not have juris-diction to grant naturalization as U.S. citizens to these aliens. Id.

5. Other Developments

a. Philippine war veterans

Section 405 of the Immigration Act of 1990, Pub. L. No. 101–649,8 U.S.C. § 1440 note, granted special naturalization benefits to


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natives of the Philippines who served honorably under U.S. com-mand or within the Philippine army, Scouts or recognized guerillaunits during World War II. The law included a waiver of certainresidency requirements for those veterans who apply for natu-ralization within two years of the law’s enactment. Informationabout the Philippine war veterans’ circumstances and efforts toobtain naturalization are discussed in INS v. Hibi, 414 U.S. 5(1973); Matter of Naturalization of 68 Filipino War Vets, 406 F.Supp. 931 (N.D.Cal.1975); United States v. Mendoza, 464 U.S.154 (1984); and INS v. Pangilinan, 486 U.S. 875 (1988).

b. Surrogate parentage

In June 1990 the Department of State responded to a request forguidance from an overseas post in a case concerning the citizen-ship at birth of a child born overseas through artificial insemina-tion to a U.S. father and a surrogate mother who was not a U.S.citizen. The guidance indicated that, as in all cases of children bornabroad to an American citizen parent, a blood relationship betweenthe parent and child must be proved. In the case of artificial insem-ination by the citizen parent, evidence such as certification byappropriate medical authorities as to all facts and circumstancessurrounding the entire insemination procedure would be required.In addition, the citizen parent would have to prove sufficient phys-ical presence in the United States to transmit citizenship and,because the child would be considered to have been born out ofwedlock to a U.S. citizen father, the child would have to be legit-imated prior to age 18. Telegram from the Department of Stateto Embassy Vientiane, June 1, 1990.

B. PASSPORTS

1. Reinstatement of Revoked Passport

On January 21, 1987, Philip Agee applied for a passport at theUnited States Embassy in Madrid. Agee’s U.S. passport had beenrevoked in 1979 on the basis that his “activities abroad were caus-ing or likely to cause serious damage to the national security orthe foreign policy of the United States,” 22 C.F.R. §§ 51.70(b)(4)


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and 51.71(a)(2002). Agee, a former CIA employee, had engagedin a campaign to expose the identity of CIA agents, and wasallegedly involved with the Iranian captors of U.S. Embassyemployees in Iran. The passport revocation was upheld by theU.S. Supreme Court. Haig v. Agee, 453 U.S. 280 (1981). SeeDigest 1979, pp. 293–97; Digest 1980 at 125–32.

On June 29, 1987, Agee received a letter from the Depart-ment of State denying his request for a passport on the basis of22 C.F.R. § 51.70(b)(5) (2002), which permits the Secretary todeny a passport where “[t]he applicant has been the subject of aprior adverse action . . . under [22 C.F.R. § 51.70 or 51.71 (2002)]and has not shown that a change in circumstances since theadverse action warrants issuance of a passport.”

The decision took into account submissions made by Agee inApril 1987 through counsel addressing the changed circumstancesrequirement and requesting a hearing if his application weredenied. The decision also relied on a letter of June 20, 1987, fromWilliam H. Webster, Director of Central Intelligence, assertingthat Agee had assisted various hostile intelligence services andhad violated an injunction to observe a secrecy agreement withthe CIA. The Webster letter set forth twelve specific chargesagainst Agee.

On October 15, 1987, the State Department held a hearingat which Agee appeared with counsel. The hearing officer rec-ommended affirmation of the passport denial. This recommen-dation was accepted by Assistant Secretary for Consular AffairsJoan M. Clark on February 10, 1988.

Agee appealed to the Department of State’s Board of AppellateReview, which remanded the case because the administrativerecord was incomplete. The board noted its concern that Ageehad requested and been denied the opportunity to cross-examineDirector Webster concerning the twelve charges included in hisletter. Accordingly, in May 1989 the Department provided Ageewith two declarations from the CIA, affirming that the informa-tion upon which its assertions were based was obtained in thenormal course of CIA business, and that the sources were gen-uine and the translations accurate. The Department refused arequest for a hearing, on the ground that it had fully met therequirements of the remand. The Department offered to entertainwritten interrogatories, but Agee submitted none.


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On June 8, 1990, Agee filed suit in the U.S. District Courtfor the District of Columbia against the Department of Stateseeking a passport and asserting that the procedures followedby the Department in denying his passport application violatedthe Constitution, federal statutes and regulations. Agee v. Baker,No. 90-1350 (D.D.C. 1990) (GAG).

Both parties moved for summary judgment. The U.S. brief inthe case emphasized that, “[u]nder applicable law, it is [Agee],already adjudged as a threat to national security and not entitledto an American passport, who bears the burden of showing thatthose circumstances have changed.” Defendant’s Opposition toPlaintiff’s Cross-Motion for Summary Judgment, Agee v. Baker,No. 90-1350 (D.D.C. 1990) (GAG), p. 2 (Oct. 10, 1990), avail-able at www.state.gov/s/l.

The brief then stated that plaintiff had failed to meet his bur-den of proof, noting that Agee, in fact, had not even challengedthe adverse material placed in the record by the Department.Addressing the constitutional issue of the right to travel, the U.S.brief stated:

Plaintiff has no constitutional right to travel on anAmerican passport. . . . Contrary to plaintiff’s arguments. . . there is no “proposed deprivation” of plaintiff’s rights,only a question of whether an existing, and lawful, dep-rivation should continue.

Id. at p. 5.The brief pointed out that, under the Administrative Procedure

Act, 5 U.S.C. § 706, the Department of State’s decision had to beupheld as long as it was not arbitrary and capricious, and wasrationally based on the record. The record in the case was sum-marized as follows:

Here, the evidence before the Secretary showed that, whileplaintiff had submitted some materials for prepublicationreview by the CIA, there was also reason to believe thatplaintiff had made public statements concerning the CIA’sactivities without approval, that he repeated his previ-ously-voiced intention to engage in a campaign againstthe CIA, and that he enjoyed the favor of governments


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hostile to the United States. In these circumstances, it wasentirely rational for the Department to conclude that plain-tiff’s circumstances had not changed and consequently,that he was not entitled to a reissued passport.

Id. at 13.As to Agee’s procedural assertions, the U.S. government took

the view that the Department’s regulations were properly applied,and that Agee was not denied any constitutional right to cross-examination because he refused to submit written interrogatorieswhen given the opportunity.

On October 30, 1990, the district court granted the U.S.motion for summary judgment and dismissed Agee’s complaint.Agee v. Baker, 753 F. Supp. 373 (D.D.C. 1990). The court addressedin detail what it viewed as Agee’s central claims, “that theDepartment deprived him of a passport without due process oflaw by acting on the basis of unreliable evidence and denying himadequate information and confrontation regarding the sources ofthat evidence.” Id. at 385. With regard to Agee’s procedural claim,the court stated:

Undoubtedly, the Court would normally have an obliga-tion to test the government’s passport procedures providedto ensure consistency with the Fifth Amendment’s DueProcess Clause. See Mathews v. Eldridge, 424 U.S. 319(1976). International travel, while not an unqualified right,is a liberty interest which the Fifth Amendment forbidsthe government from taking away from a citizen withoutprocedural due process. Kent v. Dulles, 357 U.S. 116, 125(1958); Haig v. Agee, 453 U.S. at 306–07.

In Agee’s situation, possession of a United States pass-port is a matter of more than casual desire to travel. TheDepartment states that Agee, who resides with his wife inMadrid, is free to come home without a passport. ButAgee says he needs a passport to maintain his married lifein Europe while continuing his world travel to earn a liv-ing by making speeches in the United States and elsewhere.


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The Department’s passport regulatory authority canno longer be exercised by fiat, as it appears to have beenin the past. The Department must have meaningful pro-cedures adequate to resolve both passport issuance andpassport revocation promptly and fairly. This role is ofparticular consequence today given the increasing neces-sity of foreign travel on the one hand and ever-presentnational security concerns on the other.

Had Agee and his counsel fairly tested the existing pro-cedures, the Court could by review of the administrativerecord consider whether or not Agee received the processdue under the circumstances and act to correct any per-ceived deficiency. . . .

* * * *

A “clear and convincing evidence” burden imposed onthe government, although often appropriate where a pro-tected liberty interest is at stake, may be unwarranted inthe case of a person who has been the subject of a prioradverse passport determination. However, if the applicantmakes a credible showing of changed circumstances, theDue Process Clause would clearly require the governmentto present some reliable, verifiable evidence rebutting theapplicant’s showing. On the other hand, if the governmentmakes such a showing, and new, serious charges are raised,the applicant cannot simply remain silent and prevail.

* * * *

In the last analysis, this is an instance where the Courtmust accept the sufficiency of the administrative decisionbecause there was no attempt to exhaust the processesprovided and, accordingly, the issues tendered by Agee arenot ripe. There is nothing on the face of the passport reg-ulations that denies due process, and one who claims moreprocess is due has the burden of fairly testing the adequacyof what is provided.

Id. at 386–88 (footnotes omitted).


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C. IMMIGRATION AND VISAS

1. Exclusion of Aliens with AIDS

In 1987, consistent with the requirement of section 518 of theSupplemental Appropriations Act, 1987, Pub.L. No. 100-71, 101Stat. 391, 475 (1987), the U.S. Department of Health and HumanServices added AIDS and infection with the human immunodefi-ciency virus (“HIV”) to the list of dangerous contagious diseasesthat make an alien inadmissible to the U.S. under § 212(a)(6) ofthe Immigration and Nationality Act (“INA”), 8 U.S.C. §1182(a)(6), now codified as 1182(a) (1)(A) (2002). The currentlist is found at § 42 C.F.R. § 34.2(b) (2001). In a telegram ofMarch 2, 1988, to all INS field offices, James A. Puleo, INS assis-tant commissioner for examinations, explained that there was nostatutory authority to waive this ineligibility for immigrant andfiancé visa cases, but that in refugee, legalization and nonimmi-grant visa cases the ineligibility could be waived under discre-tionary authority of the Attorney General. Section 212(d)(3) ofthe INA, 8 U.S.C. § 1182(d)(3)(2002). The telegram went on tostate that this waiver authority would not be used as a matter ofpolicy except where the applicant could establish that (1) the dan-ger to the public health of the United States created by the alien’sadmission to the United States was minimal, (2) the possibility ofthe spread of the infection created by the alien’s admission to theUnited States was minimal, and (3) there would be no costincurred by any level of government agency of the United Stateswithout prior consent of that agency. See 65 Interpreter Releases,p. 239 (March 14, 1988).

In April 1989 an immigration judge for the first time grantedsuch a waiver for a nonimmigrant alien, overriding a decision bythe INS. The alien had come to the United States to attend a healthconference on AIDS issues. The INS district director had approvedthe waiver request, finding that the applicant had met the guide-lines for a waiver. The INS associate commissioner for examina-tions had denied it, however, stating that “[a]lthough the Serviceis sensitive to the needs of people who want to exchange ideas,the Service has also, in these circumstances, a legal obligation toprotect the health and safety of United States residents. The riskof harm by an AIDS-infected alien in the absence of humanitar-


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ian reasons for the temporary admission of aliens far outweighsthe privilege of an alien to enter the United States to participatein a conference.” In overriding the INS denial, the immigrationjudge found that “the applicant has shown there is a minimal riskto the United States if he is admitted on a temporary basis.” Theapplicant was required to post a $10,000 bond. The Board ofImmigration Appeals refused to consider an INS request for astay. 66 Interpreter Releases, pp. 427–28 (April 17, 1989).

Subsequently, the Department of Justice implemented a newpolicy permitting waivers to enable otherwise admissible nonim-migrant aliens with AIDS to enter the United States for up to 30days to attend meetings, visit relatives or seek medical treatment.As explained in a May 25, 1989 telegram from Richard E.Norton, INS associate commissioner for examinations, to all INSfield offices:

. . . waivers and temporary admissions should be providedto those applicants who establish that their entry into theUnited States would confer a public benefit which out-weighs any risk to the public health. A sufficient publicbenefit can include a showing that the short term nonim-migrant will be attending academic or health related activ-ities (including seeking medical treatment), or conductingtemporary business in the U.S. A sufficient public benefitcan also include the applicant establishing that he or shewill visit close family members in the United States. . . .

Briefly transiting the United States to engage in similar activitiesin a third country could also constitute a sufficient public bene-fit. Id. at 624–27 (June 6, 1989).

In early 1990, in response to information concerning severallarge scientific educational conferences in the United States thataliens infected with AIDS were expected to attend, the U.S. gov-ernment modified visa application and waiver procedures to expe-dite processing and ensure confidentiality of informationconcerning HIV-infected individuals. 67 Interpreter Releases, pp.190–91 (February 12, 1990); id. at 262–64 (March 5, 1990);320–21 (March 19, 1990).

In April 1990 the attorney general exercised his discretionaryauthority under section 212(d)(3) to grant temporary 10-day visas


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for persons attending certain scientific and academic conferencesin the United States designated by the Department of Health andHuman Services to be in the public interest. Under the attorney gen-eral’s directive these persons did not have to identify whether theyare HIV positive. 67 Interpreter Releases, pp. 467–68 (April 23,1990); Id. at 535–36; 562 (May 14, 1990); 666–67 (June 18, 1990).

Section 601(a) of The Immigration Act of 1990, Pub. L. No.101–649, 104 Stat. 4978 (1990), amended subsection (a) of § 212of the INA, 8 U.S.C. § 1182(a), to revise the grounds for exclud-ing aliens, as discussed in section C.4. below. As to health-relatedgrounds, it created a new subsection (a)(1), replacing the languagethat, among other things, required AIDS and HIV infection beincluded on a list of “dangerous contagious diseases” making analien inadmissible absent waiver. The new subsection made exclud-able an alien “who is determined (in accordance with regulationsprescribed by the Secretary of Health and Human Services) tohave a communicable disease of public health significance,” with-out specifying the inclusion of any specific disease. 8 U.S.C. §1182(a)(l)(A)(i)(1990). The Congressional Conference Report onthe Act commented as follows on the revised provision on health-related exclusions:

The term in this section has been changed from “danger-ous contagious diseases” to “communicable diseases ofpublic health significance.” By substituting the words“public health significance” for “dangerous,” Congressintends to insure that this exclusion will apply only tothose diseases for which admission of aliens with such dis-ease would pose a public health risk to the United States.

The Secretary of Health and Human Services shalldetermine the content of regulations regarding the listof communicable diseases of public health significance,notwithstanding previous amendments to the law or pre-vious regulations setting forth the list of “dangerous, con-tagious diseases” under section 212(a)(6). . . .

H.R. Conf. Rep. No. 101-955, 101st Cong., 2d Sess. (1990), p. 128.

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2. Visa Denial for Terrorist Activity: Consular Non-reviewability

In January 1988 Gerry Adams applied for a nonimmigrant visato enter the United States to conduct a speaking tour. Adams wasthe president of Sinn Fein, an organization that the United Statesviews to be the political arm of the Provisional Irish RepublicanArmy. The U.S. consulate in Belfast denied the application on thebasis of § 212(a)(28)(F) of the Immigration and Nationality Act,8 U.S.C. § 1182 (a)(28)(F) (1990),** because of Adams’ allegedadvocacy of and personal involvement with terrorist violence.Following this action several U.S. entities brought suit in federalcourt seeking to have the visa denial set aside, on the basis thatthey desired to exchange views with Adams on U.S. soil in accor-dance with their constitutional rights to free association and com-munication. In July 1989, the district court entered summaryjudgment for the State Department. The court first addressed theDepartment’s argument that courts cannot review consular deter-minations of ineligibility:

The government attempts to distinguish this action fromthose in which a visa denial has been found reviewable,because it involves a determination of ineligibility by aconsular official, rather than the Attorney General’s fail-ure to grant a waiver of such ineligibility, as was the casein Kleindienst v. Mandel (408 U.S. 753, 770 (1972). Thesame rights are involved in this case as in those previouslyheld justiciable. See e.g., Kleindienst v. Mandel, supra;Allende v. Shultz, 845 F.2d 1111 (1st Cir. 1985). I see noprincipled basis to hold justiciable decisions expressly com-mitted to the Attorney General’s discretion, while insu-lating from review determinations made by StateDepartment officials based on clear statutory standards.In this case, the determination to deny Adams entry wasnot made solely by a consular officer, but was the deci-sion of a senior State Department official. See, e.g., Allende


** This provision was eliminated in the extensive revisions to section212(a) under § 601(a) of The Immigration Act of 1990, which introduceda new terrorism provision as 212(a)(3)(B), 8 U.S.C. 1182(a)(3)(B). See dis-cussion in section C.5. below.

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v. Shultz, 845 F.2d 1111 (lst Cir. 1985), reviewing a visadenial initially based on subsection 28, but as to whichthe Secretary set aside the question of waiver, and insteadbased ineligibility on subsection 27, for which waiver isunavailable.

Adams v. Baker, Civil Action No. 88-1701-S, slip op. at 5–6(D.Mass. July 10, 1989).

The court then rejected the plaintiffs’ arguments that Adamswas entitled to a visa on the basis of a waiver under the so-calledMcGovern amendment, 22 U.S.C. § 2691 (1979), and § 901 ofP.L. 100-204 (1987), 8 U.S.C. § 1182 note (both repealed by Pub.L. No. 101-649 (1990).

The basis for the determination of ineligibility in Adams’case was the State Department’s conclusion that Adamshas been personally involved with terrorist activities inthe past, and is a current advocate of terrorist violence.Waiver was not recommended because of the potentiallyadverse impact on United States foreign policy of hisadmission. These constitute facially legitimate and bonafide reasons for the decision to deny Adams entry.

* * * *

As Adams was denied entry because of his personalinvolvement with terrorism, rather than protected associ-ation or ideas, neither the McGovern amendment nor sec-tion 901 were applicable.

Adams v. Baker, slip op. at 9–10. The court also rejected the plain-tiffs’ constitutional attack on 8 U.S.C. § 1182(a)(28)(F)(1990),holding the statute to be within Congress’ power to regulate alientraffic across U.S. borders. The plaintiffs appealed the districtcourt decision.

The U.S. brief on appeal to the U.S. Court of Appeals for theFirst Circuit emphasized its view that “the law is . . . clear thatthe courts have no authority to review consular determinationson visa applications,” and that the standard of review for thoseimmigration matters found appropriate for judicial scrutiny is


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very narrow, limited in exclusion matters to a review of whethera “facially legitimate and bona fide reason” was provided, citingKleindienst v. Mandel, 408 U.S. 753, 770 (1972).

As for the plaintiffs’ argument attacking both the consularofficer’s judgment and the reliability of the information consid-ered by the officer, the brief made the following points:

First, while Adams denies “each and every one of the[Deputy Secretary’s] accusations,” the alien does not statethat he had no personal involvement in any aspect of theviolence that has wracked Northern Ireland, and nowheredisavows advocacy of acts of violence directed againstgovernment officers and property. Adams acknowledgesif not expressly endorses the carnage, characterizing theIRA as a “military organization engaged in an armed insur-rection against the British occupation,” and he neither con-demns nor criticizes the terrorism waged by thatorganization. Adams’ declaration neither refutes nor con-flicts with the consular judgment.

Second and more important, it would not matter evenif Adams had denied any advocacy of or involvement inthe violence in Northern Ireland, or if he could prove thatthere were errors in the information underlying the visadetermination. Factual determinations by the consular offi-cers cannot be reviewed by the Secretary of State (8 U.S.C.§ 1104(a)(1)), and cannot be reviewed by the courts. See,e.g., Ventura-Escamill, 647 F.2d [28], 31 [9th Cir. 1981],citing Loza-Bedoya v. M, 410 F.2d 343, 347 9th Cir.1969). See also Rivera de Gomez v. Kissinger, 534 F.2d518 (2d Cir.), cert. denied, 429 U.S. 897 (1976) (consularjudgment on validity of marriage); Burrafato, 523 F.2d(554], 556 [2d Cir. 1975](failure of consular officer tospecify visa denial grounds). The law entrusts the consularofficers with the first and final judgment on questions offact, and if Adams believed that the information consid-ered by the government is inaccurate or incomplete, his(only) recourse would be to present his evidence to theconsular officer. 22 C.F.R. 40.6 (1989).

Similarly misdirected is appellants’ attack on the evi-dentiary quality of the information underlying the visa


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determination. Without conceding any of the criticisms,it does not matter whether the articles, books, and othermaterials referenced by the Deputy Secretary would beinadmissible at trial, or that the information concerningAdams’ involvement in terrorism might be less than fullycomplete or reliable. Rules of civil procedure or evidencedo not apply to the consular processing of visa applica-tions; rather, to protect the United States against the var-ious harms and evils embodied in the admission criteria,consular officers properly may consider all available infor-mation. See, e.g., 22 C.F.R. 41.102(b), 41.103(b), and41.105(a).

Finally, appellants are wrong in their suggestion thatthe statutory standard of “reason to believe” should beviewed as equivalent to probable cause. See McMullenv.INS, 788 F.2d 591, 598–99 & n.2 9th Cir. 1986). Whilethe evidence linking Adams to terrorist violence satisfiessuch higher standards, all that is required is informationsufficient to permit a “reasonable person” to believe thatthe alien falls within the statutory proscriptions. 22 C.F.R.40.6 (1989); see also Hamid v. INS, 538 F.2d 1389, 13919th Cir. 1976). It is absurd to suppose that the consularofficers would have the resources or authority to pursuefactual issues in foreign countries with the precision andreliability of our domestic criminal justice system, or tosuggest that alien admission be governed by evidentiarystandards that deprive us of the protection afforded bythe sound judgment of the officers who actually examinethe visa applicants. See Langhammer v. Hamilton, 295F.2d [642], 647 [lst Cir. 1961]. Cf, Amanullah [v. Nelson],811 F.2d [1,] 16–17 [lst Cir. 1987] (rejecting evidentiaryhearings to test exclusion of aliens denied parole). Equallyimportant, evidentiary arguments cannot obscure thealien’s responsibility for the pertinent factual proof, forunder our law it is the visa applicant who must prove him-self eligible for admission to the United States. 8 U.S.C.§§ 1201(g), 1361.

Brief for Appellees, Adams v. Baker, No. 89-1903 at 23–26 (Dec. 20,1989)(footnotes omitted). The brief is available at www.state.gov/s/l.


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The brief then argued that Adams’ personal advocacy of andsupport for terrorism meant that he did not qualify for waiverunder the McGovern amendment or section 901, and rejected theplaintiffs’ view that the First Amendment of the Constitutionrestrains the government’s authority to make the political judg-ment of which aliens should be permitted to enter the U.S., not-ing: “[a] constitutional interest in ideas held by an alien simplydoes not translate into a constitutional right to ‘import’ that alieninto the United States.” Id. at 44.

The court of appeals affirmed the district court’s decision.Adams v. Baker, 909 F.2d 643 (1st Cir. 1990). In its decision thecourt addressed the reviewability of consular visa determinationsand whether there was a “facially legitimate and bona fide rea-son” to exclude Adams:

The consular judgment regarding Adams’ relationship toterrorist violence and the reliability of the informationused by the consular officer in reaching that judgment issubject only to very narrow review. We note, first, that inthe absence of statutory authorization or mandate fromCongress, factual determinations made by consular officersin the visa issuance process are not subject to review by theSecretary of State, 8 U.S.C. § 1104(a)(1), and are similarlynot reviewable by courts. E.g., Wan Shih Hsie v. Kiley, 569F.2d 1179, 1182 (2d Cir.), cert. denied, Wan Shih Hsie v.I.N.S., 439 U.S. 828 (1978); Rivera de Gomez v. Kissinger,534 F.2d 518 (2d Cir.), cert. denied, 429 U.S. 897, (1976).Thus, while Section 901 does authorize judicial review overthe question of whether there was a “facially legitimate andbona fide reason” for an alien’s exclusion, that review islimited to the determination of whether there was sufficientevidence to form a “reasonable ground to believe” that thealien had engaged in terrorist activity.

The decision to prohibit an alien from entering theUnited States under Section 901 does require that the gov-ernment “know[] or ha[ve] reasonable ground to believe”that the alien has “engaged in a terrorist activity.” But theRules of Civil Procedure and Evidence are not applicableto the consular processing of visa applications. Instead,consular officers are permitted to consider all available


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information in making their determinations. See 22 C.F.R.41.102(b), 41.103(b) and 41.105(a). The evidence so usedneed not have qualified for admission in a court of law.Thus, “reasonable belief” may be formed if the evidencelinking the alien to terrorist violence is sufficient to jus-tify a reasonable belief that the alien falls within the pro-scribed category. 22 C.F.R. 40.6; See also Hamid v. I.N.S.,538 F.2d 1389, 1391 (9th Cir. 1976); Kasravi v. I.N.S.,400 F2d 675, 677 (9th Cir. 1968) (superseded by statuteon other grounds as stated in McMullen v. I.N.S., 658 F.2d1312 (9th Cir. 1981)).

The question of whether the evidence is sufficient,however, to support a finding of “reasonable belief” is aquestion of law which courts must resolve. Upon review,we think that there is sufficient evidence to support sucha finding, and hence that there was a “legitimate and bonafide reason” underlying the government’s decision toexclude Adams from the United States. The fact that theinformation relied upon by the government came fromprinted sources does not render that belief intrinsicallysuspect, and the district court did not err in so conclud-ing. The evidence of Adams’ involvement in the violentactivities of the IRA, both as a policy maker and as a fieldcommander, provides a “facially legitimate and bona fidereason” for his exclusion. In making this determination,it is important to note that there need only have been areasonable belief that Adams was involved in terroristactivity: it is not necessary to have proven his involvementin the activity beyond a reasonable doubt.

Adams v. Baker, 909 F.2d at 649.

3. Nonimmigrant Visa Waiver Pilot Program

Section 217 of the Immigration and Nationality Act of 1952, 8U.S.C. § 1187, as added by section 313(a) of the ImmigrationReform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat.3435 (1986), established a visa waiver pilot program for certainnonimmigrant visitors applying for admission to the United States


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for a period not exceeding 90 days. The provision authorized theAttorney General and the Secretary of State to establish a pilotprogram under which, acting jointly, they could waive the non-immigrant visa requirement set out in section 212(a)(26)(B) ofthe Immigration and Nationality Act (8 U.S.C. § 1182(a)(26)(B)),codified in its current form as 8 U.S.C. § 1182(a)(7)(B), in thecase of certain aliens. Among other conditions, the alien had tobe a national of a country that extended (or agreed to extend)reciprocal privileges to U.S. citizens and nationals and that wasdesignated as a pilot program country pursuant to section 217(c)of the Act (8 U.S.C. § 1187(c)). Under that section, up to eightcountries could be designated as pilot program countries. For theinitial period of the pilot program, a country could be so desig-nated only if two conditions were next: (1) the average numberof refusals of U.S. nonimmigrant visitor visas for its nationalsduring the two preceding full fiscal years was less than two per-cent of the total number of nonimmigrant visitor visas grantedor refused for such nationals; and (2) the average number of non-immigrant visitor visa refusals during either of the two precedingfull fiscal years was less than 2.5 percent of the total number ofsuch visas for such nationals granted or refused during that year.

The Visa Waiver Pilot Program was implemented on July 1,1988, for the United Kingdom, and on December 15, 1988, forJapan. 53 Fed. Reg. 24,898 and 50,160 (1988). A final rule issuedon June 20, 1989, as an amendment to 8 C.F.R. § 217.5(a) byRichard E. Norton, Associate Commissioner, Examinations,Immigration and Naturalization Service, designated six additionalcountries for the program, with effective dates of implementationas follows: France and Switzerland, July 1,1989; the FederalRepublic of Germany and Sweden, July 15, 1989; and Italy andthe Netherlands, July 29, 1989. 54 Fed. Reg. 27,120 (1989).Consistent with the statutory intent to promote and facilitate inter-national travel, the volume of travel to the United States had alsobeen used in the designation process. The rule noted that the eightcountries together accounted for over 50 percent of the 12.4 mil-lion nonimmigrants who entered the United States in fiscal year1987 and of the 14.6 million in fiscal year 1988. Id. At the sametime the State Department issued a corresponding final rule amend-ing 22 C.F.R. 41.2(e). Id. See also 83 Am. J. Int’l 905 (1989).


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4. Status of A and G Visa Holders

The Immigration Reform and Control Act of 1986 (“IRCA”), 8U.S.C. § 1255a(a)(2)(B), provided that certain aliens in the UnitedStates illegally before January 1, 1982, could be legalized undercertain conditions. An alien applying for legalization under thisauthority was required to establish that he or she had violatedhis or her non-immigrant visa prior to January 1, 1982, and thatthe unlawful status was known to the government. In Ayuda, Inc.v. Thornburgh, 1989 U.S. Dist. LEXIS 7497 (D.D.C. 1989) plain-tiffs contended that any A or G visa holder (foreign diplomats orinternational organization employees, and their families) who hadengaged in unauthorized employment was in “unlawful status”and therefore eligible for legalization under this provision. Theyurged the court to find that denial by the Immigration andNationality Service of legalization of such visa holders who hadadmittedly violated the terms and/or conditions of their visas byengaging in unauthorized employment was contrary to the IRCA.

The government took the view that the plaintiffs were not inunlawful status because only the State Department could makethat determination for A and G visa holders, and that theDepartment had not done so in these cases. As explained in a let-ter to the court from the Assistant Legal Adviser for ConsularAffairs James G. Hergen in response to the court’s request for theState Department’s views:

The Department of State decides the lawfulness or unlaw-fulness of an A/G visa holder’s status. An A/G visa holderis lawfully admitted to the United States and has lawfulstatus for only so long as the Secretary of State recognizesthe A/G visa holder as being entitled to such status.Termination of recognition of an A/G visa holder’s statusis committed to the discretion of the Department of State.See, e.g., 22 C.F.R. 41.22(f). In addition, in order for anA-1 or G-1-visa holder to be deported, the INS must firstobtain the approval of the Secretary of State (except incertain limited cases). 8 U.S.C. § 1251(e).

No statute makes unauthorized employment a viola-tion of the terms and conditions of, or failure to maintain,


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A/G status. Nor do Department of State or INS regula-tions make unauthorized employment a violation of theterms and conditions of, or failure to maintain, A/G sta-tus. The INS regulations explicitly recognize, however,that an A/G visa holder is to be admitted for so long asthe Department of State recognizes the alien as entitled tothat status. 8 C.F.R. 214.2(a)(1),(9)(1). The Departmentof State interprets this regulation to mean the A/G visaholders remain in lawful status and are not in violationof the terms and conditions of status for so long as theDepartment of State continues to recognize them as enti-tled to that status.

Although the Department of State considers unau-thorized employment by A/G visa holders to be inconsis-tent with their A/G status, the Department of State doesnot consider such unauthorized employment in and ofitself as rendering the A/G visa holder’s status unlawful.Despite unauthorized employment by an A/G visa holder,the Department of State nevertheless has the discretion toconsider such A/G visa holder entitled to that status andnot in violation of the terms and conditions of status.

Letter from Assistant Legal Adviser for Consular Affairs JamesG. Hergen to Judge Stanley Sporkin, United States District Courtfor the District of Columbia, April 7, 1989, available atwww.state.gov/s/l.

The court found that plaintiffs were not in unlawful status,based upon the Department’s letter and the laws and regulationsit cited. The court concluded:

To put it succinctly, an “A” or “G” visa holder who vio-lates the terms or conditions of his or her visa cannot bedeemed to have unlawful status unless and until action istaken by the Department of State.3 Thus, it is clear thatso long as the Department of State has not withdrawnrecognition of “A” or “G” status, the “A” or “G” visa holder’sstatus cannot be deemed to be illegal.

3 Affording special treatment to foreign diplomats, ministersand representatives is neither inappropriate nor unusual. See, e.g.,


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U.S. Const. art. III, sec. 2, cl.2 (“[i]n all cases affecting Ambassadors,other public Ministers and Consuls, the Supreme Court shall haveoriginal Jurisdiction”); 8 U.S.C. § 1103(a) (“[t1he Attorney Generalshall be charged with the administration and enforcement of thischapter and all other laws relating to the immigration and natural-ization of aliens, except insofar as this chapter or such laws relateto the powers, functions and duties conferred upon the President,the Secretary of State, the officers of the Department of State, ordiplomatic or consular officers. . . .”). Rather, such treatment reflectsthe role of international comity in domestic policy as well as theimportance of diplomatic relations.

Ayuda, Inc. v. Thornburgh, 1989 U.S.Dist LEXIS 7497 at *6(D.D.C. June 27, 1989).

5. Immigration Act of 1990: Exclusion of Aliens

On November 29, 1990, President George H. W. Bush signed theImmigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978,into law. In doing so, he made the following comments:

Today I am pleased to sign S. 358, the “Immigration Actof 1990”—the most comprehensive reform of our immi-gration laws in 66 years. This Act recognizes the fun-damental importance and historic contributions ofimmigrants to our country. S. 358 accomplishes what thisAdministration sought from the outset of the immigrationreform process: a complementary blending of our tradi-tion of family reunification with increased immigration ofskilled individuals to meet our economic needs.

The legislation meets several objectives of this Admini-stration’s domestic policy agenda—cultivation of a morecompetitive economy, support for the family as the essen-tial unit of society, and swift and effective punishment fordrug-related and other violent crime.

S. 358 provides for a significant increase in the over-all number of immigrants permitted to enter the UnitedStates each year. The Act maintains our Nation’s historiccommitment to family reunification visas allocated on thebasis of family ties. At the same time, S. 358 dramaticallyincreases the number of immigrants who may be admit-


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ted to the United States because of the skills they have andthe needs of our economy. This legislation will encouragethe immigration of exceptionally talented people, such asscientists, engineers, and educators. Other provisions of S.358 will promote the initiation of new business in rural areasand the investment of foreign capital in our economy.

I am also pleased to note that this Act facilitates immi-gration not just in numerical terms, but also in terms ofbasic entry rights of those beyond our borders. S. 358revises the politically related “exclusion grounds” for thefirst time since their enactment in 1952. These revisedgrounds lift unnecessary restrictions on those who mayenter the United States. At the same time, they retainimportant administrative checks in the interest of nationalsecurity as well as the health and welfare of U.S. citizens.

Immigration reform began in 1986 with an effort toclose the “back door” on illegal immigration throughenactment of the 1986 Immigration Reform and ControlAct (IRCA). Now, as we open the “Front door” to increasedlegal immigration, I am pleased that this Act also providesneeded enforcement authority.

S. 358 meets several objectives of my Administration’swar on drugs and violent crime. Specifically, it providesfor the expeditious deportation of aliens who, by their vio-lent criminal acts, forfeit their right to remain in this coun-try. These offenders, comprising nearly a quarter of ourFederal prison population, jeopardize the safety and well-being of every American resident. In addition, S. 358improves this Administration’s ability to secure the U.S.border—the front lines of the war on drugs—by clarify-ing the authority of Immigration and NaturalizationService enforcement officers to make arrests and carryfirearms.

S. 358 also improves the antidiscrimination provisionsof the IRCA. These amendments will help deter discrimi-nation that might be related to the implementation of“employer sanctions” under the 1986 law. In this regard,S. 358 helps to remedy unfortunate side effects of thisimportant deterrent to illegal immigration.


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In signing this legislation, I am concerned with theprovision of S. 358 that creates a new form of relief knownas “temporary protected status.” The power to grant tem-porary protected status would be, except as specificallyprovided, the “exclusive authority” by which the AttorneyGeneral could allow otherwise deportable aliens to remainhere temporarily because of their nationality or their regionof origin. I do not interpret this provision as detractingfrom any authority of their region of origin. I do not inter-pret this provision as detracting from any authority of theexecutive branch to exercise prosecutorial discretion insuitable immigration cases. Any attempt to do so wouldraise serious constitutional questions.

26 WEEKLY COMP. PRES. DOC. 1946 (Nov. 29, 1990).Section 601 of the Act extensively revised section 212 of the

Immigration and Nationality Act, 8 U.S.C. § 1182 (1990), whichlists grounds for exclusion of aliens from the United States.Overall, the exclusion provisions of the 1990 Act, as noted in theCongressional Conference Report:

[P]rovide for a comprehensive revision of all the existinggrounds for exclusion and deportation, including therepeal of outmoded grounds, the expansion of waivers forcertain grounds, the substantial revision of security andforeign policy grounds, and the consolidation of relatedgrounds in order to make the law more rational and easyto understand.

H.R. Conf. Rep. No. 101-955, 101st Cong., 2d Sess. (1990), p. 128. Important new or revised provisions included those in the

areas of technology transfer, terrorism, foreign policy, member-ship in a totalitarian party, and international child abduction, andreview of the exclusion lists used for screening aliens applying forvisas or admission to the United States, discussed below. Health-related issues are discussed supra, section C.1.


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a. Technology transfer

Subsection 212(a)(3)(A)(i) of the INA was aimed at excluding aliensentering the United States “to violate or evade any law prohibitingthe export from the United States of goods, technology, or sensi-tive information.” The Conference Report commented that:

In addition to permitting the exclusion or imposition ofrestrictions on aliens who may engage in activity whichwould violate any laws relating to export of sensitive mate-rial, this provision also permits the exclusion or imposi-tion of restrictions on aliens who engage in activity toevade such laws. While this standard is clearly less strictthan actual violation of such laws, the conferees intendthat it be employed only in cases where such evasionwould harm the national security. An example mightinclude a case in which nationals of a hostile foreign coun-try seek access to a university facility which conductsresearch which is vital to national security, including, forexample, aerospace research.

H.R. Cong. Rep. No. 101-955, 101st Cong., 2d Sess. (1990), pp.131–32.

b. Terrorism

Subsection 212(a)(3)(B) provided that an alien who has engagedin a terrorist activity, or who a consular officer or the AttorneyGeneral knew or had reason to believe was likely to engage in aterrorist activity, was excludable. 8 U.S.C. § 1182(a)(3)(B)(1990).The statute also stated that “[a]n alien who is an officer, official,representative, or spokesman of the Palestine Liberation Orga-nization is considered, for purposes of this Act, to be engaged ina terrorist activity.” The law then defined “terrorist activity,”212(a)(3)(B)(ii), and “engage in terrorist activity,” 212(a)(3)(B)(iii).As Congress noted in the Conference Report on the Act:

For the purposes of this legislation, the conferees considerterrorist activity to include, but not be limited to, conduct


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which is prohibited by international conventions relatingto terrorism, such as the Convention for the UnlawfulSeizure of Aircraft (the Hague, 1970), the Convention forthe Suppression of Unlawful Acts Against the Safety ofCivil Aviation (Montreal, 1971), the Convention on thePrevention and Punishment of Crimes Against Inter-nationally Protected Persons Including Diplomatic Agents(New York, 1973), The Convention Against the Takingof Hostages (New York, 1979), the 1988 Protocol for theSuppression of Unlawful Acts of Violence at AirportsServing International Aviation, and the 1988 Conventionfor the Suppression of Unlawful Acts Against the Safetyof Maritime Navigation.

Also illustrative of the acts which should be consid-ered terrorist acts for the purpose of this legislation arethose which are encompassed within the definition of ter-rorism contained in Title 22 United States Code, Section2656f(d). That statute defines terrorism as “premeditated,politically motivated violence perpetrated against non-combatant targets by subnational or clandestine agents.”

For the purposes of this legislation, the conferees con-sider “terrorist organization” to be one whose leadership,or whose members, with the knowledge, approval oracquiescence of the leadership, have taken part in terror-ist activities. In making determinations for the purpose ofestablishing excludability, the Department of State (or theImmigration Service when appropriate) should take intoaccount the best available information from the intelli-gence community. A group may be considered a terroristorganization even if it has not conducted terrorist opera-tions in the past several years, but there is reason to believeit still has the capability and inclination to conduct suchoperations.

H.R. Conf. Rep. No. 101-955, 101st Cong., 2d Sess. (1990), p. 131.

c. Foreign policy

Subsection 212(a)(3)(C) provided that “[a]n alien whose entry orproposed activities in the United States the Secretary of State has


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reasonable ground to believe would have potentially serious adverseforeign policy consequences for the United States is excludable.” 8U.S.C. § 1182(a)(3)(C)(1990). It provided exceptions, however, incertain circumstances relying on “the alien’s past, current orexpected beliefs, statements or associations which would be law-ful in the United States.” Section 212(a)(3)(C)(ii) and (iii); 8 U.S.C.§ 1182(a) (3)(C)(ii) and (iii)(1990). The conference report providedextensive comments on this foreign policy ground for exclusion:

Under current law there is some ambiguity as to theauthority of the Executive Branch to exclude aliens on for-eign policy grounds (this ambiguity is a result of the over-lapping nature of the basic grounds for exclusion as setout in Section 212(a) of the Immigration and NationalityAct (INA), Section 901 of the Foreign Relations Autho-rization Act, Fiscal Years 1988 and 1989, as amended,and the “McGovern Amendment”). The foreign policyprovision in this title would establish a single clear stan-dard for foreign policy exclusions. The conferees believethat granting an alien admission to the United States isnot a sign of approval or agreement and the confereestherefore expect that, with enactment of this provision,aliens will be excluded not merely because of the poten-tial signal that might be sent because of their admission,but when there would be a clear negative foreign policyimpact associated with their admission.

This provision would authorize the executive branchto exclude aliens for foreign policy reasons in certain cir-cumstances. Specifically, under this provision, an aliencould be excluded only if the Secretary of State has rea-sonable ground to believe an alien’s entry or proposedactivities within the United States would have potentiallyserious adverse foreign policy consequences. However,there are two exceptions to this general standard.

First, an alien who is an official of a foreign governmentor a purported government, or who is a candidate for elec-tion to a foreign government office (and who is seekingentry into the United States during the period immediatelyprior to the election) would not be excludable under thisprovision solely because of any past, current or expected


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beliefs, statements or associations which would be lawfulin the United States. The word “solely” is used in this pro-vision to indicate that, in cases involving government offi-cials, the committee intends that exclusions not be basedmerely on, for example, the possible content of an alien’sspeech in this country, but that there be some clear for-eign policy impact beyond the mere fact of the speech orits content, that would permit exclusion.

* * * *

The second exception, which applies to all other aliens,would prevent exclusion on the basis of an alien’s past,current or expected beliefs, statements or associationswhich would be lawful within the United States unless theSecretary of State personally determines that the alien’sadmission to the United States would compromise a com-pelling United States foreign policy interest, and so certi-fies to the relevant Congressional Committees. It is theintent of the conference committee that this authoritywould be used sparingly and not merely because there isa likelihood that an alien will make critical remarks aboutthe United States or its policies.

Furthermore, the conferees intend that the “compellingforeign policy interest” standard be interpreted as a sig-nificantly higher standard than the general “potentiallyserious adverse foreign policy consequences standard.” Inparticular, the conferees note that the general exclusionstandard in this provision refers only to the “potential”for serious adverse foreign policy consequences, whereasexclusion under the second exception (under which analien can be excluded because of his beliefs, statements orassociations) must be linked to a “compelling” foreignpolicy interest. The fact that the Secretary of State per-sonally must inform the relevant Congressional Committeeswhen a determination of excludability is made under thisprovision is a further indication that the conferees intendthat this provision be used only in unusual circumstances.

With regard to the second exception, the followinginclude some of the circumstances in which exclusion


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might be appropriate: when an alien’s mere entry into theUnited States could result in imminent harm to the livesor property of United States persons abroad or to prop-erty of the United States government abroad (as occurredwith the former Shah of Iran), or when an alien’s entrywould violate a treaty or international agreement to whichthe United States is a party.

Finally, the conferees intend that, since this legislationrepeals both Section 901 and the McGovern Amendment[22 U.S.C. § 2691 and 8 U.S.C. 1182 note]and removesmembership in or affiliation with the communist party asa ground for exclusion of nonimmigrants, the current prac-tice under which certain nonimmigrants who are exclud-able under provisions of the INA, but who benefit from thereforms of section 901, have been required to go throughan “automatic” waiver process, would be discontinued.Instead, aliens who are no longer excludable would simplybe able to enter the U.S. (unless any provision of this legis-lation specifically requires a waiver process).

H.R. Conf. Rep.No. 101-955, 101st Cong., 2d Sess. (1990) at128–30.

d. Membership in a totalitarian party

Subsection 212(a)(3)(D) excluded immigrants who were or hadbeen members of the Communist or any other totalitarian party.8 U.S.C. § 1182(a)(3)(D)(1990). Several important exceptions tothe exclusion were also provided. First, subsection 12(a)(3)(D)(ii)exempted aliens who could establish that the membership wasinvoluntary, occurred solely while under 16 years of age or byoperation of law, or was necessary to obtain employment, foodrations or other essentials of living. Subsection 212(a)(3)(D)(iii)exempted aliens who were not a threat to the security of the U.S.and who could establish that the membership terminated at leasttwo years before the visa application, or at least five years beforethe application “in the case of an alien whose membership or affil-iation was with the party controlling the government of a foreignstate that is a totalitarian dictatorship as of such date.” A third


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exception, set forth in subsection 212(a)(3)(D)(iv) granted theAttorney General the discretion to waive this exclusion in the caseof a close family member of a U.S. citizen or permanent residentwhen it was in the public interest and the alien was not a threatto the security of the U.S.

As noted in the Conference Report:

This legislation includes a provision . . . designed to mod-ernize the provision in existing law relating to the exclu-sion of aliens who are members of or affiliated with theCommunist Party or other totalitarian parties. This pro-vision eliminates membership in or affiliation with suchparties as a ground for exclusion of nonimmigrants(though any nonimmigrant who is a spy or terrorist, orwho seeks the overthrow of the U.S., would remain exclud-able under other provisions in this legislation). With regardto immigrants, this provision retains the existing languageexempting immigrants whose membership was involun-tary, but it amends the “defector” provision under whichan alien is required to demonstrate opposition to the doc-trines of the party for at least five years, removes the lan-guage requiring that the admission of aliens in eithercategory (involuntary membership or defector) be in thepublic interest, and establishes several new exemptions.

Specifically, under this provision an alien who has ter-minated his membership in or affiliation with a totalitar-ian party for at least two years at the time he applies fora visa or to enter the U.S. would not be excludable if suchalien is determined not to be a threat to the security of theUnited States. This provision could apply to aliens fromcountries like the countries in Eastern Europe which wereformerly Soviet Satellite states, but which are no longercontrolled by the Communist Party.

In the case of an alien whose involvement was with atotalitarian party which still controls the government ofa foreign state at the time of the application for a visa orentry, the exemption would not be available until five yearshad passed since the termination of membership or affil-iation. This second provision could apply to aliens fromcountries like Cuba, Albania or the People’s Republic of


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China, and, again, would only apply if the alien was deter-mined not to be a security threat.

Finally, there is an exemption for current party mem-bers who are seeking to immigrate to the United Statesand who have certain specified close family relatives inthe U.S. Under this exemption, the general ground forexclusion for totalitarian party involvement would bewaived, if the required family ties were present, at the dis-cretion of the Attorney General for humanitarian pur-poses, to assure family unity, or when it is otherwise inthe public interest, provided that the alien is not a secu-rity threat.

It is the intent of the conferees that aliens who wouldpreviously have been excludable under section 212(a)(28)because of membership in or affiliation with the Com-munist party, but who are no longer excludable for thatreason because of the changes made in this provision,would not be excludable under the new foreign policygrounds established by this legislation merely because ofsuch membership or affiliation.

H.R. Conf. Rep. No. 101-955, 101st Cong., 2d Sess. (1990) at130, 131.

e. Review of exclusion lists

Subsection 212(c), 8 U.S.C. § 1182 note (1990), required theAttorney General and the Secretary of State to “develop proto-cols and guidelines for updating lookout books and the automatedvisa lookout system and similar mechanisms for the screening ofaliens. In particular, the protocols and guidelines were requiredto ensure that there was a procedure to remove the name of analien who is no longer excludable because of the amendments tothe exclusion provisions.

f. Temporary protected status

New section 244A, 8 U.S.C. § 1254a (1990), created a new “tem-porary protected status” for aliens who would face certain


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dangers should they return to their country of nationality, wherethat country has been designated by the Attorney General. Section244A(b)(1)(A) authorized the Attorney General, after proper con-sultation with other appropriate agencies, to designate a foreignstate if he finds, among other things, “that there is an ongoingarmed conflict within the state and, due to such conflict, requir-ing the return of aliens who are nationals of that state to thatstate would pose a serious threat to their personal safety.” Section244A(b)(1) also provided, among other things, for designationby the Attorney General on the basis of temporary disruptioncaused by natural disasters, an official request by the foreign state,or if the Attorney General finds the existence of “extraordinaryand temporary conditions in the foreign state that prevent alienswho are nationals of the state from returning to the state insafety.” This last basis, however, is only available “unless theattorney general finds that permitting the aliens to remain tem-porarily in the United States is contrary to the national interestof the United States.” During the period of temporary protectedstatus, the alien cannot be deported and receives employmentauthorization. Section 303 of the Immigration Act of 1990 specif-ically designated El Salvador as meeting the requirements of sec-tion 244A(b)(1)(A). 8 U.S.C. § 1254a note (1990).

6. Visa Lottery Rule

The final visa lottery rule implementing section 3 of theImmigration Amendments of 1988, Pub. L. No. 100-658, 8 U.S.C.§ 1153 note, was published on February 16, 1989, 54 Fed. Reg.7,166 (Feb. 16, 1989)(to be codified at 22 C.F.R. § 44). The visalottery granted 20,000 immigrant visas to persons selected at ran-dom from applicants who were nationals of “under-representedcountries.”

D. ASYLUM AND REFUGEE STATUS AND RELATED ISSUES

1. Salvadoran and Guatemalan Asylum Applicants

The case of American Baptist Churches v. Thornburgh was filedin 1985 by several U.S. protestant churches challenging prosecu-


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tion by the U.S. government of persons assisting and shieldingfrom deportation or exclusion illegal aliens from Guatemala andEl Salvador, the so-called “sanctuary movement.” The case alsoalleged discrimination against asylum applicants from those coun-tries. During the course of the case, all of the allegations relatingto sanctuary were dismissed by the court. The remaining chargethat the Immigration and Naturalization Service, the immigrationcourts and the State Department were discriminating againstSalvadorans and Guatemalans in the adjudication of asylum appli-cations and in failing to grant extended voluntary departure wasdismissed after the parties reached a settlement on December 14,1990. American Baptist Churches v. Thornburgh, 760 F. Supp. 796(N.D. Cal. 1991)(attaching stipulated settlement agreement). Thesettlement agreement noted that several recent changes in UnitedStates laws and regulations affected the case. First, as discussedin C.5., supra, section 302 of the Immigration Act of 1990 hadcreated a new “temporary protected status” for aliens who werenationals of countries who would face certain dangers should theyreturn to their country of nationality and specifically designatedEl Salvador as a country covered by the provision. Temporaryprotected status, like extended voluntary departure, effectivelyallowed the alien in question to remain in the United States.

Second, new asylum regulations, effective October 1, 1990,significantly changed the methods under which asylum applica-tions are considered and decided. 8 CFR § 208 (2002); 55 Fed.Reg. 30,674 (July 27, 1990). See discussion below in section D.2.

The settlement agreement provided that the class memberswould be afforded a de novo, unappealable asylum adjudicationbefore an asylum officer under the new regulations. 760 F. Supp.at 799. Following notice, which was required to be provided ina number of specified ways, class members were to respond andto submit new applications for asylum within agreed time limits.Those class members who requested new interviews were to beprovided by the INS with a list of legal or accredited organiza-tions willing to assist them. Id. at 800–803.

In addition, the settlement agreement provided for certainprocedures to be applied in the course of the de novo review byan asylum officer. Id. at 803–804. First, after an initial interview,the asylum officer was required to make a preliminary assessmentof whether the applicant appeared to have established a prima


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facie case of either past persecution or a well-founded fear of per-secution. This preliminary assessment was to be made before anyprior administrative file was reviewed or the application sent tothe State Department’s Bureau of Human Rights and Huma-nitarian Affairs (“BHRHA”) for comment. The asylum officerwas required to follow an interview instruction sheet (Exhibit 10to the settlement agreement, Id. at 822–823), which specified that“the fact that an applicant’s claim may have been denied previ-ously is not relevant to [the] present determination and such pre-vious denial does not indicate in any way that the present claimis not meritorious.” After the initial decision by the asylum offi-cer who interviewed the applicant, the case was to be reviewed denovo by a supervisory asylum officer and in certain cases, by theJustice Department’s Central Office for Refugee and Asylum Policy.

Any transmittal of the application to BHRHA was requiredto contain the specific recommendation by the asylum officer togrant or deny asylum. Id. at 804. Any BHRHA recommendationsto deny asylum were required to contain reasons for that deter-mination and state that the recommendation was advisory only.Id. at 807. Grounds for detention of class members were strictlylimited. Class members entitled to de novo interviews were toreceive employment authorization pending a decision on theirasylum application. Id. at 804–805.

Finally, the settlement agreement contained several provisionsensuring that certain information and training would be providedto government personnel involved in asylum determinations. Forexample, the agreement provided that certain groups could makereference information available to the INS to include in its cen-tralized information center on asylum. In addition, it required aspecific training manual to be distributed to asylum officers, immi-gration judges, and BHRHA personnel commenting on asylumapplications. The settlement agreement gave plaintiffs’ represen-tatives an opportunity to address training sessions for these offi-cials and provided for monitoring of procedures. Id. at 807–809.

2. New Asylum Regulations

On July 27, 1990, the Immigration and Naturalization Servicepublished as a final rule extensive regulations on procedures to


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be used in determining asylum under section 201(b) of the RefugeeAct of 1980, Pub. L. No. 96-212, 94 Stat. 109, 8 U.S.C. § 1158.(A discussion of the Refugee Act of 1980 may be found at Digest1980, pp. 179–85.) The new regulations, effective October 1,1990, were published at 55 Fed. Reg. 30,674–88 (July 27, 1990);8 C.F.R. §§ 3, 103, 208, 236, 242, and 253 (2002).

One major change made by the regulations was the estab-lishment of a professional corps in the Immigration andNaturalization Service of “asylum officers.” The Federal Registersummary explained that originally all asylum and withholding ofdeportation claims were to be adjudicated in a nonadversarial set-ting by these asylum officers. The final rule, however, “providesfor continued adversarial adjudications of asylum and withholdingof deportation applications by Immigration Judges for those appli-cants who are in exclusion or deportation proceedings. At thesame time, it preserves an opportunity, prior to the institution ofproceedings, for adjudication of initial applications in a nonad-versarial setting by a specially-trained corps of Asylum Officers.”55 Fed. Reg. 30,675 (July 27, 1990). Section 208.2(b) of the reg-ulations also provided that: “the Immigration Judge shall makea determination on such claims de novo regardless of whether ornot a previous application was filed and adjudicated by an AsylumOfficer prior to the initiation of exclusion or deportation pro-ceedings.” Id. at 30,681.

These new asylum officers:

are to receive special training in international relationsand international law under the direction of the [INS andJustice Department]. [These agencies], in coordinationwith the Department of State, and in cooperation withother appropriate sources, [will] compile and dissemi-nate to Asylum Officers information concerning the per-secution of persons in other countries on account of race,religion, nationality, membership in a particular socialgroup, or political opinion, as well as other informationrelevant to asylum determinations, and shall maintain adocumentation center with information on human rightsconditions.


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8 C.F.R. § 208.1(b), (c)(2002); 55 Fed. Reg. 30,680 (July27,1990). As stated in the background comments in the final rule,“it was felt that [the creation of a documentation center] wouldbe a very positive development in aiding Asylum Officers to main-tain current knowledge of country conditions around the world.It also reflects recent developments in the methods used to aid inthe adjudication of asylum cases in other countries, such asCanada.” 55 Fed. Reg. 30,676 (July 27, 1990).

The procedures for asylum officer interviews was establishedby 8 C.F.R. § 208.9 (2002):

(b) The Asylum Officer shall conduct the interview ina nonadversarial manner and, at the request of the appli-cant, separate and apart from the general public. The pur-pose of the interview shall be to elicit all relevant anduseful information bearing on the applicant’s eligibilityfor the form of relief sought. The applicant may havecounsel or a representative present and may submit affi-davits of witnesses.

* * * *

(d) Upon completion of the interview, the applicant orhis representative shall have an opportunity to make astatement or comment on the evidence presented.

(e) Following the interview the applicant may be givena period not to exceed 30 days to submit evidence in sup-port of his application, unless, in the discretion of theAsylum Officer, a longer period is required.

8 C.F.R. § 208.9 (2002); 55 Fed. Reg. 30,682 (July 27, 1990).The regulations also spelled out what information may be

relied upon by the asylum officer in reaching a decision:

(a) . . . [T]he Asylum Officer may rely on material providedby the Department of State, the Asylum Policy and ReviewUnit, the Office of Refugees, Asylum, and Parole, theDistrict Director having jurisdiction over the place of theapplicant’s residence or the port of entry from which theapplicant seeks admission to the United States, or other


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credible sources, such as international organizations, pri-vate voluntary agencies, or academic institutions. Prior tothe issuance of an adverse decision made in reliance uponsuch material, the material must be identified and the appli-cant must be provided with an opportunity to inspect,explain and rebut the material, unless the material is clas-sified under E.O. 12356.

8 C.F.R. § 208.12(a)(2002); 55 Fed. Reg. 30,683 (July 27, 1990).Section 208.11 of the regulations allowed the BHRHA, at its

option, to comment on applications forwarded to it as, forinstance, asylum officers are required to do under § 208.4(a). Thescope of BHRHA’s comments was set forth in 208.11(a) as follows:

(1) An assessment of the accuracy of the applicant’sassertions about conditions in his country of nationalityor habitual residence and his own experiences;

(2) An assessment of his likely treatment were he toreturn to his country of nationality or habitual residence;

(3) Information about whether persons who are sim-ilarly situated to the applicant are persecuted in his coun-try of nationality or habitual residence and the frequencyof such persecutions;

(4) Information about whether one of the grounds fordenial specified in section 208.14 may apply; or

(5) Such other information or views as it deems rele-vant to deciding whether to grant or deny the application.

55 Fed. Reg. 30,682 (July 27, 1990). This section of the regula-tions also limited the amount of time BHRHA could take to com-ment on the application, and provided that these comments werepart of the asylum record unless they were classified. The appli-cant had the opportunity to respond to unclassified BHRHA com-ments before any adverse decision could be made. 8 C.F.R. §208.11(b)(c) (2002), 55 Fed. Reg. 30,682–83 (July 27, 1990).

The regulations for determining the establishment of refugeestatus and entitlement to withholding of deportation were largelythe same as the April 6, 1988, revised proposed rule. 53 Fed.Reg. 11,300-10 (1988). In order to receive asylum, the applicant


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had to prove that he or she had either suffered actual past per-secution or had a well-founded fear of future persecution, onaccount of race, religion, nationality, membership in a particu-lar social group, or political opinion. Applicants who partici-pated in persecution of others could not qualify. 8 C.F.R. §208.13 (2002); 55 Fed. Reg. 30,683 (July 27, 1990). Denial wasmandatory if the applicant had been convicted of a particularlyserious crime in the United States and thus constituted a dan-ger to the community, had been firmly resettled in another coun-try (as defined by § 208.15), or was a danger to U.S. nationalsecurity. 8 C.F.R. § 208.14(c)(2002); 55 Fed. Reg. 30,683 (July27, 1990).

Entitlement to withholding of deportation was granted wherethe applicant established that his or her life or freedom would bethreatened in the proposed country of deportation on account ofrace, religion, nationality, membership in a particular social group,or political opinion. Denial was required if the applicant partic-ipated in persecution of another person or had been convicted ofa particularly serious crime and constituted a danger to the com-munity of the United States; or if there were serious reasons forconsidering that the alien had committed a serious nonpoliticalcrime outside the United States or for regarding the alien as a dan-ger to U.S. national security. 8 C.F.R. § 208.16(b)(c) (2002); 55Fed. Reg. 30,684 (July 27, 1990).

Grounds for revocation of asylum or withholding of depor-tation were provided in 8 C.F.R. § 208.24 (2002); 55 Fed. Reg.30,865–66 (July 27, 1990).

Section 208.6 of the regulations limited disclosure to thirdparties of an application for asylum or withholding of deporta-tion without the alien’s written consent, except as permitted bythe section or at the discretion of the Attorney General. 8 C.F.R.§ 208.6 (2002); 55 Fed. Reg. 30,681 (July 27, 1990). Exceptionsto the prohibition on disclosure included U.S. Government offi-cials or contractors with a need to examine the information inconnection with certain legal proceedings and investigations, andcourts considering certain legal actions related to the asylum orwithholding of deportation proceedings. The background com-ments specifically addressed concerns that the failure to specifi-cally include the United Nations High Commissioner for Refugees


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(“UNHCR”) in the list of exceptions would limit that agency’saccess to information, stating: “This is not meant to limit disclo-sure to the UNHCR, or to increase the discretion of the AttorneyGeneral in revealing information. Rather it was felt that it is inap-propriate to specify a non-governmental agency to which theAttorney General, after consultation with the Secretary of State,may reveal information.” 55 Fed. Reg. 30,676 (July 27, 1990).

Section 208.7 of the regulations required a grant of employ-ment authorization for up to one year for those applicants whoare not in detention and whose asylum applications are not friv-olous. The term “frivolous” was defined as “manifestly unfoundedor abusive.” 8 C.F.R. § 208.7(a) (2002); 55 Fed. Reg. 30,681-82(July 27, 1990). The employment authorization could be renewedby the applicant showing that he or she was pursuing the asylumclaim through appropriate administrative or judicial review. 8C.F.R. § 208.7(c) (2002); 55 Fed. Reg. 30,682 (July 27, 1990).

Finally, the regulations set a new and less difficult standardfor overcoming the presumption that an applicant for asylum whoreturns to the country of claimed persecution has abandoned theapplication. Where previously the alien had to show “extraordi-nary and urgent reasons” for the return, the new regulationsrequired the alien to establish “compelling reasons” for assum-ing the risk of persecution in so returning. 8 CFR § 208.8 (2002);55 Fed. Reg. 30,682.

3. Haitian Refugees

Alan J. Kreczko, Deputy Legal Adviser of the Department of State,testified before the Subcommittee on Immigration, Refugees andInternational Law of the House Committee on the Judiciary onJune 8, 1989, concerning the ongoing Haitian Migration Inter-diction Program. Mr. Kreczko’s testimony addressed the com-patibility of this program with international law, including thelaw of the sea and refugee law:

The Haitian Migration Agreement and the INS guidelinesfor implementing the agreement are entirely consistentwith international law, including the law of the sea andrefugee law. I will touch on both aspects, with emphasis


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on refugee law, because that is the area in which somelegal commentators have faulted the interdiction program.

The Haitian Migration Interdiction Program was ini-tiated on the basis of an executive agreement between theUnited States and Haiti concluded on September 23, 1981[Agreement Relating to Establishment of a CooperativeProgram of Interdiction and Selective Return of PersonsComing from Haiti, TIAS No. 10,241 reprinted in 20I.L.M. 1198 (1981) (entered into force Sept. 23, 1981)].Under the agreement, Haiti permits the U.S. Coast Guardto board any Haitian flag vessel on the high seas or inHaitian territorial waters which the Coast Guard has rea-son to believe may be involved in the irregular carriage ofpassengers outbound from Haiti, to make inquiries con-cerning the status of those on board, to detain the vesselif it appears that an offense against United States immi-gration laws or appropriate Haitian laws has been or isbeing committed, and to return the vessel and the personson board to Haiti. The assent of Haiti to U.S. enforcementactions against Haitian vessels on the high seas and inHaitian territorial waters was necessary because otherwisesuch actions would violate customary international lawcodified in Article 6(1) of the Geneva Convention on theHigh Seas, April 29, 1958 (13 U.S.T. 2312; T.I.A.S. No.5200) and article 92(1) of the 1982 U.N. Convention onthe Law of the Sea, which provide for exclusive flag-statejurisdiction over vessels on the high seas, as well as vio-late Haitian sovereignty over its territorial sea.

The agreement also states that “[h]aving regard to theinternational obligations mandated in the ProtocolRelating to the Status of Refugees done at New York 31January 1967,”the United States Government “does notintend to return to Haiti any Haitian migrants whom theUnited States authorities determine to qualify for refugeestatus.” To implement this provision, guidelines weredeveloped directing INS officers on board the Coast Guardinterdiction vessels to monitor Coast Guard interviews ofinterdicted Haitians, and, in cases where indications of aclaim to refugee status might arise, to conduct further


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interviews themselves. The guidelines further provide thatif the INS interview suggests that a bona fide claim torefugee status may exist, the individual shall be broughtto the United States so that he or she may apply for polit-ical asylum.

Finally, it is worth noting that, in the context of theagreement, Haiti provided assurances that it would notprosecute for illegal departure Haitians returned to Haitiwho are not traffickers.

The provisions of the agreement and the INS imple-menting guidelines go well beyond what the United Statesis obligated to do under the U.N. Refugee Protocol.***The obligation of non-refoulement set forth in Article 33of the U.N. Convention Relating to the Status of Refugees(which is incorporated in the Protocol) extends only topersons who have gained entry into the territory of aContracting state.

Article 33 provides:

“1. No contracting state shall expel or return(‘refouler’) a refugee in any manner whatsoever to thefrontiers of territories where his life or freedom wouldbe threatened on account of his race, religion, national-ity, membership of a social group or political opinion.

2. The benefit of the present provision may not,however, be claimed by a refugee whom there are rea-sonable grounds for regarding as a danger to the secu-rity of the country in which he is, or who, having beenconvicted by a final judgment of a particularly seriouscrime constitutes a danger to the community of thatcountry.”


*** Editors’ note: The international law of refugees is embodied in the1951 UN Convention Relating to the Status of Refugees, and the 1967Protocol thereto. Protocol Relating to the Status of Refugees, Jan. 31, 1967,19 UST 6223, TIAS No. 6577, 606 UNTS 267. The United States is a partyto the Protocol but not to the Convention, July 28, 1951, 189 UNTS 1509.The Protocol broadened the coverage of the Convention to include personswho became refugees after January 1, 1951 and it incorporated by refer-ence the substantive provisions of the Convention.

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While it might be tempting to read the words “expel”and “return” as applying to different categories of refugees—“expel” to refugees in the contracting country, and“return” to refugees outside—this reading is not tenable.The second paragraph of Article 33 makes clear that para-graph 1 applies only to persons actually in the territoryof a State party when it makes an exception for an indi-vidual who is a “danger to the security of the country inwhich he is” or “a danger to the community of that coun-try.” Moreover, the negotiating history of the Conventiondemonstrates that the drafters of the Convention tookdeliberate measures to ensure that Article 33 of theConvention would not be interpreted to apply to personoutside their territory,

During the final negotiating session for the Conven-tion, in July 1951 the delegates directly confronted thequestion of how the word “return” in Article 33 (whichwas then article 28) would be interpreted. At the sessionof July 11, the Swiss representative expressed concern theArticle would be ‘read to impl[y] the existence of two cat-egories of refugees: refugees who were liable to beexpelled, and those who were liable to be returned.” Hethought it essential that the negotiating States make clearthat the word “return,” like the word “expel,” in fact“applied solely to refugees who had already entered acountry, but were not yet resident there.” This was con-sistent with the use of the French word “refouler,” whichthe Swiss representative noted “could not . . . be appliedto a refugee who had not yet entered the territory of acountry.” He made clear that his country’s assent dependedon being assured that Article 33 would not require a state“to allow large groups of persons claiming refugee statusto cross its frontiers.” The representative of France affir-matively agreed with this interpretation; no one disagreed.U.N. Doc. A/CONF.2/SR.16, p. 6 (July 11, 1951). Thelimited meaning of the word “return” in Article 33—thatit did not cover “the possibility of mass migrations acrossfrontiers or of attempted mass migrations”—was reaf-firmed at the second and final reading of the draft Convention,


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on July 25, 1952, when the President of the Conferenceruled that the interpretation should be placed on recordsince no objection had been expressed. U.N. Doc.A/CONF.2/ SR.35, pp. 21–22.

In short, the delegates who negotiated the Conventionexpressly precluded the application of Article 33 to thevery situation involved in the Haitian Migration Inter-diction Program—the mass illegal migration of Haitiansinto the United States. Indeed, it is clear from the negoti-ating record that at least some countries would never haveagreed to Article 33 had it been intended to impose obli-gations with respect to refugees outside their territory whowere seeking entry. Numerous commentators haveacknowledged that Article 33 applies only to refugees whohave gained entry, not to those who are seeking entry; e.g.,Robinson, Convention Relating to the Status of Refugees.A Commentary, p. 163 (1953); Grahl-Madsen, The Statusof Refugees in International Law, Vol. 11, p. 94 (1972);Weis, The United Nations Declaration an TerritorialAsylum, 7 Can. Y. B. Int’l L., pp. 92, 123–24 (1969).

The interpretation of Article 33 was also briefed exten-sively for the U.S. Court of Appeals for the D.C. Circuitin litigation challenging the interdiction program. Onlyone judge, Judge Harry Edwards, felt it necessary to reachthis issue, but he ruled squarely that Article 33 did notapply:

. . . it seems clear that the Haitian interdictees arenot protected by the Protocol. The negotiating historyof the Convention it incorporates leads inescapably tothe conclusion that certain compromises were essen-tial to agreement and that the ideal of unconditionalasylum was diluted by the need for other practicalguarantees.

Haitian Refugee Center v. Gracey, 809 F.2d 794, 841(D.C.Cir. 1987).

That Article 33 addresses only those refugees who havealready entered a state’s territory is confirmed by subse-quent, unsuccessful, efforts to broaden the requirement


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not to expel or return refugees in one’s territory to includea prohibition against rejection of refugees at the frontier:The international community in the United Nation’sDeclaration on Territorial Asylum endorsed this more inclu-sive obligation as a goal to be sought, but not as an exist-ing international obligation. It also made clear that casesof mass migration might provide an exception. G.A. Res.2312, 22 U.N. GAOR,Supp. (No. 16), p.8l, U.N.DocA/6716 (1967). Article 3 of the Declaration provides in part:

1. No person referred to in Article 1, para. 1 [arefugee], shall be subjected to measures such as rejec-tion at the frontier or, if he has already entered the ter-ritory in which he seeks asylum, expulsion orcompulsory return to any State in which he may besubjected to persecution.2. Exception may be made to the foregoing principleonly for overriding reasons of national security or inorder to safeguard the population as in the case of amass influx of persons.

The debate preceding adoption of the resolution madeclear that the declaration was not intended to propoundlegal norms, but to lay down broad humanitarian andmoral principles. Nor was the declaration meant to giverise to legal obligations or to affect existing internationalundertakings or national legislation. See Official Recordsof the General Assembly, Twenty-second Session, Annexes,agenda item 89, document A/6912. It was clearly under-stood that the Declaration’s reference to rejection at the fron-tier, even as limited, went beyond the Convention’s Article33 obligation. See Weis, The United Nations Declaration anTerritorial Asylum, 7 Can. Y. B. Int’l L., pp. 92, 123–124,142 (1969).

In the mid-1970s, the international community con-sidered whether to go beyond the Declaration to draft abinding instrument incorporating under the precept ofnon-refoulement protection against rejection at the fron-tier. Significantly, the Conference of Plenipotentiaries DraftConvention on Territorial Asylum failed to adopt the


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Convention, and the various versions of the Draft Con-vention’s provision on non-refoulement continued to treatseparately the concepts of rejection at the frontier” and“return” or “expulsion.” See Elaboratation of a DraftConvention on Territorial Asylum, Report of the Secretary-Genera, August 29, 1975, Doc. A/10177. In fact, at theinsistence of the States, an initial draft of the Conventiondistinguished between mandatory obligation not to returnor expel refugees who were in the territory of a contract-ing state and the considerably weaker requirement to use“best endeavors to ensure” refugees were not rejected atthe frontier. See ibid.; 1975 Digest of United States Practicein International Law, pp. 156–158. These distinctionsobviously would not have been drawn had it not been under-stood that the words “expel or return” in Article 53 of theConvention did not apply to refugees at the frontier.

Despite the evidence that countries have refused toaccept a legal obligation of non-refoulement with respectto persons outside their territory or not to reject refugeesat the frontier, some legal commentators assert that suchan obligation has crystallized, under customary interna-tional law. Often this alleged obligation is described as“temporary refuge,” an obligation to accept asylum-seek-ers into one’s territory. For a norm of customary interna-tional law to exist, however, there must be general andconsistent practice of states followed by them from a senseof legal obligation. 1 Restatement (Third),of ForeignRelations § 102(2). Those who put forth this view do notseriously attempt to establish general and consistent statepractice, let alone one followed out of a sense of legal obli-gation. Rather, they summon forth numerous non-legallybinding resolutions, recommendations, and self-referringstatements of legal scholars as alleged proof of the illu-sory norm. In the world of international law, saying thata principle is or should be customary international lawdoes not make it so. Only States’ practice and statementscan make it so, and they are far from uniform in this area.In fact, the unsuccessful effort to conclude a multilateralconvention on territorial asylum demonstrates definitivelythat States are not willing to take on this obligation.


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I do not want to suggest by the above legal analysisthat the Executive Branch ignored humanitarian concernsin designing the interdiction program. That is demon-strably not the case. Although the U.S. Government wasnot legally obligated to do so, it decided to give Haitiansinterdicted by the Coast Guard on the high seas or inHaitian territorial waters an opportunity to express anyfears they might have of returning to Haiti, and to affordpersons with credible claims to refugee status opportunityto apply for asylum in the United States. It also soughtand received Haitian assurances that returned Haitianswould not be prosecuted for their attempts to leave Haitiillegally.

Haitian Detention and Interdiction: Hearing before the HouseComm. On the Judiciary. 101st Cong. 20–79 (1989). See also 83Am. J. Int’l L. 906 (1989); Cumulative Digest 1981–1988 at631–635.

4. Deferred Departure: Nationals of People’s Republic of China

In a letter of June 6, 1989, Attorney General Dick Thornburghdirected Immigration and Naturalization Service CommissionerAlan C. Nelson to defer the enforced departure of virtually allnationals of the People’s Republic of China (PRC) until June 5,1990, in light of the uncertainty of conditions in China at that time:

The President has requested that the Department of Justiceensure that nationals of the People’s Republic of Chinaand their dependents whose visas have or will expirewithin the coming year will not be deported to the PRCagainst their wishes.

In implementation of this foreign policy decision of theUnited States, I hereby direct you, as Commissioner,Immigration and Naturalization Service, to take all stepsnecessary to defer enforcing the departure, until furthernotice, of all nationals of the PRC and their dependents whowere in the United States on June 6, 1989.

This directive shall not apply to:


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(1) those PRC nationals who have not evidenced anunwillingness to return to the PRC;

(2) those PRC nationals who are residents of a thirdcountry;

(3) those PRC nationals who have been convicted ofany criminal act in the United States; or

(4) those PRC nationals arriving in the United Statesafter June 6, 1989.

Letter from Attorney General Dick Thornburgh to CommissionerAlan C. Nelson, June 6, 1989. Interpreter Releases, June 19, 1989,p. 664.

On April 11, 1990, President George Bush issued ExecutiveOrder, No. 12,711, Policy Implementation with Respect toNationals of the People’s Republic of China, 55 Fed.Reg. 18,897(Apr.13, 1990), elaborating on a memorandum for the Secretaryof State and Attorney General dated November 30, 1989. Theexecutive order directed the Attorney General to defer untilJanuary 1, 1994, the enforced departure of all nationals of thePeople’s Republic of China and their dependents “who were inthe United States on or after June 5, 1989, up to and includingthe date of the executive order.” In the order the President fur-ther directed the Attorney General and the Secretary of State to“take all steps necessary with respect to such PRC nationals (a)to waive through January 1, 1994, the requirement of a validpassport, and (b) to process and provide necessary documents,both within the United States and at U.S. consulates overseas, tofacilitate their travel across the borders of other nations and reen-try into the United States in the same status that such PRC nation-als had upon departure.”

Section 3 of Executive Order No. 12,711 directed the Secretaryof State and the Attorney General to provide the following pro-tections:

(a) irrevocable waiver of the 2-year home country res-idence requirement [applicable to exchange visitors, §212(e) of the Immigration and Nationality Act of 1952,8 U.S.C. § 1182(e) (1988)] that may be exercised untilJanuary 1, 1994, for such PRC nationals


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(b) maintenance of lawful status for purposes of adjust-ment of status or change of nonimmigrant status for suchPRC nationals who were in lawful status at any time on orafter June 5, 1989, up to and including [April 11, 1990];

(c) authorization for employment of such PRC nation-als through January 1, 1994; and

(d) notice of expiration of nonimmigrant status (ifapplicable) rather than the institution of deportation pro-ceedings, and explanation of options available for suchPRC nationals eligible for deferral of enforced departurewhose nonimmigrant status has expired.

Section 4 of the executive order directed the Secretary of Stateand the Attorney General to provide for “enhanced considera-tion, under the immigration laws for individuals from any coun-try who express a fear of persecution upon returning to theircountry related to its policy of forced abortion or coerced steril-ization, as implemented by the Attorney General’s regulation effec-tive January 29, 1990.”

Section 5 directed the Attorney General “to ensure that theImmigration and Naturalization Service finalizes and makes pub-lic its position on training for individuals in F-I [student] visa sta-tus and on the reinstatement into lawful nonimmigrant status ofsuch PRC nationals who have withdrawn their applications forasylum.”

Finally, Section 6 directed the Departments of State and Justiceto “consider other steps to assist such PRC nationals in their effortsto utilize the protections” extended by the President pursuant tothe executive order. 55 Fed. Reg. 13,897–98 (Apr. 13, 1990).

On May 9, 1990, the INS provided instructions to its officeson implementation of the executive order. Telegram from theDepartment of State, May 25, 1990. Among other things, theinstructions made clear that the class of PRC nationals anddependents (including non-PRC dependents) eligible for deferreddeparture also included those who would have been present inthe United States from June 5, 1989 to April 11, 1990, but for abrief, casual, and innocent departure from the United States. Theinstructions provided that the term “brief, casual and innocentdeparture”:


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shall be interpreted liberally to include temporary absencesfrom the United States for foreign visits by students dur-ing school vacations, family emergencies, internationalconferences, and other academically related activities. Atemporary absence of this nature should not exceed thelength of a normal summer vacation for students.Prolonged absences that are longer than five months arenot necessarily deemed brief or casual. However, circum-stances requiring longer absences will be given special con-sideration.

On June 1, 1990, the Department of State sent a diplomatic noteto the chiefs of mission in Washington, D.C., addressing the cir-cumstances of PRC nationals falling under the order who wishto travel but who may not have a valid passport. Referring tosection 2 of the executive order concerning travel documents,the note requested other governments “to give due considerationto the circumstances of such PRC nationals who, in someinstances, may be unable to obtain valid PRC passports or othertravel documents, and to permit such PRC nationals to entertheir territories temporarily on the basis of the Form 1-512[authorization for advance parole, annotated to indicate that theholder would be readmitted to the United States], provided suchPRC nationals are otherwise admissible.” The note is availableat www.state.gov/s/l. See also 84 Am. J. Int’l L. 724 (1990).

E. DEPARTURE CONTROLS

1. Federal Aviation Restrictions

On May 20, 1989, the Government of the Republic of thePhilippines requested the cooperation of the United States gov-ernment in preventing the return of the remains of formerPhilippine President Ferdinand Marcos, should he die. On June3, 1989, Under Secretary for Political Affairs Robert M. Kimmittsent a letter to Acting Administrator for the Federal AviationAdministration Robert E. Whittington, requesting FAA assistance:


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On May 20, 1989, the Government of the Philippines, bydiplomatic note to our Embassy in Manila, restated its pol-icy of opposition to the return of former President Ferdi-nand Marcos to the Philippines, adding that the positionalso applied in the event of Mr. Marcos’ death. PresidentCorazan Aquino has recently reiterated this policy pub-licly. This position is based on concerns for the stability ofthe Philippines. The Philippine Department of Trans-portation has informed us that it has instructed appropri-ate authorities to deny entry into the Philippines of anyvessel or aircraft carrying the body of Mr. Marcos.

The United States has an important strategic interestin democracy and stability in the Philippines, a long-timeally of the United States. The U.S. Government has pre-viously implemented measures to prevent the departure ofMr. Marcos while alive. We also believe that measuresshould be taken to prevent the return of his body in theevent of his death. We believe that the concerns of theGovernment of the Philippines are well-founded and thatthe return of Mr. Marcos’ body to the Philippines in con-travention of Philippine policy and law would be contraryto U.S. foreign policy interests. We also believe that sucha return, or the attempt to do so, would create a dangerto the safety of the aircraft and persons involved, as wellas other persons who might be present at the actual oranticipated destination.

Letter from Under Secretary of State for Political Affairs RobertM. Kimmitt to Acting Administrator of the Federal AviationAdministration Robert E. Whittington, June 3, 1989, availableat www.state.gov/s/l.

On September 28, 1989, the date of Marcos’ death, the FAAissued an emergency rule, Special Federal Aviation RegulationNo. 57, prohibiting any person from operating an aircraft fromthe United States to the Philippines with Marcos’ remains. Asexplained in the Federal Register notice containing the rule, theFAA is “responsible for the safety of . . . U.S.-registered aircraftthroughout the world. Under section 103 of the Federal AviationAct of 1958, as amended, the FAA is charged with the regulation


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of air commerce in a manner to best promote safety and fulfillthe requirements of the national security.” The necessity for theemergency prohibition was based on the information providedby the Department of State and the FAA’s assessment of the jeop-ardy to the safety of the aircraft as a result of a reaction to car-riage of the remains, either because the arrival of the aircraft couldcreate civil unrest, or because the aircraft could be prevented fromlanding in the Philippines. Restriction on Certain Flights Fromthe United States to the Republic of the Philippines, 54 Fed. Reg.40,624 (Oct. 2, 1989). The rule was valid until October 1, 1990.

On August 29, 1990, the Philippine government sent a diplo-matic note to the U.S. Embassy in Manila restating its oppositionto the return of Marcos’ remains. On September 24, 1990, UnderSecretary Kimmitt wrote a letter to FAA Administrator AdmiralJames B. Busey IV requesting an extension of the FAA order:

The Department has been recently informed by theGovernment of the Philippines that its current policy onthe return of Mr. Marcos’ body, and regulations imple-menting it, remain in effect. After careful review of thecurrent situation in the Philippines, the Department hasconcluded that our concerns expressed last year regard-ing the consequences for both U.S. foreign policy interestsand aviation safety of a return of Mr. Marcos’ body remainvalid, and therefore that continued measures should betaken to prevent its return to the Philippines. We thus wishto request the continued cooperation of the FAA in thisimportant matter after October 1, 1990.

Letter from Under Secretary of State for Political Affairs RobertM. Kimmitt to Adminstrator of the Federal Aviation Admini-stration Admiral James B. Busey, IV, September 24, 1989, avail-able at www.state.gov/s/l.

On September 27, 1990, the FAA extended the expiration dateof the Special Federal Aviation Regulation to October 1, 1991,on the ground that the circumstances warranting the order con-tinued to exist in the Philippines. Restriction on Certain FlightsFrom the United States to the Republic of the Philippines, 55 Fed.Reg. 40,360 (Oct. 2, 1990).


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2. Departure Control Orders

On June 16, 1989, the Immigration and Naturalization Serviceissued a temporary departure control order to Mrs. ImeldaMarcos, pursuant to 8 U.S.C. § 1185(a)(1). This statute makes itunlawful for any alien to leave the United States unless the alien’sdeparture conforms with the rules and regulations issued underthe statute. According to the order, the INS had reason to believethat Mrs. Marcos “intend[ed] to depart from the United Statesin a manner which would be prejudicial to the interests of theUnited States.” The INS also had reason to believe that Mrs.Marcos’ departure would fall within 8 C.F.R. § 215.3(g), (h), (c),and (k) (2002), providing specific grounds for prohibiting depar-ture of an alien, and was therefore prohibited. Mrs. Marcos wasordered not to leave the United States until the order was revoked.Departure Control Order, Mrs. Imelda Marcos, A27 259 946,June 16, 1989, available at www.state.gov/s/l.

On June 19, 1989, Mrs. Marcos exercised her right to a hear-ing to contest the order. After a hearing in August, the chief immi-gration judge issued a recommended decision on August 31, 1990.First, the judge found that Mrs. Marcos should be prevented fromleaving the United States under 8 C.F.R. § 215.3(h) (2002) whichprohibits the departure of any alien who is needed for an inves-tigation or proceeding conducted by an official agency or gov-ernmental entity in the United States. The U.S. governmentindicated that Mrs. Marcos had information potentially materialto pending criminal investigations in the Western District ofPennsylvania and the Eastern District of Virginia.

The chief immigration judge next examined whether Mrs.Marcos’ departure would fall within the terms of 8 C.F.R. § 215.3(c) (2002), which prohibits the departure of:

Any alien who seeks to depart from the United States toengage in, or who is likely to engage in, activities whichwould obstruct, impede, retard, delay, or counteract theeffectiveness of any plans made or action taken by anycountry cooperating with the United States in measuresadopted to promote the peace, defense, or safey of theUnited States or such other country.


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The INS alleged that Mrs. Marcos’ departure would be prejudi-cial to the interests of the United States because of serious adverseconsequences for the peace, defense and safety of the Philippines.In his decision, the chief immigration judge reviewed a number offactors relevant to these potential serious and adverse consequences:

Mrs. Marcos argues that the government has relied solelyon “guilt through association” with Ferdinand Marcos toallege that she poses a threat to the peace, stability andnational security of the Philippines. Respondent [Mrs.Marcos] claims that the government has relied solely uponthe testimony of Mr. Salmon [Charles B. Salmon, Jr., Directorof the Office of Philippine Affairs, Department of State] onthis charge but that Mr. Salmon’s testimony referred solelyto the involvement of Ferdinand Marcos (not Mrs. Marcos)regarding the coup attempts and other loyalist activities.

The government, however, is not attempting to provean insurrection case against Imelda Marcos. The govern-ment offered no evidence of Imelda Marcos’ direct involve-ment in any of the destabilization efforts or coup attempts.The government does not have to prove that ImeldaMarcos has been, or will be, involved in any such sub-versive activities.

The government has demonstrated that the return ofMrs. Marcos to the Philippines would pose a threat to thestability of the Aquino government. Mrs. Marcos is a well-connected political figure and is seen by loyalists as a nat-ural heir to the leadership of the Philippines. Mrs. Marcosheld a cabinet position in the Marcos government, was anofficer in the ruling political party, was Governor of MetroManila, and acted as Philippine emissary on trips through-out the world. . . . Mrs. Marcos claims to have some con-tinuing political control over loyalists.

* * * *

In addition, Mrs. Marcos has not accepted the legiti-macy of the Aquino government as evidenced by her refer-ring to Mrs. Aquino and her supporters as “usurpers” andreferring to her husband as the rightful president. . . .


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The most telling evidence of the Philippine govern-ment’s position on the return of Ferdinand and ImeldaMarcos is contained in repeated correspondence with theUnited States. The first diplomatic note, dated May 20,1989, informed the United States of the position of theGovernment of the Philippines not to allow the entry intothe Philippines of former President Ferdinand Marcos,even stating “this position remains the same in the eventof the death of Mr. Marcos.” . . . The Philippine Govern-ment expressed its strong hope that the United StatesGovernment would cooperate in this matter. In the sec-ond diplomatic note, dated July 4, 1989, the Governmentof the Philippines further affirmed its position not to allowthe return to the Philippines of Mrs. Marcos for nationalsecurity reasons.

On September 14, 1987 the Philippine Ministry ofJustice issued a Certification stating that the Governmentof the Philippines considered the presence of FerdinandMarcos and Imelda Marcos in the Philippines to be con-trary to the interests of the Philippines. . . .

In addition, the Government of the Philippines informedthe United States Embassy on May 22, 1989, that allPhilippine ports and aeronautical authorities had beeninstructed not to give entry or landing clearance to vesselsor aircraft carrying the remains of Ferdinand Marcos. . . .The Philippine Department of Transportation issued a mem-orandum circular on May 26, 1989, informing all com-mercial airlines and operators of private aircraft of theprohibitions against the return of Mrs. Marcos. . . .

It would obviously strain relations with the Philippinesif the United States were to allow Imelda Marcos to departfrom the United States. I find that it has been establishedthat Imelda Marcos should be prevented from departingthe United States under the provisions of 8 C.F.R. s.215.3(c)[sic].

In the Matter of Imelda Marcos, Respondent, File A27 259 946,August 31, 1989, pp. 17–20 (Recommended Decision of the ChiefImmigration Judge).


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CHAPTER 2

Consular and Judicial Assistance and Related Issues

A. CONSULAR NOTIFICATION, ACCESS AND ASSISTANCE

1. Consular Agents

On July 5, 1990, in response to a request for information regard-ing the U.S. consular agent in Palma de Mallorca and his func-tions, Assistant Legal Adviser for Consular Affairs James G.Hergen provided the following background information:

The consular establishment in Palma de Mallorca is a con-sular agency, not a U.S. consulate. Consular agents are usu-ally local business or professional persons, preferablyAmerican citizens, who serve part-time in isolated areaswhere a substantial number of Americans reside or visit,and where there is no Foreign Service post. They areappointed in accordance with title 22, U.S. Code, section951 and Volume 3, Foreign Affairs Manual, sections990–999. The U.S. consular agent in Palma de Mallorca,who is not a U.S. citizen, has held that position for twenty-five years.

Consular agents perform limited consular services andact as points of contact between citizens and the princi-pal consular officer. Consular agents operate under thesupervision of the principal consular officer in the con-sular district in which they are located. The ConsulateGeneral in Barcelona has supervisory responsibility forthe consular agency in Palma de Mallorca. Title 22, U.S.Code, sections 4215 and 4221, and title 22, Code of

63

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Federal Regulations, section 92.4(e) provide that consularagents have authority to perform notarial services. Consularofficers and consular agents are prohibited by federal reg-ulation (22 C.F.R. 10.735-206(a)(7), 71.5, 72.41, and92.81) from acting as agents, attorneys, or in a fiduciaryduty on behalf of U.S. citizens in private legal disputes.

Letter from Assistant Legal Adviser for Consular Affairs JamesG. Hergen to Mr. David Grabill, July 5, 1990, p. 2, available atwww.state.gov/s/l.

2. Consular Functions: Disaster Assistance

In the aftermath of the bombing of Pan Am Flight 103 on December21, 1988, over Lockerbie, Scotland, resulting in the deaths of 189Americans, several laws were enacted to clarify the role of theState Department’s Bureau of Consular Affairs and U.S. consularofficers in providing warnings and assistance to U.S. citizens infuture disasters.

On February 16, 1990, the State Department Basic AuthoritiesAct was amended to add a new section 43, requiring the Secretaryof State to “provide prompt and thorough notification of allappropriate information concerning such disaster or incident andits effect on United States citizens to the next-of-kin of such indi-viduals.” Section 115(c), Foreign Relations Authorization Act,Fiscal Years 1990–91, Pub. L. No. 101-246, 104 Stat.15. Thenotification must be through the most expeditious means possi-ble, and include written notice. In addition, the Department ofState was required to act as a clearinghouse for information andto provide other services and assistance, including liaison withforeign governments and persons and with U.S. air carriers, 22U.S.C. § 2715. Section 115(d) required the Secretary of State to“enter into discussions with international air carriers and otherappropriate entities to develop standardized procedures” to assistthe Secretary in carrying out the provisions of new section 43.

On August 5, 1989, the Department of State sent a telegram toall posts on its policy that there be no double standard regardingwarnings provided to official Americans and to the American trav-eling public about situations of serious risk, including terrorism:


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Official Americans cannot benefit from receipt of infor-mation which might equally apply to the travelling pub-lic but is not available to them. Warnings which posts planto distribute to official personnel and dependents shouldbe referred, unless immediate notice is critical, in advanceto the Department for a determination about dissemina-tion to a broader e.g., non-U.S. Government audience.The guidance contained in this cable does not supersedethe Department of State’s travel advisory system (whichis the primary vehicle for publicly disseminating risk infor-mation such as that concerning not only terrorism but civildisorder, natural disaster, etc.); or the U.S. intelligencecommunity’s national terrorist warning alert/advisory sys-tem. This telegram which discusses the public dissemina-tion of such information is issued under the Department’sdesignation as the lead foreign affairs agency of the U.S.Government, and in cognizance of the Secretary of State’sresponsibilities for the safety and well-being of U.S. citi-zens abroad.

Telegram from the Department of State, August 5, 1989.On May 15, 1990, the President’s Commission on Aviation

Security and Terrorism, established pursuant to Executive Order12686 of August 4, 1989 (54 Fed. Reg. 32,629 (Aug. 9, 1989))in order to review the Pan Am 103 bombing, issued its report,which included a number of recommendations on ways to improveairline security and provide better support for victims of terror-ism. Recommendations addressing State Department practicesand policies in the areas of consular assistance may be found atChapter 7, “Treatment of the Families of Victims of Terrorism,”Report of the President’s Commission on Aviation Security andTerrorism, May 15, 1990, U.S. Gov’t Printing Office 1990.

On October 23, 1990, many of the commission’s recommen-dations were adopted into law in the Aviation Security Improve-ment Act of 1990, P.L. 101-604, 104 Stat. 3066 of Nov. 16, 1990.Provisions relating to the role of the State Department in pro-viding assistance to U.S. citizens include:

— Section 203, requiring U.S. carriers to provide a passen-ger manifest to Department of State representatives within 1 hourof notification of an aviation disaster, 49 U.S.C. § 44909.

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— Section 204, recognizing Department of State policy undersection 43 of the Basic Authorities Act, discussed above, to pro-vide notification, and requiring the Secretary of State to ensurethat Department of State notification is carried out notwith-standing notification by any other person, 22 U.S.C. § 5503.

— Section 205, requiring the State Department to appointspecific personnel as liaison with the family of each U.S. victimof an aviation disaster, 22 U.S.C. § 5504.

—Section 206, requiring disaster management training for allconsular officers, and specialized training for a team of “disasterspecialists” to be sent immediately in the event of a disaster, 22U.S.C. § 5505.

— Section 207, requiring the State Department to send a sen-ior officer from the Bureau of Consular Affairs to the scene of adisaster site, the dispatch of a State Department employee asombudsman specifically to assist family members at the scene ofa disaster site, and to establish procedures for deployment of cri-sis teams to disaster sites, 22 U.S.C. § 5506.

— Section 212, requiring the establishment of an electronicbulletin board available to the public containing information onoverseas crime and security, 22 U.S.C. § 5511.

B. CHILDREN

International Adoption

During 1990 the Office of Overseas Citizens Consular Servicesof the Bureau of Consular Affairs of the Department of Stateissued a general informational flyer entitled “InternationalAdoption.” The flyer reviewed U.S. policy and practice withregard to U.S. citizens adopting children abroad:

The subject of international adoptions has become an issueof considerable concern to the Department of State andits embassies and consulates abroad in recent years. Therehas been an increasing incidence of illicit activities in thearea of international adoptions by intermediaries andadoption agencies both in the foreign countries involvedand in the United States.


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The Department considers adoptions to be private legalmatters within the judicial sovereignty of the nation wherethe child resides. U.S. authorities, therefore, have no rightto intervene on behalf of an individual American citizenwith the courts in the country where the adoption takesplace. However, while we cannot become directly involvedin the adoption process, we do receive requests for assis-tance and information from American citizens who wish toadopt in foreign countries. Requests cover a broad rangeof subjects from the legal procedures involved to the expe-ditious issuance of immigrant visas to adopted children, orchildren being brought to the United States for the purposeof adoption.

The Department of State can . . . provide informationon the details of the adoption process in the foreign coun-try; make inquiries on behalf of adoptive parents regard-ing the status of their cases before foreign tribunals; assistin the clarification of documentary requirements; provideinformation on the U.S. visa application and issuanceprocess; and endeavor to ensure that Americans are notdiscriminated against by foreign authorities and courts.

* * * *

One crucial fact which must be understood at the out-set of any adoption is that the child is a national of thecountry of its origin (and remains so even after the adop-tion process is completed) and is subject to the jurisdic-tion of the foreign courts. Consequently, parents shouldbe certain that the procedures they follow in arranging forsuch an adoption strictly comply with local (foreign) law.This is usually accomplished by dealing with a reputable,licensed international adoption agency which has experi-ence in arranging adoptions in the particular foreign coun-try, or, in the case of a private adoption, with a localattorney who has routinely handled successful adoptions.

* * * *

In addition to the foreign adoption requirements,prospective adoptive parents must comply with U.S. immi-gration procedures. It is not possible, for example, to simply


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locate a child in a foreign country, then go to the U.S.embassy and obtain a visa for the child. Visa proceduresin this area are complex, and designed with many safe-guards to ensure that children adopted abroad or broughtto this country for adoption are truly orphans and will goto healthy homes in the U.S.

* * * *

In most cases the formal adoption of a child in a for-eign court is accepted as lawful in the United States. Insome instances, it will be necessary to re-adopt the childin the United States. For example, if the adoptive parent(s)did not see the child abroad prior to or during the fulladoption proceedings abroad, the child must be broughtto the U.S. to be adopted here. In the case of a marriedcouple, both parents must see the child before the U.S. visacan be issued if the child is to be considered “adoptedabroad.” Otherwise, the parent(s) must be able to meet thepre-adoption requirements of their state of residence inorder for the child to qualify for a U.S. visa to come to theU.S. to be adopted here.

* * * *

The Department of State refers to INS for investiga-tion all petitions for children whose adoptions have beenarranged through private or organizational “facilitators”motivated by undue personal gain or improper profit, orother irregular practices. This policy flows from our gen-eral obligation to respect host country laws and is basedon a strong desire on the part of the United States not topromote abuse of adoption procedures (“baby-selling”,kidnapping, etc.), and not to permit its officials to engagein conduct that might cause a host country to prohibitaltogether further adoptions of host country children byU.S. citizens. To this end, the Department of State has con-sistently expressed its support for measures taken by for-eign states to reduce adoption abuse.

“International Adoptions,” Bureau of Consular Affairs, Depart-ment of State, pp. 1, 2, 3, 6–7, available at www.state. gov/s/l.


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The flyer is accompanied by a disclaimer noting that “the infor-mation in this circular relating to the legal requirements of spe-cific foreign countries is provided for general information onlyand may not be totally accurate in a particular case. Questionsinvolving the interpretation of specific foreign laws should beaddressed to foreign attorneys or foreign government officials.”Id. at 1.

On June 29, 1989, the Department of State sent a telegramreviewing the processing of immigrant visa cases of adopted chil-dren who are orphans as defined in section 101(b)(1) of theImmigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(F).

First, the telegram discussed the situation in which an I-600petition had been fully approved by the Immigration andNaturalization Service. An 1-600 petition is sought where theadoptive parents have already identified a child to adopt whenimmigration processing is begun. In such cases:

The consular officer must verify that the facts allegedabout the child are correct and that the child does nothave a medical condition which has not been identified inthe petition. . . . In this respect, the consular officer’sresponsibility is unlike that in the case of any other approvedimmigrant or nonimmigrant visa petition. Generally, theapproval of a petition is prima facie evidence of the enti-tlement of the beneficiary to the status accorded by thepetition. Consular officers are not normally authorized orrequired to readjudicate approved visa petitions. In an I-600 case, the consular officer is under an affirmative dutyto make an independent investigation of the facts.Information casting doubt upon the child’s eligibility asan orphan or disclosing a medical condition not identi-fied in the approved petition requires return of the peti-tion to the approving [U.S. Immigration and Naturalization]Service office for reconsideration and possible revocation.

Telegram from the Department of State to all diplomatic and con-sular posts, June 29, 1989.

The other situation arises when the adoptive parents beginimmigration processing before going abroad to locate a child, by


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filing an application on Form I-600A for advance determinationof suitability as adoptive parents. The telegram explained that:

The adjudication of an 1-600 petition when accompaniedby an approved I-600A application presents perhaps themost difficult situation in that the Service has not reviewed,or even seen, the documentation regarding the child in suchcases. It is, therefore, especially important that the consularofficer understand, and adhere precisely to, the terms of thedelegation of authority from the Service in such cases. TheService has delegated only the authority to approve the I-600 petition, not to deny it. Moreover, the authority toapprove is confined to those cases which are “clearlyapprovable.” If any doubt exists as to whether the petitionmay be approved, the consular officer must refer the peti-tion to the appropriate overseas office of the Service foradjudication.

Id.The telegram then provided detailed guidance on the defini-

tion of “clearly approvable”:

A petition is “clearly approvable” only where primarydocumentation is presented which establishes the elementsof eligibility. In orphan cases, there are certain possiblecircumstances which inherently cannot be documented by“primary evidence,” as that term is generally understood.There follows a discussion of “primary evidence” as itrelates to such cases—

(a) Identity of Child—Primary evidence would consistof a birth certificate and a national identity card or pass-port with a photograph of the child. (The two are neces-sary since a birth record, even though genuine, may ormay not be the birth record of the child in question andthe passport or identity card connects the child for whomorphan status is sought with the birth record. In addition,the birth record serves to identify the parent or parents ofthe child.)

(b) Death of Parent or Parents—Primary evidence ofthe claimed death of the child’s parent or parents would


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be death certificates in the name of the parent or parents.(c) Abandonment by Parent or Parents—Primary evi-

dence would be a document signed by the parent or par-ents unconditionally divesting the parent or parents ofparental rights over the child. (All other evidence ofclaimed abandonment, regardless of the circumstances ofthe case, is secondary in character.)

(d) Disappearance or Loss of, or Separation fromParent or Parents—All evidence of disappearance or lossof, or separation from parent or parents is secondary.

(e) Unconditional Release by Sole or SurvivingParent—Primary evidence would be a document so stat-ing, written in a language which the parent is capable ofreading and signed by the parent. (If the parent is illiter-ate, the document shall be treated as secondary.)

Id.Finally, the telegram reviewed INS standards on several impor-

tant issues involved in approval of I-600 petitions, by referenceto recent administrative appeals of I-600 petition denials, in orderto assist consular officers adjudicating these petitions:

(a) Unable to Provide Proper Care—It is the positionof the Service that a child whose sole or surviving parenthas unconditionally released the child for emigration andadoption may not repeat not be classified as an orphanunless it is shown that the sole or surviving parent cannotprovide the child the nourishment and shelter necessaryfor subsistence consistent with the local standards of thechild’s place of residence. It is important to note in thisregard that the fact that the adoptive parent(s) would beable to provide the child a much higher level of care in theUnited States is not relevant. The issue is whether the soleor surviving parent can provide care consistent with localstandards, however high or low local standards may be.

(b) Abandonment. Most AAU [Administrative AppealsUnit] decisions on abandonment involve cases in whichthe beneficiary child has two living parents. The decisionsdefine abandonment strictly. Specifically, [it has been] held


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in several cases that a release for adoption does not con-stitute abandonment. Citing Matter of Del Conte, 10 I&NDec. 761 (1964), the AAU has held that “[t]he severanceof ties between parent and child must be total, with nocommunication between parent and child, no financialcontributions by the parents towards the child’s suste-nance, and no arrangements made by the parents for [hisor her] support. In short, no continuing interest in thechild, whatever. Short of such a complete termination ofall ties, the condition of abandonment does not exist.”

Id.

C. PRISONER TRANSFER AND RELATED ISSUES

Council of Europe Prisoner Transfer Convention: Italian Requestfor Terrorist

In 1990 the Government of Italy requested the transfer of SilviaBaraldini, a convicted terrorist serving a sentence in a U.S. fed-eral prison, to serve her sentence in Italy, under the terms of theCouncil of Europe Convention on the Transfer of SentencedPersons. Mar. 21, 1983, T.I.A.S. No. 10,824 (entered into forceJuly 1, 1985). The United States and Italy are both parties to theConvention, which provides for the transfer, under certain cir-cumstances, of prisoners held in one country to serve their sen-tences in prisons of their country of nationality. All transfersrequire the consent of both countries involved as well as the pris-oner. Baraldini was an Italian citizen by birth although she hadlived in the United States for nearly thirty years and was a U.S.permanent resident alien.

After a review of the background, court records and prisonconditions under which Baraldini was being held, the United Statesconcluded that it could not at that time approve the Italian gov-ernment’s request for transfer of the prisoner. The reasons for theconclusion were set forth in a letter of December 19, 1990, fromRobert S. Mueller III, Assistant Attorney General, CriminalDivision, U.S. Department of Justice, to Director General PieroCalla, Directorate General of Penal Affairs, Italian Ministry ofPardons and Justice, as follows:


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Ms. Baraldini was a member of a criminal organizationknown as the “Family” which had as a goal the supportof a terrorist organization called the Republic of NewAfrica. . . .

In 1983 Ms. Baraldini together with several of hercriminal associates, was convicted by a jury in the UnitedStates District Court for the Southern District of New Yorkof conspiracy to violate the Racketeer Influenced andCorrupt Organization Act (RICO) and of substantive rack-eteering offenses. The RICO Act provides especially severepenalties for those who commit serious crimes throughorganized criminal groups. Ms. Baraldini was convictedfor her ongoing and active participation in the “Family”criminal enterprise responsible for the commission ofnumerous serious crimes, including: armed robberies ofarmored trucks in New York and Connecticut; severalattempted armed robberies of Brinks armored trucks; thesuccessful prison break-out of terrorist Joanne Chesimardwho was in prison for the muder of a New Jersey Statetrooper; the kidnapping of a prison guard and a prisonmatron in the course of the Chesimard escape; the 1981robbery of an armored Brinks truck in Nanuet, New York;the murder of a Brinks guard and the critical woundingof a second guard; and the murder of two police officers.Public outrage over the “Family’s” violent acts is partic-ularly acute because two of the victims were police offi-cers who left young families. One of the officers, Sgt.Edward O’Grady, was a father of three, a Marine CorpsVietnam veteran and an 11-year veteran in the police force.The other, Officer Waverly Brown, was 45 years old, hadtwo daughters, was an Air Force veteran of the KoreanWar and a 13-year veteran of the police force.

Ms. Baraldini’s substantive RICO convictions werebased upon two of the many crimes she and other“Family” members perpetrated: the 1980 attempted armedrobbery of an armored truck and the 1979 kidnapping ofa prison guard and matron in the Chesimard escape. Forher crimes, Ms. Baraldini was sentenced to forty years inprison with a recommendation by the judge that she “notbe considered for parole until the maximum period.” Shealso received a fine of $50,000.


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At the time of her conviction, Ms. Baraldini was notonly a member of the “Family”, but also was involvedwith other terrorist organizations. She was the NationalSecretary of the May 19th Organization, a domestic ter-rorist enterprise committed to the use of violence againstthe United States. Several members of the Organizationalso participated in violent crimes and are currently fugi-tives. Ms. Baraldini is believed to be currently communi-cating with several of these individuals, may have informationregarding terrorist activities committed by them and, webelieve, would assist them if released.

Evidence also exists indicating that Ms. Baraldini hasknowledge of, and may have participated in, activities ofanother terrorist group, the FALN (Fuerzas Armadas deLiberacion Nacional Puertorriquena), an organizationresponsible for hundreds of bombings in New York andChicago resulting in at least five deaths, scores of injuriesand millions of dollars in property damage. For instance,the FALN was responsible for the 1975 bombing of theFraunces Tavern in New York City, resulting in the deathsof four people. The FALN also caused four bombs toexplode in the Wall Street area of Manhattan. . . .

Following her conviction, grand jury testimony wassought from Ms. Baraldini in 1983 and 1984 regarding herknowledge of FALN activities. She repeatedly refused totestify before the Grand jury and was ultimately convictedof criminal contempt in 1984 in the United States DistrictCourt for the Eastern District of New York. For her con-tempt, she was sentenced to an additional three years to beserved consecutively to the original 40-year sentence shereceived for the conspiracy and RICO convictions.

Since her convictions, Ms. Baraldini has exhibited noremorse whatsoever for her crimes and has refused tocooperate in any way with the United States Governmentin its ongoing investigations of domestic terrorist activi-ties. As noted above, we believe that Ms. Baraldini is stillin communication with her former criminal associates. Aslate as 1985, her fingerprints were found on a letter dis-covered in a May 19th Organization safe house.


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In addition to the serious nature of Ms. Baraldini’soffenses, her refusal to cooperate and her suspected ongo-ing involvement with fugitive criminals, we are concernedthat, if transferred to Italy, Ms. Baraldini will serve a con-siderably shorter sentence than that imposed in the UnitedStates. We understand that if she were to be transferred,an Italian Court of Appeals must recompute the sentenceshe would receive and that under Italian law this sentencewould necessarily be shorter than that which she currentlyis serving in the United States. Further, under Italian lawthe criminal contempt offense is not transferable and there-fore would be excluded entirely from her Italian sentence.

We must also express our concern about the currentparole practice in Italy which, we understand, has in therecent past allowed convicted terrorists and organizedcrime figures to be furloughed or placed on work releaseafter only relatively short periods of incarceration. Theserious and violent nature of the crimes committed by Ms.Baraldini, in our view, demands a sentence commensuratewith those imposed by the courts in the United States. Theterm and conditions of her incarceration are of particularimportance to us because we believe that, if released, Ms.Baraldini would continue in criminal activities detrimen-tal to the United States.

We understand that there is some concern over theconditions of Ms. Baraldini’s incarceration in the UnitedStates. This concern is unfounded. Ms. Baraldini ispresently housed in the Marianna Federal CorrectionalInstitution in Marianna, Florida, which opened in 1988.She resides in a self-contained unit that provides the samehigh quality services afforded to the general inmate pop-ulation at Marianna, including medical, dental, religious,educational, recreational, and psychological services. . . .

In conclusion, we cannot at this time agree to a trans-fer of Ms. Baraldini to Italy. Were Ms. Baraldini to showremorse for her past crimes, cooperate with the Governmentof the United States in its current investigations anddemonstrate in some convincing way that she has aban-doned her criminal life style, we might reconsider this


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decision. Alternatively, if we could be assured that Ms.Baraldini would serve a sentence in Italy equivalent to thatimposed by the judges here, we would, of course, recon-sider this decision. As is our practice, we would consideran application from Ms. Baraldini again in one year. Absenta dramatic change in Ms. Baraldini’s attitude or assurancesthat she would serve a sentence in Italy commensurate withthat imposed for her serious crimes in the United States wecannot guarantee that our decision would change.

Please be assured, however, of our efforts to cooper-ate with you wherever possible as we have on three othercases before you in which preliminary approval to trans-fer to Italy has been given by this Department.

See also 85 Am. J. Int’l Law 338 (1991).


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CHAPTER 3

International Criminal Law

A. EXTRADITION AND OTHER RENDITIONS, AND MUTUAL LEGAL ASSISTANCE

1. Extradition

a. Extradition of Nicaraguan diplomat from Japan

On July 16, 1990, the United States sent a diplomatic note to theJapanese government requesting the provisional detention of acounselor of the Nicaraguan embassy in Tokyo for extraditionto the United States to stand trial for violations of U.S. federallaw on which he had been indicted. The note addressed the issueof diplomatic immunity as follows:

The Embassy is aware that [the person in question] is adiplomatic agent of the Government of Nicaragua, andenjoys in Japan, which is the receiving State, the privi-leges and immunities under the Vienna Convention onDiplomatic Relations. In this connection, the Governmentof the United States of America believes that if theGovernment of Japan as the receiving State obtains fromthe Government of Nicaragua as the sending State its priorconsent, by waiver and/or withdrawal of any diplomaticprivileges, immunities and inviolability that [the personin question] may enjoy, there will be no problem of incom-patibility with Japan’s obligation under international lawwith regard to diplomatic privileges and immunities.

77

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Note from the U.S. Embassy to the Ministry of Foreign Affairsof Japan, July 16, 1990.

The next day, the Government of Nicaragua terminated thediplomat’s appointment and expressly consented to the applica-tion by Japan of the U.S.-Japan Extradition Treaty to him. Thediplomat was arrested in Tokyo on July 17, 1990. In October1990 he was extradited to the United States, where he pleadedguilty to one count of the charges against him.

b. Waiver of the rule of speciality

On July 11, 1989, Acting Secretary of State Lawrence Eagleburgersigned a warrant authorizing the extradition of Gennaro Prete toCanada to stand trial for attempted murder and conspiracy tocommit murder. Prete had contracted for the murder of hisbrother-in-law in Canada. The person he hired had shot Prete’sbrother-in-law but the victim did not die until January 1990, afterPrete’s extradition. In November 1990 the Government of Canadasought the consent of the Department of State to charge Pretewith first degree murder, in accordance with article 12(l)(iii) ofthe U.S.-Canada Treaty on Extradition, as amended by exchangeof notes of June 28 and July 9, 1974, 27 U.S.T. 983, T.I.A.S. 8237.This article prohibits the requesting state from prosecuting theperson extradited for any offense other than that for which hewas extradited unless the requested state consents, a requirementusually referred to as the “rule of speciality” or “specialty.”

In deciding whether to grant the request, the Department ofState applied the criteria established in the 1979 case of Berenguerv. Vance, 473 F.Supp. 1195 (D.D.C. 1979). In that case the U.S.District Court for the District of Columbia upheld the power ofthe executive branch to consent to an expansion of extraditionwithout a judicial hearing if two criteria were met in making thedetermination: (1) that failure to include the offense in the orig-inal extradition request was excusable for legal or practical rea-sons, and (2) that the Departments of State and Justice weresatisfied that the request and supporting documents contain“probable cause” evidence that would have withstood judicialscrutiny had the additional or new offense been included in theoriginal extradition request.


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In this case, the criterion of timeliness was found to be satis-fied because, among other things, the new charge of first degreemurder could not have been included in the original Canadianrequest of June 1, 1989, since the victim did not die until 1990.On the basis of a review of the Canadian documentation submit-ted in support of the waiver request, it was also determined thatthe indictment of Prete for first degree murder, as proposed by theattorney general of Ontario, was fully justified, thus satisfying thesecond criterion.

The Department of State informed the Government of Canadaof its decision on December 13, 1990. Prete pleaded guilty to sec-ond-degree murder and was sentenced to life imprisonment.

c. The rule of non-inquiry

On June 26, 1987, the Government of Israel submitted to theUnited States an extradition request for Mahmoud El AbedAhmad, also known as Mahmoud Abed Atta, a naturalized U.S.citizen. Atta was charged with murder and various other offensesstemming from a 1986 bus attack on civilians in the West Bank ofthe Occupied Territories. The crimes all fell within the U.S.–Israelextradition treaty of December 10, 1962, 14 U.S.T. 1707, T.I.A.S.No. 5476. Atta had been located and detained in Venezuela inApril 1987 and deported to the United States soon after. He wasarrested by U.S. authorities on the plane to New York.

After an extradition hearing, the magistrate denied the extra-dition request on June 17, 1988. In re Extradition of Atta, 87-0551-M, 1988 U.S. Dist. LEXIS 6001 (E.D.N.Y. June 17, 1988).The magistrate found that the exception to extradition for polit-ical offenses in the treaty applied to this case, and also found thatthe court lacked jurisdiction because, in the magistrate’s opinion,Atta had been brought into the U.S. illegally.

The U.S. Government then filed a second extradition requeston behalf of Israel. On February 14, 1989, the district courtgranted the application for certification of Atta for extradition,finding that the conditions under which Atta was deported to theUnited States did not deprive the court of jurisdiction, and thatthe political offense exception did not apply. Matter of Extraditionof Atta, 706 F.Supp. 1032 (E.D.N.Y. 1989). In particular, the

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court cited testimony of a State Department representative regard-ing the potential effects of a denial of Atta’s extradition:

Extraditing individuals charged with the murder of a civil-ian target and refusing to evoke the political offense excep-tion is one of the United States’ most important lawenforcement tools in terrorist matters. Extraditing thedefendant in this case will help to ensure that the UnitedStates does not become a haven for violent criminalscharged with or convicted of offenses committed in othercountries, and that the United States becomes viewed asa reliable partner in the fight against terrorism.

The United States recently criticized severely theGovernment of Mexico because the Mexican ForeignMinistry invoked the political offense exception to our‘78 extradition treaty with Mexico in denying the extra-dition of William Morales to the United States. Moralesis a United States citizen considered a Puerto Rican free-dom fighter by the Government of Mexico who had beenconvicted of serious weapons possession charges in theUnited States federal and state courts and sentenced toover one hundred years. It’s important to the Departmentof State that a similar miscarriage of justice in this casebe avoided.

Id. at 1041–42.On March 3, 1989, Atta filed a petition for a writ of habeas

corpus in the U.S. District Court for the Eastern District of NewYork to prevent his extradition to Israel. The petition was theprocedural avenue available to him because there is no appealunder U.S. law of an order granting extradition. In addition tothe grounds discussed above, Atta also argued that he would faceprocedures and treatment that would violate due process and uni-versally accepted principles of human rights should he be extra-dited to Israel. Atta requested an evidentiary hearing on this issue.

The U.S. Government strongly opposed the request, on theground that such arguments may only properly be addressed bythe Department of State, under the so-called “rule of non-inquiry.”The government’s brief argued:


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As the Second Circuit stated in Jhirad v. Ferrandina, 536F.2d 478 (2d Cir. 1976), cert. denied, 429 U.S. 833 (1976),“[I]t is not the business of our courts to assume the respon-sibility for supervising the integrity of the judicial systemof another sovereign nation. Such an assumption woulddirectly conflict with the principle of comity upon whichextradition is based.” Id. at 484–485 (citing Factor v.Laubenheimer, 290 U.S. 276 (1933)). Accord, Demjanjukv. Petrovsk, 776 F.2d 571, 583 (6th Cir. 1985), cert.denied, 106 S. Ct. 1198 (1986); see also Glucksman v.Henkel, 221 U.S. 508, 512 (1911) (“we are bound by theexistence of an extradition treaty to assume that the trialwill be fair.”)

If there is a reason to believe that a nation with whichwe have a valid extradition treaty does not intend to com-ply with “due process” in its most general sense, theresponsibility for investigating and addressing that con-cern rests entirely with the State Department; the courtsmay not become involved. Gallina v. Fraser, 278 F.2d 77,78–79 (2d Cir.), cert. denied, 364 U.S. 81 (1960); accord,In re Ryan, 360 F.Supp. 270, 274 (E.D.N.Y. 1973); aff’dwithout op., 478 F.2d 1397 (2d Cir. 1973). To requireIsrael to establish the fairness of its judicial system negatesthe purpose of an extradition treaty, undermines theresponsibility of the Secretary of State, and effectively elim-inates the treaty making power of the Senate.

Furthermore, it is well established that:

Regardless of what constitutional protections are givento persons held for trial in the courts of the UnitedStates or of the constituent states thereof, those pro-tections cannot be claimed by an accused whose trialand conviction have been held or are to be held underthe laws of another nation, acting according to its tra-ditional processes and within the scope of its author-ity and jurisdiction.

Gallina v. Fraser, 177 F.Supp. 856, 866 (D.Conn.1959), aff’d, 278 F.2d 77 (2d Cir.), cert. denied, 364 U.S.851 (1960). Accord, Holmes v. Laird, 459 F.2d 1211(D.C.Cir.), cert. denied, 409 U.S. 869 (1972). . . .


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In spite of that, Israel—while under no obligation to doso under the treaty, United States law or international law—has produced evidence that Atta will receive a fair trial.

United States Memorandum of Law in Opposition to the Petitionfor a Writ of Habeas Corpus, at 25–27, Ahmad v. Wigen, No.89-CV-715 (E.D.N.Y. 1989).

Despite these arguments, on May 16, 1989, the district courtagreed to consider the issue of the nature of the Israeli judicialsystem to which the defendant would be exposed were he extra-dited to Israel, and authorized an evidentiary hearing on this issue.The U.S. Government sought a writ of mandamus in the U.S.Court of Appeals for the Second Circuit ordering the district courtnot to engage in any further inquiry on Israel’s internal judicialprocedures. In its petition for writ of mandamus, the U.S.Government argued that the rule of non-inquiry bars any suchevidentiary hearing, as follows:

The practice of judicial non-inquiry into the processes ofa foreign government finds its origins in Neely v. Henkel,180 U.S.109 (1901). In that decision, a fugitive challengedthe constitutionality of the federal extradition statute onthe ground that it did not “secure to the accused, whensurrendered to a foreign country for trial in its tribunals,all of the rights, privileges and immunities that are guar-anteed by the Constitution * * *.” Rejecting these claims,the Court stated (180 U.S. at 122–123):

Allusion is here made to the provisions of the FederalConstitution relating to the writ of habeas corpus[,]bills of attainder, ex post facto laws, trial by jury forcrimes, and generally to the fundamental guaranteesof life, liberty and property embodied in that instru-ment. The answer to this question is that those provi-sions have no relation to the crimes committed withoutthe jurisdiction of the United States against the laws ofa foreign country.

In connection with the above proposition we arereminded of the fact that appellant is a citizen of theUnited States. But such citizenship does not * * * enti-tle him to demand, of right, a trial in any other mode


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than that allowed to its own people by the countrywhose laws he has violated and from whose justice hehas fled. By the [extradition statute] the appellant can-not be extradited except upon the order of a judge ** * and then only upon evidence establishing proba-ble cause to believe him guilty of the offence charged;and when tried in the country to which he is sent, heis secured by the same act ‘a fair and impartial trial’—not necessarily a trial according to the mode prescribedby this country for crimes committed against its laws,but a trial according to the modes established in thecountry where the crime was committed.The Supreme Court in a later decision reiterated that

the courts do not examine the foreign state’s processes inan extradition proceeding. Though that case involved achallenge to the probable cause showing, the Court spokemore broadly: “if there is presented * * * such reasonableground to suppose him guilty as to make it proper that heshould be tried, good faith to the demanding governmentrequires his surrender. We are bound by the existence ofan extradition treaty to assume that the trial will be fair.”Glucksman v. Henkel, 221 U.S. 508, 512 (1911).

The Court similarly recognizes that “[i]t is not thebusiness of our courts to assume the responsibility forsupervising the integrity of the judicial system of anothersovereign nation.” Jhirad v. Ferrandina, 536 F.2d 478,484–85 (2d Cir.), cert. denied, 429 U.S. 833 (1976). Seealso Sindona v. Grant, 619 F.2d 167, 174–74 (2d Cir.1980). In a lengthy and seminal discussion of the issue,this Court explained:

[W]e have discovered no case authorizing a federalcourt, in a habeas corpus proceeding challenging extra-dition from the United States to a foreign nation, toinquire into the procedures which await the relatorupon extradition. There is nothing in [two SupremeCourt decisions and two lower court cases] indicatingthat the foreign proceedings must conform to Americanconc epts of due process. * * * * The authority thatdoes exist points clearly to the proposition that the


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conditions under which a fugitive is to be surrenderedto a foreign country are to be determined solely by thenon-judicial branches of the Government. The rightof international extradition is solely the creature oftreaty * * * *. We regard it as significant that the pro-cedures which will occur in the demanding countrysubject to extradition were not listed as a matter of afederal court’s consideration in [a number of SupremeCourt decisions].

Gallina v. Fraser, 278 F.2d at 78–79, citations omitted.The Second Circuit’s approach is consistent not only

with the Supreme Court’s view, but also with the views ofthe other circuits that have addressed the issue. . . .

The Rule of Non-Inquiry is thus uniformly observedby the federal courts. It is also consistent with the verylimited scope of habeas review of international extradi-tion orders. As the Supreme Court stated, “[t]he allegedfugitive from justice has had his hearing and habeas cor-pus is available only to inquire whether the magistrate hadjurisdiction, whether the offense charged is within thetreaty, and * * * whether there was any evidence war-ranting the finding that there was reasonable ground tobelieve the accused guilty.” Fernandez v. Phillips, 268 U.S.311, 312 (1925); see also Jhirad v. Ferrandina, 536 F.2dat 482. Plainly, the narrow scope of habeas review in extra-dition cases—with its explicitly limited inquiry that doesnot include an examination of the judicial system of therequesting country—precludes the examination the dis-trict court proposes to undertake here.

* * * *

Relying on dictum in Gallina v. Fraser, 278 F.2d at 79,[Atta] urged the district court to disregard the Rule ofNon-Inquiry on the ground that “extradition wouldexpose him to procedures or punishment ‘antipathetic toa federal court’s sense of decency.’” Ibid.; see also Rosadov. Civiletti, 621 F.2d 1179, 1195 (2d Cir. 1980). Pre-sumably, the district court also relied on the Gallina state-ment in determining that it had the authority to inquireinto Israel’s judicial system. Contrary to the court’s and


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[Atta’s] view, Gallina does not justify the kind of inquirythat the court has signaled here.

We question first whether the dictum in Gallina per-mits the sort of wholesale inquiry into the requesting coun-try’s procedures that the district court seeminglycontemplates. Indeed, as Judge Friendly, writing for theCourt, later explained, Gallina holds expressly that “thefederal courts may not ‘inquire into the procedures whichawait the relator upon extradition.’ 278 F.2d at 78.” JudgeFriendly continued that “[t]he fact that Gallina also addedthe caveat that some situations were imaginable in whicha federal court might wish to reexamine the principle ofexclusive executive discretion, id. at 79, falls well short ofa command to do so here.” Sindona v. Grant, 619 F.2d at175. In other words, Gallina did not create or endorse anew rule, but merely enunciated the possibility that sucha change might be imposed in appropriate circumstances.Hence, that case does not stand for the proposition thatthe courts currently have the authority to ignore “the prin-ciple of exclusive executive discretion.” Absent any indi-cation from a higher court that the long-standing principleis no longer valid, Gallina provides no basis for the dis-trict court to depart from it.3

Additionally, assuming that Gallina provided somesupport for the district court to examine the requestingstate’s internal processes, the Court’s explanation inSindona and its emphasis in that case on Gallina’s expres-sion of the non-inquiry rule diminishes even further theminimal significance of that dictum. But, even assumingthat a very limited exception to the Rule of Non-Inquirymight exist in extradition proceedings and that it could,in an appropriate case, support an inquiry into all aspectsof the foreign government’s judicial processes, the intru-sion of such a judicial examination on our treaty obliga-tions and the Executive Branch’s discretion requires atleast a threshold showing that the foreign system is sus-pect. In this case, [Atta’s] challenge to the Israeli judicialprocess was entirely based on the alleged unfairness of themilitary judicial procedures followed on the West Bank.He made no showing, however, that the procedures observed


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in Israel’s civilian courts—in which he has been chargedand will be tried (according to the guarantee provided ina diplomatic note by Israel and submitted to the districtcourt)—are in any way “antipathetic to a federal court’ssense of decency.” In short, nothing in the papers filed by[Atta] makes a threshold showing sufficient to trigger anevidentiary hearing on the “nature of the [Israeli] judicialsystem.”

3 As the Ninth Circuit noted several years ago, Gallina’s “exception has yet to be employed in an extradition case”(Arnsbjornsdottir-Mendler v. United States, 721 F.2d 679, 683 (9thCir. 1983)), and nothing decided since 1983 has rendered invalidthat observation. Moreover, Gallina did not involve an unrestrictedexamination into all aspects of the foreign state’s system of jus-tice; rather, it focused in a very limited manner on the singularpractice of prosecuting in absentia.

U.S. Petition for a Writ of Mandamus and Prohibition to theUnited States District Court for the Eastern District of New York,at 8–13, In Re United States of America, No. 89-2503 (2d Cir.,June 19, 1989), available at www.state.gov/s/l.

The court of appeals denied the writ of mandamus on June20, 1989, without opinion. The district court then proceeded toconsider the habeas petition, including the inquiry into Israel’sinternal judicial procedures.

On September 26, 1989, the district court denied Atta’s peti-tion for writ of habeas corpus. Ahmad v. Wigen, 726 F. Supp. 389(E.D.N.Y. 1989). The court found that the political offense excep-tion to extradition was inapplicable and that jurisdictional require-ments were met. With regard to the rule of non-inquiry, the districtcourt held that U.S. courts, as an independent branch of govern-ment, are charged with defending the due process rights of allthose who appear before them, and must exercise their inde-pendent judgment to determine the propriety of an individual’sjudgment. Id. at 409–20. Accordingly, the court reviewed the factsregarding the Israeli judicial system and practices produced at theevidentiary hearing, and found that Atta would receive due processprotections under Israeli law. Id.

On August 10, 1990, the Second Circuit Court of Appealsaffirmed the district court’s denial of Atta’s petition for habeas


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corpus. The appellate court disagreed, however, with the districtcourt’s decision to examine Atta’s claims concerning his treatmenton his return to Israel. On that issue, the appellate court con-cluded as follows:

We have no problem with the district court’s rejection ofAhmad’s remaining argument to the effect that, if he isreturned to Israel, he probably will be mistreated, denieda fair trial, and deprived of his constitutional and humanrights. We do, however, question the district court’s deci-sion to explore the merits of this contention in the man-ner that it did. The Supreme Court . . . cases dealing withthe scope of habeas corpus review carefully prescribe thelimits of such review. Habeas corpus is not a writ of error,and it is not a means of rehearing what the certificationjudge or magistrate already has decided. A considerationof the procedures that will or may occur in the request-ing country is not within the purview of a habeas corpusjudge. Indeed, there is substantial authority for the propo-sition that this is not a proper matter for consideration bythe certifying judicial officer. In Sindona v. Grant, 619F.2d 167, 174 (2d Cir. 1980), we said that “the degree ofrisk to [appellant’s] life from extradition is an issue thatproperly falls within the exclusive purview of the execu-tive branch.” In Jhirad v. Ferrandina, 536 F.2d at 484–85,we said that “it is not the business of our courts to assumethe responsibility for supervising the integrity of the judi-cial system of another sovereign nation.”

Notwithstanding the above described judicial road-blocks, the district court proceeded to take testimony fromboth expert and fact witnesses and received extensivereports, affidavits, and other documentation concerningIsrael’s law enforcement procedures and its treatment ofprisoners. This, we think, was improper. The interests ofinternational comity are ill-served by requiring a foreignnation such as Israel to satisfy a United States district judgeconcerning the fairness of its laws and the manner in whichthey are enforced. It is the function of the Secretary ofState to determine whether extradition should be deniedon humanitarian grounds. So far as we know, the Secretary


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never has directed extradition in the face of proof that theextraditee would be subjected to procedures or punish-ment antipathetic to a federal court’s sense of decency.Indeed, it is difficult to conceive of a situation in which aSecretary of State would do so.

Ahmad v. Wigen, 910 F.2d 1063, 1066–1067 (2nd Cir. 1990).Atta was extradited and arrested in Israel on October 29,

1990. He was sentenced to life in prison in 1991.

d. Department of State extradition procedures

On December 10, 1989, the Assistant Legal Adviser for LawEnforcement and Intelligence, Andre M. Surena, executed a dec-laration filed in the case of Gill v. Imundi, 88 Civ. 153(RWS)(S.D.N.Y. 1989), explaining the State Department’s extraditionprocedures, in response to questions concerning consideration bythe Secretary of State of allegations of inability to receive a fairtrial and claims of persecution upon extradition in making extra-dition decisions. The declaration described the extradition processas follows:

* * * *

2. The process of extraditing a fugitive to a foreigncountry begins when a formal extradition request is pre-sented to the Department by a diplomatic note from therequesting State’s Embassy in Washington. Upon receiv-ing the request with supporting documents properly cer-tified by the U.S. Embassy in the requesting State, theoffice of the Assistant Legal Adviser for Law Enforcementand Intelligence conducts a preliminary review of the mate-rials to determine: (a) whether an extradition treaty is ineffect between the requesting State and the United States,(b) whether the request appears to come within the scopeof the applicable extradition treaty, and (c) whether, onthe face of the supporting documents, there is no clearly-evident defense to extradition (for example, that theoffense is manifestly politically motivated). If the answersto these questions are yes, we transmit the request and


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documents to the Department of Justice for further reviewand, if appropriate, the commencement of judicial extra-dition proceedings.

3. The Department of Justice review, conducted by theOffice of International Affairs, is primarily intended todetermine whether the supporting documents contain suf-ficient evidence to meet U.S. evidentiary requirements. Ifthe Department of Justice considers that the documentsare in order and the extradition request is well founded,it has the request and documents filed (generally, by aUnited States Attorney’s Office) in the appropriate federaldistrict court along with a complaint seeking a warrantfor the fugitive’s arrest. Upon issuance of the arrest war-rant, the U.S. Marshals Service apprehends the personsought, if he can be found, and he is held pending theextradition hearing.

4. A hearing on the merits of the extradition requestis then held before a United States magistrate or a UnitedStates district judge sitting as an extradition magistrate.The Department of Justice, through the Office of the U.S.Attorney, will represent the legal interests of the request-ing State at the hearing when it is obliged to do so bytreaty or when the requesting State agrees to provide recip-rocal representation for U.S. requests presented before itscourts. If the extradition judge or magistrate confirms theidentity of the fugitive and finds that probable cause existsto believe that he committed the offense charged (or thathe has been convicted in the requesting State of theoffense) and that no defense to extradition under the appli-cable treaty has been made, he will issue a certificate ofextraditability and order that the fugitive be held in cus-tody pending a final determination on his extradition bythe Secretary of State. The judicial record in the case isthen certified to the Secretary, pursuant to 18 U.S.C.Section 3184, for a decision by the Secretary on whetherto authorize the surrender of the fugitive to the agents ofthe requesting State. See 18 U.S.C. Section 3186. Thisauthority has been delegated to the Deputy Secretary ofState; consequently, either the Secretary or the DeputySecretary may exercise this authority.


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5. The fugitive may seek judicial review of the extradi-tion magistrate’s finding by petitioning for a writ of habeascorpus, generally in the district court in which the extradi-tion hearing was held. The district court’s decision on thepetition for a writ of habeas corpus is appealable to theUnited States Court of Appeals. Either party may seekreview of a Court of Appeals decision by petitioning theSupreme Court for a writ of certiorari. . . . .

6. Although the Department of Justice generally rep-resents the interests of the requesting State during judicialextradition proceedings, this representation does not inany way constitute a decision by the United States, actingthrough the Secretary of State, to extradite the individual.The Secretary’s decision on whether to extradite is madeafter final judicial action. However, if a court declines toissue a certificate of extraditability on grounds of lack ofprobable cause or a treaty-based defense, there will be nooccasion for the Secretary to act.

7. Upon the issuance of a certificate of extraditabilityand completion of judicial proceedings, the Secretary mayconsider de novo all issues properly raised before the court,and any new arguments either in favor of or against sur-render that are presented to him by any interested party orwhich have otherwise come to the Department’s attention.He may also consider any arguments which, although notnew, are relevant and could not have been considered bythe court, e.g., whether the extradition request was politi-cally motivated, or whether the fugitive is likely to be denieda fair trail or otherwise persecuted upon his return.

8. The manner in which the Secretary may considerthese issues will vary from case to case. Invariably, theDepartment of State will rely upon its knowledge andexpertise of the judicial and penal conditions and prac-tices of the requesting country. It may in some cases makespecific inquiries relating to the individual fugitive or itmay frame its judgment on the basis of its analysis of moregeneral information.

9. Based on an analysis of such information by all rel-evant offices within the Department, the Secretary maydecide to surrender the fugitive to the requesting State, to


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deny surrender of the fugitive, or to surrender the fugitivesubject to any conditions he deems reasonable or other-wise appropriate.

10. The allegations raised by petitioners during thecourse of these judicial proceedings relating to their inabil-ity to receive a fair trial and claims of persecution uponextradition have not yet been presented to the Secretaryfor consideration. The Department is aware of the seri-ousness of these allegations and will consider them priorto the Secretary’s final determination. In fact, the Officeof the Assistant Legal Adviser for Law Enforcement andIntelligence has already sought to obtain relevant infor-mation from the Department’s Country Office for Indiaand from its Bureau of Human Rights and HumanitarianAffairs. Either petitioner is also free to submit to theSecretary in writing any material that he believes is rele-vant generally to the question of his extradition. If, uponcompletion of judicial proceedings, the courts have sus-tained the finding of extraditability, the Department wouldpresent all relevant issues to the Secretary for his consid-eration and decision.

Declaration of Andre M. Surena, Gill v. Imundi, 747 F. Supp.1028 (S.D.N.Y. 1990). The Declaration is available at www.state.gov/s/l.

2. Other Renditions

Irregular apprehensions of criminal suspects

The Subcommittee on Civil and Constitutional Rights of theHouse Committee on the Judiciary held a hearing on November8, 1989, concerning an opinion by the Office of the Legal Counselof the Department of Justice that the Federal Bureau ofInvestigation was authorized as a matter of domestic law to con-duct extraterritorial arrests of individuals for violations of U.S.law. William P. Barr, Assistant Attorney General, Office of LegalCounsel, provided testimony explaining the interpretation of U.S.law at issue and the importance of extraterritorial enforcement


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of U.S. law. Legal Adviser of the Department of State AbrahamD. Sofaer testified on the international and foreign policy impli-cation of such arrests, issues that were not addressed by the Officeof Legal Counsel’s opinion. Portions of the Legal Adviser’s pre-pared statement follow:

The Office of Legal Counsel, as the office within theDepartment of Justice responsible for articulating theExecutive Branch view of domestic law, recently issued anopinion concerning the FBI’s domestic legal authority toconduct arrests abroad without host country consent. . . .The opinion did not change Administration or Departmentof Justice policy concerning such arrests. As the WhiteHouse recently made clear, an interagency process existsto ensure that the President takes into account the fullrange of foreign policy and international law considera-tions before making any such decision.

My role today is to address issues not discussed in theOLC opinion—the international law and foreign policyimplications of a nonconsensual arrest in a foreign coun-try. . . . [T]he Congress and President have the powerunder the Constitution in various circumstances to actinconsistently with international law. . . . In practice,despite their power to act otherwise, each of the branchesof our government has shown a healthy respect for inter-national law.

The Federal courts have treated international law aspart of United States law since our early days as a nation.The Paquete Habana is probably best known, and mostfrequently cited, for language in Justice Gray’s opinion con-cerning the authority of the Executive Branch to violateinternational law by controlling act. In fact, however, thedecision in that case found no controlling Executive Act,affirmed the relevance of international law to the conductof Executive Branch officials, and disallowed an action bya lower official because it violated international law. . . .

Presidents, and other Executive officers have recognizedthe importance and authority of international law. . . .

Congress, similarly, has demonstrated substantialrespect for international law. While the principle that


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Congress can override international law for purposes ofour domestic law is well-established, actual examples ofsuch actions are few, and the record is overwhelmingly tothe contrary. Even when dealing with issues of nationalurgency, the Congress has acted with respect for our inter-national obligations. . . . Thus, in passing the OmnibusDiplomatic Security and AntiTerrorism Act of 1986,Congress declined to include a provision authorizing “self-help” measures.

Given this tradition of respect for international law, itis not surprising that our courts assume in all cases ofdoubt that our political branches have acted consistentlywith international law.

* * * *

“Territorial integrity” is a cornerstone of internationallaw; control over territory is one of the most fundamen-tal attributes of sovereignty. . . . Forcible abductions froma foreign State clearly violate this principle. In his impor-tant Survey of International Law in 1949, Sir HershLauterpacht wrote of “the obligation of states to refrainfrom performing jurisdictional acts within the territory ofother states except by virtue of general or special per-mission. Such acts include, for instance, the sending ofagents for the purpose of apprehending within foreign ter-ritory persons accused of having committed a crime.”Lauterpacht, E. (ed.), International Law, Vol. 1, 487–488(1970). See also Section 433, Restatement 3rd of theForeign Relations Law of the United States.

The United States has repeatedly associated itself withthe view that unconsented arrests violate the principle ofterritorial integrity. . . .

* * * *

States have sought to overcome the limitations oninternational law enforcement activities arising from theprinciple of territorial integrity by cooperating in dealingwith extraterritorial crime and in apprehending fugitives.An array of international agreements, institutions, andpractices has developed to help nations deal with the


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difficulties in pursuing criminals caused by our respect foreach other’s borders. States have voluntarily returned fugi-tives from justice through legal devices such as extradi-tion, deportation, and expulsion for literally thousands ofyears. Where such cooperation is possible, no question ofunilateral action even arises.

Further, certain forms of criminal activity have beensubjected to universal jurisdiction. Multilateral conven-tions impose an obligation on parties to prosecute or extra-dite for hijacking, hostage-taking, aircraft sabotage, andother forms of terrorist behavior. Other agreements dealwith international drug dealers, and create an obligationon parties to prosecute or extradite those criminals as well.

The adverse effects of the principle of territorial integrityon law enforcement are also mitigated by the willingnessof states to consent to foreign law enforcement action ontheir territory. No particular formality or publicity isrequired for such consent to be legally effective. Even tacitconsent is sufficient if given by appropriate officials. Forpolitical reasons a state may decide to deny after the factthat it had consented to an operation. This would not viti-ate the legality of an action, if consent had in fact beengiven. In still other cases, a foreign state may cooperateby quietly placing an individual wanted by the UnitedStates on board a plane or vessel over which the UnitedStates has jurisdiction.

Despite its importance, however, the principle of terri-torial integrity is not entitled to absolute deference in inter-national law. Every state retains the right of self-defense,recognized in Article 51 of the UN Charter. Thus, a statemay take appropriate action in order to protect itself andits citizens against terrorist attacks. This includes the rightto rescue American citizens and to take action in a foreignstate where that state is providing direct assistance to ter-rorists, or is unwilling or unable to prevent terrorists fromcontinuing attacks upon U.S. citizens. Any use of force inself-defense must meet the standards of necessity and pro-portionality to be lawful. But if these conditions are met,the fact that the use of force breaches the territorial integrityof a state does not render it unlawful.


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Thus, the United States defended Israel’s rescue mis-sion at Entebbe in 1976, notwithstanding the temporarybreach of Uganda’s territorial integrity. The U.S. repre-sentative to the United Nations stated that “given the atti-tude of the Ugandan authorities, cooperation with orreliance on them in rescuing the passengers and crew wasimpracticable.” The United States was acting consistentlywith international law in taking forcible action againstLibya in 1986 for its role in terrorist attacks against theUnited States. Even in the area of forcible abductions, theinternational community seems willing to take intoaccount particular circumstances in assessing a violationof territorial integrity. While the international communitycriticized the forcible abduction of Adolf Eichmann fromArgentina, it did not call for his return and even Argentinawas satisfied by an Israeli expression of regret for any vio-lation of Argentine law and sovereignty.

In considering the availability of the doctrine of self-defense to justify a breach of territorial integrity, it is essen-tial to recognize that the President is not bound by theinterpretations of international law taken by other states.The President should carefully consider those views, sincethe U.S. must be prepared to defend its interpretation ofthe law. But self-defense is a right deemed “inherent” inthe Charter. Here, more than anywhere else in interna-tional law, a state must act in good faith, but must alsobe free to protect its nationals from all forms of aggres-sion. State-sponsored terrorism has created new dangersfor civilized peoples, and the responses of the United Statesin Libya and elsewhere have gained ever wider recogni-tion as having been necessary and effective methods fordefending Americans.

While the law must be given full respect even in mat-ters of self-defense, we must not permit the law to bemanipulated to render the free world ineffective in dealingwith those who have no regard for law. We must not allowlaw to be so exploited, but rather must insist on the con-tinued development of legal rules that enable states to dealeffectively with new forms of aggression.

This brings me to the increasingly serious threat to the


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domestic security of the United States and other nationsby narcotics traffickers. In recent months evidence hasaccumulated that some of these traffickers have beentrained in terrorist tactics. They have enormous resourcesand small armies at their command. Their modus operandiis to try to intimidate or disrupt the legal process in states.They have threatened violence against United States citi-zens, officials, and property. They have been provided safe-haven, or given approval to transit, by governments incomplicity with the drug traffickers.

We are reaching the point . . . at which the activitiesand threats of some drug traffickers may be so serious anddamaging as to give rise to the right to resort to self-defense. The evidence of imminent harm from traffickers’threats would have to be strong to sustain a self-defenseargument. Arrests in foreign states without their consenthave no legal justification under international law asidefrom self-defense. But where a criminal organization growsto a point where it can and does perpetrate violent attacksagainst the United States, it can become a proper objectof measures in self-defense.

While international law therefore permits extraterri-torial “arrests” in situations which permit a valid claimof self-defense, decisions about any extraterritorial arrestentail grave potential implications for U.S. personnel, forthe United States, and for our relations with other states.These considerations must be carefully weighed by theSecretary of State, who is statutorily responsible for themanagement of foreign affairs and for the security of U.S.officials overseas (22 U.S.C. 2656 and 22 U.S.C. 3927),and by the Ambassador to the country in question whohas statutory responsibility for the direction and supervi-sion of U.S. government employees in the country to whichhe or she is assigned (22 U.S.C. 3927).

The actual implications of a nonconsensual arrest inforeign territory may vary with such factors as the seri-ousness of the offense for which the apprehended personis arrested; the citizenship of the offender; whether theforeign government itself had tried to bring the offendersto justice or would have consented to the apprehension


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had it been asked; and the general tenor of bilateral rela-tions with the United States. However, any proposal forunilateral action would need to be reviewed from thestandpoint of a variety of potential policy implications.

First, such operations create substantial risks to theU.S. agents involved. Actions involving arrests by U.S. offi-cials on foreign territory require plans to get those offi-cials into the foreign state, to protect those officials whilein the foreign state, to remove the officials with the per-son arrested from that state, and finally to bring themsafely back, to United States territory. While the officialsinvolved might include FBI agents seeking to make anarrest, such operations may also require the use of a widerange of U.S. assets and personnel.

Apart from being killed in action, U.S. agents involvedin such operations risk apprehension and punishment fortheir actions. Our agents would not normally enjoy immu-nity from prosecution or civil suit in the foreign countryinvolved for any violations of local law which occur. (In1952, the Soviets abducted Dr. Walter Linse from the U.S.sector of Berlin to the Soviet sector, where he was triedand convicted by a Soviet Tribunal. Two of Linse’s abduc-tors were subsequently apprehended in West Berlin andsentenced for kidnapping.) Moreover, many states will notaccord POW status to military personnel apprehended insupport of an unconsented law enforcement action. TheUnited States could also face requests from the foreigncountry for extradition of the agents. Obviously the UnitedStates would not extradite its agents for carrying out anauthorized mission, but our failure to do so could lead theforeign country to cease extradition cooperation with us.Moreover, our agents would be vulnerable to extraditionfrom third countries they visit.

Beyond the risks to our agents, the possibility alsoexists of suits against the United States in the foreign coun-try’s courts for the illegal actions taken in that country.For example, U.S. courts held that Chile was not immunefrom suit in the United States for its involvement in theassassination of a Chilean, Letelier, in the United States.The United States could also face challenges for such


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actions in international fora, including the InternationalCourt of Justice.

An unconsented, extraterritorial arrest would inevitablyhave an adverse impact on our bilateral relations with thecountry in which we act. Less obviously, such arrests couldalso greatly reduce law enforcement cooperation with thator other countries. The United States has attached sub-stantial importance over the past decade to improvingbilateral and multilateral law enforcement cooperation.For many countries, these agreements reflect the commit-ment of the United States to confine itself to cooperativemeasures, rather than unilateral action, in the pursuit, ofU.S. law enforcement objectives. If the United States dis-regards these agreed law enforcement norms and mecha-nisms, and acts unilaterally, we must be prepared for statesto decline to cooperate under these arrangements or todenounce them. Foreign states have reacted adversely toextraterritorial U.S. laws, even when those laws involveenforcement action taken only in the United States. Thebreadth of our discovery practices and antitrust laws hasled some states to pass blocking and secrecy statutes thatpreclude cooperation with the United States. Their reac-tion to unconsented extraterritorial arrests could be moreextreme.

Finally, we need to consider the fact that our legal posi-tion may be seized upon by other nations to engage in irre-sponsible conduct against our interests. Reciprocity is atthe heart of international law; all nations need to take intoaccount the reactions of other nations to conduct whichdeparts from accepted norms.

Authority of the Federal Bureau of Investigation to Seize SuspectsAbroad: Hearing Before the Sub-Comm. on Civil and Consti-tutional Rights of the House Comm. on the Judiciary, 101st Cong.(1989) at 22–25. See also 84 Am. J. Int’l L. 725 (1990).


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3. Mutual Legal Assistance and Related Issues

a. U.S.-USSR memorandum of understanding on Nazi war criminals

On October 19, 1989, the Attorney General of the United States,Richard Thornburgh, and the Procurator General of the Unionof Soviet Socialist Republics, Alexander Sukharev, signed a mem-orandum of understanding reaffirming cooperation by way ofjudicial assistance in Nazi war crimes cases. Memorandum ofUnderstanding Between the Union of Soviet Socialist RepublicsOffice of the Procurator General and the United States Departmentof Justice Concerning Cooperation in the Pursuit of Nazi WarCriminals, entered into force October 19, 1989. The memoran-dum, signed at Moscow, provided as follows in pertinent part:

The Union of Soviet Socialist Republics Office of theProcurator General and the United States Department ofJustice, in the spirit of reciprocity, cooperation, and mutualinterest in the pursuit, investigation and prosecution ofindividuals who are suspected of having committed Naziwar crimes or of having assisted in the commission of suchcrimes during the years of the Second World War, haveagreed to the following:

1. The Union of Soviet Socialist Republics Office ofthe Procurator General and the United States Departmentof Justice agree to provide legal assistance on a recipro-cal basis in the investigation of individuals who are sus-pected of having committed Nazi war crimes or of havingassisted in the commission of such crimes.

2. The Union of Soviet Socialist Republics Office ofthe Procurator General and the United States Departmentof Justice shall furnish one another on a confidential basis,through diplomatic channels, names, other data andarchival documents relating to the foregoing category ofindividuals.

3. Inasmuch as the procedures for the gathering of evi-dence followed by the Office of Special Investigations (OSI)of the United States Department of Justice, which have


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been worked out in the process of the evolving practiceof cooperation by both sides, have been accepted bynumerous courts and tribunals under appropriate laws,regulations, rules, and judicial precedents of the UnitedStates of America, and do not contradict Soviet legalnorms, the Union of Soviet Socialist Republics Office ofthe Procurator General and the United States Departmentof Justice affirm their readiness to continue to providemutual assistance in the gathering of appropriate evidence.

* * * *

5. The Union of Soviet Socialist Republics Office ofthe Procurator General and the United States Departmentof Justice, recognizing the legal and moral importance ofthe investigation of cases involving individuals who havecommitted Nazi crimes or assisted in them, hereby affirmtheir unfailing resolve and commitment to actively coop-erate in the investigation of such cases.

* * * *

See also 84 Am. J. Int’l L. 536 (1990).

b. Admissibility of evidence obtained abroad

On February 28, 1990, the U.S. Supreme Court held that “theFourth Amendment [does not] appl[y] to the search and seizureby United States agents of property that is owned by a nonresi-dent alien and located in a foreign country.” United States v.Verdugo-Urquidez, 494 U.S. 259, 261 (1990).

The respondent in the case, Rene Martin Verdugo-Urquidez,a citizen of Mexico, was believed to be one of the leaders of alarge and violent organization in Mexico smuggling narcotics intothe United States. A warrant for his arrest on various federal nar-cotics-related charges had been issued in 1985. Mexican lawenforcement personnel arrested Verdugo-Urquidez in Mexico inJanuary 1986, drove him to the border, and turned him over toU.S. marshals on the U.S. side of the border. Following the arrest,a Drug Enforcement Administration agent arranged for searchesof Verdugo-Urquidez’s residences in Mexicali and San Felipe,


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Mexico. The agent believed that respondent’s residences wouldcontain cash proceeds and documents reflecting his participationin narcotics trafficking, as well as evidence of respondent’s involve-ment in the kidnapping and assassination of a DEA agent, forwhich he was later convicted in a separate prosecution. UnitedStates v. Verdugo-Urquidez, No. 87-422, slip. op. (C.D. Cal., Nov.22, 1988). The Director General of the Mexican Federal JudicialPolice (“MFJP”) authorized the search and made MFJP officersavailable to assist in the operation. The U.S. and Mexican officialssearched both residences on the same day, concluding at 3:30 a.m.

The U.S. District Court for the Southern District of Californiasuppressed the evidence seized from both premises in an unre-ported memorandum decision and order. U.S. v. Verdugo-Urquidez, No. 86-107, slip op. (S.D.Cal., Feb. 18, 1987). It foundat the outset that the [Drug Enforcement Administration] DEAagents had sufficiently participated in the searches to make thosesearches “a joint venture” between the American and Mexicoagents. Because the agents had not secured a warrant from aUnited States district court, which the court found it would havehad the “inherent power” to issue, the court held that the searchesof respondent’s residences were unconstitutional under the FourthAmendment to the U.S. Constitution. Id.

On appeal, the Court of Appeals for the Ninth Circuitaffirmed. 856 F.2d. 1214 (9th Cir. 1988). It held that a nonresi-dent alien may invoke the Fourth Amendment to challenge thereasonableness of a foreign search and that the search was con-stitutionally unreasonable for want of a warrant. Id. at 1214. Thecourt acknowledged that “a warrant issued by an American mag-istrate would be a dead letter in Mexico.” It also noted that“[I]nternational law enforcement is a cooperative venture and itwould be an affront to a foreign country’s sovereignty if the DEApresented an American warrant and suggested that it gave theAmerican agents all the authority they needed to search a foreignresidence.” Id. at 1229–1230. Nevertheless, the court concludedthat an American warrant would still “have substantial consti-tutional value in this country” because it would “reflect the mag-istrate’s determination that probable cause to search existed” andwould “define the scope of the search.” Id. at 1230.

In reversing, the U.S. Supreme Court first distinguished the


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scope of the Fourth Amendment from that of the Fifth and SixthAmendments. It found significant the use of the term “the people”*in contrast to the use of “person” and “accused” in the Fifth andSixth Amendments regulating procedure in criminal cases:

The available historical data show, therefore, that the pur-pose of the Fourth Amendment was to protect the peopleof the United States against arbitrary action by their ownGovernment; it was never suggested that the provisionwas intended to restrain the actions of the FederalGovernment against aliens outside of the United Statesterritory.

There is likewise no indication that the Fourth Amend-ment was understood by contemporaries of the Framersto apply to activities of the United States directed againstaliens in foreign territory or in international waters.

494 U.S. at 266–267.The Court reviewed its own precedents in cases construing

the applicability of various aspects of the Constitution outsidethe United States and to aliens generally. The decision in relevantpart follows:

The global view taken by the Court of Appeals of theapplication of the Constitution is also contrary to thisCourt’s decisions in the Insular Cases, which held that notevery constitutional provision applies to governmentalactivity even where the United States has sovereign power.[citations omitted to cases denying applicability of fifthand sixth amendment rights in Puerto Rico, the Philippinesand Hawaii before it was a state]. In Dorr [ v. UnitedStates, 195 U.S. 138 (1904)], we declared the general rulethat in an unincorporated territory—one not clearly des-tined for statehood—Congress was not required to adopt


* The Fourth Amendment provides:The right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, shall not be vio-lated, and no Warrants shall issue, but upon probable cause, supported byoath or affirmation, and particularly describing the place to be searched,and the persons or things to be seized.”

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“a system of laws which shall include the right of trial byjury, and that the Constitution does not, without legisla-tion and of its own force, carry such right to territory sosituated.” Only “fundamental” constitutional rights areguaranteed to inhabitants of those territories. [citationsomitted] If that is true with respect to territories ultimatelygoverned by Congress, respondent’s claim that the pro-tections of the Fourth Amendment extend to aliens in for-eign nations is even weaker. And certainly, it is not opento us in light of the Insular Cases to endorse the view thatevery constitutional provision applies wherever the UnitedStates Government exercises its power. Indeed, we haverejected the claim that aliens are entitled to FifthAmendment rights outside the sovereign territory of theUnited States. In Johnson v. Eisentrager, 339 U.S. 763(1950), the Court held that enemy aliens arrested in Chinaand imprisoned in Germany after World War II could notobtain writs of habeas corpus in our federal courts on theground that their convictions for war crimes had violatedthe Fifth Amendment and other constitutional provisions.The Eisentrager opinion acknowledged that in some casesconstitutional provisions extend beyond the citizenry; “thealien . . . has been accorded a generous and ascending scaleof rights as he increases his identity with our society.” Butour rejection of extraterritorial application of the FifthAmendment was emphatic:

“Such extraterritorial application of organic law wouldhave been so significant an innovation in the practiceof governments that, if intended or apprehended, itcould scarcely have failed to excite contemporary com-ment. Not one word can be cited. No decision of thisCourt supports such a view. [citations omitted] Noneof the learned commentators on our Constitution haseven hinted at it. The practice of every modern gov-ernment is opposed to it.

If such is true of the Fifth Amendment, whichspeaks in the relatively universal term of ‘person,’ itwould seem even more true with respect to the FourthAmendment, which applies only to ‘the people.’”


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To support his all-encompassing view of the FourthAmendment, respondent points to language from the plu-rality opinion in Reid v. Covert, 354 U.S. 1 (1957). Reidinvolved an attempt by Congress to subject the wives ofAmerican servicemen to trial by military tribunals with-out the protection of the Fifth and Sixth Amendments.The Court held that it was unconstitutional to apply theUniform Code of Military Justice to the trials of theAmerican women for capital crimes. Four Justices“rejected the idea that when the United States acts againstcitizens abroad it can do so free of the Bill of Rights.” Id.At 5. The plurality went on to say:

“The United States is entirely a creature of theConstitution. Its power and authority have no othersource. It can only act in accordance with all the limi-tations imposed by the Constitution. When theGovernment reaches out to punish a citizen who isabroad, the shield which the Bill of Rights and otherparts of the Constitution provide to protect his lifeand liberty should not be stripped away just becausehe happens to be in another land.” [citations omitted]

Respondent urges that we interpret this discussion tomean that federal officials are constrained by the FourthAmendment wherever and against whomever they act. Butthe holding of Reid stands for no such sweeping proposi-tion: it decided that United States citizens stationed abroadcould invoke the protection of the Fifth and SixthAmendments. The concurring opinions by JusticesFrankfurter and Harlan in Reid resolved the case on muchnarrower grounds than the plurality and declined even tohold that United States citizens were entitled to the fullrange of constitutional protections in all overseas crimi-nal prosecutions. See id., at 75 (Harlan, J., concurring inresult) (“I agree with my brother Frankfurter that . . . wehave before us a question analogous, ultimately, to issuesof due process; one can say, in fact, that the question ofwhich specific safeguards of the Constitution are appro-priately to be applied in a particular context overseas canbe reduced to the issue of what process is ‘due’ a defen-dant in the particular circumstances of a particular case”).


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Since respondent is not a United States citizen, he canderive no comfort from the Reid holding.

Verdugo-Urquidez also relies on a series of cases inwhich we have held that aliens enjoy certain constitutionalrights. [citations omitted] These cases, however, establishonly that aliens receive constitutional protections whenthey have come within the territory of the United Statesand developed substantial connections with the country.[citations omitted] Respondent is an alien who has hadno previous significant voluntary connection with theUnited States, so these cases avail him not.

Justice Stevens’ concurrence in the judgment takes theview that even though the search took place in Mexico, itis nonetheless governed by the requirements of the FourthAmendment because respondent was “lawfully present inthe United States . . . even though he was brought and heldhere against his will.” Post, at 279.† But this sort of presence—


† [Editors’ note: The three dissenting Justices (Brennan, Marshall andBlackmun) would have found the Fourth Amendment applicable to this casebecause of the circumstances of Verdugo-Urquidez’ presence in the UnitedStates. Justices Brennan and Marshall argued as follows in their joint dissent:

What the majority ignores, however, is the most obvious connec-tion between Verdugo-Urquidez and the United States: he wasinvestigated and is being prosecuted for violations of United Stateslaw and may well spend the rest of his life in a United States prison.The “sufficient connection” is supplied not by Verdugo-Urquidez,but by the Government. Respondent is entitled to the protectionsof the Fourth Amendment because our Government, by investi-gating him and attempting to hold him accountable under UnitedStates criminal laws, has treated him as a member of our commu-nity for purposes of enforcing our laws. He has become, quite lit-erally, one of the governed. Fundamental fairness and the idealsunderlying our Bill of Rights compel the conclusion that when weimpose “societal obligations,” ante, at 273, such as the obligationto comply with our criminal laws, on foreign nationals, we in turnare obliged to respect certain correlative rights, among them theFourth Amendment. By concluding that respondent is not one of “the people” protectedby the Fourth Amendment, the majority disregards basic notionsof mutuality. If we expect aliens to obey our laws, aliens shouldbe able to expect that we will obey our Constitution when we inves-tigate, prosecute, and punish them.

Id. at 283–284.]

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lawful but involuntary—is not of the sort to indicate anysubstantial connection with our country. The extent towhich respondent might claim the protection of the FourthAmendment if the duration of his stay in the United Stateswere to be prolonged—by a prison sentence, for exam-ple—we need not decide. When the search of his house inMexico took place, he had been present in the UnitedStates for only a matter of days. We do not think the appli-cability of the Fourth Amendment to the search of prem-ises in Mexico should turn on the fortuitous circumstanceof whether the custodian of its nonresident alien ownerhad or had not transported him to the United States at thetime the search was made.

Id. at 268–272.After disposing of further objections raised by Verdugo-

Urquidez, the Court concluded:

Not only are history and case law against respondent, butas pointed out in Johnson v. Eisentrager, 393 U.S. 763(1950), the result of accepting his claim [that the FourthAmendment was applicable to his case] would have sig-nificant and deleterious consequences for the United Statesin conducting activities beyond its boundaries. The ruleadopted by the Court of Appeals would apply not only tolaw enforcement operations abroad, but also to other for-eign policy operations which might result in “searches orseizures.” The United States frequently employs armedforces outside this country—over 200 times in our his-tory—for the protection of American citizens or nationalsecurity. Congressional Research Service, Instances of Useof United States Armed Forces Abroad, 1798–1989 (E.Collier ed. 1989). Application of the Fourth Amendmentto those circumstances could significantly disrupt the abil-ity of the political branches to respond to foreign situa-tions involving our national interest. Were respondent toprevail, aliens with no attachment to this country mightwell bring actions for damages to remedy claimed viola-tions of the Fourth Amendment in foreign countries or in


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international waters. . . . The Members of the Executiveand Legislative Branches are sworn to uphold theConstitution, and they presumably desire to follow itscommands. But the Court of Appeals’ global view of itsapplicability would plunge them into a sea of uncertaintyas to what might be reasonable in the way of searches andseizures conducted abroad. Indeed, the Court of Appealsheld that absent exigent circumstances, United Statesagents could not effect a “search or seizure” for lawenforcement purposes in a foreign country without firstobtaining a warrant—which would be a dead letter out-side the United States—from a magistrate in this country.Even if no warrant were required, American agents wouldhave to articulate specific facts giving them probable causeto undertake a search or seizure if they wished to complywith the Fourth Amendment as conceived by the Court ofAppeals.

We think that the text of the Fourth Amendment, itshistory, and our cases discussing the application of theConstitution to aliens and extraterritorially require rejec-tion of respondent’s claim. At the time of the search, hewas a citizen and resident of Mexico with no voluntaryattachment to the United States, and the place searchedwas located in Mexico. Under these circumstances, theFourth Amendment has no application.

For better or for worse, we live in a world of nation-states in which our Government must be able to “func-tion effectively in the company of sovereign nations.”[citations omitted] Some who violate our laws may liveoutside our borders under a regime quite different fromthat which obtains in this country. Situations threateningto important American interests may arise halfway aroundthe globe, situations which in the view of the politicalbranches of our Government require an American responsewith armed force. If there are to be restrictions on searchesand seizures which occur incident to such American action,they must be imposed by the political branches throughdiplomatic understanding, treaty, or legislation.

Id. at 273–275.


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B. INTERNATIONAL CRIMES

1. Terrorism

a. U.S. legislation

On December 12, 1989, President George H.W. Bush signed theAnti-Terrorism and Arms Export Amendments Act of 1989, Pub.L. No. 101-122, 103 Stat. 1892, 22 U.S.C. §§ 1732, 2364, 2371,2753, 2776, 2778, 2780 and 50 § U.S.C. 2405. The Act included,among other things, anti-terrorism measures to accomplish thefollowing:

— Clarify and strengthen the prohibitions on the export ofmilitary arms and equipment to countries which the Secretary ofState has determined have “repeatedly supported acts of inter-national terrorism.” The Act imposes criminal and civil penaltiesfor violations of the prohibitions.

— Establish uniform standards in the Arms Export ControlAct, the Foreign Assistance Act of 1961, and the ExportAdministration Act of 1979 for the Secretary of State to employin designating a terrorist country, and provides for Presidentialauthority to waive the statutory sanctions or to rescind theSecretary’s designation under certain circumstances.

— Require a validated license and 30-day advance congres-sional notification for the export of any good or technology, irre-spective of the dollar value, that the Secretary of State determinescould significantly contribute to the military potential of a ter-rorist country or to its ability to support international terrorism.

— Prohibit bilateral U.S. foreign assistance to any countrywhose government has repeatedly provided support for acts ofinternational terrorism, as determined by the Secretary of State.

— Prohibit U.S. and U.S.-controlled corporations and otherpersons from taking actions prohibited by the legislation outsideof the United States.

— Require congressional notification before a country maybe removed from the list of those designated as supporting inter-national terrorism.

President Bush’s statement at the time of signature assertedthat “[c]urbing state support to terrorists is essential in reducingthe menace of international terrorism.” His statement also


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addressed several concerns with the bill as enacted. First, headdressed the section providing for extraterritorial application tocertain persons:

I am aware that, insofar as the new section 40 of the ArmsExport Control Act applies to activities by U.S. persons(including subsidiaries of U.S. firms) in foreign countries,it has thus raised concerns among our Allies regarding theextraterritorial application of U.S. law. Moreover, section40 makes it clear that all of the prohibitions dealing withforeign subsidiaries and munitions items are applicable tothe extent specified in implementing regulations of theDepartment of State. I consequently direct the Secretary ofState to ensure that the appropriate implementing amend-ments to the International Traffic in Arms Regulations(ITAR) are consistent with applicable international lawregarding the extraterritorial effect of U.S. law.

Statement by the President, Office of the Press Secretary, WhiteHouse, 25 WEEKLY COMP. PRES. DOC. 1942 (Dec. 12, 1989).

The President also made clear that he would construe certainprovisions of the act in order to avoid any limitation on his abil-ity to conduct the foreign policy of the United States:

Two provisions of the bill warrant careful construction inorder to avoid constitutional difficulties. The new section40(a)(5) prohibits the United States Government from“facilitating the acquisition of any munitions item” by acountry designated by the Secretary of State under section40(d). The new section 40(b)(1)(D) contains a parallel pro-hibition on actions by any U.S. person to facilitate suchan acquisition. I shall interpret these provisions as plac-ing no limit on our negotiations and communications withforeign governments. This interpretation is supported bythe House Committee Report and the colloquy on thefloor of the House clarifying that these provisions are notintended to circumscribe my constitutional authority toarticulate foreign policy or to discuss with foreign coun-tries arms transfers that they may wish to make.

Id. at 1942


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b. International counter-terrorism agreements

On November 17, 1989, Deputy Legal Adviser Elizabeth R.Rindskopf testified before the Senate Committee on ForeignRelations on the Protocol for the Suppression of Unlawful Actsof Violence at Airports Serving Civil Aviation, done at Montreal,24 February 1988, 27 I.L.M. 627 (May 1988) and the Conventionfor the Suppression of Unlawful Acts Against the Safety ofMaritime Navigation and its related Protocol for the Suppressionof Unlawful Acts Against the Safety of Fixed Platforms Locatedon the Continental Shelf, done at Rome, 10 March 1988, 27I.L.M. 668 (May 1988).

(1) Protocol for the Suppression of Unlawful Acts of Violence at Airports

The Protocol for the Suppression of Unlawful Acts of Violence atAirports Serving Civil Aviation supplements the 1971 Conventionfor the Suppression of Unlawful Acts Against the Safety of CivilAviation, the “Montreal Sabotage Convention,” 24 U.S.T. 565,T.I.A.S. No. 7570. It extends the international prohibitions againstacts of violence against aircraft, including the obligation on statesto prosecute offenders themselves or extradite them for prosecu-tion by other states, to certain acts of violence at airports servinginternational civil aviation. As explained by Ms. Rindskopf:

This Protocol to the Montreal Sabotage Convention wasstimulated by the Abu Nidal organization’s December1985 attacks on Rome and Vienna airports that killedtwenty persons, including five Americans. Those brutalattacks, in which the terrorists shot at passengers in theairport building without even coming close to the aircraft,demonstrated that the airport facilities themselves, in addi-tion to the aircraft, needed to be brought under theumbrella of international anti-terrorist conventions. . . .

Ms. Rindskopf then described the U.S. Government’s strongsupport for the Protocol:

. . . The instrument represents another important inter-national step to prevent and punish terrorists. By including


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acts of violence committed in airports within the “prose-cute or extradite” regime embodied in the Montreal con-vention, the Protocol closes a significant “loophole” inthe international fight against aviation terrorism. Whilethis Protocol cannot guarantee that similar tragedies atairports will not occur in the future, it does serve as adeterrent and increases the likelihood that those respon-sible, if apprehended, will be held accountable.

The Protocol also represents a significant achievementin international cooperation to fight terrorism. The UnitedStates was a leader in the call for the negotiation of thisinstrument. Its successful conclusion under ICAO[International Civil Aviation Organization] auspices wasa significant achievement that illustrates the ability ofnations to work together to prevent and punish acts ofviolence against civil aviation. The unprecedented speedin which ICAO mechanisms adopted this instrumentreflects its importance to the international community.

Testimony of Deputy Legal Adviser Elizabeth R. Rindskopf, SenateExec. Rep. No. 101-18 (1989) at 6–7.

The documents transmitting the Airport Security Protocol tothe Senate for advice and consent are available at S. Treaty Doc.No. 101-19 (1989). See discussion in Cumulative Digest1981–1988 at 2216–2218. (The Protocol entered into force forthe United States November 18, 1994).

(2) Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and Related Protocol

The Convention for the Suppression of Unlawful Acts Against theSafety of Maritime Navigation and the related Protocol for theSuppression of Unlawful Acts Against the Safety of FixedPlatforms Located on the Continental Shelf generally extend tothe maritime community those protections afforded to civil avi-ation by conventions on aviation security. As explained by Ms.Rindskopf, these instruments were also in response to terroristviolence, “prompted by a tragic act of terrorist violence, in thiscase, the seizure of the Italian cruise ship Achille Lauro in October


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1985 and the murder of an elderly American passenger, LeonKlinghoffer.”

In describing the Convention and related Protocol, Ms.Rindskopf made the following comments on the offenses estab-lished under the Convention:

The purpose of Article 3, which enumerates the acts thatconstitute offenses under the Convention, is to overcomeconcerns that were raised as to the adequacy of interna-tional law to enable States other than that of a ship’s reg-istry to apprehend and prosecute those who committerrorist acts on the high seas. In the aftermath of theAchille Lauro incident, there existed considerable con-troversy about whether such terrorist acts fell within theinternational law of piracy. For example, the 1931 HarvardDraft Convention on Piracy, the 1958 Geneva Conventionon the High Seas, and the 1982 United Nations Conventionon the Law of the Seas, all define piracy as an act of vio-lence for private ends by one ship against another. Becausethe seizure of the Achille Lauro was arguably not com-mitted for private ends and was committed by the ship’sown passengers rather than by members of another ship,the existing international law on piracy was seen by someas inadequate to deal with the situation.

Article 3 solves the problem by enumerating the fol-lowing acts deemed to be in violation of the Convention,without regard to the motive of the offender or whetherthe offender attacked from another ship: (1) hijacking aship, (2) violence against a person on board a ship wheresuch violence is likely to endanger the safe navigation ofthe ship, (3) sabotage of a ship or maritime navigationfacilities, (4) communication of false information regard-ing navigation, and (5) injuring or killing any person inconnection with other offenses.

The Convention differs from most previous anti-ter-rorist conventions in that it specifically makes it anoffense to injure or kill a person. This provision wasspecifically included in response to the murder of LeonKlinghoffer during the Achille Lauro hijacking. . . . .


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Testimony of Deputy Legal Adviser Elizabeth R. Rindskopf, SenateExec. Rep. No. 101-18, (1989) at 8–9.

The State Department also provided answers to a series ofquestions from the Committee on Foreign Relations concerningthe agreements. In response to a question concerning the definitionof terrorism in the instruments, the Department responded:

The Airport Security Protocol, the Maritime TerrorismConvention, and the Fixed Platforms Protocol, like theother anti-terrorism conventions to which the United Statesis a party, do not attempt to define terrorism. Rather, theseinstruments proscribe, and create national jurisdiction overacts, which by their nature are a threat to civil aviationand maritime travel and are typically committed by ter-rorists. By agreeing that the offenses enumerated in theseinstruments are criminal regardless of motivation, theinstruments avoid the controversy over who is a “terror-ist” and who is a “freedom fighter.”

Id. at 15.In response to another question, the Department noted that

state-sponsored terrorism was covered by the agreements:

These instruments criminalize certain acts. The perpetratorsof such acts are considered criminals whether they actedalone or with the assistance, or under the direction, of a Statesponsor. Therefore, acts of state sponsored terrorism are cov-ered to the same degree as other acts of terrorism.

Id.The Department also addressed the process of extradition

under the Maritime Terrorism Convention:

The United States is unlikely to be the state of registry (theflag state) of a ship subject to a terrorist attack, but it hasbeen, and will unfortunately likely continue to be, the stateof nationality of victims as well as one of the states whoseconduct terrorists seek to affect by their attacks. TheUnited States therefore opposed a proposal to give priorityto an extradition request by the flag state. As a compromise,


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we joined consensus in adopting the language containedin Article 11, paragraph 5, which provides that “a StateParty which receives more than one request for extradi-tion . . . shall, in selecting the State to which the offenderor alleged offender is to be extradited, pay due regard tothe interests and responsibilities of the State Party whoseflag the ship was flying at the time of the commission ofthe offense.’ This provision preserves the flexibility of theRequested State to consider all relevant interests and cir-cumstances in deciding where to extradite the offender.

Id. at 16.Finally, the Department responded to the question of whether

it considered itself bound to submit to the compulsory jurisdic-tion of the International Court of Justice in respect to disputesarising under the Maritime Terrorism Convention:

No. The following reservation should be included in theresolution of advice and consent to ratification: “. . . sub-ject to a reservation being made by the United States pur-suant to Article 16(2), declaring that it does not consideritself bound by Article 16(1) insofar as it relates to thereferral of disputes to the International Court of Justice.”

Id. at 17.The documents transmitting the Convention and Protocol to

the Senate for advice and consent are available at S. Treaty Doc.No. 101-1 (1989). For a discussion of the transmittal documents,Ms. Rindskopf’s testimony, and further background on the AchilleLauro incident, see Cumulative Digest 1981–1988 at 2157–2166.(The Convention and Protocol entered into force for the UnitedStates March 6, 1995).

c. U.S. civil cause of action for terrorist acts

On July 25, 1990, Deputy Legal Adviser Alan J. Kreczko testi-fied before the Subcommittee on Courts and AdministrativePractice of the Senate Judiciary Committee on S. 2465, a bill toprovide a new civil cause of action in federal courts for terrorist


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acts committed abroad against United States nationals. Afterreviewing the existing legal framework against terrorism, Mr.Kreczko noted that victims of terrorism usually remain uncom-pensated for their injuries. Thus, the Department of State gener-ally supported the bill:

We view this bill as a welcome addition to the growingweb of law we are weaving against terrorists. It may bethat, as a practical matter, there are not very many cir-cumstances in which the law can be employed. Few ter-rorists travel to the United States and few terroristorganizations are likely to have cash assets or propertylocated in the United States that could be attached andused to fulfill a civil judgment. The existence of such acause of action, however, may deter terrorist groups frommaintaining assets in the United States, from benefitingfrom investments in the U.S. and from soliciting fundswithin the U.S. In addition, other countries may followour lead and implement complementary national meas-ures, thereby increasing obstacles to terrorist operations.

Moreover, the bill may be useful in situations in whichthe rules of evidence or standards of proof preclude theU.S. government from effectively prosecuting a criminalcase in U.S. Courts. Because a different evidentiary stan-dard is involved in a civil suit, the bill may provide anothervehicle for ensuring that terrorists do not escape justice.

Antiterrorism Act of 1990: Hearing on S. 2465 Before theSubcomm. On Courts and Administrative Practice of the SenateJudiciary Comm., 101st Cong. 11–55 (1990) (Statement of DeputyLegal Adviser Alan J. Kreczko, Dept. of State).

Mr. Kreczko also addressed the State Department’s concernswith the Legislation as drafted:

. . . [W]e favor adding a new provision to the Bill. Thisprovision would state that the Bill’s other provisions shallnot apply in suits against the United States, foreign statesas defined in the Foreign Sovereign Immunities Act, or anyofficer or employee thereof. The effect of this provision


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would be to maintain the status quo as regards sovereignstates and their officials: no cause of action for “interna-tional terrorism” exists against them.

The Department opposes creating this civil cause ofaction against foreign states. Use of the U.S. judicial sys-tem to bring charges of terrorism against foreign states orofficials has obvious potential to create serious frictionsand tensions with other nations. Most if not all foreignstates would view the assertion by U.S. courts of juris-diction to review allegations against them of committingor aiding terrorist acts outside the United States as incon-sistent with international law. We are concerned that uni-lateral extension of such jurisdiction by us would undercutour effort to build multilateral cooperation against ter-rorism. We also believe that the provisions of this Billshould not apply to suits against foreign officials. This isnecessary to prevent plaintiffs from circumventing theimmunity of foreign states by alleging terrorism againstforeign government officials.

We would be concerned about the reciprocal implica-tions of any bill that permitted U.S. courts to adjudicateallegations of terrorism against foreign states or their offi-cials. Such legislation could lead courts in hostile states toentertain suits that legitimate U.S. military activities con-stitute “terrorism.”

Moreover, if the Bill were to permit civil suits againststates or their officials alleging terrorism, individuals—rather than the U.S. government—would determine thetiming and manner of making allegations in official U.S.fora about the conduct of foreign countries and their offi-cers. We believe that the United States can best manage acomplex foreign policy with multiple objectives—amongthe most important of which is combating terrorism—ifthe timing and manner of such serious allegations againstforeign countries in official fora are left in the hands ofpersons who are responsible for the conduct of our for-eign policy.

Finally, we are concerned over the prospect of nui-sance or harassment suits brought by political opponentsor for publicity purposes, where allegations may be made


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against foreign governments or officials who are not ter-rorists but would nonetheless be required to defend againstexpensive and drawn-out legal proceedings. Many foreignstates are unlikely to enter the courts of other countriesto defend against charges of intentional wrongdoing. Thiswould exacerbate the problem of default judgments thatexists under current law.

Id. at 18–19. Following Deputy Legal Adviser Kreczko’s testimony, the

Department of State responded to questions raised by theCommittee. The questions and answers are available at www.state.gov/s/l. One question concerned the feasibility of an inter-national convention on civil redress for criminal acts of terror-ism. The Department responded that:

. . . Such an international convention . . . would have toovercome several significant obstacles: — First, the world community has tried unsuccessfully ina number of different fora since 1972 to come up withan acceptable definition of terrorism. It is for this rea-son that international conventions have been adoptedproscribing specific acts, which by their nature are typ-ically committed by terrorists (e.g., hostage-taking; air-craft hijacking and sabotage; acts of violence againstmaritime vessels and fixed platforms; and violenceagainst diplomats).— Second, other states may not be willing to undertakesuch obligations to enforce the civil decrees of the UnitedStates since, unlike most other countries, the decisionregarding appropriate compensation for a tortious injuryis made by a jury in the United States rather than by ajudge. American monetary awards have tended to be muchlarger than those rendered by foreign courts for similartorts. Foreign states may be reluctant to enter into an obli-gation to enforce these higher awards.— Third, we would need to be satisfied that the judg-ments of other countries would comport to our notionsof fairness and due process before we could undertake toenforce them.


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We note that one recent international convention doescontain a provision on civil redress. The TortureConvention, currently before the Senate for its advice andconsent, requires States parties to create a cause of actionfor acts of torture committed in their country. (ThisConvention does not, however, contain a provision formutual recognition of civil decrees related to such a causeof action.) We will consider whether it would be advis-able to include a similar provision in future conventionsrelated to terrorism.

Two questions asked for further clarification of the Department’sview that the bill should specifically state that its provisions willnot apply in suits against the United States, foreign states asdefined in the Foreign Sovereign Immunities Act, or any officeror employee thereof. First, the committee asked if such a provi-sion was consistent with traditional notions of immunity. TheDepartment responded, in pertinent part:

Existing theories of immunity are generally limited to ‘offi-cial acts’ immunity in order to hold an official potentiallyliable for purely private acts, such as contract or familylaw disputes, or torts. Our proposal does not extendimmunity into any of these areas; indeed, we note thatmost if not all ‘international terrorism’ suits could be main-tained as traditional tort actions (assault and battery),where a foreign government official would have only offi-cial acts immunity.

Our proposal would, however, exempt foreign offi-cials from this new cause of action. . . .

* * * *

We have indicated a concern that without an excep-tion for foreign officials, the cause of action providedunder S. 2465 could become a vehicle for court suits toharass foreign officials in the United States or to challengethe policies of foreign governments. Committee staff havebeen sympathetic to this concern. However, if the exemp-tion is limited to “official acts” the litigation will stilloccur. To maintain the suit, the plaintiff would only need


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to allege that the defendant’s terrorist actions were “non-official.” Foreign officials will be subject to suit, and thelitigation will revolve around whether the official’s coun-try has a policy of terrorism which made his support ofterrorism “official” or “non-official.”

* * * *

We do not see sufficient reason to risk this litigation.We have no reason to believe that acts of terrorism arebeing committed against Americans by foreign officialsacting in a non-official capacity. Furthermore, there is noexemption in the bill, and we are seeking none, for mem-bers of terrorist organizations. Exempting officials, includ-ing their nonofficial acts, will not benefit such organizations.

The bill was enacted as § 132(b)(4) of Pub. L. No. 101-519, 104Stat. 2251 (1990). See 18 U.S.C. § 2333.

2. Genocide, War Crimes and Crimes Against Humanity

On November 17, 1989, the Subcommittee on Asian and PacificAffairs and the Subcommittee on International Economic Policyand Trade of the House Foreign Affairs Committee held a hear-ing on issues affecting the question of U.S. relations with Vietnam.See discussion in Chapter 17.A. below. At the hearing the Depart-ment of State was asked to respond to questions concerning theKhmer Rouge’s activities in Cambodia. Several of the questions,set forth below with responses from the Department of State,related to the Convention on the Prevention and Punishment ofthe Crime of Genocide, 78 U.N.T.S. 277 (1989).

Q: What is the Department’s opinion on whether theKhmer Rouge committed genocide as defined in the 1948Genocide Convention?

A: The issue whether genocide, as defined in theGenocide Convention, occurred in Cambodia while underKhmer Rouge rule requires a legal determination that allthe elements of the crime, as defined by the Convention,have been established. As ratified by the United States, the


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Convention defines genocide as an act taken with the spe-cific intent of destroying a national, ethnic, racial, or reli-gious group, as such, in whole or in substantial part. Basedon currently available information, we believe that mem-bers of the Khmer Rouge committed genocide, as definedin the Convention, against some religious and ethnicgroups. Specifically, evidence exists that members of theKhmer Rouge committed genocide against the Cham,Vietnamese, Thai, and Chinese ethnic minorities, as wellas against Buddhist monks and possibly Christians. (TheCham would constitute a Moslem religious minority, aswell as an ethnic group.) We note in this connection thatthe United Nations Special Rapporteur on genocide,Benjamin Whittaker, stated in his report of July 2, 1985,to the UN Economic and Social Council, that Pol Pot’sKhmer Rouge government of Democratic Kampuchea wasguilty of genocide “even under the most restricted defini-tion . . . since the victims included target groups such asthe Chams (an Islamic minority) and the Buddhist monks.”(E/CN.4/SUB.2/1985/6, at 10 n.17.) We agree with thatassessment.

The Convention’s definition of genocide does not,however, address the full extent of the atrocities commit-ted by members of the Khmer Rouge. Mass murder notintended to destroy any of these four specific types ofgroups is not genocide under the Convention, regardlessof the numbers killed. Because much of the Khmer Rougeslaughter was random, politically motivated, or the resultof harsh conditions imposed on society at large, many actswould probably not constitute genocide as defined in theConvention.

Q: What are the United States rights and responsibil-ities under the Genocide Convention regarding the KhmerRouge, and do they require U.S. opposition to any rolefor the Khmer Rouge in a multipartite government?

A: With regard to the rights of the U.S. under theConvention, as a legal matter, the Genocide Conventiongenerally reasserts existing rights of states under domes-tic and international law to prevent and punish genocide,


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rather than creating additional rights. The only new rightsprovided to states that they did not already have are theright to bring other states before the ICJ [InternationalCourt of Justice] for disputes relating to the interpreta-tion, application, or fulfillment of the Convention (includ-ing those relating to the responsibility of a state forgenocide), and the right to prosecute individuals in aninternational penal tribunal if such a tribunal were estab-lished. With respect to our obligations or responsibilitiesunder the Convention . . . under the general obligation ofArticle I “to prevent and punish” genocide, the UnitedStates is required by Articles V and VI to enact domesticlegislation against genocide committed in U.S. territoryand try persons accused of genocide, and by Article VIIto extradite persons accused of genocide in accordancewith applicable laws and treaties, and not treat them aspolitical offenders. The Convention does not apply to U.S.policy toward a political settlement in Cambodia.

Nevertheless, in the context of the Cambodia conflict,a principal goal of U.S. policy is to ensure that perpetra-tors of genocide and other atrocities are prevented fromreturning to positions of power. Indeed, we continue tooppose any role for the Khmer Rouge in any future gov-ernment of Cambodia, and especially any role for theclearly discredited leaders of the 1975–79 period.

Issues Affecting the Question of U.S. Relations with Vietnam:Hearings Before the Subcommittees on Asian and Pacific Affairsand the Subcommittee on International Economic Policy andTrade of the House Foreign Affairs Committee, 101st Cong.(1989) at 135–140.

In response to a question about options for bringing membersof the Khmer Rouge who committed atrocities to justice, theDepartment stated the following with regard to the possibility ofbringing a case under the Genocide Convention:

The Genocide Convention provides, in Article IX, that:Disputes between the Contracting Parties relating tothe interpretation, application, or fulfillment of the pres-ent Convention, including those relating to the respon-


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sibility of a State for genocide or for any other actsenumerated in Article III, shall be submitted to theInternational Court of Justice at the request of any ofthe parties to the dispute.Cambodia is a party to the Convention, and has been

for almost forty years. Consequently, the InternationalCourt of Justice (ICJ) would have jurisdiction under thisprovision were an action properly initiated by anotherstate that is a party, and such an action could addresswhether Cambodia was responsible for genocide underthe Khmer Rouge regime. Compared to alternatives suchas an international criminal court, the bringing of such anaction is, from a legal point of view, relatively straight-forward. It would not, however, provide a means of bring-ing Pol Pot to justice. Such a suit can only be against thecountry of Cambodia, and not against any particular indi-viduals. In order to determine whether Cambodia wasresponsible for genocide, it may be necessary for the Courtto engage in a detailed examination of the role and respon-sibility of government officials, although the Court wouldlikely focus at a more general level on government poli-cies and actions rather than on the identification of spe-cific individual responsibility.

Although the ICJ affords a mechanism for the formaldetermination of whether genocide occurred, it is ques-tionable whether the United States could or should initi-ate such an action. Two critical legal obstacles wouldappear to make a U.S. suit unlikely to succeed. First, theConvention was not in force between the United Statesand Cambodia until 1989 (when the United States becamea party), and probably cannot be applied retroactively.Under customary international law, codified in Article 28of the Vienna Convention on the Law of Treaties, treatiesare presumed not to apply retroactively unless a contraryintention is stated in the treaty or is otherwise established.The Convention is silent on the issue of retroactivity, andthe negotiating history does not indicate it was intendedto apply retroactively.

Second, the United States is a party to the Conventionsubject to a reservation under which the United States may


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only be sued in the ICJ under the Genocide Conventionwith its consent. Under general principles of internationallaw, this reservation may be invoked reciprocally againstthe U.S. to bar a suit. This would mean that the UnitedStates could not bring an action against Cambodia with-out Cambodia’s specific consent.

These obstacles would not be present were a suitbrought by a third country that became a party to theConvention prior to the Khmer Rouge atrocities and with-out an ICJ reservation. We understand that such a suit—in which the United States would not be a party—has beenexplored by human rights attorneys in the private sector.

* * * *

From a legal point of view, we continue to believe thatthe trial of Pol Pot and others by a future government ofCambodia, formed after elections, would be the most effec-tive procedure for imposing punishment. Pol Pot and oth-ers have committed numerous acts that we assume arecrimes under domestic Cambodian law. Moreover, Cam-bodia has been a party to the Genocide Convention since1950 without reservation. Because Cambodia is the placein which the acts were committed, Cambodia is the onlycountry with an obligation to bring domestic prosecutionunder the Genocide Convention, as provided in Article VI.

The United States could assist Cambodia in such a pros-ecution if a perpetrator were apprehended here. . . .Genocide was made a crime under U.S. law in 1988; thus,the United States may extradite a person for the offense ofgenocide if that offense is covered by the applicable bilat-eral U.S. extradition treaty. The prospect of extradition forthe offense of genocide in the case of Khmer Rouge per-petrators is limited, however, because they would have tobe located in the United States, and because the acts under-lying a charge of genocide occurred prior to the establish-ment of the crime of genocide in the United States. As aresult, they might be extradited from the U.S. to face trialfor e.g., murder or assault, instead of genocide.


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Id. at 126–131The Department reviewed several other options for bringing

to justice the Khmer Rouge leaders responsible for atrocities inCambodia from 1975 to 1979. The Department discussed theactions taken by the United Nations Commission on HumanRights and commented on its possible role:

The U.N. Commission on Human Rights, established bythe U.N. Economic and Social Council as the central pol-icy organ in the field of human rights, may investigate alle-gations of human rights violations, handle communicationsrelating to such violations, and prepare recommendationsrelating to human rights. The Commission’s expert body,the Subcommission on Prevention of Discrimination andProtection of Minorities, assists the Commission in thiswork. Bringing violations of human rights before theCommission or the Subcommission may further the goalsof exerting public pressure upon a country, calling a gov-ernment’s attention to alleged violations, and otherwiseinvestigating a human rights situation.

The human rights situation in Cambodia has been con-sidered in some manner by the Commission every yearsince 1978, with annual resolutions since 1980 focusingmainly on the Vietnamese occupation and condemning the“persistent occurrence of gross and flagrant violations ofhuman rights in Kampuchea.” (See, e.g., U.N.C.H.R.Resolutions 1989/20, 1988/6.) The Commission andSubcommission began formal consideration of the KhmerRouge atrocities in 1978 when certain members, theUnited Kingdom and Canada in particular, presented evi-dence of the atrocities to the Commission.

In 1979, at the Subcommission’s direction, the Chairmanof the Subcommission prepared an analysis of the evidencebefore the Commission. (Commission on Human Rights(35th Sess.), U.N. Doc. E/CN.4/1335(1979).) This analy-sis presented the various allegations of Khmer Rougehuman rights violations without drawing conclusions asto their veracity. The Commission, however, postponedconsideration of the Chairman’s analysis and condemnedthe human rights situation in Cambodia only after the


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Vietnamese invasion. (U.N.C.H.R. Resolution 29 (XXXVI)(March 11, 1980). See 1978 U.N. Yearbook at p. 230.)Subsequent reports on the human rights situation in Cam-bodia tend to focus on the Vietnamese occupation and noton the Khmer Rouge atrocities. (See, e.g., Subcommissionon Prevention of Discrimination and Protection ofMinorities (34th Sess.), U.N. Doc. E/CN.4/Sub.2/L.780(1981).)

The objectives that could be served by action beforethe Commission or Subcommission at this time would be:(1) to investigate further the Khmer Rouge atrocities and,if possible, identify the role of individuals in these humanrights violations; and (2) to place international pressureon Cambodia or other relevant countries in order to ensurethe prosecution of those responsible for the atrocities.

A special Rapporteur, working group of experts, orother investigatory body could be directed to conduct aninvestigation into Khmer Rouge atrocities and report itsresults. In its investigation, the body could examine infor-mation submitted by governments, non-governmentalorganizations, experts and individuals. It would also beable to conduct an on-site investigation in Cambodia, withthe cooperation of the appropriate Cambodian parties.Such an investigation would best succeed in widely dis-seminating the identity of those responsible for, and theextent of, Khmer Rouge atrocities if it were endorsed byresolutions of the Subcommission, the Commission,ECOSOC, or the General Assembly. Of course, any suchaction furthering these objectives is wholly dependent uponthe political will of the states that are members of thesebodies.

Id. at 132–134.Next, the Department addressed the potential for prosecution

of Khmer Rouge leaders in the United States:

U.S. criminal jurisdiction normally does not extend toactions committed by foreign nationals in foreign coun-tries, particularly if the victims are also foreign nationals.U.S. law implementing Articles II—VI of the Genocide


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Convention and making genocide a crime under U.S. lawprovides the U.S. with jurisdiction only over defendantswho are nationals of the United States or who committedgenocidal acts on the territory of the United States. (TheGenocide Convention requires states to enact statutes topunish only genocide occurring on their territory.) More-over, because ex post facto laws are prohibited by the U.S.Constitution, this statute may not apply to acts commit-ted prior to its enactment in 1988.

Indeed, only a few exceptional criminal statutes con-fer criminal jurisdiction in the United States over anyperson for acts committed abroad. (See, e.g., 18 U.S.C.§ 1116 (murder of internationally protected person); 18U.S.C. ch. 113a (killings of U.S. national abroad); 18U.S.C. § 1203 (hostage taking).) While the Khmer Rougeleaders may have taken some action at some time thatwould fall under such a statute, they do not cover the pri-mary crimes of mass murder or genocide. Moreover, thelast two of these were enacted in the mid-1980s, and, asnoted above, may not be retroactively applicable.

Thus, the most fundamental difficulty with U.S. pros-ecution of Pol Pot and others for Khmer Rouge atrocitiesis that we are unaware as of this date of any Khmer Rougeactions that would constitute crimes under U.S. law. Untilwe can identify a U.S. legal basis to charge, arrest, or pros-ecute, the question of acquiring custody of Pol Pot or oth-ers cannot usefully be answered.

* * * *

The U.S. Government could initiate an investigationto determine more precisely the extent and nature of cul-pability of the Khmer Rouge leadership. For reasons notedabove, we currently have no indication that such an inves-tigation would lead to any U.S. prosecution, and certainlynot to an indictment for genocide under U.S. law. It might,however, provide a basis for other actions, such as theexclusion of persons from the U.S. The Department ofState would need to consult and coordinate with theDepartment of Justice in any action along these lines.


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Id. at 129–130The Department also reviewed the potential for creating an

international criminal court to prosecute Khmer Rouge leadersfor the Cambodian atrocities:

Creation of an international criminal court able to try andpunish those responsible for the atrocities of the KhmerRouge period raises a wide variety of legal and practicalconcerns. Generally, although there is a long history ofconsideration of such a court, states have been reluctantto create one, in great part due to the enormous com-plexity of such an endeavor. Agreement would have to bereached on such contentious issues as the court’s juris-diction, including the definition of crimes under interna-tional law, as well as the rules of procedure and evidence,funding, gathering of evidence, identification of appro-priate prosecutors, and incarceration of offenders.

As a result of these difficulties, prior proposals to cre-ate such a court have been largely unsuccessful. For exam-ple, a 1937 convention to establish such a court, concludedunder League of Nations auspices after years of study, neverentered into force as only one state ratified it. After WorldWar II, the victorious allies created the Nuremberg andTokyo tribunals, the only international criminal tribunalsever established to try individuals for war crimes and crimesagainst humanity. The Nuremberg and Tokyo courts wouldnot, however, serve as appropriate models in light of theunusual circumstances surrounding their creation. The1948 Genocide Convention envisages the possible estab-lishment of an international criminal court, but no statehas every tried to create such a tribunal in connection withthe Convention. (In fact, no enforcement procedure, includ-ing reference to the International Court of Justice, has beeninvoked under that treaty.) The UN Committee onInternational Criminal Jurisdiction studied the issue in theearly 1950s, but in 1954 consideration of its proposals wasput on hold. The International Law Commission (ILC) dis-cussed it in 1974 in the context of its work on a draft codeof offenses against the peace and security of mankind, but


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because of the controversy surrounding the proposal choseto postpone work on it indefinitely.

Beyond these complications, we are concerned that aninternational criminal court could, like other ostensi-bly impartial international bodies, become politicizedand, therefore, counterproductive. Were the courts tobecome politicized, we might find it acting contrary toU.S. interests on a whole range of issues or contrary toU.S. notions of governing international law and funda-mental fairness.

* * * *

Finally, as a practical matter, the success of any pros-ecution will depend on the willingness of those states whereoffenders are located to capture them and hand them overto an international criminal court. This might be particu-larly true in the case of the Khmer Rouge, as no state haseffective control over the perpetrators. Moreover, statesare generally reluctant to submit their nationals to the juris-diction of an international tribunal. Members of the HunSen regime, including Hun Sen himself, served in the KhmerRouge in the 1970s and might be particularly reluctant tosubmit generally to the jurisdiction of such a court.

. . . Nevertheless, we believe this alternative requiresfurther study along the lines indicated above. In thisregard, we will be following developments in the Inter-national Law Commission, which was requested by theGeneral Assembly this year to address the issue, and theGeneral Assembly, which will consider the ILC’s views aspart of next year’s agenda.

Id. at 123–126

3. Narcotrafficking: UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances

On June 19, 1989, President George H.W. Bush submitted to theSenate for advice and consent to ratification the United NationsConvention Against Illicit Traffic in Narcotic Drugs and Psychotropic


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Substances, adopted by consensus on December 20, 1988, at theconclusion of an international conference at Vienna. UN Doc.E/CONF.82/15 (1988), reprinted in 28 I.L.M. 493 (1989). Thetransmittal documents are available at S. Treaty Doc. No. 101-4(1988). The United States and 43 other nations signed theConvention when it was opened for signature on December 21,1988, and 16 others had also signed as of the date of its trans-mittal to the Senate. For discussion of the Convention, includingtransmittal to the Senate and Senate approval in 1989, seeCumulative Digest 1981–1988 at 3108–3114; see also id. at723–724, 1388–1389, 1393–1394.

On August 2, 1989, Attorney General Richard L. Thornburghtestified before the Senate Foreign Relations Committee in sup-port of the Convention. His statement enumerated the mostimportant terms of the agreement:

First, it is important to recognize that it is a lawenforcement convention providing new tools for policeprosecutors and judges from the signatory nations to moreeffectively carry out their responsibilities across interna-tional borders while preserving each nation’s sovereignty.

The convention will lift the veil of bank secrecy, forexample, as an impediment to gathering evidence againsttraffickers and as a method of hiding illicit profits. Govern-ments are also given the tools to seize illicit drug profitsand use them as we do in the United States, to enhanceour law enforcement efforts.

Second, all the nations signing the convention haveagreed to exchange evidence of criminal conduct and toextradite accused traffickers so that safe havens are no longerso readily available. The pact, in effect, tells the cartels thatthey are not welcome within any of our borders.

Third, the convention provides for the supervision ofthe manufacturing and sale of essential and precursorchemicals for the production of illegal drugs in terms sim-ilar to recently enacted United States legislation.

Fourth, commercial carriers are brought into the drugwar through requirements that they make certain thatcommercial consignments are free from drugs. Lawenforcement officials are given the authority to board,


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search and, if necessary, seize vessels used in the drug busi-ness with the consent of the flag state.

Finally, the convention reaffirms the need for aggres-sive efforts in crop eradication and demand reduction tocomplement its law enforcement officials.

Senate Exec. Rep. No. 101-15 (1989) at 119.Attorney General Thornburgh’s prepared testimony addressed

in depth some of the most important specific provisions. As tothe extradition and mutual legal assistance provisions, he stated:

(4) Extradition.—The Convention amends existing extra-dition treaties between parties to include drug and moneylaundering offenses as extraditable offenses and providesthat they shall be extraditable offenses between states thatdo not make extradition conditional on an extraditiontreaty. While although almost all United States extradi-tion treaties include within their scope drug traffickingoffenses, many do not include drug-related money laun-dering offenses. This provision will, therefore, have animportant impact on our bilateral extradition relations.

The United States had hoped to include a broad obli-gation to extradite one’s own nationals in this article.Unfortunately, there was overwhelming opposition fromthe northern European countries that, for either politicalor legal reasons, would not accept any provision on theextradition of their nationals, even a hortatory provision.Thus, the article contains no provision on the extraditionof nationals. The article does, however, obligate a partyto submit the case to its competent authorities for the pur-pose of prosecution when it refuses to extradite anoffender because the offender is one of its nationals orbecause the offense occurred on its territory or on its ves-sel or aircraft.

(5) Mutual Legal Assistance.—The Convention pro-vides a treaty obligation, to provide mutual legal assis-tance to other parties in investigations, prosecutions orother judicial proceedings in relation to covered offenses.Such assistance includes, inter alia, the taking of evidence,


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service of documents, executing searches and seizures,examining objects and sites, providing bank, financial andbusiness records, and identifying and tracing proceeds andinstrumentalities of crime. Other forms of mutual legalassistance may be provided as allowed by the domesticlaw of the requested party.

Significantly, the Convention also eliminates banksecrecy as a ground for refusing a request for mutual legalassistance.

To the extent necessary, the Convention amends exist-ing mutual legal assistance treaties to apply to offensescovered by the Convention, thereby including money laun-dering in the context of illegal drug trafficking. As betweenparties that are not parties to bilateral or multilateraltreaties on mutual legal assistance, the Convention pro-vides a basis for according such assistance, and specifiesthe procedures to be followed in making and executingrequests. Requests may be refused only for limited speci-fied reasons.

Id. at 127–128.Attorney General Thornburgh and Senator Joseph Biden

engaged in the following exchange regarding the Convention’ssafeguards where other States’ requests for investigative infor-mation would jeopardize U.S. law enforcement efforts:

Mr.Thornburgh. [I]n a specific case if we made a deter-mination that the information requested was not part ofa legitimate law enforcement undertaking in an investi-gation of criminal conduct, I would have no hesitationabout refusing to furnish the information. That wouldlargely be a matter between our State Department and therequesting country, but at the first instance, I have nodesire or any willingness to compromise the rights ofAmerican citizens in an investigation that does not relateto legitimate law enforcement purposes. At the same time,it is important I think for us to recognize our obligationto furnish that information when it is in the course of alegitimate law enforcement undertaking.


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Again, without looking at the facts of a particular case,where you draw the line is obviously going to be a judg-mental matter.

Senator Biden. So, it is a judgmental matter that theSecretary of State or you, or whomever is asked by thePresident, can make as to whether or not the investigativebody in country A seeking the report relating to criminalactivity in country A is or is not necessarily required tobe given [that report].

Mr. Thornburgh. It is a judgmental matter today.Those are the judgments we make in the normal courseof our relationships with countries around the world, andit would remain a judgmental matter under the treaty.

* * * *

[The Convention] requires [that information be pro-vided] but permits us to resist where we consider that theexecution of the request would be prejudicial to our essen-tial interests. . . . Article 7, paragraph 15, subpart B.“Mutual legal assistance may be refused if the requestedParty considers that execution of the request is likely toprejudice its sovereignty, security, ordre public, or otheressential interests.” And under the rubric of other essen-tial interests I would certainly include our right to exer-cise our judgment that this was not a legitimate lawenforcement investigation and the rights of American cit-izens should not be prejudiced by furnishing informationof the type you suggest might be requested.

* * * *

Let me, if I might, just add one other provision becauseI anticipate a further objection in this regard that the fur-nishing of that information to a foreign country might, infact, compromise an investigation that we were carryingon within our borders. And that is covered by paragraph17 which says, “Mutual legal assistance may be postponedby the requested Party on the ground that it interferes withan ongoing investigation, prosecution or proceeding.”

I regard those as both sufficient safeguards to deal withthe threat that you raise about our dealing in the future withcountries whose bona fides we have some doubt.


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Id. at 137–138. On November 21, 1989, the Senate gave its advice and con-

sent to ratification of the Convention. 135 Cong. Rec. at S16,616(Nov. 21, 1989). The United States ratified the Convention onFebruary 20, 1990, and it entered into force for the United Stateson November 11, 1990.

C. INTERNATIONAL CRIMINAL TRIBUNALS

International Criminal Court

On December 4, 1989, the U.N. General Assembly passed a res-olution requesting that the International Law Commission“address the question of establishing an international criminalcourt or other international criminal trial mechanism with juris-diction over persons alleged to have committed crimes whichmay be covered under a code, including persons engaged inillicit drug trafficking across national frontiers, and to devote par-ticular attention to the latter question in its report on that ses-sion.” UN Doc. No. A/RES/ 44/39. Accordingly, in 1990 the ILCsubmitted, as part of its report to the Sixth Committee, a con-sideration of the establishment of an international criminal court,including a review of previous U.N. efforts in this area, a discus-sion of the advantages and disadvantages, an overview of possibleoptions, and a review of other possible international mechanisms fortrying such crimes. Report of the International Law Commissionon the work of its Forty-Second Session, 1 Y.B. Int’l L. Comm’n36–61, UN Doc. A/CN.4/SER.A/1990.

On November 7, 1990, John Knox, U.S. representative to theSixth Committee, made the following comments on the ILC’sReport, available at www.state.gov/s/l:

We appreciate the Commission’s work on an InternationalCriminal Court. Their outline of issues and options is a use-ful basis for more detailed analysis of such a court, and ofthe problems of enforcing international offenses, generally.

It has been suggested that the Court could operate, atleast at first, independently of the Draft Criminal Code,and adjudicate a narrower range of crimes, such as thosedefined in existing international conventions. This would


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avoid our problems with the Code. A Code without aCourt would seem unhelpful, but a Court could perhapsbe of use without a Code.

We would point out, however, that there are effectivenational and international systems in place to respond tosuch crimes. Of course, we are always interested in pos-sible means of improving the prosecution of internationalcrimes. But it is still not clear to us that the Court wouldcontribute to the existing system. There is in fact a dan-ger, as the Commission notes in paragraph 18 of itsReport, that the Court would disrupt satisfactory imple-mentation of the existing system. This is a real danger, andone that we believe should be considered very carefully.

The fundamental question here is how the Courtwould work with existing national and international sys-tems of criminal law enforcement. There are also a hostof practical questions that must be addressed before Statescan decide whether the Court would complement, or inter-fere with, the existing system.

For example, what rules of evidence and procedurewould the Court apply? How would evidence be obtained?Who would conduct the investigation and prosecution,and who would make the crucial decisions as to whichindividuals should be prosecuted? It would appear thatthe Court might require a large prosecution arm and apenal facility. What will these cost? How will they beadministered? And, most important, how will the answersto these questions affect the current system of nationaland international enforcement?

These are not merely questions of implementation.They are fundamental, and must be answered before it ispossible to decide whether the Court is worthwhile.

Mr. Chairman, given the fairly early stage of theCommission’s consideration of these questions, the UnitedStates believes that the Commission should not be askednow to focus its analysis on a particular type of Court.Instead, we would suggest that the Commission be requestedto continue its analysis in more detail, with particularemphasis on the practical questions attendant on theCourt’s relationship to the existing system of enforcement.


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On November 28, 1990, the General Assembly adopted Resolu-tion 45/41, which asked the ILC “to consider further and analysethe issues raised in its report . . . including the possibility of estab-lishing an international criminal court or other international crim-inal trial mechanism.”

On December 11, 1990, Assistant Secretary for LegislativeAffairs Janet G. Mullins sent a letter to Rep. Dante B. Fascell,Chairman of the House Committee on Foreign Affairs, expressingthe Department of State’s view on a proposed congressional con-current resolution urging the U.S. to pursue the establishment ofan international criminal court. In pertinent part, the letter stated:

[T]he proposal to create an International Criminal Courtis an interesting idea. However, . . . there are substantive,definitional and procedural problems attendant to theproposal. Because of these problems, the idea of creatingan International Criminal Court has had a long, andlargely disappointing, history. While the Department willcontinue to examine specific proposals for such a courtcarefully, we believe it would be premature and unwisefor the Congress to go on record in support of such acourt or a diplomatic conference to create one, until thereis greater indication that these problems can be addressedsatisfactorily.

For example, it is not clear that such a court wouldactually facilitate the prosecution of international crimi-nals. The current approach of the international legal sys-tem is to require states either to prosecute or extraditealleged offenders. We are not convinced that states wouldbe more willing to turn offenders over to an internationalcourt than they would be to prosecute offenders or extra-dite them to another state. We also need to consider therisk that an International Criminal Court could developinto a politicized body, in which case we might find thecourt interpreting crimes in unhelpful ways and releasingcriminals who might no longer be prosecutable.

In addition, given the general reluctance of states tosubmit themselves or their nationals to the jurisdiction ofan international authority, it is highly questionable whether


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the creation of an International Criminal Court could atthis point in time achieve acceptance by a sufficient num-ber of states to be an effective and worthwhile endeavor.This concern is borne out by the lack of enthusiasm mostgovernments have shown for past proposals to create inter-national criminal tribunals.

Furthermore, the creation of an International CriminalCourt is an enormously complex matter, requiring con-sensus on numerous practical issues. . . . While all of theseproblems may be potentially surmountable, achievingconsensus on them could well prove a difficult if notimpossible task, especially in light of the divergence ofopinion among the international community on variousaspects of international criminal law. The Departmenthas not to date encountered any proposal for the creationof an International Criminal Court which addresses theseproblems in a serious manner.

Letter from Assistant Secretary Mullins to Dante B. Fascell,Chairman, Committee of Foreign Affairs, House of Representa-tives, December 11, 1990, pp. 1–3, available at www.state.gov/s/l.

Cross references

Visa denial for Terrorist activity, Chapter 1.C.2.Italian Request for transfer of terrorist under Council of Europe

Prisoner Transfer Convention, Chapter 2.C. Violations of criminal law by persons entitled to diplomatic immu-

nity, Chapter 10.C.1.b.


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CHAPTER 4

Treaties and Other International Agreements

A. CAPACITY TO MAKE

1. U.S. Signature: South Pacific Driftnet Convention

In 1990 the United States and New Zealand engaged in corre-spondence regarding signature by the United States of theConvention for the Prohibition of Fishing with Long Driftnets inthe South Pacific Region, adopted at Wellington on November 24,1989 by the South Pacific states. 29 I.L.M. 1454 (1991); see alsoS. Treaty Doc. No. 102-7 (May 21, 1991). The Government ofNew Zealand is designated as the depositary by the Convention.

Article 10 of the Convention provides that it shall be openfor signature by any member of the South Pacific Forum FisheriesAgency (“FFA”), any state in respect of any territory situatedwithin the Convention area for which it is internationally respon-sible, and any territory situated within the Convention area whichhas been authorized to sign the Convention and assume rightsand obligations under it by the government of the state which isinternationally responsible for it. The Convention obligates par-ties to restrict their activities with respect to waters under theirfisheries jurisdiction that are in the Convention area. For theUnited States, waters within the Convention area are the exclu-sive economic zones around American Samoa and the few U.S.unincorporated islands.

An August 2, 1990, letter to the Department of State fromthe ambassador of New Zealand to the United States, discussingprotocols to the Convention, reflected his understanding that theUnited States would sign the Convention “in respect of . . . United

137

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States territory (American Samoa).” In order to clarify that theGovernment of the United States signs treaties on behalf of theUnited States and not on behalf of territories or portions thereof,on September 26, 1990 Deputy Assistant Secretary of State forOceans and International Environmental and Scientific AffairsDavid A. Colson sent the following response to the ambassadorof New Zealand:

[T]he United States intends to sign the Convention in itsown name and on its own behalf because a portion of itsexclusive economic zone is located within the ConventionArea. Upon becoming Party to this Convention, the UnitedStates will be obligated to prohibit driftnet fishing in allareas of its EEZ within the Convention Area, and to pro-hibit all U.S. nationals and vessels documented under U.S.laws from fishing with driftnets in the Convention Area.

The letter from the ambassador of New Zealand and DeputyAssistant Secretary Colson’s response are available at www.state.gov/s/l. The United States signed the Convention on Nov. 14,1990; it entered into force for the United States on Feb. 28, 1992.

2. Choice of Treaty Form: Treaty on the Final Settlement with Germany

On July 12, 1990, Deputy Legal Adviser Michael K. Young tes-tified before the Senate Foreign Relations Committee on legalaspects of German unification. Among the issues discussed by Mr.Young was the form that a final settlement agreement withGermany should take, and the role of the U.S. Senate in Germantreaty matters. His testimony on these questions follows:

[W]e are working out in the Two-plus-Four negotiationsthe terms of a final settlement that will resolve all out-standing four-power issues regarding Germany in a man-ner consistent with the goal of a Germany free from anyvestiges of the occupation era.

The United States has considerable flexibility regard-ing the form and contents of the settlement document.


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Our approach reflects the fact that the central element inresolving the German question—the ending of Germany’stragic and artificial division—is coming about as a resultof the sea change in Eastern European politics and throughthe actions and decisions of the Germans themselves. Thesettlement document is not the instrument that will endGermany’s division. Instead, it is a coda, albeit an impor-tant one, to the central work being carried on peacefullyand democratically by the Germans themselves. The set-tlement document is needed, in our view, solely to pro-vide an uncontested basis for full German sovereignty.

Thus, we believe that the settlement document shouldbe brief. It must make a few important but technicaladjustments to make the legal situation in Germany cor-respond to the new political realities there. No more isneeded. Moreover, the Final Settlement on Germany is notthe appropriate document in which to address the manydetailed technical policy issues between the various par-ties. These can and will be settled elsewhere, bilaterallyand multilaterally, as sovereign acts of a United Germany.

Against this background, Mr. Chairman, let me brieflyaddress some of the general issues regarding the Senate’srole on German treaty matters and survey the criteria thatwe will look at—together with the views of this Committeeand others in the Congress—in making the final judgmentas to the appropriate domestic form for the Settlement.

The Senate has already played a significant role in theadoption of the individual pieces of the conclusion of peacewith Germany, with the result that the few remaining mat-ters are generally technical in nature:

— First, Congress and the President ended the state ofwar with Germany on October 24, 1951 when thePresident issued a proclamation pursuant to a joint reso-lution of Congress.— Second, the Senate gave its advice and consent on July13, 1953 to the Agreement on German External Debts,which resolved reparations and other key issues that wouldnormally have been addressed in a peace treaty.

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— Third, on July 1, 1952 and April 1, 1955 the Senategave its advice and consent to the Convention on Relationsbetween the Three Powers and the Federal Republic ofGermany and its related Protocol on the Termination ofthe Occupation Regime in the FRG, which resolved otherkey issues necessary to normalizing our relationship withWest Germany.

Unlike the case of Italy, Japan and the other axis pow-ers, the business of regulating the peace with Germany wasnever addressed in a single document. But through a seriesof documents in the early 1950’s, the Senate has alreadygiven its advice and consent to the elements of such a peacetreaty with Germany.

The allied rights and other subjects which remain fornegotiation, as part of the final settlement, are set forthand reconfirmed in executive agreements, not treaties. Iam referring to such documents as the August 1, 1945Potsdam Protocol, the June 5, 1945 Declaration Regardingthe Defeat of Germany and the Assumption of SupremeAuthority and the September 3, 1971 QuadripartiteAgreement on Berlin.

The Department of State’s regulations on internationalagreements, contained in the Foreign Affairs Manual (11FAM 720), set forth the general criteria we review inresolving the question of submission to the Senate. Thefirst criterion—and the most important—is the extent towhich the settlement will involve commitments or risksaffecting the nation as a whole. As I have noted, we donot intend to enter into new obligations in the Settlementdocument, but merely to solemnize our fulfillment of anold one—our obligation to promote the emergence of ademocratic, sovereign, unified Germany within a com-munity of democratic states. The Settlement will not cre-ate new rights.

The Department’s second criterion is whether the set-tlement is intended to affect State laws. The settlement aswe now see it would not.

Third is whether the agreement can be given effectwithout the enactment of subsequent legislation. No leg-


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islation would be required to implement the settlement weforesee.

Fourth is past U.S. practice regarding similar agreements.As I have noted, the Settlement in all likelihood will addressthose issues that we have traditionally included in executiveagreements not submitted to the Senate.

Fifth, the criteria highlight the preference of theCongress as to the particular type of agreement.

Sixth is the degree of formality of the settlement. It issimply too early to assess this criterion. I would note, how-ever, that it has been Bonn’s strong desire, and also ourpreference, not to present this Settlement as a Peace Treatydividing victors and vanquished. This may affect the degreeof formality desired.

Seventh, the criteria refer to the proposed duration ofthe agreement, the need for its prompt conclusion, andthe desirability of concluding a routine or short-term agree-ment. The proposed settlement is intended to resolve per-manently the comparatively narrow issues it will probablycover. Once the parties reach agreement, the sheer pace ofevents in Germany will make it desirable to bring the set-tlement into force expeditiously.

Finally, the criteria refer to the general internationalpractice as to similar agreements. Some of the other par-ties may submit it to their parliaments. Others may not.However, this is a criterion we must treat with cautionbecause the other states concerned have very different legalsystems—as well as legal traditions that commend a dif-ferent range of documents, with quite different legal formand criteria, to legislative consideration, while simultane-ously sharply limiting the role of parliamentary review ofthese agreements.

Legal Issues Relating to Future Status of Germany: Hearing Beforethe Senate Comm. On Foreign Relations, 101st Cong. 2–15(1990)(Statement of Michael K. Young, Deputy Legal Adviser,Department of State).

Ultimately the settlement was concluded in the form of a treatyto which the Senate gave its advice and consent to ratification on


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October 10, 1990; it entered into force March 15, 1991. 29 I.L.M.1186 (1990); S. Treaty Doc. 101-20 (Sept. 26, 1990). For a dis-cussion of the treaty and related instruments, see CumulativeDigest 1981–1988 at 3474–3493. For settlement of claims by theUnited States against the German Democratic Republic in the con-text of German unification, see id. at 2357–2360.

B. CONCLUSION, ENTRY INTO FORCE, APPLICATION AND TERMINATION

1. Full Powers

A memorandum prepared by the Office of the Assistant LegalAdviser for Treaty Affairs on May 5, 1989, described the prac-tice of the U.S. Government regarding full powers as follows:

A “full power” is issued to the U.S. representative and pre-sented at the time of signing of a treaty in order to assurethe depositary or, in the case of a bilateral [treaty], theother government, that the U.S. representative possessesthe necessary authority to sign. In international law thefull power is formal evidence of a representative’s author-ity to sign on behalf of his government. The 1969 ViennaConvention on the Law of Treaties defines a full power as“a document emanating from the competent authority ofa State designating a person or persons to represent theState for negotiating, adopting or authenticating the textof a treaty, for expressing the consent of the State to bebound by a treaty, or for accomplishing any other act withrespect to a treaty.”

International law and practice recognize Heads ofState, Heads of Government and Ministers of ForeignAffairs as having the authority to issue full powers. In U.S.practice full powers were issued by the President untilOctober of 1968, at which time the President delegatedauthority to sign full powers to the Secretary, or in hisabsence, the Acting Secretary of State.

In accordance with customary U.S. treaty practice, thefull power names the representative, with title, and gives


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a clear indication of the particular instrument or agree-ment which the representative is to sign. The full powerincludes a statement to the effect that signature of thetreaty is subject to advice and consent of the Senate orother approval by the President. Full powers for repre-sentatives of the United States are prepared by this officein accordance with a prescribed style and format.

If authorization to sign a treaty or agreement givenpursuant to Circular 175 procedure is subject to finalapproval of the text, or if the person named in the fullpower is under instructions to await further instructionsbefore signing the treaty or agreement, these domesticqualifications are never to be contained in the text of thefull power, which is of an international character, butrather may comprise an element of the instructions tothe U.S. representative.

The memorandum is available at www.state.gov/s/l. Signature offull powers on behalf of the United States is also discussed in theDepartment of State’s regulations at 11 Foreign Affairs Manual732. The “Circular 175 procedure” referred to in the letter is theprocedure on negotiation and signature of treaties and other inter-national agreements, set forth at 11 Foreign Affairs Manual 720.

2. Reservation Practice: U.S. Reservations to Genocide Convention

On February 19, 1986, the U.S. Senate gave its advice and con-sent to U.S. ratification of the Convention on the Prevention andPunishment of the Crime of Genocide, 78 U.N.T.S. 277 (1951),subject to two reservations, five understandings and one declara-tion. 132 CONG. REC. S1355 (Feb. 19, 1986). For a discussionof Senate consideration of the Treaty, see Cumulative Digest1981–1988 at 789–823.

The U.S. Government deposited its instrument of ratification onNovember 25, 1988, including the two reservations, as follows:

(1) That with reference to Article IX of the Con-vention, before any dispute to which the United States is


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a party may be submitted to the jurisdiction of theInternational Court of Justice under this article, the spe-cific consent of the United States is required in each case.

(2) That nothing in the Convention requires or author-izes legislation or other action by the United States ofAmerica prohibited by the Constitution of the UnitedStates as interpreted by the United States.

Senate Resolution 347, 132 CONG. REC. S1416 (Feb. 19, 1986).The United Nations circulated a notice with the U.S. reservationson December 29, 1988, U.N. Doc. CN.281.1988. Treaties-2.

On December 22, 1989, the Government of the UnitedKingdom objected to both U.S. reservations, as follows:

The Government of the United Kingdom have consistentlystated that they are unable to accept reservations to ArticleIX. Accordingly, in conformity with the attitude adoptedby them in previous cases, the Government of the UnitedKingdom do not accept the first reservation entered by theUnited States of America.

The Government of the United Kingdom object to thesecond reservation entered by the United States of America.It creates uncertainty as to the extent of obligations whichthe Government of the United States of America is pre-pared to assume with regard to the Convention.

Letter from T.L. Richardson, United Kingdom Mission to theUnited Nations to Javier Perez de Cuellar, Secretary-General,United Nations, December 22, 1989. See Multilateral TreatiesDeposited with the Secretary-General Status as at 31 December1990, 101. Other objections to the second U.S. reservation werereceived the same day from Finland, Sweden, Norway and Ireland,Id. at 99–101.

Thereafter, objections to both reservations were received fromthe Netherlands, Italy, and Greece, id. at 99–100. Denmark andSpain objected to the second reservation, id. at 99–101, andMexico objected to the first reservation, id. at 100. The Govern-ment of the Federal Republic of Germany stated that it interpretedthe second reservation as a reference to article V of the Genocide


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Convention (in which Parties undertake to enact implementinglegislation “in accordance with their respective Constitutions”),and therefore as not affecting U.S. obligations as a State Party tothe Convention. Id. at 103.

A memorandum dated January 9, 1990 prepared by John Crook,Assistant Legal Adviser for Treaty Affairs, provided a legal analy-sis of the British objections to the U.S. reservations, as follows:

Relevant Rules—U.S. Practice. There have been con-tending viewpoints as to customary international lawregarding the effect of objections to reservations to mul-tilateral treaties. (The [Vienna Convention on the Lawof Treaties (“Vienna Convention” or “VCLT”)] formulais consistent with the U.S. view of customary law, but isnot in force between the United States and the UnitedKingdom because the United States is not a party to theConvention.)

The United States has taken the position that, undercustomary international law, a party’s objections to U.S.reservations to a multilateral treaty generally do not pre-vent the treaty from entering into force for the UnitedStates. The objections render the reservation ineffectivebetween the United States and the objecting party. As acorollary, the article to which the reservation relates isregarded as not being in force between the United Statesand the objecting party. The objection thus in effect cre-ates a hole in the bilateral treaty fabric. See, e.g., 14Whiteman, Digest 1095–98 (memorandum by AssistantLegal Adviser Bevans concerning effect of objections toU.S. reservations to 1955 Convention of the Postal Unionof the Americas and Spain).

This principle—that an objection does not prevent therest of the treaty from entering into force bilaterally—isreflected in the Third Restatement of Foreign RelationsLaw at section 313(c)(ii):

[O]bjection to a reservation by another contractingstate does not preclude entry into force of the agreementbetween the reserving and accepting states unless a con-trary intention is expressed by the objecting state.


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Comment (b) explains that in case of such reservation,“the agreement would be in force between the objectingand reserving state—except as to the provisions to whichthe reservation relates—unless the objecting state clearlyindicates otherwise.” Id. (vol I) at 181.

Under these principles, [the U.K.’s] objections to theU.S. reservations do not prevent the United States fromhaving a treaty relationship with other parties under theGenocide Convention. The bilateral situation with theU.K. is more complex. There is no treaty relationshipbetween the United States and the United Kingdom underArticle IX. The bilateral effect of the British objection tothe second U.S. reservation is less easy to state, since thesecond U.S. reservation might affect many articles of theConvention. However, the guarded language of the U.K.objection—and the principle that the objecting state mustact explicitly to prevent a treaty relationship—indicatethat there is some bilateral relationship. It perhaps con-sists of those articles judged (or to be judged by the par-ties) as not significantly or directly affected by the U.S.reservation.

[The U.K.’s] position concerning these principles is notclear. Sir Ian Sinclair’s book on the Vienna Conventionsseems generally sympathetic to the U.S. approach:

This is hitherto untested ground, but in principle therewould appear to be no reason why an objection to areservation may not produce this effect [i.e., the drop-ping away of articles to which the reservation relates],provided the treaty is of such a nature that separabil-ity of its provisions is a practicable proposition.

I. Sinclair, The Vienna Convention on the Law of Treaties68 (second ed. 1984). . . .

Historical Background. There has been much con-flicting opinion concerning the effects of objections toreservations to multilateral treaties. The GenocideConvention provided the focal point for much of thedebate. There have been three major schools of thought.Under the traditional (“League of Nations” or “unanim-


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ity”) view, any party’s objections to a reservation renderedthe attempted ratification ineffective. Thus, under the tra-ditional rule, all existing parties had to consent to all reser-vations. The rule ensured the integrity of the treaty text,but at the cost of discouraging wider adherence.

In the 1920’s and 1930’s, the American States devel-oped a different practice (the “Pan American Rule”). Thisfollowed from the notion that a reservation was an inher-ent right of sovereignty which should not be discouraged.Under this rule, it was possible to have a web of differenttreaty relationships among the parties to a multilateraltreaty:

— The treaty was in force unaltered among states thatbecame parties without reservations.— It was in force in amended form among states mak-ing reservations and those states accepting the reser-vations.— It was not in force among states that made reserva-tions and existing parties that did not accept those reser-vations.

Many states made reservations to the Genocide Con-vention, creating uncertainty as to which states theSecretary-General (the depositary) should count whenthe Convention entered into force. The U.S. and the U.K.generally supported the traditional view. The SovietUnion and Poland contended that the requirement ofunanimity interfered with the inherent right of states tomake reservations.

The General Assembly sought guidance to resolve thedispute from both the ICJ and the ILC. It got differentanswers. In its 1951 advisory opinion (Reservations to theConvention on the Prevention and Punishment of theCrime of Genocide, 1951 I.C.J. 15 (Advisory Opinion ofMay 28)), the Court, by 7 votes to 5, Judge Hackworthin the majority, Lord McNair dissenting) rejected the tra-ditional rule and articulated a new one in the context ofthe Genocide Convention. The Court judged that it wasthe “object and purpose” of the negotiators “that as many


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states as possible should participate” in the GenocideConvention, id. at 24, and that the unanimity rule wasnot a customary rule of international law. Id. The Courtheld that:

—A state that has made a reservation accepted bysome (but not all) prior parties is a party to theGenocide Convention, as amended by the reserva-tion, if the reservation is compatible with theConvention’s object and purpose.— That if the state objects to a reservation it considersincompatible with the object and purpose of the con-vention, it can consider the reserving state not a party.

Eminent writers and the International Law Commis-sion were not persuaded. The ILC reported back to theGeneral Assembly soon after the ICJ’s advisory opinion,supporting the traditional rule and criticizing the ICJ’sobject and purpose test. See Sinclair at 58–59.

The ILC returned to the problem as it sought to cod-ify the law of treaties, work that was the precursor of theVienna Convention on the Law of Treaties. The Commis-sion changed course with the appointment of Sir Hum-phrey Waldock as special rapporteur. It recommended asystem that moved away from the traditional rule, andthat melded the ICJ’s “object and purpose” test with ele-ments of the Latin American system. Id. at 59–61. Asamended and adopted in the Vienna Convention, the rel-evant rules are as follows.

Article 19 of the VCLT provides that a state may for-mulate a reservation when it acts to become a party to atreaty unless:

— the reservation is prohibited by the treaty,— the treaty permits only specified reservations andthe attempted reservation does not qualify, or— the reservation is “incompatible with the objectand purpose of the treaty.”

(The second principle was applied in 1988 by theEuropean Court of Human Rights to invalidate a Swiss“interpretive declaration” to the European Human Rights


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Convention, the first time an international court has helda reservation invalid. Bourguignon, “The Beilos Case: NewLight on Reservations to Multilateral Treaties,” 29 Va. J.Int’l L. 347 (1989).)

The VCLT then prescribes three different rules gov-erning the effect of reservations:

The Traditional Rule in Special Cases. Under Article17(2), “when it appears” from the limited number of par-ties and from the object and purpose that application ofthe treaty in its entirety is “an essential condition” of eachparty’s consent to be bound, all must consent to any reser-vation. (The Advisory Opinion in the Genocide case estab-lishes that the Genocide Convention is not such a treaty.)

International Organization. Under Article 17(2), wherethe treaty creates an international organization, the organ-ization must consent to a reservation.

In other cases, unless the treaty otherwise provides,the VCLT reflects U.S. practice. Article 20(4) states:

In cases not falling under the preceding paragraphsand unless the treaty otherwise provides:

(a) acceptance by another contracting state of a reser-vation constitutes the reserving state a party to the treatyin relation to that other state. . . .

(b) an objection by another contracting state to a reser-vation does not preclude the entry into force of the treatyas between the objecting and reserving state unless a con-trary intention is definitively expressed by the objectingstate.

[The U.K. Government] has followed the rule of20(4)(b). In other cases, it has objected expressly when itwished to prevent a treaty relationship with another statewhose reservations it found unacceptable. Thus, in 1972,regarding Syria’s reservations to the Vienna Convention onthe Law of Treaties, [the U.K. Government] stated:

The United Kingdom objects to the reservation enteredby the Government of Syria . . . and does not acceptthe entry into force of the Convention as between theUnited Kingdom and Syria.


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United Nations, Multilateral Treaties Deposited withthe Secretary-General: Status as at 31 December 1988–792.In 1977, [the U.K. Government] blocked the entry intoforce of the Vienna Convention between itself and Tunisiain similar terms. Id.

In the circumstances, given the principle that an object-ing state must act explicitly to prevent a bilateral treatyrelationship from coming into being, and [the U.K.’s] pastpractice in other cases, the better argument is that thereis a partial treaty relationship between the United Statesand the United Kingdom under the Genocide Convention.

Memorandum from Office of the Assistant Legal Adviser forTreaty Affairs at 2–6, available at www.state.gov/s/l.


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CHAPTER 5

Federal Foreign Affairs Authority

A. FOREIGN RELATIONS LAW OF THE UNITED STATES ANDTHE INDIVIDUAL IN INTERNATIONAL LAW

1. U.S. Government Employment of Foreign Nationals in the United States

In a letter of June 5, 1989, to the Office of the General Counselof the Environmental Protection Agency, John R. Crook, AssistantLegal Adviser for Treaty Affairs, provided the views of the Officeof Treaty Affairs regarding the statutory prohibition, with cer-tain exceptions, on the use of appropriated funds for hiring offoreign nationals in the continental United States. The letterstated, in pertinent part:

I understand that this issue arose in the context ofEnvironmental Protection Agency requests for informa-tion from the Department [of State] on U.S. defense rela-tions with India, Kenya, and Cameroon.

The Treasury, Postal Service, and General GovernmentAppropriations Act for FY 89 provides, as it has since1943, certain exceptions to the general prohibition on useof appropriated funds by U.S. Governmental agenciesemploying non U.S. citizens in the continental UnitedStates. Included is the following exception:

This section shall not apply to citizens of Ireland,Israel, the Republic of the Philippines, or to nation-als of those countries allied with the United States inthe current defense effort.

151

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(P.L. 100-440, Sept. 22, 1988, section 603, 5 U.S.C. §3101 note; emphasis added.) The phrase “in the currentdefense effort” replaced the words “in the prosecution ofthe war” in [Fiscal Year (“FY”)] 1952. The Republic ofthe Philippines has been specifically excepted since FY 44.Israel was exempted in FY 79 and Ireland in FY 84.

The Office of Treaty Affairs many years ago assumedthe task of determining which countries are “allied withthe United States” for the purposes of this statute. Thisrole has been memorialized since 1979 in the Office ofPersonnel Management’s publication BRE 27, “FederalEmployment of Non-Citizens.”

This exception has been applied only to those coun-tries with which the United States has in force mutual secu-rity commitments. The term “security commitment” isgenerally understood to mean a legal obligation of theUnited States, expressed in a formal agreement, to takesome action in the common defense in the event of anarmed attack on the country concerned. All current U.S.security commitments are embodied in treaties, as opposedto executive agreements. Attached at Tab 1 is a Depart-ment publication, “United States Collective DefenseArrangements,” which lists countries with which the UnitedStates has such commitments. [United States CollectiveDefense Arrangements, Special Report No. 81, Bureau ofPublic Affairs, Department of State, January 1988.]

The specific exceptions for the Philippines, Israel, andIreland in this context are an indication of a narrow con-struction of this provision by the Congress. The legisla-tive history that we have reviewed supports this narrowinterpretation. Congress provided this exception, origi-nally during wartime, to allow foreign nationals to workfor the U.S. Government within the United States indefense-related positions. The exemption for Israel in FY79 was accompanied by an expression of “concern” in theConference Report about “the growing list of exemp-tions.” (House Report No. 96-471, [Making Appro-priations for the Treasury Department, the U.S. PostalService, the Executive Office of the President, and CertainIndependent Agencies,] September 24, 1979, p. 15.)


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It has been our view that to depart from the afore-mentioned “security commitment” standard in makingthese determinations could be to embark into an area ofspeculation and subjectivity which would not correspondwith the intention of Congress, and might arouse sensitiv-ities with other countries. India is a case in point. While acase could be made that India has a sufficient defense rela-tionship with the United States to meet the current EPAstandard . . . , it is our view that exception would be takenboth here and in India to characterizing that country, interalia, a leader of the Non Aligned Movement, as “allied withthe United States in the current defense effort.”

This example, as well as others reflected in the EPAmaterial you provided us, also points out the difficultiesin having such determinations made by “the agencieswhose appropriations are to be obligated,” as suggestedby the 1955 GAO opinion (35 Comp. Gen. 216, 218) youcite. While such “reasonable” determinations perhaps“would not be questioned by the General AccountingOffice” (id. at 219), such a modus operandi is unworkablefrom the standpoint of sound, consistent Executive branchpolicy. This is why the Department of State, in the exer-cise of its prerogatives in the foreign affairs area and inconsultation with OPM, acted to centralize such deter-minations in the Office of Treaty Affairs.

Letter from Assistant Legal Adviser for Treaty Affairs John R.Crook to Mr. Donnell Nantkes, Office of General Counsel,Environmental Protection Agency, June 5, 1989, available atwww.state.gov/s/l. Discussion of similar exceptions contained inprior appropriations acts may be found in Digest 1974, pp. 92–95;Digest 1976, pp. 83–84; and Digest 1978, p. 302.

2. Ambassadorial Functions: Authority

On July 12, 1990, President George H. W. Bush signed a letter ofinstruction to U.S. chiefs of mission regarding their authorities andresponsibilities. The letter replaced President Reagan’s September23, 1981 letter. The text of the letter follows in pertinent part:

Federal Foreign Affairs Authority 153

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I send you my very best wishes and appreciation for yourefforts as Chief of the United States Mission in/at_____________ . We are entering a new, exciting time of changein international relations. The postwar era is drawing toa close. As leader of the democracies, our Nation faces anhistoric opportunity to help shape a freer, more secure,and more prosperous world, in which our ideals and ourway of life can truly flourish. As President, I intend toadvance these objectives and United States interests aroundthe globe, and I look to you, as my personal representa-tive, in/at _____________ , as my partner in this task.

As my representative, you, along with the Secretary ofState, share with me my constitutional responsibility forthe conduct of our relations with _____________ . I charge youto exercise full responsibility for the direction, coordina-tion, and supervision of all Executive Branch U.S. officesand personnel in/at _____________ , except for personnel underthe command of a United States area military commander,personnel under the authority of the Chief of another U.S.Mission (for example, one accredited to an internationalorganization), or personnel detailed to duty on the staffof an international organization.

The Secretary of State is my principal foreign policyadvisor. You will receive policy guidance and instructionsfrom him or me. Except in the most unusual circum-stances, as I shall determine, messages on policy propos-als and policy implementation will be sent to you throughofficial Department of State channels. You will normallyreport through the Secretary. I want to emphasize that theSecretary of State has the responsibility not only for theactivities of the Department of State and the ForeignService, but also, to the fullest extent provided by law, forthe overall coordination and supervision of United StatesGovernment activities abroad.

You are to provide strong program direction and lead-ership to all Executive branch agency activities to carryout United States foreign policy. It is also your responsi-bility to foster conditions in which our regional or world-wide activities can achieve success. I have notified all heads


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of departments and agencies accordingly and instructedthem to inform their personnel in the United States andabroad.

You should cooperate fully with personnel of the U.S.Legislative and Judicial branches in/at_____________ so thatUnited States foreign policy goals are advanced, securityis maintained, and Executive, Legislative, and Judicialresponsibilities are carried out.

You should instruct all Executive branch personnelunder your authority of their responsibility to keep youfully informed at all times of their current and plannedactivities, so that you can effectively carry out your respon-sibility for United States Government programs and oper-ations. You have the right to see all communications toor from Mission elements, except those specificallyexempted by law or Executive decision.

As Commander in Chief, I retain authority over UnitedStates Armed Forces. On my behalf you have responsi-bility for the direction, coordination, supervision, andsafety, including security from terrorism, of all Departmentof Defense personnel on official duty in/at _____________ ,except those personnel under the command of a U.S. areamilitary commander. You and such commanders must keepeach other currently informed and cooperate on all mat-ters of mutual interest. Any differences that cannot beresolved in the field should be reported by you to theSecretary of State; unified commanders should report tothe Secretary of Defense.

The Letter from President Bush is available at www.state.gov/s/l. At the same time that he signed the letter of instruction,

President Bush also signed a memorandum to agency heads stat-ing, “I expect your support and cooperation in ensuring that theactivities of your department or agency are conducted in accor-dance with the authorities and responsibilities of Chiefs of Mission,who serve as my personal representatives.” Id. The text of theletter of instruction to the Chiefs of Mission was attached. Seealso Digest 1977, pp. 244–46; Digest 1974, p. 158.


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3. Bipartisan Accord on Central America

On March 24, 1989, President George H. W. Bush and severalU.S. congressional leaders signed a bipartisan accord on CentralAmerica. In general, the accord stated the broad objectives of theexecutive branch and Congress in achieving peace and democra-tization in Central America, and provided that the executive wouldpropose and congressional leaders would act to extend currentlevels of humanitarian assistance to the Nicaraguan Resistance. Inpertinent part, the accord stated:

The Executive and the Congress are united today in sup-port of democracy, peace, and security in Central America.The United States supports the peace and democratizationprocess and the goals of the Central American Presidentsembodied in the Esquipulas Accord. The United States iscommitted to working in good faith with the democraticleaders of Central America and Latin America to trans-late the bright promises of Esquipulas II into concrete real-ities on the ground.

* * * *

We also endorse an open, consultative process withbipartisanship as the watchword for the development andsuccess of a unified policy towards Central America. TheCongress recognizes the need for consistency and conti-nuity in policy and the responsibility of the Executive toadminister and carry out the policy and the programsbased upon it, and to conduct American diplomacy in theregion. The Executive will consult regularly and report tothe Congress on progress in meeting the goals of the peaceand democratization process, including the use of assis-tance as outlined in this Accord.

* * * *

To implement our purposes, the Executive will pro-pose and the bipartisan leadership of the Congress willact promptly . . . to extend humanitarian assistance at cur-rent levels to the Resistance through February 28, 1990,noting that the Government of Nicaragua has agreed to


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hold new elections under international supervision justprior to that date. Those funds shall also be available tosupport voluntary reintegration or voluntary regional relo-cation by the Nicaraguan Resistance. Such voluntary rein-tegration or voluntary regional relocation assistance shallbe provided in a manner supportive of the goals of theCentral American nations, as expressed in the EsquipulasII agreement and the El Salvador Accord, including thegoal of democratization within Nicaragua, and the rein-tegration plan to be developed pursuant to those accords.

H.R. Rep. No. 101-23, Pt. 1 at 2–3 (1989).On April 18, 1989, Congress enacted Pub. L. No. 101-14,

103 Stat. 37 (1989) to implement the bipartisan accord. Section2(a)(1) of the Act provided that “[t]he President may transfer tothe Agency for International Development . . . up to $49,750,000,to provide humanitarian assistance to the Nicaraguan Resistance,to remain available through February 28, 1990.” Section 7(a)prohibited the use of funds available under the Act to provideassistance to the Nicaraguan Resistance for military or paramil-itary operations in Nicaragua, and section 7(b) barred assistanceto any group with members who have engaged in gross violationsof human rights, drug smuggling, or significant misuse of publicor private funds. Section 11 of the Act obligated the Secretary ofState to “consult regularly with and report to the Congress” inconnection with the use of the authorized assistance and otherpeace efforts in Central America.

On April 28, 1989, the Secretary of State wrote to Con-gressional leaders, stating:

Pursuant to the bipartisan agreement on Central Americabetween the Executive and the Congress, the Congress hasnow voted to extend the current humanitarian assistanceto the Nicaraguan Resistance at current levels throughFebruary 28, 1990. This assistance has been authorizedand appropriated but will not be obligated beyond November30, 1989, except in the context of consultation among theExecutive, the Senate Majority and Minority leaders, theSpeaker of the House of Representatives and the Minorityleader, and the relevant authorization and appropriation


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committees, and only if affirmed via letters from theBipartisan leadership of Congress and the relevant Houseand Senate authorization and appropriations subcommittees.

This bipartisan accord on Central America representsa unique agreement between the Executive and theLegislative Branches. Thus, it is the intention of the par-ties that this agreement in no way establishes any prece-dent for the Executive or the Legislative Branch regardingthe authorization and appropriation process.

The letter is available at www.state.gov/s/l. A draft of this letterhad been included in the House report containing the bipartisanaccord. H.R. Rep. No. 101-23, Pt. 1 at 4.

Following enactment of the legislation, four members of theU.S. House of Representatives sued the President and the Secretaryof State seeking a declaratory judgment that the Secretary of State’sundertaking in his draft letter to seek the approval of congres-sional leaders before expending funds after November 30, 1989was unconstitutional and, therefore, null and void. Burton v.Baker, 723 F. Supp. 1550 (D.D.C. 1989). In particular, the plain-tiffs asserted that this “side agreement” constituted a grant of leg-islative veto to several members of Congress, amended an Act ofCongress by unilateral Executive Branch action, and effected aPresidential “impoundment” of funds duly appropriated byCongress to be spent as Congress intended. As a result of the sideagreement’s alleged nullity, the plaintiffs argued that the Presidentwould be obliged to continue to furnish humanitarian assistanceto the Nicaraguan Resistance through February 28, 1990 with-out further permission from Congress.

On September 25, 1989, the Bush Administration filedmotions to dismiss and for summary judgment. In its memoran-dum of points and authorities in support of the motions, theAdministration argued that the action did not present a justicia-ble case or controversy for three reasons. First, the plaintiffs lackedstanding. Second, the court should exercise its discretion, in anyevent, to dismiss the complaint because of the separation of pow-ers issues it raised. Third, the claim presented a nonjusticiablepolitical question, particularly because it involved foreign affairs.The memorandum argued:


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Plaintiffs are attacking the Secretary of State’s letter tocongressional leaders in connection with the statute and,perhaps to a lesser extent, the Bipartisan Accord onCentral America between the President and Congress. Itis apparent from the face of these documents, however,that they represent the type of purely political, foreign pol-icy decision-making over which the courts may not exer-cise control.

The Bipartisan Accord is an expression of cooperationbetween the Executive and Legislative Branches of gov-ernment regarding the conduct of the country’s foreignpolicy in Central America. Indeed, the Bipartisan Accordbegins with the following sentence: “The Executive andthe Congress are united today in support of democracy,peace, and security in Central America.” It then proceedsto set forth the aims and intentions of the United Statesin connection with the policy in that region. Similarly, theletter from Secretary Baker to Congress manifests theintention of the Executive Branch to exercise its discre-tion under the Act in the spirit of the Bipartisan Accord.Nothing could be a more obvious product of the decision-making process that the Supreme Court has described as“delicate, complex and involv[ing] large elements ofprophecy.” Chicago & Southern Airlines [v. WatermanSteamship Corp.,] 333 U.S. 103, 111 [(1948)). And yetthis, the substantive product of political foreign policydecisions, is what plaintiffs seek to invalidate. Surely thisfalls within the realm of controversies that have “longbeen held to belong in the domain of political power notsubject to judicial intrusion or inquiry.” Id.

Memorandum of Points and Authorities in Support of Defendants’Motion to Dismiss and Cross-Motion for Summary Judgment andin Opposition to Plaintiffs’ Motion for Summary Judgment, No.89-2929 (D.D.C. Sept. 25, 1989) at 12–13, available at www.state.gov/s/l.

The Administration’s memorandum also argued that the chal-lenged agreement was not a legislative act and had no legally bind-ing effect, and therefore could not constitute a violation ofconstitutionally mandated lawmaking procedures.


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On October 31, 1989, the district court granted the Admini-stration’s motion for summary judgment and dismissed the com-plaint. The court cited both standing problems and judicialdiscretion as bases for its decision:

It is apparent to this Court that, although the debate maycontinue in the court of appeals as to the proper basis fordoing so, the teaching of D.C. Circuit precedent is thatlawsuits by members of Congress for declaratory or injunc-tive relief against either officials of the Executive Branchor their fellow legislators respecting the constitutionalityof the way the latter have gone about their business aregenerally not to be entertained by the Judicial Branch. Itis less important that district courts correctly identify themore academically respectable reason for declining todecide such disputes than that they do decline them.

The plaintiffs here insist that they are interested only invindicating the legislative process as established by theConstitution for enacting and executing the laws of thenation. They condemn the so-called “side agreement” as aconstitutional aberration, because, by it, the ExecutiveBranch abdicates its responsibility to execute the Act as theyexpected it to be executed, and also because certain of theirfellows have acquired the ability to exercise disproportionateinfluence over the manner in which it will be executed.

If standing is now the ground of decision of choice insuch cases, the Court finds that the plaintiffs have nostanding here. They have a collegial remedy: they can per-suade a majority of their fellows to change the law orabandon the “side agreement.” Alternatively, because thesubject matter of both the Bipartisan Accord and the Actinvolves issues of national defense and foreign policy, theCourt finds it to have been committed to the politicalbranches of the Constitution. It would be imprudent forthis Court to instruct the President, the Secretary of State,and the Congressional leadership how they must resolvetheir differences, and it declines to decide the case as amatter of discretion.

723 F.Supp. at 1553–1554.


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B. STATUS OF CONSTUTENT ENTITIES

1. Termination of Trust Territory of the Pacific Islands

On December 22, 1990, the U.N. Security Council adoptedResolution 683 (1990), determining that the 1947 TrusteeshipAgreement creating the Trust Territory of the Pacific Islands hadterminated with regard to the Federated States of Micronesia, theMarshall Islands and the Northern Marianas Islands, because thepeople of these entities had freely exercised their right to self-determination in approving new status agreements with the UnitedStates. Ambassador Thomas R. Pickering, Permanent Represen-tative of the United States to the United Nations, made the fol-lowing statement to the Security Council during its considerationof the resolution:

Mr. President, it is rare for the Security Council to be ableto take a seemingly small step that means so much to agroup of people. I believe that today’s action by the Councilis such a step. One of the fundamental principles the UnitedNations seeks to uphold is the right to self-determination.The peoples of the former entities of the Trust Territory ofthe Pacific Islands participated in a process that led to trueachievement of self-determination. The United Nations wasan active promoter and observer of this successful process.The Trusteeship Council sent various missions to monitorplebiscites held in each of these entities. In 1986, theTrusteeship Council concluded that each of the peoples con-cerned had achieved self-determination. The action we havetaken today gives the endorsement of this Council to thisTrusteeship Council action which meant so much to thesepeoples. I would express my government’s welcome for thisendorsement of the will of the peoples involved.

U.N. Doc. S/PV.2972 at 27 (December 22, 1990).

2. Commonwealth of the Northern Mariana Islands

On May 18, 1990, the Department of State commented on S.1025, 101st Cong. (1989), the Fishery Conservation Amendments


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of 1990, making amendments to the Magnuson Fishery Conser-vation and Management Act, Pub. L. No. 94-265, 90 Stat. 331(1976), 16 U.S.C. §§ 1801–1883. The bill included provisions toextend U.S. fishery management authority to include tuna andhighly migratory species in the exclusive economic zone. In sodoing, it provided that these species in the exclusive economiczone around the Commonwealth of the Northern Mariana Islands(CNMI) would belong to the people of the Commonwealth andbe managed for their benefit. The Department opposed the pro-posed legislation because, among other things, it disregarded thestatus of the Commonwealth in relationship to the United States.As explained in a letter from Assistant Secretary for LegislativeAffairs Janet G. Mullins to Director of the Office of Managementand Budget Richard Darman:

. . . [U]nder the proposed amendments, the Common-wealth of the Northern Mariana Islands would implicitlybe granted sovereign rights and jurisdiction to the exclu-sive economic zone surrounding these islands, which areunder U.S. sovereignty pursuant to the Covenant thatestablished the Northern Mariana Islands as a Common-wealth. [Covenant to Establish a Commonwealth of theNorthern Mariana Islands in Political Union with theUnited States of America, Pub. L. No. 99-239, 48 U.S.C.A.1681 note; see also Presidential Proclamation No. 5564,November 3, 1986, 51 Fed. Reg.40,399.1] No state, com-monwealth or territory of the United States owns theexclusive economic zone off its shores.

* * * *

Article VIII of the Covenant represents in all aspectsan affirmative grant of rights to the Commonwealth inregard to real property only, and does not accord to theCommonwealth control over the exclusive economic zone.In 1976 the Magnuson Fishery Conservation andManagement Act established the fishery conservation zoneof the United States, the inner boundary of which was theseaward boundary of each of the coastal States. 16 U.S.C.1811. Section 1802(21) of the Act defines “States” as


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including “any other Commonwealth, territory or pos-session of the United States.” Consequently the U.S.Congress has claimed the fishery conservation zone aroundthe Northern Mariana Islands belongs to the United States.Presidential Proclamation No. 5030 of March 10, 1983,establishing the 200 nautical mile exclusive economic zoneof the United States, defined the zone as including theCommonwealth of the Northern Mariana Islands “to theextent consistent with the Covenant and the United StatesTrusteeship Agreement.”

The Commonwealth of the Northern Mariana Islandsis no longer a trust territory and, of its own volition, freelybecame incorporated into another independent State. Thus,rights and obligations of the trusteeship are supersededby the rights and duties of the “parent” State and theCommonwealth as set out in the Covenant. . . .

The Commonwealth of the Northern Mariana Islandsgave up control of its ocean resources in exchange for U.S.citizenship and other benefits of commonwealth statuswhen it entered into close political relationship with theUnited States. The United States should not grant one com-monwealth greater rights than those enjoyed by all theother coastal states, commonwealths and territories of theUnited States.

Another proposed amendment would authorize theGovernor of the Commonwealth of the Northern MarianaIslands to negotiate international tuna fishery agreements.Generally speaking, no state, commonwealth or territoryof the United States has the authority to enter into inter-national negotiations. The amendment would also givethe Governor the right to veto any tuna agreement nego-tiated by the United States and approved by the Secretaryof State. These amendments are inconsistent with section104 of the Covenant, which provides that the United Stateswill have “complete responsibility for and authority withrespect to matters relating to foreign affairs and defenseaffecting the Northern Mariana Islands.”

The letter also noted:


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It is the view of the United States that customary interna-tional law as reflected in article 64 of the 1982 UnitedNations Convention on the Law of the Sea does not grantcoastal states sovereign rights in their exclusive economiczones over highly migratory species of tuna. The amend-ments proposed to S.1025 would thus be contrary to cus-tomary international law as interpreted by the United States.

Letter from Assistant Secretary for Legislative Affairs Janet G.Mullins to Director of the Office of Management and BudgetRichard Darman, May 18, 1990, available at www. state.gov/s/l.

The bill as enacted did not contain the provisions relating tothe Commonwealth of the Northern Mariana Islands. Pub.Law.No. 101-627, 104 Stat. 4436 (1990).

Cross reference

Status of Residents of Commonwealth of Northern MarianaIslands, Chapter 1.A.4.


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CHAPTER 6

Human Rights

A. GENERAL

Legal Status of the American Declaration of the Rights and Duties of Man

On July 14, 1989, the Inter-American Court of Human Rights inSan Jose, Costa Rica, issued Advisory Opinion No. OC-10/89,in response to a request by the Government of Colombia. Thequestion posed by Colombia was whether article 64 of theAmerican Convention on Human Rights (“Convention”), O.A.S.Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force June18, 1978, authorized the Inter-American Court to issue advisoryopinions on the interpretation of the American Declaration ofthe Rights and Duties of Man (“Declaration”) (OEA/Ser.L.V/IL.82doc 6. rev. 1 at 17). The question thus raised was whether theDeclaration came within the grant of jurisdiction in Article 64.1of the Convention which provides:

The member states of the Organization [of AmericanStates] may consult the Court regarding the interpreta-tion of this Convention or of other treaties concerning theprotection of human rights in the American states. . . .[emphasis added]

The United States submitted written comments and attended thepublic hearing on the request, arguing that the Declaration wasnot drafted as a legal instrument and thus was not covered byarticle 64. The U.S. position, as summarized in the Inter-AmericanCourt opinion, was as follows:

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The American Declaration of the Rights and Duties ofMan is a noble statement of the aspirations of theAmerican States with respect to human rights. Never-theless, unlike the American Convention, the Declarationwas not drafted as a legal instrument and lacks the nec-essary precision to resolve complex legal questions. Itsnormative value resides in the fact that it is a declarationof basic principles of a moral and political nature and thatit serves as the basis for monitoring general human rightscompliance by member States, not in the fact that it is aset of binding obligations.

The United States recognizes the good intentions ofthose hoping to transform the American Declaration froma statement of principles into a binding legal instrument.Good intentions, however, do not make the law. It wouldseriously weaken the international law-making process—by which the sovereign states voluntarily assume specificlegal obligations—to impose legal obligations on Statesthrough a process of “reinterpretation” or “inference”from a statement of non-binding principles.

I/A Court H.R., Interpretation of the American Declaration ofthe Rights and Duties of Man within the framework of Article64 of the American Convention on Human Rights, AdvisoryOpinion O/C-10/89 of July 14, 1989, Series A No. 10, ¶12.

The court found, however, that it was competent to issue advi-sory opinions on the interpretation of the American declaration“within the scope and framework of the limits of its jurisdictionwith respect to the Charter and the Convention or other treatiesconcerning the protection of human rights in the American States.”Advisory Opinion No. O/C-10/89, ¶48.

On November 14, 1989, at a meeting of the First Committeeat the 29th General Assembly of the Organization of AmericanStates in Washington, D.C., Deputy Legal Adviser Alan J. Kreczkocommented on this advisory opinion in the course of reviewingthe jurisprudence of the IACHR over the past year. In particular,Mr. Kreczko stated:

[W]e are compelled to note our difficulties with the opin-ion of the Court in case OC-10, an advisory opinion on


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the legal status of the American Declaration of the Rightsand Duties of Man brought by Colombia. . . .

[T]he Court agreed with various submissions made toit, including from the United States, that the AmericanDeclaration is an important source for the interpretationof the OAS Charter and the American Convention onHuman Rights. The Court also suggested, however, thatas a legal matter the Declaration, which we all know wasadopted as a resolution of the OAS General Assembly in1948, has changed in some unspecified way from a non-binding to a legally binding agreement.

Although the Court’s decision is not entirely clear onthe latter issue because it does not suggest how the trans-formation took place, it seems the Court is asserting thatthe legal character of the American Declaration haschanged over time.

The United States accepts and promotes the impor-tance of the American Declaration. It is a solemn moraland political statement of the OAS member states, againstwhich each member state’s respect for human rights is tobe evaluated and monitored, including the policies andpractices of the United States. It is critical and necessaryto the proper functioning of the Organization and to theprotection of human rights in the hemisphere. The Inter-American Commission on Human Rights—which is oftenreferred to as the “conscience of the OAS”—plays a vitalrole in the Organization when it undertakes to judge amember state’s human rights performance in light of thefundamental principles contained in the Declaration.

The United States does not believe, however, that theAmerican Declaration has binding legal force as would aninternational treaty. We believe that most if not all gov-ernments understand that even unanimously approved andformal declarations of international organizations such asthe OAS or the United Nations general assemblies are notlegally binding per se, but are political and moral state-ments. Submissions to the Court by Costa Rica andVenezuela made this same point. The U.S. submission incase OC-10/89 sets out in detail our views on the issue.We understand all submissions to the Court in this case,

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as well as a transcript of the hearing, will be published bythe Court and available to interested governments and pri-vate persons.

Given the strong U.S. support for the American Dec-laration and commitment to uphold its principles, our dis-agreement with the Court’s decision may seem a technicalone. However, it goes to the heart of international law. Itis an important aspect of the sovereign equality of statesthat, generally speaking, they freely accept internationallegal obligations. Nonbinding international resolutionsand declarations, however critical they are from a moraland political standpoint, do not evolve without state actioninto binding legal instruments. We do not believe itadvances the development of international law or inter-national institutions to say they do.

Statement by Deputy Legal Adviser Alan J. Kreczko, FirstCommittee, 29th OAS General Assembly, November 14, 1989,at 2–4, available at www.state.gov/s/l.

B. DISCRIMINATION

Convention on the Elimination of All Forms of DiscriminationAgainst Women

In 1980, the United States transmitted the Convention on theElimination of All Forms of Discrimination Against Women(CEDAW), signed by the United States on July 17, 1980, to theSenate for advice and consent to ratification. See Digest 1979 at550–59. On August 2, 1990, Deputy Legal Adviser Alan J.Kreczko testified before the Senate Committee on ForeignRelations on the current status of consideration of CEDAW. Inparticular, Mr. Kreczko addressed a number of issues requiringresolution before the United States would be able to ratify theconvention:

[T]he United States participated actively in the drafting ofCEDAW and voted in favor of Resolution 34/180 of theGeneral Assembly. In explanation of the vote, the U.S. rep-


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resentative in the General Assembly stated that, while wewere not entirely happy with the 10th and llth preambu-lar paragraphs (which include language on disarmamentand decolonization irrelevant to the Convention), we sup-ported the basic principles of the Convention. He never-theless noted that some provisions of the Conventionmight, upon comprehensive review, raise “difficulties ofa Constitutional nature, particularly in relation to ourFederal-State system.”

The Convention was signed on behalf of the UnitedStates on July 17, 1980. Four months later, on November12, President Carter transmitted it to the Senate seekingadvice and consent to ratification. In his transmittal let-ter, President Carter noted that, while “the great major-ity of the substantive provisions of the Convention areconsistent with the letter and the spirit of the United StatesConstitution and existing laws . . . certain provisions ofthe Convention raise questions of conformity to currentUnited States law.”

President Carter’s transmittal letter did not, however,propose specific reservations, understandings and decla-rations to remedy these concerns. Instead, it enclosed areport from the Department of State and a Memorandumof Law identifying “those areas of concern that will requirefurther discussion and treatment.”

This Administration regards CEDAW as an importanthuman rights treaty. In our view, the object and purposeof the Convention are in full accord with the Constitutionof the United States and with federal law. However, aswith all human rights treaties, CEDAW raises a numberof legal concerns that would need to be resolved.

The Department of Justice has conducted a prelimi-nary review of the potential conflicts between CEDAWand current law. Based on that review, I would like to drawthe Committee’s attention to several major areas of poten-tial conflict. I would stress that these comments are pre-liminary and are limited to major topics of concern.

1. Federalism. Several articles of the Convention wouldobligate the United States to undertake anti-discrimina-tion initiatives in areas traditionally considered to be

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within the province of State governments. For example,Articles 10 and 16 deal, respectively, with education andfamily relations—two subjects predominantly within thejurisdiction of the various States. In particular, the federalgovernment would be obligated to require “revision oftextbooks” to eliminate “stereotyped” sex roles, Art. 10(c),to ensure that women shall enjoy the “same opportuni-ties to participate actively” in school sports, Art. 10(g), andto “specify a minimum age for marriage,” Art. 16 (2).

2. Private conduct. Several articles of the Conventioncould be construed to require the United States to regulateconduct traditionally considered beyond the scope of gov-ernmental power at any level. For instance, . . . Article 7(c)would obligate the United State to assure women, “onequal terms with men,” the right to participate “in non-governmental organizations and associations concernedwith the public and political life of the country.” This pro-vision would appear to reach the principles of internalorganization applied by political parties and private inter-est groups. Of course, there are no difficulties in comply-ing with these anti-discrimination principles insofar as theyapply to commercial activity, including employment,accommodation or associations intended to facilitate suchactivity, or to any activity sponsored, funded, or providedtax exemptions by the government.

* * * *

4. Military Forces. Article 2(f) requires the UnitedStates to “take all appropriate measures, including legis-lation to modify or abolish existing laws, regulations, cus-toms and practices which would constitute discriminationagainst women.” This broad requirement would sheddoubt upon, inter alia, longstanding military policies bar-ring women from combat missions.

5. Employment. Article 11(l)(d) would require theUnited States to ensure “[t]he right to equal remuneration,including benefits, and to equal treatment in respect of workof equal value. . . .” This language could be construed torequire legislation providing a cause of action for employ-ment discrimination based upon the controversial


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“comparable worth” theory. The federal courts haveheretofore resisted application of this theory in suits underTitle VII of the Civil Rights Act of 1964.

Article 11(l)(f) would obligate the United States toensure “[t]he right to protection of health and safety inworking conditions, including the safeguarding of the func-tion of reproduction.” In its coming term, the SupremeCourt will address for the first time the validity of poli-cies by which female employees are excluded from par-ticular jobs that may harm their reproductive functions.See International Union, UAW v. Johnson Controls, Inc.,886 F.2d 871 (7th Cir. 1989), cert. granted 110 S. Ct. 1522(1990). Should the Court find such policies impermissibleunder current law, Article 11(l)(f) might be read to obli-gate Congress not only to overturn that decision by statutebut, further, to place employers under an affirmative obli-gation to implement such policies. [In fact, the SupremeCourt found that policies excluding women with child-bearing capacity from certain jobs without proving therestriction was a bona fide occupational qualification vio-lated federal discrimination law. See International Union,UAW v. Johnson Controls, Inc., 499 U.S. 187(1991).]

Convention on the Elimination of All Forms of DiscriminationAgainst Women: Hearing Before the Senate Comm. On ForeignRelations, 101st Cong. 50–52 (1990) (testimony of Deputy LegalAdviser Alan J. Kreczko, Dept. of State).

C. CHILDREN

Convention on the Rights of the Child

The adoption of the Convention on the Rights of the Child wasconsidered during the 44th Session of the United Nations GeneralAssembly. On November 10, 1989, Christopher H. Smith, the U.S.Alternate Representative to the General Assembly, made a state-ment in the Third Committee urging the General Assembly to adoptthe Convention:

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The United States participated actively in the drafting ofthe Convention. We believe that it represents a notablestep forward in the needed promotion and protection ofthe rights of children. Although the Convention is far fromperfect—no agreement ever is—the United States stronglybelieves in the enumerated commitments and goals of theConvention, and it is our hope that the General Assemblywill adopt the text without change.

* * * *

The Convention on the Rights of the Child grappleswith many difficult issues and rests on several hard-foughtcompromises. A number of these compromises were neces-sitated by the differing cultural, legal, and religious viewsof the unique relationship between the rights of the child,the rights and responsibilities of parents, and the state’sobligations of legal and moral protection. Other conces-sions were necessary on other matters. My government,like many others, is not completely satisfied with some ofthese compromises. But because we recognize the impor-tance and desirability of adopting the Convention with-out further delay, we do not wish to reopen negotiationon any part of the text.

Press Release U.S.U.N. 144-(89) REV. 1, Nov. 10, 1989, at 1, 2.Mr. Smith also provided the views of the United States on severalspecific aspects of the Convention:

Protection of the Unborn

The United States fully supports the inclusion withinthe Preamble of the Convention language from the 1959Declaration of the Rights of the Child confirming that“the child, by reason of his physical and mental immatu-rity, needs special safeguards and care, including appro-priate legal protection, before as well as after birth.”

Children—born and unborn—are precious andextremely vulnerable. Governments have a duty and sacredobligation to protect these children to the maximum extentpossible.


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. . . The most tender, formative nine months prior to[birth] will forecast the healthiness of the child after birth.One of the most positive protections for a healthy child-hood . . . is proper prenatal care.

We in the United States are just now fully recognizingthe positive effects of basic maternal and prenatal care.This does not demand elaborate, expensive medical facil-ities; the basics cost little but are extremely effective.

The United States Agency for International Devel-opment has launched a new project for maternal andneonatal health and nutrition in developing countries.Comprehensive research and experience, domestically andinternationally—through organizations such as the WorldHealth Organization have proven that proper prenataland neonatal health care spell the difference between ahealthy and health-threatened mother, and between astrong or vulnerable child. Healthy babies, right from thestart, will help provide brighter futures for all of our chil-dren, who represent our own future and our legacy forthe next generation.

Religious Rights and Freedom of Conscience

My government concurs fully and is pleased that theConvention reaffirms “the right of the child to freedomof thought, conscience and religion.” The internationalcommunity has long agreed that all people, including chil-dren, must be guaranteed religious rights.

* * * *

Although parents or guardians must of course offerguidance and assist young children in the exercise of theirright to freedom of conscience, we must recognize thatthis inherent and inalienable right of religious freedom isa precious right of each individual, including children. Ifpossible, the United States would have wished for astronger reaffirmation of this in the Convention.

In particular, Mr. Chairman, we would have liked tospecify that children continue to have such supplementaryrights as the freedom to have or to change a religion, the

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right to worship according to their beliefs alone or withothers, and the right to teach, learn, and practice their reli-gion in public and in private. The Universal Declarationon Human Rights and other international instrumentsinclude references to such supplementary rights, and theUnited States continues to believe that they apply to every-one, including children.

The statement also expressed U.S. views on funding for theCommittee on the Rights of the Child:

The United States firmly believes that the costs of theCommittee on the Rights of the Child that will be estab-lished by the Convention should be borne exclusively bythe States that ratify the Convention. In our view, Mr.Chairman, the Committee established by the Conventionis not a United Nations body, but an instrument of theStates Parties to the Convention. Only those States maynominate and elect members of the Committee; only thoseStates submit reports to it. Moreover, the Convention willenter into force when only twenty States have ratified it.We believe it would be inappropriate for the entire mem-bership of the United Nations to bear the expenses of abody created to serve so small a number of states, at leastinitially.

In any event, United Nations financing is no guaran-tee of full financing for committees such as this one. Intimes of budgetary constraint, the Members of the UnitedNations can and very well may decide which functions theCommittee will have to forgo. The United States believesthat state-party financing is more likely to preserve theindependence of the Committee on the Rights of the Child,for that financing method would give the Committee com-plete power to decide how to use its funds.

Press Release U.S.U.N. 144-(89) REV. 1, Nov. N, 1989, at 3.Finally, the U.S. statement highlighted several key elements of

the Convention that the U.S. Government supported, includingfamily reunification, abuse and neglect, adoption, and disabledchildren:


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Family Reunification

We are particularly concerned about the reunificationof families, so that children and parents can live together.Families have been torn apart by war, restrictive borders,and indiscriminate limits on emigration rights. This dis-ruption in cohesive family ties is especially detrimental tothe lives of children, who are generally the ones who suf-fer the most from forced separations. The Convention obli-gates the states parties to address reunification applicationsby children or their parents “in a positive, humane andexpeditious manner.” This is an easily attainable goal, andgovernments should not have difficulty in doing this.

Abuse and Neglect

The prevention of physical and mental abuse againstchildren demands constant vigilance, a moral and ethicalconsciousness throughout our society—from governmentagencies, to churches, synagogues and mosques, to localcommunity awareness efforts, to neighbors and families.The scourge of child abuse—whether physical or sexualabuse, whether negligence, neglect, or other forms ofexploitation—is all too prevalent throughout the world.Governments must be committed to providing legal andadministrative protection to children, as well as sup-porting social and educational programs that help pre-vent this gross scourge which has infected many of ourcommunities.

Adoption

With the strong and active encouragement of PresidentBush, the United States Government has promoted the adop-tion of children by loving and caring families. Through legalsafeguards and constructive adopting agencies, governmentscan help ensure that eligible children or orphaned childrenenjoy the love and nurture of a family. . . .

* * * *

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Disabled Children

The United States is keenly aware of the special needsof mentally or physically disabled children, and we fullysupport the Convention’s call for a “full and decent life”for these children.

* * * *

Press Release U.S.U.N. 144-(89) REV. 1, Nov. 10, 1989, at 4–5.On November 20, 1989, the U.N. General Assembly adopted

Resolution A/RES/44/25 by consensus, adopting the Conventionon the Rights of the Child and opening it for signature and rati-fication by all states.

On September 11, 1990, the Senate adopted, by unanimousconsent, Resolution 231 “to urge the submission of the Conven-tion on the Rights of the Child to the Senate for its advice andconsent to ratification,” concluding as follows:

. . . It is the sense of the Senate that the issue of children’srights and their well-being is important both to the UnitedStates and the world at large and that, in considerationthereof, the President should promptly seek the advice andconsent of the Senate to the ratification of the Conventionon the Rights of the Child, adopted by the United Nationswith the support of the United States on November 29,1989 [sic].

S. Res. 231, 136 CONG. REC. S12,784–85 (daily ed. Sept. 11,1990). For the Senate debate on the resolution, see 136 CONG.REC. S12785–86, S12787–90, S12806–11 (daily ed. Sept. 11,1990). Key Senators subsequently withdrew their support of theConvention and asked that the Administration not submit it foradvice and consent.

D. TORTURE

1. United Nations Torture Convention

On October 27, 1990, the Senate gave its advice and consent toratification of the Convention against Torture and Other Cruel,


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Inhuman or Degrading Treatment or Punishment, G.A, Res. 39/46(Dec. 10, 1984) (entered into force June 26, 1987) which PresidentRonald Reagan had transmitted to the Senate on May 20, 1988.S. Treaty Doc. No. 100-20 (May 20, 1988).

In 1989, following consultations with the committee and inter-ested private groups, the Department of State decided to reexam-ine the reservations, declarations and understandings contained inthe 1988 transmittal, with a view to dropping, retaining or modi-fying them. By letter of December 10, 1989, from Janet G. Mullins,Assistant Secretary of State for Legislative Affairs, to SenatorClaiborne Pell, chairman of the Foreign Relations Committee, theDepartment transmitted revised reservations, understandings anddeclarations agreed upon by the Departments of State, Justice andDefense. See S. Exec. Rep. No. 101-30 at 35 (1990).

Abraham D. Sofaer, Legal Adviser, Department of State, tes-tified on the Convention at a hearing before the Senate ForeignRelations Committee on January 30. At the outset, he stressedthe importance of prompt and favorable action on the Conventionand reviewed the need for U.S. ratification of the Convention:

The Bush Administration places a high priority on the earlyratification of this important human rights treaty, for sub-stantive as well as symbolic reasons. The need for thisConvention, Mr. Chairman, stems from the tragic fact thattorture continues to be practiced on a daily basis in manynations throughout the world, systematically and with thesupport or acquiescence of government officials. AsPresident Reagan said in his letter of transmittal to theSenate, this Convention marks a significant step in the con-tinued development of appropriate international measuresto eliminate such barbaric practices. Early ratification ofthe Convention by the United States will clearly affirm ourknown abhorrence and condemnation of torture.

* * * *

Mr. Chairman, some may feel the United States hasno need for the legal protections of the Convention AgainstTorture. Existing U.S. law makes any acts falling withinthe Convention’s definition of torture a criminal offense,

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as well as a violation of various civil statutes. Potentialremedies include incarceration, compensation, and the fullrange of equitable relief. Any public official in the UnitedStates, at any level of government, who inflicts torture (orinstigates, consents to, acquiesces in, or tolerates torture),would be subject to an effective system and control andpunishment in the U.S. legal system.

This Administration nonetheless believes, Mr. Chairman,that, as a member of the international community, we muststand with other nations in pledging to bring to justicethose who engaged in torture, whether in U.S. territory orin the territory of other countries. If we fail to become aparty, we will lose credibility as well as the ability to influ-ence the direction of developments in this important area.The United States opposes the use of torture, just as weoppose terrorism, genocide, or illicit drug trafficking, eachof which is covered by multilateral conventions to whichthis nation has recently become a party. We thereforebelieve it is appropriate and in our interests to ratify thisconvention.

Convention Against Torture: Hearing Before the Senate Comm.on Foreign Relations, 101st Cong. 7–8 (1990) (statement ofAbraham D. Sofaer, Legal Adviser, Department of State).

Among other issues, the Legal Adviser also discussed a newunderstanding, not previously proposed, regarding the deathpenalty:

Questions have been raised about whether this Conventionaffects our application of the death penalty.

Mr. Chairman, I want to emphasize my firm and con-sidered opinion that the death penalty does not violateinternational law, nor does international law require theabolition of the death penalty. Many, perhaps even most,countries in the world today provide for capital punish-ment for some offenses under their domestic laws, andnone of the major international human rights instrumentsprohibit the death penalty. The European Court on HumanRights recently held explicitly that the death penalty wasnot unlawful under international law.


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Moreover, international law could not develop a pro-hibition against capital punishment applicable to theUnited States, so long as the United States continues toimpose the death penalty and object to development ofsuch a norm.

Nonetheless, some concerns have been expressed thatthe United States should take no risks in this regard. Toallay these concerns, the Administration has decided topropose an additional understanding, addressed explicitlyto the death penalty issue. Since the death penalty is clearlynot a violation of international law, this is no way dero-gates from the Convention. Specifically, we propose thatthe following understanding be reflected in the Senate’sresolution of advice and consent as well as in our instru-ment of ratification: “The United States understands thatinternational law does not prohibit the death penalty, anddoes not consider this Convention to restrict or prohibitthe United States from applying the death penalty consis-tent with the Fifth, Eighth and/or Fourteenth Amendmentsto the Constitution of the United States, including anyconstitutional period of confinement prior to the imposi-tion of the death penalty.”

I regret that this additional understanding was notincluded in the revised package of reservations, under-standings and declarations transmitted to the Committee,but, in preparing for this hearing, we concluded that itwas appropriate and prudent to be categoric with ourtreaty partners with respect to our position on the deathpenalty.

Id. at 10–11.The Legal Adviser’s testimony included a review of the other

important changes made by the Administration’s revised packageof proposed reservations, understandings and declarations:

Definition of Torture

A second important revision we propose concerns thedefinition of “torture” under Article 1. The original pack-age proposed an understanding to the effect that, in order

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to constitute “torture,” an act must be a deliberate and cal-culated act of an extremely cruel and inhuman nature,specifically intended to inflict excruciating and agonizingphysical or mental pain or suffering.” This proposal wascriticized by some as possibly setting a higher, more dif-ficult evidentiary standard than the Convention required.Substantial concern was expressed that the effect of thisunderstanding might be to undercut the central feature ofthe Convention, at least as codified in U.S. law, and toencourage other States also to adopt higher domestic stan-dards, thereby limiting the effectiveness of the Convention.

Although no higher standard was intended, we rec-ognized the concern raised by this criticism. At the sametime, our colleagues at the Justice Department felt that,since the definition of “torture” will constitute the basisfor criminal punishment under U.S. law, some clarifica-tion of the Convention’s definition was constitutionallyrequired. Accordingly, and on the basis of extensive dis-cussions with concerned representatives in the humanrights community, we prepared a modified proposal whichdoes not raise the high threshold of pain already requiredunder international law, but clarifies the definition of men-tal pain and suffering and maintains the position that spe-cific intent is required for torture.

The revised understanding reads as follows:

The United States understands that, in order to con-stitute torture, an act must be specifically intended toinflict severe physical or mental pain or suffering andthat mental pain or suffering refers to prolonged men-tal harm caused by or resulting from (1) the intentionalinfliction of severe pain or suffering; (2) the adminis-tration or application, or threatened administrationor application, of mind altering substances or otherprocedures calculated to disrupt profoundly the sensesor the personality; (3) the threat of imminent death;or (4) the threat that another person will imminentlybe subjected to death, severe physical pain or suffer-ing, or the administration or application of mind alter-ing substances or other procedures calculated to disruptprofoundly the senses or personality.


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While somewhat more lengthy than the earlier proposal,we believe this revised understanding accommodates theconcerns of those responsible for seeing that prospectivedefendants are treated fairly under our domestic law, onthe one hand, and those on the other hand who are con-cerned not to undermine the effective implementation ofthe Convention by other States around the globe.

Lawful Sanctions

Another point of criticism of the original package hasbeen its proposed understanding concerning the scope of“lawful sanctions,” as used in Article 1.

You will recall, Mr. Chairman, that Article 1 excludesfrom the definition of torture “pain or suffering arisingonly from, inherent in or incidental to lawful sanctions.”The initial understanding indicated that the term “sanc-tions” would include “not only judicially-imposed sanc-tions but also other enforcement sanctions authorized byUnited States law or by judicial interpretation of suchlaw.” This clarification was thought necessary because theConvention does not itself indicate whether the “lawful-ness” of sanctions (judicially imposed penalties as well aslaw enforcement actions) should be determined by domes-tic or international law. Our earlier proposal, Mr.Chairman, was intended to protect against illegitimateclaims based on unclear standards that law enforcementactions authorized by U.S. law constitute torture withinthe meaning of the Convention.

Critics of this proposal pointed out, however, that sucha formula would open the possibility for any State Partyto the Convention to attempt to legitimize officially-sanc-tioned torture simply by authorizing it specifically as amatter of domestic law.

A State could then use the same rationale to exemptits torturers from prosecution under the Convention. Thispossibility, obviously, was not what we had intended.Upon further reflection, therefore, we have clarified ourposition to make clear that domestic legality does not removean action from the Convention’s definition of torture if theaction violates a clear prohibition in international law. In

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other words, we propose that States Party not be permit-ted to invoke the “lawful sanctions” exception to legit-imize activities which clearly amount to “torture” incontravention of the basic object and purpose of theConvention, even if they are technically lawful under theirown domestic law.

* * * *

Cruel, Inhuman or Degrading Punishment

The Convention deals primarily with “torture.” InArticle 16, however, the Parties also undertake to prohibitlesser forms of ill-treatment under the rubric of “cruel,inhuman or degrading treatment or punishment.” Therevised package retains a statement to the effect that theUnited States considers itself bound, under Article 16, toprevent “cruel, inhuman or degrading treatment or pun-ishment” not amounting to torture only insofar as thosewords mean the cruel and unusual punishment prohibitedby the Fifth, Eighth and/or Fourteenth Amendments tothe Constitution. In fact, the revised package upgradesthis point to a reservation from the status of an under-standing.

The reason for this reservation is straightforward. Theformulation used by Article 16 is ambiguous, particularlyin its reference to “degrading treatment.” Of course, ourown 8th Amendment to the Constitution protects againstcruel and unusual punishment. Our courts have interpretedthis prohibition to protect against a broad range of prac-tices that involve the unnecessary and wanton inflictionof pain. This provision, which applies to convicted per-sons, covers their living conditions, disciplinary treatment,and medical care. These protections have been applied notonly in prison contexts but also, under the Fifth Amend-ment, to any other detainee. The Fourteenth Amendmentincorporates these protections and makes them applica-ble to the States.

We would expect, therefore, that our Constitutionwould prohibit most (if not all) of the practices coveredin Article 16’s references to cruel, inhuman and degrad-


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ing treatment or punishment. Nevertheless, we are awarethat some countries give a broader meaning to this pro-vision. For example, the European Court of Human Rightsin Strasbourg has found the so-called “death row phe-nomenon” to constitute “cruel, inhuman and degradingtreatment or punishment.”

While such decisions are not binding on our courts, itis prudent that the U.S. specify that, because the Consti-tution of the United States directly addresses this area ofthe law, and because of the ambiguity of the phrase“degrading,” we would limit our obligations under thisConvention to the proscription already covered in ourConstitution.

We also propose a reservation to the effect that theUnited States does not consider itself bound to submit tothe jurisdiction of the International Court of Justice incases of interpretation or application of the Convention,but reserves the right to agree to do so or to follow anyother procedure for arbitration in a particular case. Sucha reservation is consistent with the policy of thisAdministration, and its predecessor, concerning the Inter-national Court of Justice. It is also consistent with theSenate’s decision to require such a provision in theGenocide Convention. We believe that, in due course,when a fair and reliable regime for using the ICJ is inplace, the U.S. will be able to utilize the ICJ on a manda-tory basis under this and other treaties.

Id. at 9–12.Following this hearing, further correspondence between the

Department of State and the Senate regarding the TortureConvention included a June 13, 1990, letter that addressed a “sov-ereignty” clause proposed by Senator Helms during the January30, 1990 hearing:

The “sovereignty” clause would condition the Senate’sadvice and consent to ratification of the Convention uponthe same proviso which was applied to the GenocideConvention (and subsequently to several other treaties),

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namely, that “nothing in the Convention requires orauthorizes legislation or other action by the United Statesof America prohibited by the Constitution of the UnitedStates as interpreted by the United States.”

We agree with the statement as a matter of fact andas a legal proposition. Nothing in this Convention doesor could require any unconstitutional action by the UnitedStates. To our knowledge, no one—in formal testimonyor otherwise—has identified any provision of theConvention that is potentially unconstitutional. (In thatregard, the Torture Convention differs from the GenocideConvention, which arguably raised a potential FirstAmendment issue.) The Constitution is the supreme lawof the land; neither a Treaty nor an executive agreementcan, in our view, authorize action inconsistent with it. Thiswas unambiguously established by the Supreme Court inReid v. Covert, 354 U.S. 1 (1957), and remains truewhether or not the Senate conditions its approval of theConvention (or any other Treaty) on a “sovereignty”clause. It was for these reasons that at the January 30 hear-ing we opposed the “sovereignty” clause as unnecessary.

Although unnecessary at the domestic level, the pro-posal becomes very damaging at the international level.In the year since we ratified the Genocide Convention sub-ject to a similar “sovereignty” reservation, some twelveforeign governments (all of them European allies) haveformally registered their objections to it. The UnitedKingdom is especially concerned. Other States haveprotested diplomatically, and have put us on notice thatthey will coordinate stronger objections if we repeat thereservation in other contexts. These governments haveraised legitimate concerns about our reservation. It cre-ates unacceptable uncertainty as to the extent of the legalobligations which the United States has in fact assumedunder the Convention. They ask how a foreign country,not expert in the domestic constitution of another coun-try, will know the extent of treaty obligations actuallyundertaken by a State which subjects its treaty obligationsto such a general reservation.


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They have also expressed the concern that other coun-tries may follow the U.S. lead in conditioning their accept-ance of the Convention upon their own constitutions orinternal law. This problem of reciprocity exists even ifother States do not attach a similar reservation to theConvention. As a matter of international treaty law, our“constitutional” reservation is reciprocally available to allother treaty partners. Thus, our ability to invoke treatyrights against them would be subject to their Constitutions.The problem is compounded since the reservation attachesto the entire Convention, leaving the overall extent of legalobligations unclear and open to substantial abuse by coun-tries with obscure or readily-changeable constitutions. Thiscould be a particular problem with regard to the MutualLegal Assistance Treaties, which we intend to overcomeforeign bank secrecy laws in order to assist our anti-nar-cotics efforts.

From the international perspective, therefore, the pro-posed “sovereignty” clause is not harmless but instead threat-ens to upset the very object and purpose of the Convention,which is the establishment of an effective international legalprohibition against torture.

In the course of our consultations, our staffs discusseda possible accommodation of our respective concernswherein the “sovereignty” clause would be adopted as adeclaration and included in the Senate’s resolution ofadvice and consent but would not be included in the for-mal instrument of ratification submitted by the UnitedStates to the United Nations. The clause would thus haveits intended effect domestically, clarifying the issue of U.S.law about which you are concerned, while avoiding thedifficulties that trouble us on the international level.

Letter from Janet G. Mullins, Assistant Secretary of State forLegislative Affairs, to Senator Helms, June 13, 1990, S. Exec.Rep. No. 101-30, 42–43 (1990).

A July 9, 1990, letter from Assistant Secretary Mullins toSenator Claiborne Pell, Chairman of the Senate Foreign RelationsCommittee, reviewed the Administration’s difficulties with the

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“sovereignty” clause. Id. at 43. The letter also discussed again theissue of accepting the competence of the Committee AgainstTorture:

After careful consideration, we continue to believe itappropriate to adopt the middle course proposed in ourpackage of reservations and accept two of the threeoptional competences of the committee: one under Article20 of the Convention, which empowers the committee toexamine country situations when it receives reliable infor-mation containing well-founded indications that tortureis being systemically practiced, and the other under Article21, which permits the committee to consider complaintsfrom one State party that another is not fulfilling its obli-gations under the convention. We would not, however,propose to accept the third competence of the committee,under Article 22, to consider complaints by individualssubject to U.S. jurisdiction claiming to be victims of a vio-lation of the Convention.

We continue to believe strongly that our substantialinterest in eliminating torture around the world will bestbe served by participating actively in the work of the com-mittee and directing its attention to situations in whichtorture is still practiced. The committee has, to date, heldfour sessions, during which it began consideration of ini-tial reports from States Parties on implementation of theConvention as well as communications submitted underArticle 22. Obviously, we cannot help shape the commit-tee’s direction if we do not participate, and since Article21 requires reciprocity, we cannot call another State’sactions into question unless we are also prepared to acceptthe committee’s competence to consider reciprocal claimsagainst us.

We do not believe that the United States has anythingto fear from such participation. There is no possibility ofa well-founded indication of systematic torture in theUnited States (to our knowledge, no human rights grouphas ever accused the U.S. of systematic torture), and wedo not believe that States with a political motivation to


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charge us with torture are likely to expose themselves toreciprocal charges. Moreover, with the changes in EasternEurope, the risks of politically motivated “bloc voting”are substantially diminished from several years ago. In anyevent, the committee has no authority to make bindingdecisions.

We are not inclined to accept the committee’s thirdcompetence, to hear complaints of individuals subject toour jurisdiction who claim to be victims of a violation ofthe Convention. Claims submitted against the UnitedStates are likely to be frivolous, particularly since theclaimant must have first exhausted all available domesticremedies; given the extensive remedies provided by U.S.law, we do not believe there is any need to create an addi-tional international remedy for persons subject to our juris-diction, nor any justification to commit substantialresources to respond to the claims that would be submit-ted. Moreover, there could be more serious problems con-cerning implications for our own domestic proceedings ifthe committee did not scrupulously respect the exhaus-tion of remedies rule. We therefore believe it would beprudent to await further committee experience beforedeciding to accept the third competence of the committee.

Id. at 44–45.The resolution of ratification was made subject to two reser-

vations, nine understandings, two declarations and a proviso. Itsoperative paragraphs follow:

I. The Senate’s advice and consent is subject to the fol-lowing reservations:

(1) That the United States considers itself bound bythe obligation under Article 16 to prevent “cruel, inhu-man or degrading treatment or punishment,” onlyinsofar as the term “cruel, inhuman or degrading treat-ment or punishment” means the cruel, unusual andinhumane treatment or punishment prohibited by theFifth, Eighth, and/or Fourteenth Amendments to theConstitution of the United States.

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(2) That pursuant to Article 30(2), the United Statesdeclares that it does not consider itself bound byArticle 30(l), but reserves the right specifically to agreeto follow this or any other procedure for arbitrationin a particular case.

II. The Senate’s advice and consent is subject to thefollowing understandings, which shall apply to the obli-gations of the United States under this Convention:

(1)(a) That with reference to Article 1, the UnitedStates understands that, in order to constitute torture,an act must be specifically intended to inflict severephysical or mental pain or suffering and that mentalpain or suffering refers to prolonged mental harmcaused by or resulting from: (1) the intentional inflic-tion or threatened infliction of severe physical pain orsuffering; (2) the administration or application, orthreatened administration or application, of mind alter-ing substances or other procedures calculated to dis-rupt profoundly the senses or the personality; (3) thethreat of imminent death; or (4) the threat that anotherperson will imminently be subjected to death, severephysical pain or suffering, or the administration orapplication of mind altering substances or other pro-cedures calculated to disrupt profoundly the senses orpersonality.(b) That the United States understands that the defi-nition of torture in Article I is intended to apply onlyto acts directed against persons in the offender’s cus-tody or physical control.(c) That with reference to Article I of the Convention,the United States understands that “sanctions” includesjudicially-imposed sanctions and other enforcementactions authorized by United States law or by judicialinterpretation of such law. Nonetheless, the UnitedStates understands that a State Party could not throughits domestic sanctions defeat the object and purposeof the Convention to prohibit torture.(d) That with reference to Article I of the Convention,the United States understands that the term “acquies-


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cence” requires that the public official, prior to the activ-ity constituting torture, have awareness of such activityand thereafter breach his legal responsibility to interveneto prevent such activity.(e) That with reference to Article I of the Convention,the United States understands that noncompliance withapplicable legal procedural standards does not per seconstitute torture.(2) That the United States understands the phrase,“where there are substantial grounds for believing thathe would be in danger of being subjected to torture,”as used in Article 3 of the Convention, to mean “if itis more likely than not that he would be tortured.”(3) That it is the understanding of the United Statesthat Article 14 requires a State Party to provide a pri-vate right of action for damages only for acts of tor-ture committed in territory under the jurisdiction ofthat State Party.(4) That the United States understands that interna-tional law does not prohibit the death penalty, anddoes not consider this Convention to restrict or pro-hibit the United States from applying the death penaltyconsistent with the Fifth, Eighth and/or FourteenthAmendments to the Constitution of the United States,including any constitutional period of confinementprior to the imposition of the death penalty.(5) That the United States understands that thisConvention shall be implemented by the United StatesGovernment to the extent that it exercises legislativeand judicial jurisdiction over the matters covered bythe Convention and otherwise by the state and localgovernments. Accordingly, in implementing Articles10–14 and 16, the United States Government shall takemeasures appropriate to the Federal system to the endthat the competent authorities of the constituent unitsof the United States of America may take appropriatemeasures for the fulfillment of the Convention.

III. The Senate’s advice and consent is subject to thefollowing declarations:

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(1) That the United States declares that the provisionsof Articles I through 16 of the Convention are not self-executing.(2) That the United States declares, pursuant to Article21, paragraph 1, of the Convention, that it recognizesthe competence of the Committee against Torture toreceive and consider communications to the effect thata State Party claims that another State Party is not ful-filling its obligations under the Convention. It is theunderstanding of the United States that, pursuant tothe above mentioned article, such communicationsshall be accepted and processed only if they come froma State Party which has made a similar declaration.

IV. The Senate’s advice and consent is subject to thefollowing proviso, which shall not be included in theinstrument of ratification to be deposited by the President:

The President of the United States shall not depositthe instrument of ratification until such time as he hasnotified all present and prospective ratifying partiesto this Convention that nothing in this Conventionrequires or authorizes legislation, or other action, bythe United States of America prohibited by theConstitution of the United States as interpreted by theUnited States.

136 CONG. REC S17,486–01 (daily ed. Oct. 27. 1990). See alsoCumulative Digest 1981–1988 at 823–852.

2. U.S. Legislation

On June 22, 1990, David P. Stewart, Assistant Legal Adviser forHuman Rights and Refugees, testified before the Subcommitteeon Immigration and Refugee Affairs of the Senate Committee onthe Judiciary on the Torture Victim Protection Act, S. 1929 andH.R. 1662. Torture Victim Protection Act of 1989: Hearing onS. 1929 and H.R. 1662 Before the Senate Comm. On theJudiciary, 101st Cong. 18–35 (1990) (testimony of David P.Stewart, Assistant Legal Adviser for Human Rights and Refugees,


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Department of State). Mr. Stewart described the reasons theExecutive Branch did not support enactment of the bill:

There is no question, of course, about our support for thegoals of the proposed Act, namely, to deter torture andextra-judicial killing, to punish those who engage in suchabhorrent acts, and to provide a means of compensatingtheir victims. Our desire to ratify the Torture Conventionis testament to the strong belief that torture, wherever itoccurs, must be punished as a criminal act; our supportfor the United Nations Voluntary Fund for Victims ofTorture reflects our view that victims of torture deservecompensation.

Our disagreement with the Torture Victims ProtectionAct is one purely of means, not ends. The Act would allowindividuals (aliens as well as U.S. citizens) to bring casesin Federal courts for damages resulting from extraterri-torial acts of torture or extra-judicial killings when suchacts occurred “under color of” foreign law (to use the lan-guage of H.R. 1662) or “under actual or apparent author-ity of any foreign nation” (S. 1629). To the best of ourknowledge, no other country has similar legislation. Wehave serious reservations about the appropriateness oreffectiveness of providing a unilateral assertion of civiljurisdiction over acts of foreign governments or officialswhich take place in their own countries. The prospect ofopening U.S. courts to suits against foreign governmentsor officials for extraterritorial acts of torture or extra-judi-cial killings raises three particular concerns: consistencywith the international approach reflected in the UNConvention, the problem of reciprocity and retaliation,and unwarranted judicial involvement in the conduct offoreign affairs.

The U.N. Convention Against Torture represents a sig-nificant step in the development of international measuresagainst torture. Building upon other international instru-ments condemning torture (such as the UniversalDeclaration of Human Rights), it establishes an agreedmultilateral peacetime regime for cooperation among

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States in the prevention of torture and the punishment ofthose who engage in acts of torture.

In the Department’s view, the multilateral regime con-templated by the Convention is more appropriate, and inthe long run likely to more effective, than a unilateralapproach permitting private suits in U.S. courts for actsof torture and extra-judicial killings that take place in for-eign countries. The elimination of torture on a global scalerequires international cooperation. Our efforts should bedirected towards encouraging all foreign countries to adhereto the Convention and effectively implement its central obli-gations, in particular the prevention of torture, the impo-sition of criminal sanctions on those who commit such acts,and the provision of effective means of fair and adequatecompensation to victims with respect to acts taking placein their own jurisdictions.

* * * *

The United States can, in our view, best demonstrateits commitment to the prevention and punishment of tor-ture and extra-judicial killings by ratifying the Conventionand actively working within the multilateral frameworkto get others to do likewise. By comparison, we do notbelieve that it is appropriate for the United States to useits courts to police the world or that torture can in factbe effectively eliminated by unilaterally creating a causeof action in damages in the United States. The threat ofcivil suit here is unlikely to have the desired effect of reduc-ing the incidence of officially sanctioned or tolerated tor-ture in other countries.

On the contrary, unilateral enactment of extraterrito-rial jurisdiction may well be perceived by other countriesas inconsistent with the Convention and overreaching onour part. It could even lead to enactment of reciprocal leg-islation in countries which perceive themselves as targetsof such suits, and to retaliation against U.S. citizens orgovernmental officials travelling abroad for actions whichtook place within the United States. This has been a con-cern of the law enforcement community.


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From a foreign policy perspective, we are particularlyconcerned over the prospect of nuisance or harassmentsuits brought by political opponents or for publicity pur-poses, where allegations may be made against foreign gov-ernments or officials who are not torturers but who willbe required to defend against expensive and drawn-outlegal proceedings. Even when the foreign governmentdeclines to defend and a default judgment results, suchsuits have the potential of creating significant problemsfor the Executive’s management of foreign policy. This isespecially troubling because, in order to meet the statu-tory requirements, plaintiffs will have to allege as a pre-liminary matter that the conduct in question took placeunder the authority of the foreign government or under colorof its law. In every case, therefore, the “lawfulness” of for-eign government sanctions will be at issue. We believe thatinquiry by a U.S. court into the legitimacy of foreign gov-ernment sanctions is likely to be viewed as highly intrusiveand offensive. In fact, it is also likely to be unnecessary,since even those states which engage in torture do not asserta legal right to do so.

The “exhaustion of local remedies” requirement willnot eliminate this problem, because the defendant willhave to litigate that issue as an affirmative defense.

Nor is it clear that the proposed legislation would infact provide tangible relief to victims of torture abroad.We understand that under either version of the Act, theprospective defendant must be found in the United Statesor otherwise submit himself (or itself) to U.S. jurisdiction.This may well limit the number of suits actually broughtunder the Act. However, because the statute would extendonly to acts under color of foreign law or under the actualor apparent authority of a foreign nation, there willinevitably be serious questions of immunity, both withrespect to the establishment of personal jurisdiction, theproduction of documents and witnesses, and the enforce-ment of any resulting judgment either in the United Statesor abroad. In any event, we believe that foreign govern-ments which condone or tolerate acts of torture, or whichdo not provide adequate domestic remedies for the victims

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of torture, are not likely to honor or acquiesce in theenforcement of a U.S. civil judgment against their officialsor assets. Nor are such judgments likely to be enforceablein third countries.

Id. at 23–29. (Bills on the same subject were introduced in the 102dCongress, second session (H.R. 2092 and S. 313). The TortureVictim Protection Act of 1991 became law on March 12, 1992,P.L. 102-256, 106 Stat. 73. 28 U.S.C. § 1350 note.

E. LABOR ISSUES

Convention on Migrant Workers

On December 18, 1990, the U.N. General Assembly adoptedResolution A/RES/45/158 by consensus, adopting the InternationalConvention on the Protection of the Rights of All Migrant Workersand Members of Their Families, and opening it for signature andratification. The United States joined consensus on the resolution.During the Convention’s consideration before the Third Committee,the United States made the following comments:

* * * *

— The United States joined consensus on this resolutionbecause we share the view that the rights of migrant work-ers and members of their families should be protected.Individuals who work in countries where they are notnationals are often subject to abuse and mistreatment. TheUnited States firmly believes that all necessary measuresshould be taken to respect the rights of such individuals,both domestically and internationally.— The United States nevertheless remains skeptical aboutthe utility of this new convention. There are already twotreaties on migrant worker rights, both concluded underthe auspices of the International Labor Organization.— The United States also has some concerns about thevenue in which this new convention was negotiated. Fromthe start, it was our view that the ILO, because of its


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decades-old constitutional mandate and well-known expert-ise in this field, remains the appropriate forum for dealingwith issues related to migrant workers.— This Committee nonetheless decided to establish itsown working group to draft the convention. Although theUnited States actively participated in the negotiations, rel-atively few other countries followed the negotiationsclosely. This unfortunately small number of participatingcountries, coupled with the extraordinary length and com-plexity of the convention, may contribute to a low rate ofratification.— Despite these concerns, the United States is generallysatisfied that the convention sufficiently protects the rightsof migrant workers and members of their families. We arealso pleased that the convention reflects the varyingapproaches to the issues of labor migration adopted indifferent parts of the work, while also respecting the sov-ereignty of each country to control the admission of peo-ple into its territory.

Cross references

Asylum and refugees, and related issues, Chapter 1.D.

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CHAPTER 7

International Organizations andMultilateral Institutions

A. ISSUES RELATING TO NAMIBIAN INDEPENDENCE

1. United Nations Plan for Namibian Independence

On April 1, 1989, large numbers of heavily armed forces of theSouth West African People’s Organization (“SWAPO”) infiltratedthe Angola/Namibia border, in violation of the United NationsPlan for Namibian Independence. It also violated SWAPO’s com-mitments to adhere to a cease-fire and to redeploy its forces northof the 16th parallel in Angola, all as required by the Protocol ofGeneva, signed by the People’s Republic of Angola, the Republicof Cuba, and the Republic of South Africa, August 5, 1988, 28I.L.M. 944, 953 (1989).

In response to the SWAPO infiltration, the UN Secretary-General’s Special Representative for Namibia authorized SouthAfrican forces, which had been confined to bases in Namibia inaccordance with the UN Plan, to deploy temporarily in northernNamibia. In addition, strong international pressure was broughtto bear on SWAPO to comply with its commitments. The U.S.government reviewed SWAPO’s commitments in a cable rebut-ting SWAPO’s argument that it could establish bases in Namibia:

The 1978 contact group proposal approved by UNSCR[United Nations Security Council Resolution] 435 pro-vided for “the restriction of South African and SWAPOarmed forces to base.” No specific locations were givenfor the SWAPO bases. However, the proposal stated that“provision will be made for SWAPO personnel outside

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the territory to return peacefully to Namibia through des-ignated entry points to participate freely in the politicalprocess.” South Africa categorically rejected any implica-tion that SWAPO bases already existed on Namibian ter-ritory and made it crystal clear that the SAG [Governmentof South Africa] would not/not permit such bases to beestablished as part of the UN Plan. In an attempt toaddress South African concerns, the Secretary Generalinformed the SAG in March 1979 “that SWAPO wouldnot/not be entitled, after the cease-fire, to introduce armedpersonnel who had not previously been based in Namibiato bases which would be established by the United Nationson their behalf . . . no party to a conflict may expect togain after a cease-fire a military advantage which it wasunable to obtain prior to it.” [U.N. Doc. S/13156.] In June1979 the Secretary-General informed South Africa that“the Governments of Angola and Zambia have reassuredme that no infiltration of armed SWAPO personnel wouldtake place from their territory into Namibia after the cease-fire.” U.N. Doc. S/14011.

Despite these assurances, South Africa insisted thatSWAPO could be confined to bases only outside Namibiaand that those bases would have to be monitored byUNTAG [United Nations Transition Assistance Group forNamibia]. This view prevailed: it was agreed in 1982 bySWAPO, the FLS [Front Line States), Nigeria, the ContactGroup [United States, Germany, United Kingdom, Canadaand France], and South Africa “that UNTAG, with the co-operation of host governments and in the context of imple-mentation of Resolution 435 (1978) would monitorSWAPO bases in Angola and Zambia.” [U.N. Doc.S/15776.] (Note that there are no longer any SWAPO basesin Zambia.) In paragraph 35 of his report of January 23,1989 [U.N. Doc. S/20412], the Secretary-General statedexpressly that this agreement was included in the “UnitedNations Plan for Namibia.” The Security Council, in turn,approved in Resolution 632 the Secretary-General’s reportfor the implementation of this UN Plan. In summary, theUN Plan contemplates no/no SWAPO bases in Namibiabefore or after the April 1 implementation date. SWAPO


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personnel may return to Namibia peacefully through des-ignated entry points under the auspices of the UN. On theother hand, the infiltration of armed SWAPO personnelis prohibited.

In the Protocol of Geneva signed on August 5, 1988,it was agreed that “Angola and Cuba shall use their goodoffices so that, once the total withdrawal of South Africantroops from Angola is completed, and within the contextalso of the cessation of hostilities in Namibia, SWAPO’sforces will be deployed to the north of the 16th parallel.”(The Geneva Protocol was reaffirmed expressly in theBrazzaville Protocol of December 13 [1988, 28 I.L.M.951(1989)] and implicitly in the Tripartite Agreement ofDecember 22 [1988, 28 I.L.M. 957 (1989)].) As requiredby the Geneva Protocol, South African troops withdrewfrom Angola prior to the deadline of September 1. Thethree parties also maintained in force the existing de factocessation of hostilities. Accordingly, Angola and Cuba arerequired by the Geneva Protocol to ensure that SWAPO’sforces are deployed to the north of the 16th parallel. It isobvious that permitting the infiltration of SWAPO com-batants into Namibia, not to mention supporting the estab-lishment of SWAPO bases there, would be a flagrantviolation of this obligation.

Although not a signatory to the Geneva Protocol,SWAPO’s president, Sam Nujoma, informed the Secretary-General in a letter dated August 12, U.N. Doc. S/20129,that SWAPO would comply with the cessation of hostili-ties agreed by the three parties and that “in accordancewith the spirit of the Geneva Agreement” SWAPO had“committed itself to take the necessary steps to help makethe peace process in the South West African region irre-versible and successful.” In his letter to the Secretary-General of March 18, 1989—in which he agreed to aformal ceasefire with South Africa—Nujoma cited hisAugust 12, 1988 letter, referring specifically to “SWAPO’sacceptance of the de facto cessation of armed hostilities .. . in accordance with the Geneva Protocol of 5 August1988.” SWAPO cannot argue in good faith that it is freeto act in utter disregard of the Geneva Protocol or otherwise

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seek changes in the Tripartite Settlement accords that madeimplementation of UNSCR 435 possible.

On April 8 and 9, 1989, a joint commission created by the Pro-tocol of Brazzaville met at Mount Etjo, Namibia, to discuss thecrisis. This joint commission was established to “serve as a forumfor discussion and resolution of issues regarding the interpreta-tion and implementation of the tripartite agreement [of December22, 1988, 28 I.L.M. 944, 957 (1989)].” A U.S. delegation par-ticipated as an observer.

On April 9, 1989, the joint commission issued a declaration,28 I.L.M. 944, 1011 (1989), which set forth an agreed withdrawalprocedure in order to return to the situation in existence on March31, 1989. The Mount Etjo Declaration provided that SWAPOtroops would be withdrawn from Namibia and would be grantedfree passage to certain border assembly points during an unspec-ified period. The withdrawal procedure would take place underUNTAG supervision, and with verification by the Administrator-General of South-West Africa and UNTAG. According to theDeclaration, SWAPO leadership announced on April 8, 1989, thewithdrawal of SWAPO forces from the northern part of Namibiato Angola.

2. Namibia Impartiality Package

In 1982, the parties to the Namibia negotiations reached infor-mal understandings on a list of measures to ensure UN impar-tiality, referred to as the “impartiality package.” These understandingsamong the United Nations, the contact group (United States,Germany, the United Kingdom, Canada and France), the frontline states, Nigeria, and the South West African People’sOrganization (“SWAPO”) addressed activities within the UN sys-tem once the Security Council met to authorize the implementa-tion of Resolution 435 (1978). The understandings also includedcorresponding obligations on the part of the Government of SouthAfrica in order to ensure free and fair elections in Namibia.

The impartiality package was included in the final UN Planfor Namibia that was approved by the Security Council inResolution 632 (1989), and went into effect on April 1, 1989,


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when implementation of the UN Plan began. The Secretary-General circulated the contents of the impartiality package to theSecurity Council and General Assembly on May 16, 1989. UNDoc. A/44/280, S/20635, at 3–4 (1989).

The impartiality package was addressed by the United Statesin connection with a November 8, 1989, presidential determina-tion, made pursuant to Title II of the Dire Emergency SupplementalAppropriations and Transfers, Urgent Supplementals, and CorrectingEnrollment Errors Act of 1989 (Pub. L. No. 101-45, 103 Stat.97). As discussed below, the Act required the President to makecertain determinations in order to provide funds to the UN toimplement the Angola/Namibia settlement agreements. In par-ticular, as required by section 4(b)(4) of the Act, the Presidentdetermined and certified to Congress that: “the United Nationsand its affiliated agencies have terminated all funding and othersupport, in conformity with the United Nations impartiality pack-age, to the South West African People’s Organization (SWAPO).”Presidential Determination No. 90-4, 54 Fed. Reg. 48,569 (Nov.24, 1989).

3. U.S. Contributions to Peacekeeping Forces

Section 1 of Title II of the Dire Emergency Supplemental Appro-priations and Transfers, Urgent Supplementals, and CorrectingEnrollment Errors Act of 1989, Pub. L. No. 101-45, 103 Stat.97, authorized the President to transfer up to $125 million fromcertain accounts to satisfy U.S. obligations for UN peacekeepingactivities. Section 4 of Title II conditioned the availability of suchfunds, in two allocations of $38,950,000 each, to the UnitedNations for implementation of the Angola/Namibia agreementson the President’s making certain determinations and certifyingthem to Congress. Pub. L. No. 101-45, 103 Stat. 97.

On August 31, 1989, the President made the determinationsrequired under section 4(a) and certified as follows in order tomake the initial contribution of $38,950,000:

(1) the armed forces of the South West Africa People’sOrganization (SWAPO) have left Namibia and returnednorth of the 16th parallel in Angola in compliance with


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the Agreement Between the Government of the People’sRepublic of Angola and the Republic of Cuba for theTermination of the International Mission of the CubanMilitary Contingent (the Bilateral Agreement) signed atthe United Nations on December 22, 1988, and theAgreement among the People’s Republic of Angola, theRepublic of Cuba, and the Republic of South Africa,signed at the United Nations on December 22, 1988;

(2) the United States has received explicit and reliableassurances from each of the parties to the BilateralAgreement that all Cuban troops will be withdrawn fromAngola by July 1, 1991, and that no Cuban troops willremain in Angola after that date; and

(3) the Secretary General of the United Nations hasassured the United States that it is his understanding thatall Cuban troops will be withdrawn from Angola by July1, 1991, and that no Cuban troops will remain in Angolaafter that date.

Presidential Determination No. 89-26, 54 Fed. Reg. 37,927 (Sept.14, 1989).

Section 4(b) of Title II of the Dire Emergency SupplementalAppropriations and Transfers, Urgent Supplementals, andCorrecting Enrollment Errors Act of 1989, Pub. L. No. 101-45, 103Stat. 97, conditioned the availability of the second contributionof $38,950,000 to the U.N. for implementation of the Angola/Namibia agreements on the President’s making additional deter-minations and certifications. Pub. L. No. 101-45, 103 Stat. 97.

On November 8, 1989, President Bush made the determinationsrequired under that section and certified as follows:

(1) each of the signatories to the Agreement Amongthe People’s Republic of Angola, the Republic of Cuba,and the Republic of South Africa, signed at the UnitedNations on December 22, 1988, is in compliance with itsobligations under the Agreement;

(2) the Government of Cuba has complied with itsobligations under Article 1 of the Agreement between theGovernments of the People’s Republic of Angola and the


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Republic of Cuba for the Termination of the InternationalMission of the Cuban Military Contingent, signed at theUnited Nations on December 22, 1988 (relating to the cal-endar for redeployment and withdrawal of Cuban troops),specifically with respect to its obligations as of August 1,1989;

(3) the Cubans have not engaged in any offensive mil-itary actions against UNITA, including the use of chemi-cal warfare;

(4) the United Nations and its affiliated agencies haveterminated all funding and other support, in conformitywith the United Nations impartiality package, to the SouthWest Africa People’s Organization (SWAPO); and

(5) the United Nations Angola Verification Mission isdemonstrating diligence, impartiality, and professionalismin verifying the departure of Cuban troops and the record-ing of any troop rotations.

Presidential Determination No. 90-4, 54 Fed. Reg. 48,569 (Nov.24, 1989).

B. STATUS OF PALESTINE LIBERATION ORGANIZATION

In 1988 the Palestine Liberation Organization (“PLO”) purportedto declare a “State of Palestine.” In 1989 and 1990, the PLO suc-cessfully sought membership for the State of Palestine in severalUN specialized agencies. On May 1, 1989, Secretary of StateJames A. Baker III released the following statement:

The United States vigorously opposes the admission of thePLO to membership in the World Health Organization orany other UN agencies. We have worked, and will con-tinue to work, to convince others of the harm that thePLO’s admission would cause to the Middle East peaceprocess and to the UN system.

Political questions such as this should not be raised inspecialized agencies because such politicization detractsfrom the important technical work of these organizations.


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To emphasize the depth of our concern, I will recom-mend to the President that the United States make nofurther contribution—voluntary or assessed—to any inter-national organization which makes any change in thePLO’s present status as an observer organization.

U.S.-UN Relations: Program Funding and PLO Status, CurrentPolicy No. 1171, Bureau of Public Affairs, Department of State.The matter was also addressed by Deputy Assistant Secretary forInternational Organization Affairs Sandra Vogelgesang in testi-mony before the Subcommittee on Foreign Operations of theSenate Appropriations Committee on May 4, 1989, as follows:

As you know, we are currently facing a serious challengein the World Health Organization [WHO] where the PLO,which has observer status, has submitted an applicationfor membership for “the states of Palestine.” This appli-cation is expected to be considered at the upcoming annualmeeting of the World Health Assembly, which begins May8. The PLO has also expressed interest in making similarapplications in other UN agencies; success in WHO couldencourage the PLO to do so.

The Administration fully appreciates congressionalconcerns over these developments. I can assure you weshare those concerns. We are engaged in a major effort tohead off these attempts, which, if successful, would politi-cize the specialized agencies—thus complicating theiressential technical work—and would also be seriouslydetrimental to the search for Middle East peace. U.S. pol-icy in this regard is clear.

— The self-declared Palestinian state, which the UnitedStates does not recognize, does not satisfy the generallyaccepted criteria under international law for statehood and,thus, does not qualify for membership in UN agencies.— The United States is opposed to the introduction ofsuch a divisive political issue into the technical work ofthe specialized agencies.— Moreover, we are convinced that any effort to bestowlegitimacy on the self-proclaimed Palestinian state would


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harm efforts underway in the region to promote peace.The Arab-Israeli problem can be resolved only through aprocess of negotiations between the parties, not throughunilateral acts by either side—such as the declaration ofPalestinian statehood—that seek to prejudge the outcomeof such negotiations.

* * * *

I can assure you that we will continue our vigorousefforts to oppose the admission of the self-proclaimed stateof Palestine as a member in WHO or any other organiza-tion in the UN system.

Testimony of Deputy Assistant Secretary for International Orga-nization Affairs Sandra Vogelgesang before the Subcommittee onForeign Operations of the Senate Appropriations Committee, May4, 1989, U.S.-UN Relations: Program Funding and PLO Status,Current Policy No. 1171, Bureau of Public Affairs, Departmentof State.

The U.S. Congress enacted two statutes that would haverestricted U.S. funding to the UN, its specialized agencies, andaffiliated organizations if the PLO’s efforts were successful. Thefirst made funds unavailable “for the United Nations or any spe-cialized agency thereof which accords the Palestine LiberationOrganization the same standing as member states.” Section 414(a),Foreign Relations Authorization Act, FY 90 and 91 (Pub L. No.101-246, 104 Stat. 15, 70), 22 U.S.C. § 287e note. The secondprohibited contributions by the United States “(1) to any affili-ated organization of the United Nations which grants full mem-bership as a state to any organization or group that does not havethe internationally recognized attributes of statehood, or (2) tothe United Nations, if the United Nations grants full membershipas a state in the United Nations to any organization or group thatdoes not have the internationally recognized attributes of state-hood.” Section 526(b), Foreign Operations, Export Financing andRelated Programs Appropriations Act, 1990. Pub.L. No. 101-513, 104 Stat. 1979(1990).


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C. CLAIMS SETTLEMENT AGREEMENT WITH MULTINATIONALFORCE AND OBSERVERS

On December 12, 1985, 248 U.S. servicemen returning from dutywith the Multinational Force and Observers (MFO) were killedwhen an Arrow Air aircraft chartered by the MFO crashed on take-off from Gander, Newfoundland. The MFO is a peacekeeping forcein the Sinai which operates pursuant to the 1979 Treaty of Peacebetween Egypt and Israel; see Digest 1980 at 1021–23. Since thecreation of the MFO there had been 14 other deaths and one caseof permanent disability of U.S. military personnel serving with theMFO in the Sinai.

Accordingly, in 1987, Assistant Secretary of State for NearEast and South Asian Affairs Richard Murphy wrote to the direc-tor general of the MFO stating the intention of the United Statesto submit formal claims for reimbursement of death and disabil-ity payments and related expenses in connection with these cases.

The claims were based on terms of U.S. participation in theMFO, which provide for “reimbursement for payments made bygovernments based upon national legislation and/or regulationsfor death, injury, disability or illness attributable to service withthe MFO. . . . Where periodic payments are called for . . . reim-bursement will be made in a lump sum based on actuarial data.”See Appendix to Protocol between Egypt and Israel, entered intoforce August 3, 1981,34 U.S.T. 3341, T.I.A.S. No. 10556,reprinted in American Foreign Policy: Current Documents, 1981(1984) at 693–703 and 81 Dep’t St. Bull. at 44–50 (Sept. 1981).Assistant Secretary Murphy’s letter included a list of the possiblespecific provisions of national legislation and regulations appli-cable under the terms of U.S. participation.

On May 3, 1990, the United States Government and the MFOexchanged notes agreeing to settle all U.S. claims against the MFO,and through it Israel and Egypt, “arising out of or in connectionwith certain fatalities, disabilities, or injuries of U.S. military per-sonnel attributable to service with the MFO and occurring priorto May 1, 1988,” in exchange for payment by the MFO of$19,678,100 to the United States. T.I.A.S. NO. 11,899.

As part of the agreement, the U.S. agreed to provide the fol-lowing assistance should the MFO, Egypt, or Israel be sued bythird parties in the U.S.:


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C. On request, the United States Government, consistentwith its normal practice in respect of legal proceedingsagainst foreign governments and international organiza-tions in United States courts, shall consult with the MFO,the Government of the Arab Republic of Egypt and/or theState of Israel, as the case may be, regarding any thirdparty litigation against them or any of them in the UnitedStates arising out of any event underlying the subject mat-ter of this agreement, in which they or any of them mayinvoke their respective immunities, and shall, as appro-priate, offer support and cooperation, including partici-pation in legal proceedings, in securing proper recognitionand enforcement of such immunities.

Id. at 3.Each party noted that it entered into the settlement agreement

“in light of the unique circumstances of this matter and withoutprejudice to their respective rights under the terms of the UnitedStates participation in the MFO.” Id. In addition, each partyreserved particular rights as follows:

[T]he MFO reserves its right to require individual account-ing, adjustment and certification of future claims of thisnature strictly subject to and in accordance with the rele-vant terms of participation. The United States reserves itsrights regarding the formulation and valuation of claims thatmay hereafter arise relating to death, injury, disability or ill-ness of United States military personnel in MFO service.

Id.

D. INTERNATIONAL COURT OF JUSTICE INITIATIVE

At the end of 1988, the Legal Adviser of the Department of State,Abraham D. Sofaer, called upon the international legal commu-nity to increase the use of the ICJ in resolving international dis-putes. In particular he pointed to:


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three developments—the tremendous growth of interna-tional law through treaties and agreements; the greatlyincreased use of international adjudication; and the pos-sible willingness of the Soviets to utilize the ICJ—[as] com-bin(ing] to create an extraordinary opportunity to establisha new and more meaningful version of mandatory juris-diction for the Court.

Abraham D. Sofaer, Adjudication in the International Court ofJustice: Progress through Realism, 44 Rec. of the Ass’n of the Barof the City of N.Y. 459 (1989). To achieve this objective, the LegalAdviser made several proposals:

First, we must seek to secure the broadest possible accept-ance of the Court’s mandatory jurisdiction. Instead ofpressing as an ideal those declarations that confer unlim-ited authority on the Court, we should focus on attainingat least some degree of commitment from all the majorpowers. Second, a real effort should be made to ensurethat the Court acts only upon the consent of States, andspecial protection should be provided against the Court’sassuming jurisdiction against the wishes of a party in mat-ters bearing upon its national security. Third, every Stateshould automatically have the right to insist that a casein which it appears as a party be heard by a SpecialChamber. This measure will enhance confidence in thefairness of all adjudications, and thereby encourage useof the Court. Finally, these measures should be imple-mented through a binding international agreement, drawnin a manner that avoids the need to amend the Court’sStatute.

Id. at 478.The legal advisers of the permanent members of the United

Nations Security Council met several times during 1989–90 toconduct informal consultations concerning the compulsory juris-diction of the ICJ. In a joint communique following a round ofconsultations held in Paris on February 12–13, 1990, the five legaladvisers described their goal as finding “ways of providing for


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more frequent recourse to the International Court of Justice, aspart of the development of international law.” The communiqueis available at www. state.gov/s/l.

Finally, Congress enacted legislation in February 1990 statingthat it “commends and strongly supports efforts by the United Statesto broaden, where appropriate, the compulsory jurisdiction andenhance the effectiveness of the International Court of Justice.”Section 411, Foreign Relations Authorization Act FY 90 and 91,P.L. 101-246, 104 Stat. 15 (1990).

Cross references

Privileges and immunities of international organizations, Chapter10.D.


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CHAPTER 8

International Claims and State Responsibility

A. GOVERNMENT-TO-GOVERNMENT CLAIMS

1. Downing of Iran Air Flight 655

On July 3, 1988, the U.S.S. Vincennes, during a surface engage-ment with Iranian gunboats in the Persian Gulf, shot down anunidentified aircraft that had just departed from the joint mili-tary-civilian airfield at Bandar-e Abbas. After repeated, unsuc-cessful efforts by the Vincennes to establish contact with theunidentified aircraft, the captain, believing that his vessel mightbe attacked within minutes by an Iranian military aircraft sentto assist the gunboats engaged in the surface exchange, orderedthe aircraft to be fired upon. After the aircraft was shot down,it was identified as a civilian airliner, Iran Air Flight 655. Twohundred-ninety passengers and crewmembers from six nations—India, Iran, Italy, Pakistan, the United Arab Emirates, andYugoslavia—were killed.

The United States consistently maintained that the Vincennes’action was a proper exercise of self defense. On July 4, 1988,President Ronald Reagan expressed his sympathy and condo-lences for the victims and shortly thereafter offered to makehumanitarian payments on an ex gratia basis to the families ofthe victims. Iran immediately requested the Council of theInternational Civil Aviation Organization (“ICAO”) to take meas-ures condemning the United States. ICAO adopted a resolutionon March 17, 1989, urging “States to take all necessary meas-ures to safeguard the safety of air navigation, particularly byassuring effective co-ordination of civil and military activities and

211

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the proper identification of civil aircraft.” ICAO Document C-DEC 126/20, Appendix. Sixty days after the date of the ICAOresolution, Iran filed suit with the International Court of Justice(“ICJ”), asking the Court to declare the U.S. Government “respon-sible to pay compensation to the Islamic Republic . . . as meas-ured by the injuries suffered by the Islam Republic—and thebereaved families . . . .” ICJ Communique No. 89/6, May 17,1989. See discussion of these matters in the Cumulative Digest1981–1988 at 2340–2349.

A number of representatives of those who died in the incidentfiled suit in U.S. courts against the United States, alleging negli-gence in the Iran Air incident.

In a suit brought by families and dependents of four Iranianvictims against the United States and twelve defense contractors,Nejad v. United States, 724 F. Supp. 753 (C.D. Cal. 1989), theU.S. moved to dismiss on grounds that (1) the complaint wasbased on nonjusticiable political questions, (2) the State SecretsDoctrine prevented disclosure of materials necessary for the liti-gation to proceed, and (3) the United States had not waived itssovereign immunity. The U.S. memorandum of points and author-ities in support of the motion to dismiss first addressed the polit-ical question issue. It argued that consideration of plaintiffs’ claims“would require the judiciary to inquire into the reasonablenessof actions taken as part of the conduct of foreign policy and mil-itary operations. Because such matters are committed to the leg-islative and executive branches of our government, they are notreviewable by the judiciary and the Complaint must be dismissed.”Memorandum of Points and Authorities, Nejad v. United States,Civil Action Nos. 89-3991 AWT (C.D. Cal.), Sept. 22, 1989, at5, available at www.state.gov/s/l.

After reviewing the characteristics of nonjusticiable questionslaid out by the Supreme Court in Baker v. Carr, 369 U.S. 186(1962), the United States argued:

The conduct of foreign policy and military operations iscommitted by the United States Constitution to theExecutive Branch of our government. Article II section 2invests the President with exclusive authority over thearmed forces of the United States as Commander-in-Chief,and over the conduct of foreign affairs. The formulation,


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conduct and debate over military operations are clearlyplaced in the political branches of government, and notin the judiciary. “Matters intimately related to foreign pol-icy and national security are rarely proper subjects forjudicial intervention,” Haig v. Agee, 453 U.S. 280, 292(1981), inasmuch as they are “so exclusively entrusted tothe political branches of government as to be largelyimmune from judicial inquiry or interference.” Harisiadesv. Shaughnessy, 342 U.S. 580, 589 (1952). Similarly, thereis a lack of judicially discoverable and manageable stan-dards for resolving the issues presented by Plaintiffs’ Com-plaint. Clearly, the courts cannot and should not berequired to undertake such an exercise. See Sanchez-Espinoza v. Reagan, 569 F.Supp. 596, 600 (D.D.C. 1983),aff’d 770 F.2d 202 (D.C. Cir. 1985).

Any judicial inquiry into the “reasonableness” of thedecisions at issue would require the second guessing bythis Court of Executive Branch decisions, many of whichwere made while military authorities and personnel wereengaged in combat. The entire exercise would be fraughtwith classified intelligence considerations, not to mentionjudicially-unmanageable political and military issues.Similarly, a review in tort of the matters alleged in theComplaint would be impossible without an initial policydetermination of a kind clearly for nonjudicial discretion.These would involve determinations, among many others,as to whether the Executive, under the facts alleged, pur-sued an appropriate foreign policy objective in designingand carrying out the protection of non-combatant vesselsin the Gulf, whether due care for the life and property ofother nations was exercised in formulating the militaryRules of Engagement and standing orders for the navalunits there; whether other means of accomplishing thePresident’s foreign policy objectives would have avoidedthe July 3, 1988, incident; and whether the decisions ofthe Vincennes’ crew during the military engagement ofJuly 3, 1988, were reasonable. Not only are there no judi-cially manageable standards for the Court to follow inresolving these issues, but an independent resolution wouldexpress a lack of respect due to a coordinate branch.

International Claims and State Responsibility 213

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Finally, the clear potentiality of embarrassment frommultifarious pronouncements by various departments onone question marks this case as nonjusticiable. The UnitedStates Government has asserted before the United Nationsand the International Civil Aviation organization (ICAO)that the actions of the Vincennes constituted justifiableself-defense. Further, the President has announced that,while it has no duty or obligation to compensate the fam-ilies of the Iran Air decedents, nevertheless as a humani-tarian and compassionate gesture, the United States willmake ex gratia payments consistent with internationalpractice in such matters.

Moreover, the United States currently is defending acase before the International Court of Justice (ICJ) on thisvery incident. Should this Court launch an inquiryintended by Plaintiffs to establish a legal duty or obliga-tion for the United States to pay damages under somedomestic statute, treaty or international law, the “poten-tiality of embarrassment from multifarious pronounce-ments by various departments” would be realized and theadmonition of Baker v. Carr to adhere to “single-voicedstatement[s]” for the Government would be shattered.

Id. at 7–9.The U.S. memorandum of points and authorities discussed

Iran’s application to the ICJ in support of its arguments concerningthe foreign policy elements of the political questions raised by theIranian plaintiffs’ complaint:

By filing suit before the ICJ seeking redress for injury toits nationals, Iran is exercising its right of diplomatic pro-tection of its nationals. See, Nottebohm Case, 1955 I.C.J.Reports, p. 4 at 20–21.

“Espousal” is the public international law term forprotection afforded by a government to its nationals inadvocating their claims. This right to “espouse” the claimsof its nationals is premised upon the doctrine that injuriesto a country’s nationals are injuries to the country itself.See, e.g., Frelinghuysen v. Key, 110 U.S. 63, 70–71 (1884).


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Having made the claim its own, the government assumesthe character of the party claimant. Restatement of theLaw (Third) of Foreign Relations, Section 713, commenta (“The claim derives from an injury to an individual, butonce espoused it is the state’s claim, and can be waivedby the state.”)

Espousal often occurs without the consent of thenationals and is done “usually without exclusive regardfor their interests, as distinguished from those of the nationas a whole.” Dames & Moore v. Regan, 453 U.S. 654, 680(1981). Having taken over the claim, the State has con-siderable control over its disposition. As a matter of inter-national law, the State may determine what internationalremedies to pursue and whether to abandon the claim orsettle it. Restatement of the Law (Third) of ForeignRelations, Section 902, comment i. In the United Statesthis power is vested in the President. Dames & Moore v.Regan, 453 U.S. at 681–82. The President on behalf ofthe United States has entered into at least ten settlementswith foreign nations affecting the rights of United Statesnationals since 1952. Id. at 680.

The GOI’s [Government of Iran’s] application to theICJ constitutes, inter alia, an espousal of the claims ofIranian nationals against the United States for this inci-dent. The application to the ICJ, as yet, does not consti-tute the equivalent of a claims settlement agreement, butit has triggered an established dispute settlement processcreated by international agreement. At the very least, theissues raised by the GOI’s espousal of its nationals’ claimspoints out the broad foreign policy implications raised byPlaintiffs’ actions in this United States Court.

Id. at 16–17.The memorandum of points and authorities also addressed

the issue of U.S. sovereign immunity under the Public Vessels Act(“PVA”), 46 U.S.C. app. § 781–790, on which Plaintiffs relied.The PVA grants jurisdiction in U.S. federal courts for claims for“damages caused by a public vessel of the United States.” A for-eign national plaintiff, however, may bring a suit under the PVA


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only if the plaintiff can prove that a U.S. citizen would be allowed,under similar circumstances, to sue in the courts of the plaintiff’scountry. See 46 U.S.C. app. § 785. The memorandum stated thefollowing regarding the existence of such reciprocity in Iran:

The issue of whether reciprocity, in terms of reasonableaccess to Iranian courts, exists has been addressed by sev-eral courts in this country. Despite protestations from wellfinanced and well represented litigants, these courts haveconsistently held that, as a practical matter, effective accessto Iranian courts does not exist. See, e.g., RockwellInternational Systems, Inc. v. Citibank, N.A., 719 F.2d583, 587–88 (2d Cir. 1983) (citing numerous other cases);Harris Corporation v. National Iranian Radio andTelevision, 691 F.2d 1344, 1357 (llth Cir. 1982),McDonnell Douglas Corporation v. Islamic Republic ofIran, 591 F.Supp. 293, 303–08 (E.D.Mo. 1984), aff’d 758F.2d 341 (8th Cir.), cert. denied 474 U.S. 948 (1985); andAmerican Bell International Inc. v. Islamic Republic ofIran, 474 F.Supp. 420, 423 (S.D.N.Y. 1979).

* * * *

The reasons for the holding of these courts revolvearound certain consistent findings, including: the replace-ment of professionals trained in a legal system compati-ble with Western legal traditions with clerics andindividuals trained in the traditions of the Islamic religion;the inability to obtain competent and effective legal assis-tance from individuals in Iran willing to vigorously rep-resent Western litigants, particularly Americans, againstthe Government of Iran or its entities; and the physicaldanger posed to Americans and those allied to them whilein Iran for purposes of pursuing their claims. These con-cerns are real and continuing.

Id. at 33–34.On November 7, 1989, the district court dismissed the case,

finding that the action raised nonjusticiable political questions, wasbarred by the state secrets privilege, and could not be brought under


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the PVA because U.S. citizens did not have access to Iranian courtsfor similar claims. Nejad v. United States, 724 F. Supp. 753(C.D.Cal.1989). Similar U.S. cases arising out of the Iran Air inci-dent include Bailey v. Varian Associates, No. 89-2388 (N.D. CalifJune 11, 1990) and Koohi v. U.S., No. 90-1716 (N.D. Cal. June11, 1990), which were both dismissed in unpublished opinions onJune 11, 1990, affirmed Bailey v. Varian Associates and Koohi v.U.S., 976 F.2d 1328 (9th Cir. 1992), cert denied, 508 U.S. 960 (1993).

2. United States-Iraq: U.S.S. Stark

On May 17, 1987, the guided missile frigate U.S.S. Stark, whilestationed in the Persian Gulf about 70 miles northeast of Bahrain,was struck by Iraqi Air Force missiles. One missile exploded, andthe Stark suffered serious casualties: 37 members of the ship’scompany were killed, and others were injured. The vessel sus-tained heavy damage. Negotiations leading to the March 29, 1989,agreement between the Governments of the United States and Iraqon payment of claims on behalf of those suffering loss as a resultof the deaths of the 37 crew members and payment of the agreedamount of $27,350,374 by Iraq on April 14, 1989, are discussedin the Cumulative Digest 1981–88 at 2337–2340.

In formally presenting its claims to the Government of Iraq onApril 4, 1988, the United States had indicated that, in addition tothe claims arising from the 37 deaths, it intended to submit claimson behalf of the members of the crew who suffered personalinjuries and claims of the Government of the United States for itslosses, including the physical damage to the ship. On May 19,1989, the U.S. Government sent a diplomatic note to the IraqiEmbassy in Washington, D.C. transmitting an accompanying seriesof notes setting forth claims on behalf the Stark crew memberswho suffered personal injuries as a result of the attack.

An accompanying note also transmitted the U.S. Governmentclaim for its losses, including for the damage to the ship. Theamounts claimed were prepared by the Department of State inconjunction with the Departments of the Navy, Defense andJustice. The claims were calculated consistent with principles ofinternational law and practice, taking into consideration the natureand severity of the injuries, the pain and suffering associated with


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those injuries, any special medical expenses the claimant incurredas a result of the injuries, and any resulting lost earning capacity.The covering note listed the name and the amount claimed byeach injured crewman. Sixty-two claims were presented, rangingfrom $1,062,265 to $1,000, for a total of $2,314,565. The notestated, in part:

The foregoing constitutes all the claims arising out ofinjuries sustained by personnel aboard the U.S.S. Starkthat the United States will present. In view of the sub-stantial hardship and anguish imposed on these claimants,the United States Government anticipates that theGovernment of Iraq will wish to consider the claims expe-ditiously with a view toward prompt and full payment.To that end, the United States Government is preparedto furnish the Government of Iraq documentary evidenceas desired to support the claims, and to answer any ques-tions regarding the claims with representatives of theGovernment of Iraq at the earliest possible date.

On January 13, 1990, the Government of Iraq sent a diplomaticnote offering to pay $1,500,000 for the claims of the Stark crew-men injured as a result of the attack.

On May 2, 1990, the U.S. Government sent a diplomatic noteto the Iraqi ambassador in Washington, D.C. setting forth itsunderstanding of the agreement with Iraq regarding the personalinjury claims:

1. The Government of the Republic of Iraq will pay to theGovernment of the United States of America the sum ofU.S. dollars 1,500,000, which the Government of theUnited States of America considers as adequate compen-sation under international law, in a single payment aspromptly as possible.2. The Government of the United States of America willaccept the amount paid on behalf of all the claimants seek-ing compensation as a result of the injuries of the 62United States Navy sailors involved and will be solelyresponsible for the distribution of the funds.3. The amount of U.S. dollars 1,500,000, when fully paid


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as agreed, will constitute a full and final settlement of allclaims concerning the injuries of the 62 United States Navysailors involved.The Government of the United States of America now pro-poses that in the near future the Government of theRepublic of Iraq and the Government of the United Statesof America consider the remaining category of claims aris-ing out of the May 17, 1987 attack on the U.S.S. Stark,including the claim for damage to the vessel, in a spirit ofcooperation.

Despite this agreement, payment was not received by the UnitedStates prior to Iraq’s unlawful invasion and occupation of Kuwaitin August 1990. After international sanctions were imposed as aresult of the invasion, Iraq announced that it would no longerhonor its debts to the United States. Accordingly, the full claimcontinued to be outstanding at the end of 1990. See also 83 Am.J. Int’l L. 561 (1989).

3. Settlement of Expropriation Claims against Honduras

Pursuant to an agreement entered into on June 28, 1990, betweenthe United States and Honduras, signed by U.S. AmbassadorCrescencio S. Arcos, Jr., and by Benjamin Villanueva, HonduranMinister of Finance and Public Credit, and Ricardo Maduro,President of the Central Bank of Honduras, the Government ofHonduras transferred the amount of $7.8 million to theGovernment of the United States. The payment was in full andfinal settlement of all claims of the United States and its nation-als that had been the subject of special provisions in theSupplemental Appropriations Act of 1987. Ch. IV, Pub. L. No.100-71, 101 Stat. 391, 406–07 (1987) and Pub. L. No. 101-167,§ 563, 103 Stat. 1195, 1242 (1989), the Foreign Operations, ExportFinancing, and Related Programs Appropriations Act, 1990. Thoseprovisions conditioned availability of certain foreign assistancefunds for Honduras on its settlement of claims arising from theexpropriation by the Government of Honduras of land from aHonduran company which, through a chain of corporate own-ership, was ultimately owned by a U.S. citizen, Temistocles Ramirez


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de Arellano. The land had been used to establish a RegionalMilitary Training Center to provide instruction and training ofHonduran soldiers and soldiers of friendly countries in the region,with trainers and equipment provided by the United States.

The Department of State transferred the $7.8 million to theclaimant Temistocles Ramirez de Arellano on July 5, 1990, againsta release signed by him in his own right and as agent and attor-ney in fact for four named Honduran corporations. For a full dis-cussion of the background of the claim and related U.S. litigationand legislation, beginning in 1983, see Cumulative Digest1981–1988 at 1695–1701 and 2322–2332. See also 84 Am. J.Int’l L. 887 (1990).

4. Iran-United States Claims Tribunal

a. Congressional testimony on status of claims

On November 9, 1989, the Subcommittee on Europe and theMiddle East of the House Committee on Foreign Affairs held ahearing on the economic and political situation in Iran, the sta-tus of Iranian assets and the Iran-United States Claims Tribunal,U.S. policy on American hostages in the Middle East, and Iran’sforeign policy and relations with other countries.

The Legal Adviser of the Department of State, Abraham D.Sofaer, presented a prepared statement on the status of mattersat the Claims Tribunal, that provided in part:

As of January 1981, US banks held a total of nearly $10billion of Iranian assets which had been frozen in 1979 atthe outset of the hostage crisis. The Algiers Accords pro-vided for the use of most of these assets for the initial fund-ing of three escrow accounts. Specifically, about $3.7billion [$3.667 billion] was placed in Dollar Account No.I (held by the N.Y. Federal Reserve Bank) for syndicatedbank claims; about $1.4 billion [$1.418 billion] in DollarAccount No. 2 (held by the Bank of England) for non-syn-dicated bank claims; and $1 billion in the Security Account(held by the Netherlands Central Bank) for Tribunalawards to other US claimants. The rest of the frozen


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Iranian funds-almost $3.9 billion-was returned to Iran.Since January 1981, each of these accounts has been accu-mulating interest; which has provided substantial addi-tional funds for the payment of U.S. claims.

Under the Accords, Iran has an obligation to replen-ish the Security Account whenever its balance drops below$5 million as a result of Tribunal awards to Americannationals; to date, Iran has been able to replenish theSecurity Account from accumulated interest paid on theAccount. Under the Accords, the balance of each of thethree accounts is to be returned to Iran when all claimsagainst the account in question have been paid.

In 1987 [May 13, 1987] the Tribunal, in ruling on anapplication filed by Iran, ordered the return to Iran of thebalance of Dollar Account No. 1, less a small amountneeded to deal with a few remaining syndicated bankclaims. The US sought a ruling from the Tribunal refus-ing to order the return to Iran of the balance of theAccount, but instead leaving the disposition of the bal-ance to bilateral negotiation. But the Tribunal rejected thatrequest. Instead, it ordered the return to Iran of almostthe entire balance (a total of nearly $500 million); lessthan $10 million remains in the Account today to dealwith the last claims.

Dollar Account No. 2 now contains a balance of over$820 million, of which less than $10 million is needed topay the few remaining claims against the Account. Lastweek [November 3, 1989], the US and Iran reached agree-ment on the following distribution of the balance of theAccount: $243 million (or about 30% of the balance) willgo to the Security Account, where it will be used to payTribunal awards to American claimants; $567 million (orabout 70%) will be returned to Iran; and the remainder(about $10 million) will be retained in the Account to paythe few remaining claims.

Iran’s decision to transfer to the Security Accountalmost a quarter of a billion dollars of Iranian funds is animportant step which will provide a significant source ofadded security for US nationals with claims before the


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Tribunal. By taking this step, Iran has signaled its con-tinued commitment to fulfill its obligations under theAlgiers Accords.

Our acquiescence in the transfer of $567 million toIran from this Account was also entirely appropriate. Theclaims on this Account have largely been adjudicated, sono American claimant will be prejudiced by the transfer.Had we chosen to litigate this issue, we would at best havebeen able only to delay the return of these funds to Iran.Instead, we avoided the costs of contentious and expen-sive litigation, and reached a result which is in the inter-ests of US claimants.

Meanwhile, the Claims Tribunal has decided a con-siderable portion of the claims put before it. To date, ithas awarded over $1.3 billion to US claimants, and a num-ber of other large claims have been heard and await judg-ment. The Tribunal has provided a businesslike forum inwhich American claimants can seek the full value of theirlegitimate claims, including interest.

Many claims remain undecided, however, includingthe great majority (over 2700) of the so-called smallclaims—that is, claims of US nationals for less than$250,000. In addition, the Tribunal has only begun theenormous task of resolving the large government-to-gov-ernment claims between Iran and the US, particularly theIranian claims arising out of the sale of defense articleservices prior to 1979. It would obviously be desirable toresolve these issues by negotiation-if that can be done onreasonable terms-so as to avoid the necessity for case-by-case arbitration that could take many years.

In our discussions last week with Iranian representa-tives, we made some progress in establishing a processwithin which the parties should be able to clear up manyof the remaining disputes. Specifically, we resolved sev-eral relatively small government-to-government claims thatwere before the Claims Tribunal. These claims involveddisputes over the performance of contracts for the supplyof goods and services prior to 1979. In none of these casesdid we agree to return military properties to Iran, which


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we have no intention of doing. We did, however, makemonetary settlements which, we believe were fair dealsbased on the circumstances involved. If we are able tomake similar settlements of larger cases or groups of casesbefore the Tribunal, we intend to do so.

Finally, I want to make clear that these discussionswith Iranian representatives in The Hague are entirelytechnical and legal in character. If the resolution of thesetechnical issues should contribute to improvement in US-Iranian relations, that would of course be to the benefitof both our countries. Nonetheless, our discussions in TheHague have not been directed at political objectives, butat the resolution of legal matters before the Tribunal.

United States-Iranian Relations: Hearing Before the Subcomm.on Europe and the Middle East of the House Comm. on ForeignAffairs, 101st Cong., 18–24 (1989).

Following the hearing, the Department of State forwardedwritten responses to a number of questions submitted by the sub-committee, including the following:

III. IRANIAN ASSETS ISSUE

QUESTION:1. Iran also has 6 FMS [foreign military sales] claims

against the United States totalling $10 billion, but onlyreally two of them have been adjudicated, a small one inIran’s favor and a larger helicopter case in the U.S.’s favor.

— Why has progress been so slow on these claims?— How much money is in the Iran FMS Trust Fund todaybefore these remaining claims are settled and does this fig-ure include interest accrued over the last decade?— Have any FMS claims awards been made to Iran pend-ing resolution of issues relating to billing for equipmentand services rendered as well as payment for equipmentheld in the United States?— When can we expect the resolution of these issues relat-ing to billing procedures?


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ANSWER: The Tribunal has a very large docket. It has been address-

ing Iran’s FMS claims against the United States at the sametime it considers numerous other claims between the twogovernments and thousands of claims brought by privatenationals of one government against the other government.

The Trust Fund is the subject of complex, technicallitigation. The amount to which Iran may be entitled willbe determined after all litigation concerning the Trust Fundis complete. The Trust Fund balances have not been cred-ited with interest.

No FMS claims awards have been made to Iran pend-ing resolution of FMS issues relating to billing for equip-ment and services. In August 1988, however, the Tribunalissued a partial award concerning equipment held in theUnited States. The Tribunal held that the United Stateswas not required by the Algiers Accords to return theequipment to Iran but must instead pay Iran the value ofthe equipment as of March 26, 1981, the date on whichthe United States informed Iran that it would not allowthe export of the equipment. The parties are currentlyengaged in briefing the valuation issue.

A final decision on the issues concerning billing pro-cedures will probably not be issued by the Tribunal for atleast a year or two, possibly longer.

QUESTION:2. How are you determining the valuation of Iranian

properties still held by the United States?

— What is your estimate of the value of this equipmentas of 1981?— Is it correct that none of this equipment will have tobe shipped to Iran but that Iran must be compensated forits value as of 1981?— When will you have completed your valuation of thatequipment?


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ANSWER: The Tribunal issued an award holding that Iran is

entitled to the full value of Iranian military property heldby the United States as of 26 March 1981. It thenordered further briefing of the value of the items as ofthis date. The United States is in the process of deter-mining the full value of the goods as of March 1981,taking into account age, condition, state of disrepair, andother relevant factors.

The Department of State, working with Department ofDefense, is still in the process of identifying and analyz-ing the equipment at issue. Iran has filed a briefing claim-ing the value of this equipment to be $415.7 million,including interest. We will present our views to theTribunal in a brief that we anticipate will be filed in Aprilof 1990. We estimate that our valuation will be substan-tially below Iran’s.

QUESTION:3. Is it accurate that there are some 3,800 U.S. weapons

that Iran had bought before 1981 but did not receive by1981?

— Are the main items on this list an F-14, two helicop-ters, missiles and spares, a TSQ-73 system (air defense),and ammunition?— Why is it so difficult to evaluate what this equipmentis worth?

ANSWER: The property subject to the Tribunal’s award consists

of two categories. The first category consists of approxi-mately 3,800 items that Iran had returned to the UnitedStates for repair, calibration, or modification. For the mostpart, these items are not “weapons” as such, but parts ofmilitary equipment such as circuit cards, valves, fuses, andthe like. The second category consists of other Iranian-


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titled equipment which was in the United States at Iran’srequest for various purposes.

There are additional items which Iran bought before1981 but as to which title never passed to Iran. However,the 3,800 U.S. weapons referred to in the question appearto be a reference to the 3,800 items returned for repair.

The major items comprising the second category ofproperty referenced in the prior question include an F-14,two helicopters, a Hawk Battery and spares, three TSQ-73 firing control systems and spares, and a submarine.

The valuation process is so difficult in part becausethe Tribunal’s August 1988 award was the first notice theparties had that they would be expected to value the equip-ment as of the March 26, 1981 date. Thus, neither partyhad been collecting or preserving documentation and infor-mation with respect to physical deterioration and marketcondition as of that point.

Moreover, the valuation process itself is inherentlycomplex. The first category of property consists of morethan 3,800 individual items returned for repair. An assess-ment must first be made as to the 1981 condition of eachof 3,800 items. Even if an item was repaired, a value mustbe assigned that reasonably reflects its prior use by Iran.If not repaired, an entirely different value must be assigned.

The second category of property consists of highlycomplex military systems almost all of which were usedby Iran in the United States (e.g., for training of Iranianmilitary personnel). Reasonable adjustment must be made,as of 1981, for depreciation, refurbishment requirements,and other non-recoverable costs. Other factors such asavailability of willing purchasers, sales of comparableequipment, and technical obsolescence may also be rele-vant. The Hawk Battery, for example, consists of over 40individual component subunits, each of which must bevalued separately.

QUESTION:4. You have stated that the amount of FMS claims Iran

seeks-some $10 billion-is vastly inflated.


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— Why is it inflated?— Do you estimate the total to be far less than half thefigure they give?— One official was quoted as saying that the value of thisequipment is about $250 million. Is that figure accurate?— Was their figure of $10 billion in your view simplytaken from thin air because it equaled the assets the UnitedStates turned over originally in 1981 to Iran and to theHague Tribunal?— How long will it take to get a better fix on the actualamount of FMS claim due Iran? Several years?— What is delaying the process? The U.S. valuationprocess or Iran or the pace of work of the Hague Tribunal?

ANSWER: Of the $10 billion, $5 billion is for nonspecific “con-

sequential” damages which Iran claims is owed as a resultof alleged breaches by the United States of obligationsrelating to the FMS program. We doubt that Iran will beable to recover much, if anything, on this claim. Much ofthe remainder of the Iranian claim is based on allegationsof defects, non-deliveries and overcharges which we believeare without merit or greatly exaggerated.

Apart from its claim for consequential damages, Iranhas not yet presented specific evidence in support of largeportions of its claims, including its claims of more than$2 billion in overbilling. It is impossible to speculate onhow much Iran will prove and recover.

The figure of $250 million relates to one aspect of theFMS case—the value of Iranian military propertiesdetained in the U.S. We are working to formulate esti-mates of the equipment’s value as of 1981.

We do not know why Iran selected the $10 billion fig-ure, beyond the fact that it includes the portions of Iran’sclaim (sections 1 through 5) in which it has sought particu-lar dollar amounts in damages, as well as a $5 billion fig-ure for consequential damages.

It will probably be at least one year, and more likelyseveral years, before we have a good idea of how much is


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due Iran. We are working now on the valuation of Iran’sequipment in the United States; that issue may be decidedin a little over another year. As to the issues concerningoverbilling, additional time will be required to evaluateboth the legal arguments and the factual support that canbe mustered. In a number of cases the final charges forIranian purchases cannot be determined until the overallprocurement contracts under which the U.S. purchasedthese items are closed and the costs accounted for.

There has not really been “delay”’ in reviewing Iran’sFMS claims. It is simply inevitable that in a case of thismagnitude and complexity years will be needed to wrapup the contracts and address the issues.

QUESTION:5. Will the Security Account claims be the major focus

of work at The Hague in the coming months?

— How many claims in rough magnitude have been adju-dicated and how many remain?— Is Iran still committed to keep that account above $500million at all times?— In your negotiations over dissolving Dollar AccountNo. 2, did Iran reaffirm its commitment to keep the bal-ance in the Security Account above $500 million?

ANSWER: Under the Algiers Accords, the Security Account is used

on a continuing basis for the payment of awards by theIran-United States Claims Tribunal to American claimants.Of a total of 3,856 claims filed at the Tribunal, approx-imately 2,600 remain of those disposed of, about 800were the results of terminations of cases by the claimant,220 of awards on agreed terms, and 230 of adjudications.American claimants have been awarded approximately$1.3 billion by the Tribunal. Iran is committed under theAlgiers Accords to replenish the Security Account when-ever it falls below $500 million. Iran has affirmed to the


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United States, including at the November 1989 discus-sions, that it intends to honor this commitment.

QUESTION:6. Is it fair to say that the claims in the Security

Account will take years to adjudicate?

ANSWER: If all the cases that remain and are not withdrawn need

to be adjudicated by the Tribunal, it is fair to say this willtake many years. If it is possible to resolve large numbersof these cases by negotiations, the process would be con-siderably shortened.

QUESTION:7. In an answer to the subcommittee, the State

Department said that the United States is “always pre-pared to settle claims on a realistic basis. Until Iran isready to do so as well, there is nothing we can do torelease the funds.”— Which accounts are you referring to?— Precisely where, other than in the FMS claims areas,is Iran being unrealistic?— What can be done to speed up the process on bothsides?

ANSWER: In general, the Algiers Accords created several accounts

for the payment of claims by Americans, and providedthat the balance would not be returned until the claims inquestion are paid.

In our view, a number of Iran’s claims or its defensesto American claims are unrealistic, such as its $ 10 billionclaim for the former Shah’s assets, its $770 million claimfor damages to Iranian railways in World War II, and itsopposition to the payment of valid claims by “dual


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national” claimants—that is, claimants who have bothU.S. and Iranian nationality. If we can expedite the Tribunalprocess by negotiations which serve the interests of the U.S.and American citizens, we will attempt to do so.

Id. at 67–71.See also 84 Am. J. Int’l L. 729 (1990).

b. Small claims settlement

On May 13, 1990, the United States Government concluded asettlement agreement with the Government of Iran for an over-all amount of $105 million that covered: (1) the remaining 2,361“small claims” (less than $250,000 each) of U.S. nationals stillpending before the Iran-United States Claims Tribunal in TheHague; and (2) the United States Government’s own claim againstIran (Case No. B38) for repayment of fifteen loans made between1955 and 1967 as part of the U.S. long-term economic develop-ment assistance program in Iran. On June 22, 1990, pursuant toa joint request for an arbitral award on agreed terms from thetwo governments, filed with the Claims Tribunal on May 17,1990, the Tribunal rendered an award on agreed terms (AwardNo. 483), recording and giving effect to the settlement agreement.

The agreement settled all “Claims of less than $250,000,”defined as any and all claims less than $250,000 filed with theIran-U.S. Claims Tribunal by the United States on behalf of U.S.nationals, included in Cases Nos. 10,001 through 12,785 and stillpending (set out by number on a list attached to the agreement),whether or not recategorized as Official “B” (government-to-gov-ernment) Claims by the Tribunal (such as the claims in Cases Nos.B76 and B77, specifically mentioned as having been originallyfiled as Cases Nos. 10, 189 and 11,651, respectively), and “whetheror not the amount of any of such claims is ultimately adjudicatedto be more than $250,000.” The settlement agreement alsoincluded and specifically mentioned Case No. 86, the umbrellacase that the U.S. Government filed with the Tribunal to coverall the small claimants. The term “claims of less than $250,000”did not include the claims in Cases Nos. 12,129 and 12,130, inwhich settlements had already been concluded between the par-


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ties. The Agreement defined “claimants” as “any and all of thenatural or juridical persons or other entities” who had made theclaims of less than $250,000 covered by the Agreement.

The United States and Iran agreed, in addition, to consider as“claims of less than $250,000” for purposes of the settlementagreement (1) claims of U.S. nationals for less than $250,000 thathad been submitted to the U.S. Department of State but were nottimely filed with the Tribunal (its filing deadline of January 19,1982, having been established pursuant to the Claims SettlementDeclaration of Algiers, Declaration of the Government of theDemocratic and Popular Republic of Algeria concerning theSettlement of Claims by the Government of the United States ofAmerica and the Government of the Islamic Republic of Iran. Jan.19, 1981, Dep’t. St. Bull., 3, (February 1981), reprinted in 20I.L.M. 230 (1981); and (2) claims of U.S. nationals for less than$250,000 that the claimants had withdrawn or the Tribunal haddismissed for lack of jurisdiction.

Article II of the settlement agreement defined its scope andsubject matter:

(i) to settle, dismiss, and terminate definitively, forever andwith prejudice all the disputes, differences, claims, counter-claims and matters directly or indirectly raised or capable ofarising out of the relationships, contracts, transactions,occurrences, obligations, rights and interests contained in,arising out of, or related to the Claims of less than $250,000,Case No. 86 and Case No. B38.

(ii) to quitclaim and transfer to the Islamic Republic ofIran property of the Claimants as specified in Article VIL

Under article III, the settlement amount of $105 million was tobe paid to the United States out of the security account estab-lished pursuant to paragraph 7 of the (first, or basic) Declarationof Algiers. Declaration of the Government of the Democratic andPopular Republic of Algeria, Jan. 19, 1981, Dep’t. St. Bull. 3,(February 1981), reprinted in 20 I.L.M. 224 (1981). The UnitedStates acknowledged that the settlement amount was the soleamount to be paid in consideration of “complete, full, final anddefinitive settlement, liquidation, discharge, and satisfaction of


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all the disputes, differences, claims, counterclaims and mattersdirectly or indirectly raised or capable of arising out of the rela-tionships, contracts, transactions, occurrences, obligations, rightsand interests contained in or related to” the claims of less than$250,000, Case No. 86 and Case No. B38. Further, the IslamicRepublic of Iran (including all respondents in the claims of lessthan $250,000) would not have to pay any other amount normake any other consideration to the United States or any person,whether natural or juridical, in relation to the claims of less than$250,000, Case No. 86, and Case No. B38. Article III providedfurther that the distribution of the settlement would be carriedabout by the U.S. Foreign Claims Settlement Commission:

(iii) The Government of the United States shall placethe Settlement Amount in one or more interest bearingaccounts pending distribution. The distribution of theSettlement Amount falls within the sole competence andresponsibility of the Government of the United States andshall in no way engage the responsibility of the IslamicRepublic of Iran or any Iranian natural or juridical person.

(iv) The United States Department of State shall referthe Claims of less than $250,000 to the Foreign ClaimsSettlement Commission, United States Department of jus-tice, for adjudication.

(v) In adjudicating such claims, the Foreign ClaimsSettlement Commission shall apply Tribunal precedentconcerning both jurisdiction and the merits, and shall takeinto account all issues including counterclaims and liens.Notwithstanding any other section of this Agreement, theCommission will adjudicate on the merits any claim,among those settled by this Agreement, which the claimantdemonstrates to the Commission’s satisfaction could havebeen properly pursued in any forum other than theTribunal. The Commission shall also take into account,as appropriate, any transfers under Article VII of thisAgreement, without in any manner entailing any liabilityfor the Islamic Republic of Iran or for any respondents inClaims of less than $250,000.


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Article V, Termination of the Claims, set out, inter alia, the obli-gation of the United States to cause, without delay, all proceed-ings against the Islamic Republic of Iran (including all respondentsnamed in the claims of less than $250,000) in relation to theclaims, counterclaims and matters related to the claims of lessthan $250,000, and/or Case No. 86 and/or Case No. B38, in allcourts, fora, or before any authority or administrative body tobe definitively and with prejudice dismissed, withdrawn and ter-minated. Further, it barred the United States “from instituting orcontinuing with any such proceedings (including interpretive dis-putes and official claims) before the Tribunal or any other forum,authority or administrative body whatsoever, including but not lim-ited to any court in the United States or the Islamic Republic ofIran.” The provision did not affect the proceedings envisaged bythe United States in paragraphs (iv) and (v) of Article III, “andwhich will not in any manner entail any liability for the IslamicRepublic of Iran or for any respondents in Claims of less than$250,000.” A corresponding obligation was also placed upon Iran.

Article VI set out the mutual obligations of the parties regard-ing releases of any and all claims, causes of action, rights, inter-ests and demands, whether in rem or in personam, past, presentor future, which have been raised, may in the future be raised, orcould have been raised in connection with disputes, differences,claims, counterclaims and matters stated in, related to, arisingfrom, or capable of arising from the claims of less than $250,000and/or Case No. 86 and/or Case No. B38.

Article VII constituted a blanket quitclaim and transfer by theUnited States, “unconditionally, irrevocably and without any rightto recourse, ‘as is and where is,’” to the Islamic Republic of Iran,of “all of the Claimants’ tangible and intangible assets, rights,properties and real estate, of any kind, located in the IslamicRepublic of Iran, asserted in the Claims of less than $250,000and/or Case No. 86.”

Article IX prescribed in detail the delivery of documentsconnected with the automatic transfer of real and personal assets,which the United States covered by article VII. It provided:

(i) Within three months of receipt of a written requestfrom the Islamic Republic of Iran, the United States agrees


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to furnish the Islamic Republic of Iran copies of any for-mal statements of claims submitted by U.S. nationals tothe Foreign Claims Settlement Commission, including doc-umentary evidence, as well as the Commission’s decisionswith respect to the validity and amounts of such claims.The Commission shall require, as a precondition to grant-ing compensation to a claimant, that the claimant furnishany original share certificates and title deeds in his pos-session concerning assets, rights and properties transferredto the Islamic Republic of Iran under Article VII above.Following the adjudication of each claim, the United Statesshall furnish such documents to the Islamic Republic ofIran. Where a claimant is able, on justifiable grounds, toprove that the originals of such documents are not in hispossession, the Commission shall require from him a nota-rized affidavit in which the claimant sets out his reasonsfor not being in possession of the originals of the said doc-uments, and waiving his rights thereto. In such cases, theUnited States shall furnish the Islamic Republic of Iranwith the submitted affidavits and copies of the documentsat issue.

(ii) Within three months of receipt of a written requestfrom the Government of the United States, and for aperiod up to three years following the issuance by theTribunal of the Award on Agreed Terms, the IslamicRepublic of Iran agrees to furnish to the Government ofthe United States available documents, information, evi-dence, and records, including details as to the ownershipand value of property, rights and interests pertaining toany of the Claims of less than $250,000.

Article X addressed the delivery of property in the United Statesto Iran:

At any time prior to adjudication by the Foreign ClaimsSettlement Commission, the interested parties to any ofthe Claims of less than $250,000 may reach agreementsconcerning the delivery to the Islamic Republic of Iran oftangible property located in the United States. To become


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effective, any such agreement must be submitted to, andapproved by, the Commission, which shall upon approvalauthorize any payment due from the Settlement Amount.Property shall be transferred to the Islamic Republic ofIran pursuant to such agreements in accordance withUnited States law.

Under Article XI, nothing in the Settlement Agreement could berelied upon or construed as relevant to, or could affect in anyway, any arguments the parties had raised, or might raise, con-cerning the jurisdiction or the merits of other cases, whether beforethe Tribunal or any other forum.

Article XIII provided: “Upon the issuance by the Tribunal ofthe Award on Agreed Terms, and in contemplation of the pay-ment of the Settlement Amount, the releases, dismissals, waivers,withdrawals, and transfers of property located in Iran, containedand referred to in this Settlement Agreement shall automaticallybecome self-executing.” For the text of the settlement agreement,see Iran Award 483-86-1, issued June 22, 1990, 1990 WL 769549.

A fact sheet on the settlement of the small claims, preparedby the Office of the Legal Adviser under date of May 14, 1990(with bracketed additional information from Office records), readin part:

Originally 2795 U.S. small claims were filed with theTribunal. The Tribunal has decided only 36 of these [i.e.,only 1.29 percent of the total-with awards to “small”claimants totaling $1,359,186]. Another 72 cases have beensettled by the parties, with these settlements approved bythe Tribunal [for a total payment to the “small” claimantsof $1,661,124]. The settlement agreement covers 2361small claims still pending at the Tribunal, 10 dismissed bythe Tribunal for lack of jurisdiction, 326 filed with theTribunal but subsequently voluntarily withdrawn, and 415submitted to the State Department but not filed with theTribunal because the time limit for filing had expired.

The small claims will be transferred to the ForeignClaims Settlement Commission, an agency within the U.S.Department of Justice. Legislation enacted in 1985 author-


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ized this Commission to receive and determine the valid-ity and amounts of these claims. In due course, theCommission will inform claimants and the public of theprocedures and deadlines that will be applicable to itsadjudication of claims. The Commission’s processing ofthe claims will be much quicker than the Tribunal’s.

The Tribunal’s caseload of U.S. small claims has nowbeen settled. In addition, to date the Tribunal has previ-ously disposed of 1310 cases of the 3856 cases filed: 13disputes concerning interpretation of the Algiers Accords,65 claims of Iran or the United States against each other,797 claims of U.S. nationals against Iran for $250,000 ormore (“large claims”), and 435 small claims. The Tribunalhas awarded U.S. claimants $1.3 billion. After the smallclaims settlement, there will remain at the Tribunal 12interpretive disputes, 11 disputes between the governments,160 U.S. large claims, 2 Iranian large claims, and 108Iranian small claims. Included, for example, among theremaining claims are claims by U.S. oil companies againstIran and Iran’s claim against the U.S. Government arisingout of the Iranian Foreign Military Sales Program [which,spanning a fifteen-year period, consisted of over 2800 con-tracts by 1979, with a cumulative value of over $20 billion].

The Foreign Relations Authorization Act, Fiscal Years 1986 and1987, Pub. L. No. 99-93, title V, 99 Stat. 405, 437 (1985), hadauthorized the Foreign Claims Settlement Commission to deter-mine the validity and amounts of claims by U.S. nationals againstIran that had been settled en bloc. In settling these claims, itrequired the Commission to apply, in the following order:

(1) the terms of any settlement agreement;(2) the relevant provisions of the Declarations of the Govern-

ment of the Democratic and Popular Republic of Algeriaof January 19, 1981, giving consideration to interpreta-tions thereof by the Iran-United States Claims Tribunal;and

(3) applicable principles of international law, justice, andequity.


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50 U.S.C. § 1701 note.In a letter to Stanley J. Glod, Chairman, Foreign Claims Settle-

ment Commission, dated June 28, 1990, Michael J. Matheson,Acting Legal Adviser of the Department of State, formally trans-ferred to the Commission the responsibility to adjudicate theclaims of U.S. nationals of less than $250,000 that were coveredby the award and settlement agreement. See also 84 Am. J. Int’lL. 890 (1990).

B. CLAIMS OF INDIVIDUALS

1. Claims against Nicaragua

On August 30, 1990, the Office of International Claims andInvestment Disputes, Office of the Legal Adviser, Department ofState, issued a notice describing a claims program established bythe Government of Nicaragua:

The Government of Nicaragua has issued a decree whichestablished a National Commission to Review Confis-cations for the review of claims arising from confiscationor other taking by the previous government of propertylocated in Nicaragua. This is a program which the Govern-ment of Nicaragua has undertaken; the United StatesGovernment does not have any official role or responsi-bility in this program. Persons with claims against theGovernment of Nicaragua for property losses are advisedthat they have less than two months to register theirclaims. The deadline for all such registrations is November6, 1990. All persons who wish to preserve their right tomake a claim based on a taking of property are, therefore,urged immediately to file their claims with the NationalCommission to Review Confiscations through the Embassyof Nicaragua.

Public Notice 1258, 55 Fed. Reg. 37,393 (Sept. 11, 1990). OnSeptember 25, 1990, the Office of International Claims andInvestment Disputes sent letters to all persons who had contactedthe office concerning claims against Nicaragua informing them


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of the Nicaraguan Decree and the above public notice. The stan-dard letter is available to www.state.gov/s/l.

2. Claims against the German Democratic Republic

In August 1990, the Foreign Claims Settlement Commission(“FCSC”) and the Department of State distributed informationto individuals and organizations with actual or potential claimsfor property rights taken by the German Democratic Republic(“GDR”) concerning a new GDR law providing for registrationof these claims. The law, a Decree on the Registration of PropertyClaims, issued July 11, 1990, provided that those wishing to reg-ister a claim for property taken by the GDR could do so by writ-ing to the appropriate GDR office by October 13, 1990. Althoughthe decree had originally set a deadline of January 31, 1991, thedeadline was moved up in the interest of settling property issuesquickly. The law constituted the first step in the implementationof the Joint Declaration of the Governments of the FederalRepublic of Germany and the German Democratic Republic onthe Settlement of Outstanding Issues of Property Rights, issuedJune 15, 1990.

The U.S. Government notice contained a number of enclo-sures to assist claimants in the registration process, including doc-uments prepared by the Federal Republic of Germany explainingthe law, including the types of claims covered, where the claimsshould be registered, and information that should be included inan application. The U.S. Government could not, however, adviseclaimants on the validity of their claims.

The Notice also discussed the status of claims against the GDRthat had already been espoused by the United States and adjudi-cated by the FCSC:

Pursuant to Title VI of the International Claims SettlementAct (Title 22, U.S. Code, sections 1644–1644m), enactedin 1976, the Foreign Claims Settlement Commission(FCSC), an agency of the U.S. Government, adjudicated3,898 property claims of U.S. nationals against the GDR.The FCSC completed its program in 1981, and certified


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to the Secretary of the Treasury the 1,899 claims that itfound to be compensable under the terms of the statute.Since then, it has had no further authority to receive orconsider claims against the GDR.

Since 1981 the U.S. Government has espoused theseclaims and pursued a lump-sum settlement of them withthe GDR. The U.S. will continue to pursue a lump-sumsettlement with a unified Germany. Claimants whoseclaims have been espoused by the U.S. Government maynot now remove their claims from the level of government-to-government negotiation, whether or not they registerunder the GDR’s July 11 law, and the U.S. Governmentcontinues to reserve the right to settle all claims coveredby the FCSC’s German claims program.

The U.S. Government recognizes, however, that someclaimants whose claims have been espoused may wish toregister under the July 11 law. In particular, claimants whowish to recover their property should note that the July11 law may provide an opportunity for such recovery, andthat a lump-sum settlement would not result in the returnof property. Registering claims now, as a precautionarystep, will protect possible rights to return of property.

Therefore, those individuals and organizations whoseclaims have been espoused by the U.S. Government mayregister under the July 11 law. Such claimants should note,however, that it is not yet clear whether claims espousedby the U.S. Government will result in recovery under theJuly 11 law. Although the U.S. Government and Germanyhave not yet decided how to resolve claims espoused bythe U.S. Government that are also registered under theJuly 11 law, it is to be expected that no claim will beallowed to result in a double recovery.

Notice Concerning Claims Against Property in the GermanDemocratic Republic, 55 Fed. Reg. 37,392–01 (Sept. 11, 1990).

In January 1991 the the FCSC and the Department of Stateissued the Supplemental Notice Concerning Property Claimsagainst the Former German Democratic Republic. The Supple-


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mental Notice described several important changes regarding prop-erty claims, including the effect of German unification and the exis-tence of new German laws modifying and expanding upon theoriginal registration decree. 56 Fed. Reg. 5,053–03 (Feb. 7, 1991).

Cross reference

Proposed vesting of Vietnamese assets for payment of claims,Chapter 17.A.1.

Invocation of disputes treaty with Chile to resolve claims relatedto deaths of Chilean and American in U.S., Chapter 17.B.


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CHAPTER 9

Diplomatic Relations, Continuity andSuccession of States

A. DIPLOMATIC RELATIONS OF THE UNITED STATES

1. General

On June 4, 1990, the Department of State reviewed the status ofits relations with certain states in an internal memorandum asfollows:

Relations with Iran were severed on January 3, 1980; theSwiss Government handles United States interests. TheUnited States does not maintain diplomatic relations withVietnam, Cambodia, North Korea, Albania, and Angola.There are no protecting powers for Vietnam, Cambodia,North Korea, and Albania. In Angola, Italy handles someconsular services for the United States, usually on an emer-gency basis.

Additionally, diplomatic relations are not activelymaintained with Bhutan and Maldives (i.e., these statesdo not maintain diplomatic representation to the UnitedStates and the United States does not have diplomatic rep-resentation there, although Bhutan maintains a DeputyConsul General in New York).

Regarding the Western Hemisphere, relations withCuba were severed on January 3, 1961; the SwissGovernment handles United States interests.

The United States maintains diplomatic relations withAfghanistan, but U.S. nationals at the American Embassy

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were evacuated in January 1989. Before American per-sonnel were evacuated, the U.S. Embassy did not conductnormal diplomatic relations with the current Kabul regime.Our limited presence there did not imply acceptance ofthe regime as the lawful government in Afghanistan.Similarly, our acting as guarantor of the political settle-ment does not imply acceptance of the regime.

Although diplomatic relations with Libya have notbeen formally severed, in 1981 relations with Libya werereduced to “the lowest level consistent with maintenanceof diplomatic relations” (Transcript of State DepartmentSpecial Briefing, May 6, 1981). No diplomatic missionshave been maintained since 1981, and protecting powershave been designated (Belgium for the United States; theUnited Arab Emirates for Libya).

The United States maintains diplomatic relations withthe three Baltic states of Estonia, Latvia, and Lithuania,although the United States does not presently have repre-sentatives in those countries. The United States has neverrecognized the forcible incorporation of the three statesinto the Soviet Union in 1940. The United States continuesto recognize and accredit diplomatic representatives of theBaltic states. The representatives are Charges d’Affaires forLatvia and Lithuania in Washington and a Consul Generalin Charge of Legation for Estonia in New York.

Memorandum of the Office of the Legal Adviser, Office ofDiplomatic Law and Litigation, June 4, 1990, available atwww.state.gov/s/l.

2. Access to U.S. Courts: Vietnamese Nationals

On June 29, 1989, in response to a request from an attorney rep-resenting a Vietnamese national who had brought suit in a U.S.court in connection with an automobile accident in the UnitedStates, the State Department stated the following regarding accessby Vietnamese nationals to U.S. courts:


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It is the position of the Department of State that accessby nationals of Vietnam to U.S. courts for resolution ofpurely private claims arising in the United States after1975, such as those brought by your client, would not beinconsistent with the foreign policy interests of the UnitedStates. The question of possible suits by purported gov-ernmental entities is, of course, entirely separate and isnot addressed by this letter. Further, the position expressedhere in no way affects the current U.S. governmental restric-tions that apply to financial transactions with nationals ofVietnam.

Letter of Deputy Legal Adviser Elizabeth G. Verville, June 29,1989, available at www.state.gov/s/l.

3. Protection of Lebanese Embassy

On January 23, 1990, a suit was filed in the United States DistrictCourt for the District of Columbia in the names of “The Govern-ment of Prime Minister Michel Aoun, President-in-Interim of theRepublic of Lebanon” and Abdallah Bouhabib, purporting to actas the ambassador of the alleged Aoun government and in hisindividual capacity, against the Secretary of State, the Secretaryof the Treasury and the Director of the U.S. Secret Service. Aounv. Baker, No. 90-0156 (D. D.C. filed Jan. 23, 1990) (HHG). Thecomplaint sought to prohibit the defendants from interfering inany way with the plaintiffs’ use of the Lebanese Embassy andambassador’s residence in Washington, D.C., and to require theUnited States to submit the matter to the International Court ofJustice for adjudication. The plaintiffs also sought an immediatetemporary restraining order to bar any action by the U.S.Government in attempting to remove the ambassador and othersassociated with the Aoun regime from the premises.

The case arose out of changes in the Lebanese Governmentin the preceding months. In November 1989 the United Statesrecognized the government of Rene Moawad, who was electedpresident of Lebanon on November 5, 1989. On November 18,1989, the United States ambassador to Lebanon presented his cre-dentials to the Moawad government. President Moawad was

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assassinated on November 22, 1989, and Elias Hrawi was electedto succeed him as president on November 24, 1989. The UnitedStates recognized the Hrawi government and at no time recog-nized a government headed by Prime Minister Aoun.

On December 11, 1989, the Hrawi government formally noti-fied the Department of State that it had terminated the appoint-ment of Abdallah Bouhabib as its ambassador on December 7.However, Bouhabib continued to claim that he was the ambas-sador, and indicated that he would not leave the embassy and theambassador’s residence. On January 24, 1990, the Departmentof State received a request from the Hrawi government to removeBouhabib from the Lebanese diplomatic premises.

At a hearing on the temporary restraining order held onJanuary 24, 1990, the U.S. Government represented that it wouldtake no immediate action to carry out the Lebanese Government’srequest in order to permit the court to review the merits of theclaim.

On January 25, 1990, the United States filed an oppositionto the motion for a temporary restraining order and a motion todismiss the claim on the grounds of lack of jurisdiction and fail-ure to state a claim. The U.S. memorandum of points and author-ities in support of the motion to dismiss argued that the Presidenthas the exclusive authority to recognize foreign governments, andthat such recognition decisions are not reviewable by the courts:

Under the Constitution of the United States, the Presidenthas the exclusive authority to recognize or not to recog-nize a foreign government, as well as to maintain or notto maintain diplomatic relations. As the Supreme Courtstated in Banco Nacional de Cuba v. Sabbatino, 376 U.S.398, 410 (1964), “political recognition is exclusively afunction of the Executive.” This exclusive authority derivesfrom the President’s constitutional authority to appointand receive Ambassadors (Article II, sections 2 and 3), andthe President’s necessary power to conduct the foreign rela-tions of the United States. See United States v. Curtiss-Wright Export Corp., 200 U.S. 304, 318–22 (1936).

The courts of the United States have long found thatthe Executive’s determinations of recognition are bindingon the courts. Deciding whether to recognize a sovereign


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government or which of competing governments to rec-ognize are foreign policy decisions that must be acceptedby the courts as conclusive determinations by the politi-cal branch of the government. Jones v. United States, 137U.S. 202, 212–14 (1890) (“who is the sovereign, de jureor de facto, of a territory is not a judicial but a politicalquestion, the determination of which by the legislative andexecutive departments of any government conclusivelybinds the judges as well as all other officers, citizens andsubjects of that government. This principle has alwaysbeen upheld by this court, and has been affirmed under agreat variety of circumstances”); Oetgen v. Central LeatherCo., 246 U.S. 297, 322 (1918); Guaranty Trust Co. v.United States, 304 U.S. 126, 137–38 (1938) (“What gov-ernment is to be regarded here as representative of a for-eign state is a political rather than a judicial question, andis to be determined by the political department of the gov-ernment. . . . Its action in recognizing a foreign govern-ment and in receiving its diplomatic representatives isconclusive on all domestic courts, which are bound toaccept that determination”); Goldwater v. Carter, 444 U.S.996, 1007 (1979) (Brennan, J., dissenting) (“Our casesfirmly establish that the Constitution commits to thePresident alone the power to recognize and to withdrawrecognition from, foreign regimes”).

This principle has been recently upheld in Republic ofPanama v. Citizens & Southern International Bank, 682F.Supp. 1544, 1545 (S.D.Fla. 1988) (doctrine that the exec-utive branch has exclusive power to recognize a foreigngovernment held to bar intervention and participation ofcompeting regime in litigation brought by the recognizedgovernment of Panama to enjoin transfer of funds held inits name). See also United States v. Belmont, 301 U.S. 324,330 (1937); United States v. Pink, 315 U.S. 203, 229–30(1937); Restatement (Third) of Foreign Relations Law ofthe United States section 204 (1987).

Courts have similarly held that the Executive’s deter-mination that a regime is not recognized is also bindingon the courts. The Maret, 145 F.2d 431, 442 (3d Cir.


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1944) (“Nonrecognition of a foreign sovereign and non-recognition of its decrees are deemed to be as essential apart of the power confided by the Constitution to theExecutive for the conduct of foreign affairs as recogni-tion”). This point was addressed by the United StatesCourt of Appeals for the District of Columbia Circuit inLatvian State Cargo Lines & Passenger S.S. Line v.McGrath, 188 F.2d 1000 (D.C.Cir. 1951), cert. denied,342 U.S. 816 (1951). The Court of Appeals stated:

We are of the opinion that when the executive branchof the Government has determined upon a foreign pol-icy, which can be and is ascertained, and the non-recognition of specific foreign decrees is deliberatedand is shown to be a part of that policy, such non-recognition must be given effect by the courts. Therule applicable in such circumstances is the same ruleapplicable to an act of recognition. Any other treat-ment of a deliberate policy and act of non-recognitionwould reduce the effective control over foreign affairsby the executive branch to a mere effectiveness of actsof recognition. The control of the executive branch overforeign affairs must necessarily be broader than that.

Id. at 1003.

Defendants’ Opposition to Motion for a Temporary RestrainingOrder and Memorandum of Points and Authorities in Support ofDefendants’ Motion to Dismiss at 4–7, Aoun v. Baker, No. 90-0156 (“U.S. Memorandum”), available at www.state.gov/s/l.

A declaration by Assistant Secretary of State for Near Easternand South Asian Affairs John H. Kelly was attached to the U.S.memorandum. The declaration stated that “[t]he United Statesdoes not recognize the ‘Government of Prime Minister MichelAoun’ referred to in the pleadings filed in this proceeding, andthe United States has never recognized the Aoun government.United States policy in this regard is consistent with that of theinternational community: to my knowledge, no state in the worldcurrently recognizes the Aoun government.” The U.S. brief arguedthat “this determination is a foreign policy decision that is exclu-sively within the function of the Executive, as the substantial


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authority cited earlier in this memorandum makes clear, and thecourts cannot look behind this binding determination.” U.S.Memorandum at 7.

Turning to the consequences of non-recognition of the Aounregime by the United States, the U.S. memorandum argued, first,that the Aoun regime could not bring suit in U.S. courts:

An Executive decision not to recognize a purported gov-ernment results in that regime and its representatives nor-mally being denied the right to sue in U.S. courts, absenta statement by the Executive declaring that the denial ofrecognition should not preclude such court access. As theSupreme Court has stated, “[i]t has long been establishedthat only governments recognized by the United States andat peace with us are entitled to access to our courts andthat it is within the exclusive power of the ExecutiveBranch to determine which nations are entitled to sue.”Pfizer v. India, 434 U.S. 308, 319 20 (1978). See BancoNacional de Cuba v. Sabbatino, 376 U.S. 398, 410 11(1964)(noting that denial of access to unrecognized gov-ernments relates to “the incongruity of judicial ‘recogni-tion’ by permitting suit of a government not recognizedby the Executive”).

Thus, for example, before the Soviet Government wasrecognized by the United States in 1933, it was consis-tently denied access to U.S. courts. Guaranty Trust Co. v.United States, 304 U.S. 126, 137 (1938) (“suits on its [thesovereign state’s] behalf may be maintained in our courtsonly by that government which has been recognized bythe political department of our government as the author-ized government of the foreign state”). See also Republicof Vietnam v. Pfizer, 556 F. 2d 892, 894 (8th Cir. 1977)(denying access to unrecognized regime); TransportesAereos de Angola v. Ronair, Inc. 544 F.Supp. 858, 863–64(D.Del. 1982) (granting access to an unrecognized regimebased on Executive’s desire to remove this impedimentbecause “that determination necessarily frees this Courtfrom any strictures placed on the exercise of its jurisdic-tion”). See generally United States v. Belmont, 301 U.S.324, 328, 330 (1937); United States v. Pink, 315 U.S. 203,


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230 (1942); Restatement (Third) of the Foreign RelationsLaw of the United States section 205 (1987). Hence, theAoun regime lacks standing to bring suit in this Court.

Id. at 8–9.Second, the U.S. memorandum pointed out that non-recog-

nition of the Aoun regime and recognition of the Hrawi govern-ment meant that only representatives of the Hrawi governmentwere considered to be representatives of the government ofLebanon by the United States:

[T]he United States Government considers the Hrawi gov-ernment as the proper party to conduct diplomatic rela-tions on behalf of Lebanon, and to exercise internationalrights and responsibilities of Lebanon because the Hrawigovernment is the recognized government of Lebanon.Among these international rights and responsibilities arethose accorded parties to the Vienna Convention onDiplomatic Relations, to which Lebanon and the UnitedStates are parties.

Thus, the U.S. Government looks to the Hrawi gov-ernment to inform us who its authorized representativesare, in accordance with the terms and procedures set forthin Article 10 of the Vienna Convention on DiplomaticRelations, done at Vienna April 18, 1961, 23 U.S.T. 3227,T.I.A.S. NO. 7502, 500 U.N.T.S. 95. This article provides,in pertinent part, that “the Ministry of Foreign Affairs ofthe receiving State . . . , shall be notified of the appoint-ment of members of the mission, their arrival and theirfinal departure or the termination of their functions withthe mission. . . .”

Id. at 9–10.The attached declaration of Assistant Secretary Kelly reviewed

the pertinent provisions of the VCDR and explained their impor-tance to the U.S. Government:

9. As a senior diplomatic official, I am also familiarwith United States policy on adherence to the ViennaConvention on Diplomatic Relations. . . . The United


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States attaches the utmost importance to its rights andobligations under the Vienna Convention, including theobligation in Article 22(l) to treat the premises of the diplo-matic mission as inviolable. The United States views withequal seriousness the provision in Article 22(l) that states,“The agents of the receiving State may not enter [the prem-ises of the Mission], except with the consent of the headof the mission.” Further, the United States is acutely awareof its obligations under Article 22(2), which provides that,“The receiving State is under a special duty to take allappropriate steps to protect the premises of the missionagainst any intrusion or damage.”

10. The United States depends on these provisions forthe protection and security of its embassies abroad. Theprinciple of inviolability, of course, protects the integrityof United States diplomatic missions abroad. In addition,the United States occasionally must request assistance fromthe agents of the receiving State to remove trespassers andtake other actions to protect United States diplomatic mis-sions in accordance with Articles 22(l) and 22(2).

11. To ensure that United States embassies receive thebenefit of the above mentioned protections abroad, andto comply with its international legal obligations, theUnited States is scrupulous in ensuring that these protec-tions are accorded to foreign embassies here in Washing-ton. Thus, the United States is dedicated to the principleof inviolability and to the principle that the United Statesis obliged to assist a foreign mission that requests assistanceto protect it from intruders or damage. When the UnitedStates is requested by foreign governments to take such stepsto rid foreign missions of trespassers and other unwantedintruders, United States practice is to comply without delay.The United States views this practice, which is enshrined inthe Vienna Convention, as fundamental to the orderly con-duct of diplomatic relations.

As to the consequences of failing to carry out U.S. obligations underthe VCDR, the U.S. memorandum explained:


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The VCDR contains a number of obligations placed uponthe receiving State with regard to diplomatic missions andpersonnel within its territory. One of the most importantis set forth in Article 22(2), which provides that “thereceiving State is under a special duty to take all appro-priate steps to protect the premises of the mission againstany intrusion or damage and to prevent any disturbanceof the peace of the mission or impairment of its dignity.”(The premises of the mission include the ambassador’s res-idence in accordance with the definition in Article l(i) ofthe VCDR.)

When there is an intrusion or forcible entry into a mis-sion’s premises by someone unauthorized or unwelcomedby the sending State, it is the normal practice for theUnited States to remove the intruders, upon the requestof the sending State or its authorized representative. . . .The practice of confirming that the removal is based upona request of the sending State is to ensure that any actionsby law enforcement authorities would not be in violationof Article 22, including the duty to protect and the grantof inviolability to the premises of the mission, permittingentrance only upon the consent of the sending State.

The special duty to provide protection to a missionpremises is one the United States views particularly seri-ously. As the Declaration of Assistant Secretary Kellyexplains, United States missions overseas rely heavily onthe obligation of the receiving State to provide protection,as the Iran hostage incident made abundantly clear. Failureof the United States to abide by this duty, or hindrance ofthe United States’ ability to carry it out, may cause thesending State to withdraw protection to U.S. missions inits state on the basis of Article 47(2)(a) of the VCDR. Thisarticle permits the receiving State to apply the VCDR obli-gations restrictively to another State where that State hasrestrictively applied the provision to its mission in thesending State.

Id. at 12. (Citations to Kelly Declaration omitted.)Finally, the U.S. memorandum addressed the plaintiffs’ request

to have the matter heard in the International Court of Justice.


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Because Lebanon was not a party to the VCDR’s OptionalProtocol Concerning the Compulsory Settlement of Disputes, doneat Vienna April 18, 1961, 23 U.S.T. 3374, T.I.A.S. No. 7502, 500U.N.T.S. 95, there was no basis for ICJ jurisdiction. Moreover,even if Lebanon were a party to the Optional Protocol, there wasno dispute between the recognized government of Lebanon andthe United States.

On January 26, 1990, the district court entered a temporaryrestraining order for 10 days to preserve the status quo until thecourt could more carefully consider the arguments of the parties.In particular, the court expressed concern about infringementwithout due process of law on the alleged property rights of theplaintiffs. Aoun v. Baker, No. 90-0156 (D.D.C. Jan. 26, 1990)(unpublished order granting temporary restraining order).

On January 29, 1990, the U.S. Government filed an emer-gency motion with the United States Court of Appeals for theDistrict of Columbia Circuit seeking reversal of the district courtorder or, in the alternative, for a writ of mandamus directing thedistrict court to vacate its order. At the outset, the U.S. Govern-ment addressed the necessity for the emergency motion:

The district court’s order usurps the Executive Branch’sauthority in foreign affairs and, unless reversed forthwith,will cause substantial and irreparable harm to the foreignpolicy interests of the United States in the Middle East.Although the district court’s Order is styled as a tempo-rary restraining order . . . it commands the ExecutiveBranch not to honor the request of the recognized gov-ernment of Lebanon to protect the premises of theLebanese diplomatic mission in the United States fromunauthorized intruders or occupants. Because the Orderaltered irreversibly “the delicate diplomatic balance” inthe United States’ relations with Lebanon, and continuesto do so, it is “in purpose and effect a mandatory injunc-tion appealable under 28 U.S.C. section 1291(a)(1).”Adams v. Vance, 570 F.2d 950, 953 (D.C. Cir. 1977).

A party requesting an injunction that affects the abil-ity of the Executive Branch to conduct the foreign affairsof the United States “must make an extraordinarily strong


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showing to succeed.” Id. at 955. As the Court noted inAdams v. Vance:

This country’s interests in regard to foreign affairs andinternational agreements may depend on the symbolicsignificance to other countries of various stances andon what is practical with regard to diplomatic inter-action and negotiation. Courts are not in a positionto exercise a judgment that is fully sensitive to thesematters. Id. It is for precisely these reasons that themerits of this appeal “are so clear as to justify expe-dited action,” and that the circumstances of the casecounsel “a speedy resolution.” Ambach v.Bell, 686F.2d 974, 980 (D.C. Cir. 1982) (per curiam). Alterna-tively, since the district court has intruded upon thePresident’s constitutional authority to recognize gov-ernments, the court has acted in clear excess of itsjurisdiction and mandamus is justified.

Emergency Motion for Summary Reversal or, in the Alternative,Petition for Writ of Mandamus, pp. 2–3, Aoun v. Baker, No. 90-5016, slip op. (D.D.C. Jan. 30, 1990), available at www.state.gov/s/l.

The U.S. Government’s emergency motion then addressed indetail the harm, both actual and potential, caused by the districtcourt’s order:

In Adams v. Vance, supra, this Court held that it had juris-diction over an appeal from a grant of a temporary restrain-ing order because the order in question did not merelypreserve the status quo pending further proceedings, butcommanded an unprecedented action irreversibly alteringa delicate balance involving the foreign relations of theUnited States. See also, Office of Personnel Managementv. AFGE, 473 U.S. 1301, 1304–05 (1985) (Burger, J., inchambers). The order entered by the district court, unlessvacated, will continue to cause substantial and irrepara-ble harm to the ability of the Executive Branch to conductthe foreign affairs of the United States government. Indeed,the Order constitutes a clear intrusion “into the core con-


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cerns of the executive branch.” Adams v. Vance, 570 F.2dat 954. The “delicacies of diplomatic negotiation, (and)the inevitable bargaining for the best solution of an inter-national conflict” will be lost irretrievably due to the “pre-mature interposition” of the District Court unless theOrder is reversed forthwith. Id. at 954–55 (quotingMitchell v. Laird, 488 F.2d 611, 616 (D.C. Cir. 1973)).

As set forth in the attached declaration of Secretaryof State James A. Baker, III, [dated January 29, 1990 andattached as Exhibit E to the Emergency Motion] the occu-pation of the Lebanese Embassy by Bouhabib and the dis-trict court’s order restraining the United States fromhonoring its international legal obligations to theGovernment of Lebanon are causing grave, immediate andirreparable harm to the foreign policy of the United States.The district court’s order adversely affects United Statespolicy interests in Lebanon, strains relations between theUnited States and Lebanon, and damages broader foreignpolicy interests of the United States. (Baker Decl., para. 5)

The Government of Lebanon has repeatedly expressedto the Department of State the seriousness with which itviews this matter. The Prime Minister has taken the highlyunusual step of calling the Department directly to indi-cate that Bouhabib’s continued presence in the embassywould be paralyzing to his government. (Id., para. 6)

The Hrawi government, the legitimate government ofLebanon, is barely two months old and is seeking to con-solidate its authority in Lebanon, in the face of consider-able difficulty. Its efforts are being actively resisted byGeneral Aoun. General Aoun and his supporters will lookcarefully at foreign reaction in judging how long and howstrongly to resist the Government of Lebanon’s authority.Indeed, General Aoun has ordered certain LebaneseAmbassadors sympathetic to him not to turn overLebanese embassies to the representatives of the Govern-ment of Lebanon. (Id., para. 7)

It has been long-standing United States policy to pro-mote the extension of the authority of the legitimate gov-ernment of Lebanon throughout Lebanon. This policy isdirectly undermined by the district court’s decision. Each


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day that Aoun’s purported representative remains in theembassy is used by Aoun to retain and build support forhis efforts to resist the legitimate government of Lebanon’sauthority. General Aoun’s supporters have already begunto use the court decision to argue that the United Statesis not fully committed to the Hrawi government. TheHrawi government has relied heavily on the political sup-port of the United States in its efforts to persuade Aounto cease his unauthorized occupation of the PresidentialPalace near Beirut. Our critical support is seriously under-mined by the fact that Aoun’s purported representative isallowed to occupy the embassy property in Washington.(Id., para. 8)

The Hrawi government, faced with the task of assert-ing its authority over numerous armed elements, is under-standably sensitive to any suggestion that it is not thelegitimate government of Lebanon. Officials of the Hrawigovernment, unversed in the complexities of the Americanlegal system, are likely to misinterpret our inability toremove Boubabib as a lack of commitment to and sup-port for the Hrawi government. No amount of reassur-ance to Lebanese officials by United States diplomatsremoves the suspicion that the United States Governmentis not fully committed to supporting the legitimate gov-ernment as long as Bouhabib remains in the Lebaneseembassy in Washington. (Id., para. 9)

The district court’s order also threatens broader U.S.interests. The United States relies upon the ViennaConvention for the protection of its embassies and diplo-mats overseas. In the hostage crisis in Teheran, the UnitedStates appealed to the International Court of Justice andthe world community, citing the Government of Iran’s obli-gation to make immediately available to the United Statesour diplomatic premises. When an American Embassyabroad requests assistance from the host government inremoving intruders, violent or otherwise, the United Statesconsiders it unacceptable for that government to delayunnecessarily for even a few hours. Ten days’ delay—thedaunting precedent set by the district court here would beintolerable. (Id., para. 10)


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Id. at 6–9. After reiterating the legal arguments made to the district court

regarding the executive branch’s exclusive authority in the areaof recognition, the brief addressed the district court’s order andits apparent concern about the plaintiffs’ property interests in theembassy premises and papers:

The first flaw is the assumption that Mr. Bouhabib, whono longer represents the Republic of Lebanon in the UnitedStates, has any interest whatsoever, personally or by rea-son of his former position, in either the premises of thatgovernment’s embassy or any of its official papers. As theSupreme Court has recognized, “the rights of a sovereignstate are vested in the state rather than in any particulargovernment which may purport to represent it.” GuarantyTrust Co. v. U.S., 304 U.S. 126, 137 (1938). See also, TheSapphire, 78 U.S. (11 Wall.) 164, 168 69 (1870); NationalUnion Fire Ins, Co. v. The Republic of China, 254 F.2d177, 186 (4th Cir.), cert. denied, 358 U.S. 823 (1958), TheRogdai, 278 F.2d 294, 296 (N.D. Cal. 1920). In short, thepremises of the Lebanese embassy grounds and all officialpapers present therein belong to the Republic of Lebanon,not Mr. Bouhabib, either in a personal or representativecapacity.11

The second fallacy of the district court’s reasoning isthat, by a change in recognition of Lebanese governmentsby the United States, some change in “property rights” tothe embassy premises and any official papers has takenplace which requires judicial supervision. As numerouscases which deal with a foreign state’s right to pursue aclaim in our courts have recognized, “the state is contin-uous and the right of action really resides in the aggre-gate body of the people who are merely represented byparticular governmental organizations which may changein character or personnel.” State of Yucatan v.Argumendo, 92 Misc. 547, 157 N.Y.S. 219, 1225 (Sup.Ct. 1915) (emphasis added) citing Underhill v. Hernandez,168 U.S. 250, 253 (1897). Or, as the Supreme Courtstated in The Sapphire concerning the right of the FrenchGovernment to pursue, in the name of Emperor Napoleon,


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a claim for damages to its warship after Napoleon hadbeen deposed:

On [Napoleon’s] deposition the sovereignty does notchange, but merely the person or persons in whom itresides. The foreign state is the true and real owner ofits public vessels of war. The reigning Emperor, or theNational Assembly, or other actual person or party inpower, is but the agent and representative of the nationalsovereignty. A change in such representative works nochange in the national sovereignty or its rights.

78 U.S. (11 Wall.) at 168 (emphasis added). See alsoLehigh Valley Ry. Co. v. State of Russia, 21 F.2d 396, 401(2d Cir. 1927) (“though the government changes, thenation remains, with rights and obligations unimpaired”)quoting 1 Moore, Digest of International Law 249. So toohere, the embassy premises and all official papers thereinboth prior, during and subsequent to Mr. Bouhabib’stenure as Ambassador belong to the Republic of Lebanon.No change in “property rights” is at issue here.

Third, upon recognition of the Hrawi government bythe United States Government, title to the embassy prem-ises and all official papers immediately vested in that gov-ernment, which thereby becomes entitled to immediatepossession of the premises and all official papers therein.1 L. Oppenheim, International Law section 75, at 132–33H. Lauterpacht 7th ed. (1948) (upon recognition, a gov-ernment “becomes entitled to demand and receive posses-sion of property situate within the jurisdiction of therecognizing State, which formerly belonged to the preced-ing government at the time of its supersession.”) (collect-ing authorities); Voevodine v. Government of CommanderIn Chief, 232 App. Div. 204, 249 N.Y.S. 644, 649 (1stDept.), aff’d 257 N.Y. 557 (1931) (“The property of sucha government belongs to the state, as sovereign, and, uponthe overthrow of the [prior] * * * government, anothergovernment replacing it would succeed to the representa-tive right of such * * * government in all of its property.”)(emphasis added); State of Yucatan v. Argumendo, 157N.Y.S. at 225 (“Plaintiff, as the recognized state govern-


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ment, is vested with all state property, including title to(property] accumulated during previous * * * regimes”).Indeed, as we noted above, the United States Government,under the VCDR, has a special obligation to protect theembassy premises for the Hrawi regime—not for plaintiffand “those aligned with him.” . . . In short, plaintiff is atrespasser with respect to the embassy property and unlaw-fully holds possession of official papers of the Republic ofLebanon. That he came by that possession as a result ofhis prior position is irrelevant. At present, he has no “prop-erty rights” therein which require protection by the dueprocess clause. The district court’s conclusion to the con-trary must be reversed.

Moreover, even if plaintiff has a “property right” inthe premises and papers, the district court’s conclusionthat Bouhabib lacked adequate notice of his terminationas ambassador from Lebanon and the requirement that hevacate the embassy and mission was neither alleged byplaintiffs nor supported by the record. Nowhere didBouhabib assert that he lacked notice of his terminationas ambassador to the United States, and nowhere did heassert that he had no notice that the recognized govern-ment expected him to leave the embassy premises byDecember 20, 1989; to the extent the record belowaddressed this issue, it confirms that Bouhabib had suffi-cient notice. (See Kelly Decl. at 3.) [Footnote omitted.]Consequently, the district court’s theory that some unde-fined notice requirement was not satisfied was not pre-sented or supported by the record. [Footnote omitted.]Nor would there be any basis for a hearing because plain-tiff concedes all material facts supporting defendants’ rightto provide immediate access to the Lebanese embassy toduly recognized representatives of the Republic ofLebanon.

11 Since Mr. Bouhabib is no longer the accredited representative ofthe Republic of Lebanon to the United States, he can no longerclaim any “rights” in the embassy premises or official papers byreason of his former position. Cf. VCDR, Art. 39(2).

Id. at 16–19.


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On January 30, 1990, the Court of Appeals denied the emer-gency motion, finding:

The grant of a temporary restraining order is generallynot appealable. See Office of Personnel Management v.American Federation of Government Employees, 473 U.S.1301 (1985). Adams v. Vance, 570 F.2d 950 (D.C. Cir.1977), departed from that rule to stop implementation ofan order upsetting the status quo and directing action withpotent, irretrievable consequences. Id. at 953. This casehas not been shown to fit that bill. In view of the briefduration of the order at issue, it is plain that the districtcourt did not direct the equivalent of a preliminary injunc-tion. See Sampson v. Murray, 415 U.S. 61, 86 (1974).

[T]he petition for writ of mandamus is denied. Thecircumstances of this case are not so exceptional as to war-rant resort to this extraordinary writ. . . .

Aoun v. Baker, No. 90-5018, slip op. pp. 1–2 (D.C. Cir. Jan. 30, 1990).On February 1, 1990, the U.S. Government filed an emer-

gency application for a stay pending certiorari in the SupremeCourt, seeking an immediate stay of the district court’s order onthe ground that it “constitute[d] an intolerable intrusion into theexclusive powers of the President under Article II of theConstitution and imposes serious and increasingly adverse con-sequences for the Nation’s foreign relations in a sensitive area ofthe world.” Emergency Application for a Stay Pending Certiorarito the United States Court of Appeals for the District of ColumbiaCircuit at 12, Baker v. Aoun, No. A-549. In support of the emer-gency application, the U.S. filed a supplemental declaration bySecretary of State James A. Baker III, dated January 31, 1990.The supplemental declaration added the following informationabout the situation in Lebanon and the effects of the case:

6. Since I submitted the January 29 Declaration, the situ-ation in Lebanon has further deteriorated as General Aounhas, within the past few days, stepped up his campaign todestabilize and unseat the Hrawi government, whose wellbeing is an essential ingredient to United States foreign


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policy in the Middle East. For example, Aoun has withinthe past two days cut off the flow of water to West Beirut.Aoun has also threatened to cut off electricity in WestBeirut. In addition, he has moved to crush by militaryforce his Christian opponents within the small, 300-squaremile enclave over which he claims control. The existenceof the District Court’s order prevents the United Statesfrom providing a dramatic indication of United Statespolitical support to the Government of Lebanon by assist-ing it to recover possession of its diplomatic premises inthe United States.

7. As I stated in my Declaration of January 29, 1990,the Government of Lebanon has repeatedly expressed tothe Department of State the seriousness with whichLebanon views this matter. Within the past two days, seri-ous concern has also been raised by representatives ofMorocco and Algeria. In my judgment, the representativesof these governments are particularly important. TheseArab governments were charged by the League of ArabStates to work to restore the unity, sovereignty and terri-torial integrity of Lebanon. With strong United States sup-port, these governments established and implemented aninter-Arab process that permitted establishment of theHrawi government. These governments have nowexpressed concern over whether the United States remainscommitted to the Hrawi government. We cannot providea convincing answer so long as the District Court preventsus from honoring the Lebanese Government’s request tohelp it gain control of its own Embassy in Washington.

8. I understand that during the hearing on this mat-ter, the District Court stated that “the public interest wouldnot appear to favor leaving the United States Embassy inthe territory of the Aoun government unprotected, per-haps, against reprisals and retaliation for what the StateDepartment attempts to do here and now.” (Tr., at 46.)This statement suggests that Michel Aoun has been pro-tecting the United States Embassy in East Beirut. In fact,the United States was forced to evacuate its American per-sonnel from the Embassy in September 1989 because Aoun


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attempted to incite the Lebanese populace against theUnited States Embassy and threatened “Christian terror-ism” against the United States.

9. The situation in Lebanon is worsening daily. Thisrestraining order—however brief—does great damage tothe authority and credibility of the President in his con-duct of the nation’s foreign affairs.

Id., Supplemental Declaration.In its emergency application to the Supreme Court, the United

States argued as follows:

The district court’s order, which the court of appeals hasallowed to remain in effect, constitutes an intolerable intru-sion into the executive powers of the President under ArticleII of the Constitution and imposes serious and increasinglyadverse consequences for the Nation’s foreign relations ina sensitive area of the world. These consequences aredemonstrated by the declaration of the Secretary of Statefiled in the court of appeals . . . , as well as the supplementaldeclaration of the Secretary, signed yesterday evening,January 31, 1990 . . . , explaining that “the situation inLebanon has further deteriorated as General Aoun has,within the past few days, stepped up his campaign to desta-bilize and unseat the Hrawi government, whose well-beingis an essential ingredient to United States foreign policy inthe Middle East.” (Footnote omitted.)

The district court acknowledged, and respondents con-ceded below, that the United States has recognized theHrawi government (not the purported “Aoun govern-ment”) as the legitimate Government of Lebanon, and thatthe President has the indisputable authority to do so. Thatuncontested fact and undisputed proposition of constitu-tional law conclusively dispose of the merits of this case,because the diplomatic representative of the recognizedGovernment of the Republic of Lebanon has the right tothe immediate and undisturbed possession of the Embassyof Lebanon in the United States, and the United States hasthe duty under the Vienna Convention to render immedi-


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ate assistance to the Government of Lebanon in securingthat possession. Respondents clearly have no right underthe Due Process Clause of the United States Constitutionto resolve a dispute with the recognized Government ofLebanon regarding the diplomatic premises belonging tothe Republic of Lebanon. Furthermore, the court ofappeals had both jurisdiction and an obligation, either onappeal or a petition for a writ of mandamus, to correctthe grave error by the district court. In these circumstances,an immediate stay of the district court’s order pending cer-tiorari is clearly warranted.

Id. at 12–14.With regard to the public interests at stake, the emergency

application stated:

Once these representations concerning the foreign policyinterests of the United States [made by the Secretary ofState and other State Department officials] are credited,as they must be, the balance of the equities and the dic-tates of the public interest are clear. “It is ‘obvious andunarguable’ that no governmental interest is more com-pelling than the security of the Nation,” and “[p]rotec-tion of the foreign policy of the United States is agovernmental interest of great importance, since foreignpolicy and national security considerations cannot beneatly compartmentalized.” Haig v. Agee, 453 U.S. 280,307 (1981). Weighed against the compelling foreign pol-icy interests supporting a stay are respondents’ interests,as the purported “Aoun government” and its purportedrepresentative, to possession of the Embassy. But thosesupposed “interests” weigh further in favor of a stay,because those interests (and their very recognition by thecourts of the United States) directly undermine the foreignpolicy interests of the United States. If the United Statesis to speak with one voice, through the Executive Branch,in recognition of the Hrawi government and the non-recognition of the “Aoun government”—with all that thisimplies for the diplomatic prerogatives of the Hrawi gov-ernment—no legitimacy can be attached to the interests


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of the “Aoun government” in retaining possession of theEmbassy premises. Indeed, as a rival and unrecognizedfaction, respondents do not even have the capacity to suein United States courts to invoke the rights of the Republicof Lebanon in any respect—much less to contest the rightof the legitimate Government of Lebanon to possessionof its Embassy [footnote omitted.]

Id. at 17–18. After reviewing in detail the remaining argumentsdeveloped in the earlier U.S. Government briefs (including recog-nition, U.S. Government responsibilities under the ViennaConvention on Diplomatic Relations, the lack of property rightsof the purported Aoun government and Mr. Bouhabib in theEmbassy premises and papers, and the political-question doctrine)the emergency application concluded:

We also believe that the court of appeals clearly erred indismissing the petitioners’ appeal in these circumstancesand denying their alternative petition for a writ of man-damus. As the majority below recognized, the District ofColumbia Circuit previously held that, despite the char-acterization of a district court order as a temporaryrestraining order, if the order alters irreversibly a “deli-cate diplomatic balance,” it is “in purpose and effect amandatory injunction appealable under 28 U.S.C.1291(a)(1).” Adams v. Vance, 570 F.2d 950, 953 (D.C.Cir. 1977). See also Sampson v. Murray, 415 U.S. 61,86–88 (1974); OPM v. Government Employees, 473 U.S.1301, 1304–05 (1985) (Burger, Circuit Justice).

The majority below apparently believed that this casewas distinguishable from Adams v. Vance, because, in itsview, the district court’s order simply maintains the “sta-tus quo.” Contrary to that apparent view, however, thedistrict court’s order substantially altered the status quoin the extraordinary circumstances of this case, when therespective positions of the parties and the Government ofLebanon are taken fully into account. Prior to entry of thedistrict court’s order, the President was free, as he mustbe, to carry out his responsibilities under the Constitution


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and Vienna Convention in the manner he deemed the inter-ests of the United States to require, and to respond bothto the formal request by the recognized Government ofLebanon to make its Embassy available and to the cir-cumstances that lend urgency to that request. The districtcourt’s order drastically changes that status quo, becauseit intrudes the courts into diplomatic matters that are com-mitted to the President and intolerably circumscribes thediscretion of the President to respond immediately andappropriately to often fluid circumstances throughout theworld. For these reasons, Judge Williams correctly con-cluded that, although the district court’s order is “nega-tive in form,” it presents the same considerations thatwarranted immediate appeal in Adams v. Vance. CompareZardui-Quintan v. Richard, 768 F.2d 1213, 1215 n.7 (11thCir. 1985).

Id. at 32–33.On February 2, 1990, following a further round of pleadings

in the Supreme Court, Justice Brennan denied the U.S. emergencyapplication for a stay. In the meantime, the U.S. Government hadfiled a supplemental memorandum of points and authorities inthe district court, in support of its motion to dismiss and in oppo-sition to the plaintiffs’ request for a preliminary injunction. Thememorandum urged the district court promptly to resolve the casebecause of the serious and irreparable harm to foreign policy inter-ests caused by Mr. Bouhabib’s occupation of the embassy.Supplemental Memorandum of Points and Authorities in Supportof Defendants’ Motion to Dismiss and in Opposition to Plaintiffs’Request for a Preliminary Injunction.

On the same day, the district court granted the U.S.Government’s motion to dismiss, holding as follows:

It is settled that the President, and through him theDepartment of State, has plenary authority with respectto the recognition or non-recognition of foreign govern-ments. See Banco Nacional de Cuba v. Sabbatino, 376U.S. 398, 410 (1964); The Maret,145 F.2d 431, 442 (3dCir. 1944). These decisions are binding on the courts.


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[footnote omitted.] The President’s representatives haverecognized the Hrawi government as the legitimateGovernment of Lebanon, and that government is accord-ingly entitled to that status here.2

It is also clear, contrary to plaintiffs’ contentions, thatthey have no rights under the Optional Protocol to theVienna Convention, 23 U.S. Treaties and OtherInternational Agreements 3227, both because Lebanon isnot a party to the Protocol and because there is here nodispute between the United States and Lebanon as such.There is therefore also no merit to plaintiffs’ suggestionthat the instant controversy be decided by the InternationalCourt of Justice.

2 The United States is also correct in its argument that there is nosignificant distinction for that purpose between a non-recognizedgovernment and a derecognized government. However its presentstatus came about, the Aoun government is not, at this time, theGovernment of Lebanon insofar as the Executive Branch of theUnited States Government is concerned.

Aoun v. Baker, 1990 U.S. Dist. LEXIS 1156 at *3–*5, (D.D.C.Feb. 2, 1990). The district court also found that the plaintiffs hadadequate notice of the Hrawi government’s request to vacate thepremises of the embassy and residence, “however any noticerequirement is to be construed.” Id. at *6.

4. Status of Jerusalem

On September 27, 1988, Congress enacted legislation authoriz-ing the construction of new diplomatic facilities for U.S. person-nel in Israel, Jerusalem, or the West Bank. Section 305 of theDepartment of State Appropriations Act of 1989, Pub. L. No.100-459, 102 Stat. 2186 provide:

Notwithstanding section 130 of the Foreign RelationsAuthorization Act, Fiscal Years 1988–89 and section 414of the Diplomatic Security Act and any other provisionsof law, such funds as are authorized, or that may beauthorized, under the Diplomatic Security Act or any other


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statute, and appropriated to the Department of State underthis or any other Act, may be hereafter obligated or expendedfor site acquisition, development, and construction of twonew diplomatic facilities in Israel, Jerusalem, or the WestBank, provided that each facility (A) equally preserves theability of the United States to locate its Ambassador or itsConsul General at that site, consistent with United Statespolicy; (B) shall not be denominated as the United StatesEmbassy or Consulate until after construction of bothfacilities has begun, and construction of one facility hasbeen completed, or is near completion; and (C) unless secu-rity considerations require otherwise, commences opera-tions simultaneously.

Following this authorization, the United States and Israel enteredinto an agreement on January 18, 1989, regarding potential acqui-sition of sites for these new facilities.

On June 13, 1989, Representative Lee H. Hamilton, Chairmanof the Subcommittee on Europe and the Middle East of the Houseof Representatives Committee on Foreign Affairs, wrote toSecretary of State James A. Baker III regarding the January agree-ment. Specifically, Rep. Hamilton’s letter made the followingrequest:

The subcommittee has been contacted by Americans con-cerned that this agreement might represent a new policyon Jerusalem and might tacitly represent an admission thatIsrael has title to disputed land or lands that we havebelieved in the past are subject to negotiations for a set-tlement of the Arab-Israeli conflict. I would appreciateyour examination of the January agreement and yourassessment of the implications of that agreement for UnitedStates policy on the question of Jerusalem and its status,both now and for the future.

The letter is available at www.state.gov/s/l.On June 28, 1989, Assistant Secretary of State for Legislative

Affairs Janet G. Mullins responded on behalf of the Secretary ofState. Her letter stated, in pertinent part:


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The January agreement . . . provides for the lease of prop-erty in Jerusalem and ownership of a property in Tel Avivfor the construction of new U.S. diplomatic properties.We have identified a suitable site in Jerusalem. The prop-erty is located within the portion of the city administeredby Israel prior to 1967. It was formerly used by the BritishArmy as a barracks and, in more recent times, has beenused by the Israeli police. We are still in the process ofidentifying a site in Tel Aviv. Under the terms of the agree-ment, no obligations with respect to the Jerusalem sitebecome effective until a site is agreed in Tel Aviv.

We are aware of claims that the Islamic Trust (Waqf)holds an interest in a portion of the agreed site inJerusalem. We have not been able to locate any record of,or support for, this claim during a thorough title searchcompleted by us. The Government of Israel is obligatedunder its own domestic law to compensate any privateclaimants presenting valid pre-existing claims to interestsin the property.

The agreement does not change our policy with respectto Jerusalem. The final status of the city should be resolvedthrough negotiations, and the outcome of such negotia-tions should not be prejudged by the actions of any party.Jerusalem should remain undivided and there should befree access to the Holy Places.

The location of the U.S. Embassy remains in Tel Aviv.We will address the issue of moving our embassy only inthe context of a negotiated settlement of the status of theWest Bank and Gaza.

Letter from Assistant Secretary for Legislative Affairs Janet G.Mullins to Representative Lee H. Hamilton, June 28, 1989, avail-able at www.state.gov/s/l.

On August 4, 1989, Representative Hamilton wrote toSecretary of State Baker, enclosing a memorandum from law pro-fessor Francis A. Boyle, providing his views on international lawand the January 1989 agreement. Representative Hamilton soughtthe State Department’s comments on this memorandum. OnSeptember 6, 1989, Assistant Secretary Mullins provided the fol-lowing response on behalf of the Secretary of State:


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Professor Boyle’s memorandum first argues that the leaseagreement “can only be interpreted as a last-minute attemptby the Reagan Administration to lock its successors into apolicy of moving the United States Embassy from Tel Avivto Jerusalem . . . .” The Department disagrees with thisassertion. The Helms Amendment [Section 305 of Pub.Law No. 100-459, quoted above] specifically providesthat the two new facilities shall both be capable of hous-ing the Ambassador or Consul General “consistent withUnited States policy.” Senator Helms’ statements acknowl-edge that the legislation preserves Presidential discretionconcerning the location of our embassy. In that regard,United States policy has not changed: We will address theissue of whether to move our embassy to Jerusalem onlyin the context of a negotiated settlement of the status ofthe West Bank and Gaza.

In addition, Professor Boyle’s memorandum expressesconcern that the Islamic Trust (Waqf) may have a claimto an interest in a portion of the agreed site in Jerusalem.As stated in the letter to you of June 28, 1989, we haveconcluded a thorough title search with respect to the prop-erty, and we have located no record of or support for aWaqf claim. Questions have also been raised about pos-sible private claims for the land in question. We are awareof no such claims. As stated, the Government of Israelwould be obligated under Israeli law to compensate forany private claimants presenting valid preexisting claimsto interests in the property.

Professor Boyle argues that this statement is disturb-ing because it reflects an assumption that Israeli domes-tic law has some applicability in Jerusalem. In fact, heargues that the entire lease agreement is in violation ofinternational law. His view is based on his premise thatthe law of belligerent occupation applies to all ofJerusalem, including West Jerusalem.

The United States does not accept this view. The long-standing position of the United States is that the law ofbelligerent occupation applies to East Jerusalem, whichwas occupied by Israel in 1967. The United States has notaccepted the sovereignty of any state over any part of


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Jerusalem, and has opposed unilateral acts by any state inthe area to change the status of Jerusalem. We have, how-ever, acknowledged the practical necessity of administra-tion by Israel of West Jerusalem, including the applicationof Israeli law, just as the United States accepted Jordanianadministration of East Jerusalem from 1948 to 1967. TheUnited States has never taken the position that the statusof East Jerusalem should be settled apart from WestJerusalem. In fact, the United States has consistently takenthe position that the status of Jerusalem should be settledthrough negotiation in the context of a comprehensivepeace settlement.

Ms. Mullins letter is available at www.state.gov/s/l.

5. Federated States of Micronesia and Marshall Islands

In August and September 1989, the United States, the FederatedStates of Micronesia, and the Marshall Islands agreed upon pro-cedures to govern their diplomatic relations in accordance withthe 1961 Vienna Convention on Diplomatic Relations. The agree-ments were effected through an exchange of notes betweenSecretary of State James A. Baker III and Jesse B. Marehalau,Representative of the Federated States of Micronesia, dated August23 and 24, 1989, and between Secretary Baker and Wilfred I.Kendall, Representative of the Republic of the Marshall Islands,dated August 23 and September 6, 1989. The agreed procedureswere as follows:

(1) The Government of the United States and theGovernment of (the Federated States of Micronesia/ theRepublic of the Marshall Islands) will provide all neces-sary assistance for the establishment and performance ofthe functions of diplomatic missions in their respectivecapitals in accordance with international law and prac-tice. Both governments will make arrangements pursuantto their respective legal and administrative procedures tocommence and conduct diplomatic representation at theAmbassadorial level.


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(2) Diplomatic relations between the United States andthe (Federated States of Micronesia/ the Republic of theMarshall Islands) shall be governed by the 1961 ViennaConvention on Diplomatic Relations. Rules of customaryinternational law shall govern questions not expressly reg-ulated by the provisions of the Vienna Convention onDiplomatic Relations or the applicable provisions of theCompact of Free Association.

(3) The two governments will facilitate, consistent withArticle 21 of the Vienna Convention on DiplomaticRelations, the establishment and occupancy of mutually sat-isfactory Embassy premises and accommodations forEmbassy personnel by the sending state in the national cap-ital area of the receiving state. The two governments willconsult further regarding the terms and conditions of anyacquisition or construction of real property, taking accountof applicable domestic legislation where appropriate.

(4) In accordance with Article 27(l) of the ViennaConvention on Diplomatic Relations, both governmentsconsent to the installation and use of wireless transmit-ters by the respective diplomatic missions for the purposesof official communication, subject to compliance with thelaws and regulations of the receiving state. Such laws andregulations shall, however, be applied so as to give fulleffect to the consent hereby recorded.

(5) The Government of the (Federated States ofMicronesia/Republic of the Marshall Islands) may estab-lish offices in Hawaii, Guam, or, on the basis of mutualagreement with the Government of the United States, else-where in the United States, its territories and possessions,for the purpose of providing citizen services and per-forming governmental liaison functions. Any such officesand the personnel assigned thereto shall be accorded treat-ment by the United States consistent with the [1963]Vienna Convention on Consular Relations. Rules of cus-tomary international law shall govern questions notexpressly covered by the provisions of the Vienna Conven-tion on Consular Relations or the Compact of FreeAssociation. The locations, number of personnel and other


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specific matters related to the establishment and opera-tion of such offices shall be established by separate, mutualagreement. Any such offices in existence upon acceptanceof these proposed procedures by the Government of the(Federated States of Miicronesia/ Republic of the MarshallIslands) shall continue to operate in accordance herewith.

(6) The two governments do mutually agree, on a ben-eficial and practical basis, to implement the agreementbetween our two governments to amend the GovernmentalRepresentation Provisions of the Compact of FreeAssociation pursuant to section 432 of the Compact andthe terms set forth above in accordance with the provi-sions of the international agreements between them,including the Compact of Free Association.

Sections 151 and 152 of the Compacts of Free Association (Com-pact of Free Association, Oct. 1, 1982, United States-FederatedStates of Micronesia, and June 25, 1983, United States-Republicof the Marshall Islands, approved by Pub. L. No. 99-239, 99 Stat.1770 (entered into force Nov. 3, 1986, and Oct. 21, 1986, respec-tively)) had originally provided for the conduct of diplomatic rela-tions between the United States and the Federated States ofMicronesia and the Republic of the Marshall Islands in terms thatdeparted from those set forth in the 1961 Vienna Convention onDiplomatic Relations. The provisions had reportedly had an unin-tended negative effect on the willingness of other governments torecognize and to enter into full diplomatic relations with theRepublic of the Marshall Islands and the Federated States ofMicronesia. In March 1988 the governmental-representation pro-visions of the Compact of Free Association were thereforeamended through agreement. Agreement to Amend the Govern-mental Representation Provisions of the Compact of FreeAssociation Pursuant to Section 432 of the Compact, Mar. 9,1988. United States-Federated States of Micronesia; identicalagreement, United States-Republic of the Marshall Islands, Mar.18, 1988. Congress approved the amendments on July 26, 1989.Pub. L. No. 101-62, 103 Stat. 162.

The identical agreements amended section 151 (under ArticleV, Representation) of the Compact of Free Association to read:


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Section 151. Relations between the Government of theUnited States and the Governments of the Federated Statesof Micronesia and the Republic of the Marshall Islandsshall be conducted in accordance with the ViennaConvention on Diplomatic Relations. In addition to diplo-matic missions and representation, the Governments mayestablish and maintain other offices and designate otherrepresentatives on terms and in locations as may be mutu-ally agreed.


B. STATUS OF BALTIC STATES

On March 11, 1990, the Supreme Council of the Republic ofLithuania issued a decree declaring that:

[T]he sovereign rights of the Lithuanian state (usurped)by foreign power in 1940, are fully restored.

The Declaration of Independence of the LithuanianCouncil of February 16, 1918 and Resolution of theFounding Congress on the Restoration of the LithuanianState, passed on May 15, 1920, have never been annulled.They remain fully binding and form the constitutionalfoundation of the Lithuanian state.

The territory of Lithuania is whole and inviolable,within whose borders no other constitution (can function).

The Lithuanian State guarantees all human rights forits citizens and national groups, and recognizes the prin-ciple of inviolability of borders, as it is formulated in theHelsinki Conference Final Act.

The Supreme Council of the Republic of Lithuania, asthe sole expressor of sovereign rights, will continue to seekthe realization of full state sovereignty.

Decree of the Supreme Council of the Republic of LithuaniaConcerning the Restoration of the Lithuanian State, March 11,1990, available at www.state.gov/s/l.

Following the issuance of this decree, the White House presssecretary made the following statement:


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The United States has never recognized the forcible incorpo-ration of the independent states of Estonia, Latvia, orLithuania into the USSR. We have consistently supported theBaltic peoples’ inalienable right to peaceful self determination.

The new Parliament has declared its intention torestore Lithuanian independence. The United States wouldurge the Soviet government to respect the will of the cit-izens of Lithuania as expressed through their freely electedrepresentatives and expects the government of Lithuaniato consider the rights of its minority population.

The United States believes it is in the mutual interestof Lithuania, the Soviet Union, and all CSCE countries toresolve this issue peacefully.

We call upon the Soviet government to address its con-cerns and interests through immediate constructive nego-tiations with the government of Lithuania.

We hope that all parties will continue to avoid any ini-tiation or encouragement of violence.

White House, Office of the Press Secretary, March 11, 1990, avail-able at www.state.gov/s/l.

On May 1, 1990, Secretary of State James A. Baker III testi-fied before the Subcommittee on Foreign Operations of the SenateAppropriations Committee, reviewing the Bush Administration’sforeign policy priorities and the Administration’s Fiscal Year 1991budget request for foreign assistance. In his testimony, SecretaryBaker discussed the situation in Lithuania:

First, as the President and I have repeatedly made clear,both publicly and privately, the people of Lithuania mustnot be denied their rights. We support the aspirations ofthe Lithuanian people for freedom and self-determination,and we have never recognized the forcible incorporationof Lithuania, Latvia, and Estonia. The Supreme Sovietitself has called the 1939 Molotov-Ribbentrop Pact andits secret protocols illegitimate, effectively making theincorporation illegal.

Our position is clear, and President Gorbachev andthe rest of the Soviet leadership know how strongly we


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feel that the aspirations of the Lithuanian people shouldbe fulfilled.

Second, we remain deeply concerned about the esca-lation of tensions between the two sides. As the Presidentstressed last week, we encourage the Soviets and theLithuanians to go forward right now with dialogue. Overthe last week, both sides have discussed in the press var-ious possibilities for compromise. It is our hope that nowthe two sides can start talking to each other. This, in ourview, holds the greatest potential for the freedom that weseek for the Lithuanians. As the President has also madeclear, we are involved in quiet diplomacy in an effort topromote such a dialogue—the only real answer to an effec-tive resolution of this conflict.

Third, with both sides beginning to talk of compro-mise, we do not wish to see their efforts toward dialoguecomplicated in any way. Meanwhile, the President has saidthat if there were to be any US action, it would be in theeconomic area.

Finally, we continue to believe that perestroika, glasnost,and democratization hold the greatest hope for long-termsustainable improvement in U.S.-Soviet relations. But pere-stroika, glasnost, and especially democratization cannot bedivisible. The reform process will not go forward and suc-ceed if it is applied in some republics and denied in others.And it won’t succeed if dialogue becomes impossible.

Foreign Operations, Export Financing, and Related ProgramsAppropriations, FY91, Part 1. Before the Senate Committee onAppropriations, 101st Cong. 309–453 (1990) (statement of JamesA. Baker III, Secretary, Department of State).

Secretary Baker also discussed the Baltic States in his remarksat the Conference on Security and Cooperation in Europe(“CSCE”) ministerial meeting in New York on October 1, 1990.In particular, Secretary Baker reaffirmed:

President Ford’s statement at the signing of the [1975Helsinki] Final Act did not change the position of the UnitedStates on the status of the Baltic states. At the Washington


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summit, President Bush stressed again our view that a sys-tematic dialogue must be pursued so that the aspirations ofthe Baltic peoples can be achieved.

Department of State, Bureau of Public Affairs, Current Policy No.1274, p.2.

The Senate, in its consideration of the Treaty on the FinalSettlement with Respect to Germany, raised questions about therelationship between German unification and the status of Estonia,Latvia, and Lithuania. On October 5, 1990, Secretary Baker senta letter to Senator Claiborne Pell, Chairman of the Senate ForeignRelations Committee addressing these concerns. The letter stated,in pertinent part:

I would like to reaffirm personally what I said in Moscowwhen I signed this treaty and what Counselor Zoellick saidin his testimony before the Committee on September 28:

The position of the United States, of course, is differ-ent [from the Soviet position], and that is no secret betweenus. The United States does not recognize the incorporationof the Baltic states into the Soviet Union, and in fact, westill fly the Baltic flags in the auditorium of our StateDepartment. With respect to the question insofar as it per-tains to this treaty, this treaty of course deals only withGermany and does not pretend to deal with anything else.

In this connection, I also want to call your attentionto the following statement by President Bush in hisGerman-American Day Proclamation, made on October3, the day of German unity:

The achievement of German unity will also give hopeto others, particularly the Baltic peoples, that a peace-ful but determined struggle for national self-determi-nation can succeed even over seemingly insurmountableobstacles. The United States remains true to its policyof nonrecognition of the annexation of the Balticstates, just as we never wavered in our support forGerman unity even through the darkest hours of theCold War.


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The letter is available at www.state.gov/s/l. The Treaty is also dis-cussed in Chapter 4, supra.

On December 10, 1990, President Bush met with LithuanianPresident Vytautas Landsbergis in Washington, during a private visitto the United States by President Landsbergis. Following the visit,the White House press secretary made the following statement:

The President noted the value of personal contacts withthe Baltic leaders who have shown discipline and foresightin their commitment to a non-violent solution to theirproblems with the Soviet government.

The President reaffirmed United States policy per-taining to the Baltic States. He told President Landsbergisthe U.S. supports the right of Lithuania and other BalticStates to self-determination. The President added that theU.S. has never recognized the forcible incorporation of theBaltic States into the U.S.S.R. and assured PresidentLandsbergis that this policy would not change. ThePresident indicated that he and other Senior Adminis-tration officials had made this point directly on more thanone occasion to senior Soviet officials.

The President stressed that the U.S. wanted a peace-ful solution to the problem between the Baltic States andthe U.S.S.R. and hoped the Soviet government would workconstructively with Baltic leaders, without resorting tothreats, intimidation or the use of force.

White House, Office of the Press Secretary, December 10, 1990,available at www.state.gov/s/l.


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CHAPTER 10

Immunities and Related Issues

A. SOVEREIGN IMMUNITY

1. Appearance of the USSR in a U.S. Sovereign Immunity Case: The Wallenberg Case

In 1984, relatives of Raoul Wallenberg sued the Soviet Union inthe U.S. District Court for the District of Columbia, alleging thatits treatment of Wallenberg violated international law, interna-tional agreements, and U.S. law. The district court described thebackground of the case as follows:

During the course of World War II, the United StatesGovernment, in an effort to save from extermination bythe German Nazis the thousands of Jews then domiciledin Hungary, sought the assistance of Sweden, a neutralnation. This was an effort that the United States couldnot undertake alone. Because the United States was at warwith Hungary, its diplomatic presence was withdrawn.Raoul Wallenberg agreed to join the Swedish Legation inBudapest, and to otherwise cooperate with the efforts ofSweden and “to act at the behest of the United States.”Joint Resolution of Congress declaring Raoul Wallenbergto be an honorary citizen of the United States, Pub. L.No. 97-54, 95 Stat. 971 (1981) (“Joint Resolution”).

Granted full diplomatic status by Sweden, and fundedby the United States, Wallenberg arrived in Budapest,Hungary, in July 1944. . . . In the next six months, untilhis arrest by Soviet officials, Wallenberg saved the lives

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of nearly one hundred thousand Jewish persons provid-ing them with funds and other means of support providedby the United States. . . .

Hungary was later overrun by the Soviets and in early1945, Wallenberg was arrested by their occupation forcesin Budapest.

From that time forward, his precise whereabouts and hisstatus within the Soviet Union have not been ascertained. . . .

* * * *

There is insufficient evidence before the Court to sup-port a definitive finding as to whether at this time,Wallenberg is dead or alive. While the USSR has continu-ously represented that Wallenberg died in 1947, those rep-resentations are inconsistent with and at odds with credibleand uncontroverted evidence presented by the plaintiffs inthis proceeding and they are rejected. On the basis of therecord here presented, the Court finds that the Soviet Unionhas always had knowledge and information aboutWallenberg; that it has failed to disclose and has concealedthat information; and that otherwise, defendant’s repre-sentations are suspect and should be given little, if any,credit. If alive, Wallenberg would be 72 years of age andhe would have been held in custody for nearly 40 years.

Von Dardel v. Union of Socialist Soviet Republics, 623 F. Supp.246, 248–250 (D.D.C. 1985).

The Soviet Union refused to appear in the case, assertingabsolute sovereign immunity from suit in non-Soviet courts.

On October 15, 1985, a default judgment against the SovietUnion was entered. Id. As amended in November 1986, thedefault judgment ordered the Soviet Union to produce Wallenbergor his remains and any documents relating to the matter, andawarded compensatory damages of $39 million to his relatives.When the Soviet Union did not comply with this judgment, theplaintiffs asked the court to impose daily fines for contempt. Atthis point the court sought the views of the U.S. Government. TheU.S. Government filed a statement of interest (December 1986)and a supplemental statement of interest (February 1987), argu-ing that contempt would be inappropriate because it was incon-


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sistent with the purposes of the Foreign Sovereign Immunities Act(“FSIA”), 28 U.S.C. §§ 1602–1610, and because there were seri-ous questions as to the validity of the underlying judgment. Thecourt did not rule on the motion for contempt, and the U.S. con-tinued its efforts to convince the Soviet Union to appear in thecase to assert sovereign immunity.

On June 8, 1989, the Soviet Union appeared and filed amotion for relief from the default judgment and to dismiss thecase. On June 29, 1989, the U.S. Government filed a third state-ment of interest, available at www.state.gov/s/l. This Statementset forth the interests of the United States in the case as follows:

The Soviet Union has long held and asserted the principlethat it and its agencies and instrumentalities are entitledunder international law to absolute immunity from juris-diction of foreign courts and cannot properly be compelledto appear in foreign courts. For several years, representa-tives from the Departments of State and Justice have metwith high-ranking Soviet officials to explain the UnitedStates legal system and our law on foreign sovereign immu-nity and to urge the Soviet Union to obtain United Statescounsel to assist it in participating in and resolving casesbrought against the Soviet Union and its instrumentalitiesin United States courts. The United States Governmenthas undertaken these efforts with the Soviet Governmentand other foreign governments because we believe thattheir participation in our judicial system serves the inter-ests of justice and of all concerned parties, including U.S.plaintiffs. These representatives advised the Soviet offi-cials that it could appear in United States courts to assertits immunity without either conceding its principled adher-ence to the theory of absolute sovereign immunity or waiv-ing its claim to immunity. In addition, these representativesexplained that it was desirable for the courts to have allfactual and legal arguments before them prior to enteringjudgments and that, in appropriate cases, the United StatesGovernment would file Statements of Interest to set forththe United States’ views on the correct interpretation andapplication of the Foreign Sovereign Immunities Act.

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As a result of these discussions, the Soviet Union hasappeared in several cases which involved its commercialactivities or those of its instrumentalities. The SovietUnion, however, had chosen not to appear in this casebecause it believed that its immunity relieved it of anyobligation to appear in cases which implicated its sover-eign and political rather than commercial functions. TheSoviet Government’s decision to appear in this case is veryimportant because it is the first time that the Soviet Unionhas appeared in a proceeding that relates solely to allega-tions concerning its governmental acts. This appearance,we believe, indicates the Soviet Union’s intent to regular-ize its activities in the United States further and to par-ticipate in cases against it in United States courts. Giventhe extensive U.S. diplomatic efforts to this end, the SovietGovernment’s decision to appear in this case and to pres-ent its jurisdictional defenses to the court is thus very muchin the interest of U.S. foreign policy.

Furthermore, the United States maintains a stronginterest in the correct interpretation and implementationof the FSIA. Misinterpretations of the FSIA may encour-age plaintiffs to file frivolous cases against foreign sover-eigns and to discourage foreign states from appearing incases brought against them properly under the FSIA. Inaddition, departure from a strict adherence to the juris-dictional requirements of the FSIA may adversely affectUnited States relations with foreign sovereign defendantsand may lead to retaliatory applications of foreign lawagainst the United States in foreign courts.

In stating its views, the United States wishes to makeclear that its views on this court’s jurisdiction to entertainthis suit have no impact on the United States position con-cerning the Soviet Government’s treatment of Mr. Wallenberg.The United States abhors the Soviet Union’s unjust impris-onment of Mr. Wallenberg and continues, through gov-ernment channels, to seek a full and satisfactory accountingfor his fate. The proper forum for such matters, however,is the diplomatic arena and not the courts of the UnitedStates.


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Statement of Interest of the United States at 3–5., filed in VonDardel v. Union of Soviet Socialist Republics, Civil Action No.984-0353(BDP)(D.D.C. 1989).

The statement then argued that the default judgment shouldbe set aside, based on Practical Concepts, Inc. v. Republic ofBolivia, 613 F. Supp. 863 (D.D.C. 1985), vacated on othergrounds, 811 F.2d 1543 (D.C. Cir. 1987), and the case dismissedon the basis of sovereign immunity.

In entering the default judgment against the Soviet Union in1985, the court had held that it had subject matter and personaljurisdiction over the Soviet Union under the FSIA on the follow-ing grounds: (1) sovereign immunity is an affirmative defense thatmust be pleaded and proved by the sovereign defendant, and byfailing to appear the Soviet Union had waived this defense; (2)the FSIA incorporates recognized standards of international lawand therefore does not extend immunity to clear violations ofsuch principles; (3) immunity under the FSIA is “subject to” inter-national agreements to which the United States is a party, andthese international agreements preempt provisions of the FSIAinsofar as the FSIA provisions would extend immunity to viola-tions of such agreements; and (4) in ratifying certain internationalagreements, the Soviet Union implicitly waived the defense of sov-ereign immunity with regard to claims based upon violations ofsuch agreements. 623 F. Supp. at 252–256. It also concluded thatthe Alien Tort Claims Act, 28 U.S.C. § 1350, provided an inde-pendent basis for subject matter jurisdiction. Id. at 256–59.Following the Supreme Court’s decision in Argentine Republic v.Amerada Hess Shipping Corp., 488 U.S. 428, 109 S.Ct. 683, 102L.Ed.2d 818 (1989), the plaintiffs conceded that the Alien TortClaims Act and recognized standards of international law couldnot serve as bases of jurisdiction.

The U.S. statement of interest addressed the reasons why theremaining alleged bases of jurisdiction must also fail in this case.First, the U.S. Government’s statement argued that a foreign sov-ereign does not waive immunity by failing to appear, as follows:

In Practical Concepts, Inc. v. Republic of Bolivia, 811 F.2d1543 (D.C. Cir. 1987), the Court [of Appeals for the Districtof Columbia Circuit] rejected plaintiff’s argument thatBolivia, which had acknowledged service but previously


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failed to appear and had defaulted in a breach of contractaction, was not entitled to challenge the district court’s juris-diction in a Rule 60(b)(4) motion filed after judgment exe-cution proceedings commenced. Id. at 1547–48.

The Court held that a defendant which believes thecourt lacks jurisdiction may either appear and raise thejurisdictional objection, or choose not to appear, thus risk-ing a default judgment. Id. at 1547. Should the defendantchoose the latter course, the default judgment will be setaside if it prevails on the jurisdictional objections. If, how-ever, it does not prevail, the defendant ordinarily loses theright to defend on the merits. Id.

This Court’s determination that the Soviet Union’s fail-ure to raise immunity as an affirmative defense deprivesit of immunity overlooks the fact that foreign sovereignsare entitled to this choice. To require the foreign sover-eign to plead sovereign immunity affirmatively at the out-set of the litigation deprives it, as a practical matter, ofthe choice to not appear until later in the case. ThePractical Concepts court’s recognition that foreign sover-eigns may choose not to appear initially and later advancetheir jurisdictional objections necessarily means that for-eign sovereigns do not waive immunity and, therefore,subject matter jurisdiction by choosing not to appear untila default judgment is entered against them. [Footnoteomitted.]

Plaintiffs nevertheless continue to argue that the for-eign sovereign waives immunity and therefore consents tosubject matter jurisdiction, see 28 U.S.C. section 1330(a),if it fails to appear and assert its immunity. Plaintiffs’Supplemental Statement at 5. This position clashes withthe observation made by the Supreme Court in Verlinden,461 U.S. at 493–94 n.20:

The House Report on the Act states that “sovereignimmunity is an affirmative defense which must be spe-cially pleaded.” H.R. Rep. No. 94-1487, p. 17 (1976).Under the Act [FSIA], however, subject matter jurisdic-tion turns on the existence of an exception to foreign sov-ereign immunity, 28 U.S.C. 1330(a). Accordingly, even ifthe foreign state does not enter an appearance to assert


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an immunity defense, a district court still must determinethat immunity is unavailable under the Act.

See also Frolova [v. USSR] 761 F.2d [370] at 373, 378;MOL. Inc. v. People’s Republic of Bangladesh, 736 F.2d1326, 1328 (9th Cir.), cert. denied, 469 U.S. 1037 (1984).See also Meadows v. Dominican Republic, 628 F. Supp.509, 603 (N.D. Cal. 1986), aff’d, 817 F.2d 517 (9th Cir.),cert. denied, 108 S.Ct. 486 (1987) (defendants do notwaive jurisdictional defenses by failing to appear). If thefailure to appear automatically waives sovereign immu-nity and thus confers jurisdiction on the court, a districtcourt need not “determine” whether the FSIA entitles theforeign sovereign to immunity. The requirement that it doso logically precludes the conclusion that immunity is auto-matically waived by non-appearance.

Statement of Interest of the United States, supra at 12–15.Plaintiffs had alleged that the Soviet Union’s treatment of

Wallenberg violated the Vienna Convention on DiplomaticRelations (April 14, 1964, 23 U.S.T. 3227, 500 U.N.T.S. 95)(“Vienna Convention”) and the Convention on the Preventionand Punishment of Crimes Against Internationally ProtectedPersons, including Diplomatic Agents (December 14, 1973, 28U.S.T. 1975, 1035 U.N.T.S. 167)(“1973 Convention”). Section1604 of the FSIA provides that a foreign state is immune fromU.S. jurisdiction with specific exceptions, “subject to existinginternational agreements to which the United States is a party atthe time of enactment” of the FSIA. Accordingly, the plaintiffsargued that the “subject to” language confers jurisdiction on UnitedStates courts where foreign states have violated such agreements.

The U.S. Government’s statement first argued that alleged vio-lations of international agreements do not establish jurisdictionunder section 1604 unless the agreements expressly conflict withFSIA:

In Amerada Hess . . . the Supreme Court rejected thenotion that the alleged violation of an international agree-ment in and of itself eliminates the immunity conferred insection 1604. Rather, the Court stated that a foreign sov-ereign loses immunity under section 1604 only where the


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“international agreements ‘expressly conflic[t]’ with theimmunity provisions of the FSIA.” Amerada Hess, 109S.Ct. at 692. Amerada Hess found support for that viewin the House Report to the FSIA which states:

In the event an international agreement expressly con-flicts with [the FSIA], the international agreementwould control. . . . To the extent such internationalagreements are silent on a question of immunity, the[FSIA] would control; the international agreementwould control only where a conflict was manifest.

H.R. Rep. No. 1487, 94th Cong., 2d Sess. 17–18,reprinted in 1976 U.S. Code Cong. & Admin. News 6604,6616 (emphasis added).

Since plaintiffs concede that the Vienna Conventioncontains no provisions which expressly conflict with theFSIA, . . . the remaining issue is whether the 1973Convention contains any such provisions. It clearly doesnot; there are no provisions which declare that signatorystates waive immunity from suits claiming breaches of theConvention by private individuals in the courts of theUnited States. The Convention requires states to exercisejurisdiction over certain criminal offenses committed byprivate individuals, but does not deal with the sovereignimmunity of states. Because the Convention is silent onthe issue of sovereign immunity, there can be no “mani-fest” or “express” conflict with FSIA provisions on immu-nity. See Colonial Bank v. Compagnie Generale Maritimeet Financiere, 645 F.Supp. 1457, 1460 n.5 (S.D.N.Y. 1986).

In support of its conclusion that the internationalagreements reviewed in Amerada Hess did not expresslyconflict with the FSIA’s immunity provision, the SupremeCourt noted that these agreements did not create privaterights of action for foreign corporations to recover for thealleged breach of such agreements against foreign sover-eigns in U.S. courts. Amerada Hess, 109 S.Ct. at 692.Similarly, the 1973 Convention does not create privaterights of action for individuals to sue foreign sovereignsin United States courts for alleged violations of the


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Convention. This bolsters the conclusion that the SovietUnion did not waive its immunity from suit pursuant tosection 1604 by signing the Convention.

Id. at 15–17. The statement then provided an extensive analysisof the failure of the 1973 Convention or its implementing legis-lation to provide a private right of action for individuals. Id. at17–23.

The plaintiffs had also argued that the Soviet Union implic-itly waived its sovereign immunity by becoming a party to inter-national agreements containing obligations to respect human rightsand diplomatic immunities. Section 1605 of the FSIA providesthat foreign sovereigns are not immune in cases where they haveexplicitly or by implication waived immunity. The U.S. statementof interest argued against the court exercising jurisdiction on thisground, as follows:

The Supreme Court in Amerada Hess . . . has rejected theproposition that the act of acceding to an internationalagreement in itself effects an implicit waiver of sovereignimmunity in cases alleging a breach of such agreements.The Court observed:

Nor do we see how a foreign state can waive its immu-nity under section 1605(a)(1) by signing an interna-tional agreement that contains no mention of a waiverof immunity to suit in United States courts or even theavailability of a cause of action in the United States.

Amerada Hess, 109 S.Ct. at 692.Amerada Hess reaffirms a growing body of case law

which has narrowly construed implicit waivers of sover-eign immunity under 28 U.S.C. 1605(a)(1). See Joseph v.Office of Consulate General of Nigeria, 830 F.2d 1018,1022 (9th Cir. 1987), cert. denied, 108 S.Ct. 1077 (1988);Frolova, 761 F.2d [370] at 377 [7th Cir. 1985]; ColonialBank, 645 F.Supp. (1457) at 1461 [S.D.N.Y. 1986]. Suchwaivers are ordinarily found only where: “(1) a foreignstate has agreed to arbitration in another country; (2) aforeign state has agreed that a contract is governed by the


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law of a particular country; and (3) a foreign state hasfiled a responsive pleading in a case without raising thedefense of sovereign immunity.” Joseph, 830 F.2d at 1022(quoting Frolova, 761 F.2d at 377).13 This case appearsto be the only one in which a Court has implied a waiverof sovereign immunity in a factual setting not listed byCongress in the legislative history as warranting an impliedwaiver.

Furthermore, these three prerequisites to a waiver ofsovereign immunity have themselves been narrowly inter-preted to avoid a substantial increase in federal court juris-diction over these kinds of cases which raise difficult foreignpolicy questions. See Maritime Ventures Int’l v. CaribbeanTrading & Fidelity, 689 F. Supp. 1340, 1351 (S.D.N.Y.1988). Although the first ground suggests that there is animplied waiver of immunity from suit in United Statescourts when an agreement refers to arbitration in any coun-try, courts have nevertheless not implied waivers when theagreement specifies that arbitration is to occur in a foreigncountry. Ohntrup v. Firearms Center Inc., 516 F. Supp.1281, 1284–85 (E.D. Pa. 1981), aff’d mem., 760 F.2d 259,263 (3rd Cir. 1985); Verlinden B.V. v. Central Bank ofNigeria, 488 F.Supp. 1284, 1300–02 (S.D.N.Y. 1980), aff’d,647 F.2d 320 (2d Cir. 1981), rev’d on other grounds, 461U.S. 480 (1983). See also Maritime Int’l NomineesEstablishment, 693 F.2d at 1102–04 (immunity is notwaived when agreement did not contemplate role forUnited States courts, although arbitration would probablytake place in U.S.). Similarly, although the second groundsuggests that a foreign sovereign’s agreement that a con-tract would be governed by the laws of any country implic-itly waives immunity, courts have rejected claims of impliedimmunity when the contract simply provides for resort tothe laws of foreign countries. See Zernicek v. Brown &Root. Inc., 826 F.2d 415, 419–20 (5th Cir. 1987), cert.denied, 108 S.Ct. 775 (1988); Falcoal, Inc, v. TurkiyeKomur Isletmeleri Kurumu, 660 F.Supp. 1536, 1539 (S.D.Tx. 1987).14 But see Ipitrade Int’l v. Federal Republic ofNigeria, 465 F.Supp. 824, 826 (D.D.C. 1978) (contract’s


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choice of Swiss laws and European forum to resolve dis-putes waived sovereign immunity in U.S. courts).

Since plaintiffs do not and cannot argue that the 1973Convention contains an express waiver of immunities ofsignatory states from suits in the United States which allegebreaches of the Convention, the question here is whetherthe 1973 Convention contains an implied waiver of sov-ereign immunity. [Footnote omitted.] Quite clearly, thiscase falls outside those three circumstances listed abovewhich were recognized by Congress as sufficient to effectan implied waiver of immunity. Plaintiffs therefore haveattempted to squeeze within the narrow view of impliedwaiver suggested by Amerada Hess by arguing that the1973 Convention “mentions . . . the availability of a causeof action in the United States.”

Unlike contracts or agreements which contain choiceof law provisions governing the resolution of disagree-ments arising from the agreement, see, e.g., Marlowe vArgentina Naval Commission, 604 F.Supp. 703, 708–09(D.D.C. 1985), the 1973 Convention contains no provi-sion suggesting that a cause of action is available to pri-vate citizens in the United States who allege a violation ofthe Convention. . . .

* * * *13 These three circumstances in which courts have implied waiversof sovereign immunity are those listed in the legislative history tothe FSIA. H.R. Rep. No. 1487, 94th Cong., 2d Sess., reprinted in1976 U.S. Code Cong. & Admin. News 6604, 6617; S. Rep. No.1310, 94th Cong., 2d Sess. 18.

14 It is worth noting that the legislative history’s specific mentionthat implied waivers may be found under grounds (1) and (2) under-scores the well-established point that the FSIA’s primary purposewas to permit suits against foreign sovereigns in their commercial,rather than sovereign, capacities. Transamerica Steamship Corp. v.Somali Democratic Republic, 767 F.2d 998, 1001 (D.C. Cir. 1983).

Id. at. 24–27.On July 31, 1989, the U.S. filed a reply to the plaintiffs’ res-

ponse to the statement of interest. The reply addressed two new


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issues raised by the plaintiffs: first, that the United States hadfailed to demonstrate by affidavit or other evidence how the caseimplicated its foreign policy interests; and second, that the courthad jurisdiction over the case pursuant to the non-commercialtort exception of the FSIA, 28 U.S.C. § 1605(a)(5). The Replypointed out that the non-commercial tort exception was inappli-cable because the tortious activity and injuries alleged in theplaintiffs’ complaint occurred outside the United States, andtherefore did not fall within the exception. Reply of the UnitedStates of America to Plaintiffs’ Response to the Statement ofInterest of the United States. The reply and attached declarationsare available at www.state.gov/s/l.

With regard to the foreign policy interests of the U.S., thereply noted that “neither the text, purpose, nor legislative historyof the FSIA suggest any requirement that the United States mustpresent an affidavit or evidence detailing its foreign policy inter-ests in those cases brought against foreign sovereigns in which itparticipates pursuant to 28 U.S.C. section 517,” and that“Congress enacted the FSIA in part to free the State Departmentfrom these pressures and to transfer immunity determinationsfrom the State Department to the courts, which would applyimpartial legal principles.” Id. at 3–4. Nonetheless, in order tomake absolutely clear the interests of the United States in theaction, and to explain the lengthy and successful negotiations con-ducted by the United States Government, the reply included twodeclarations by State Department officials.

The declaration of Department of State Legal AdviserAbraham D. Sofaer described the culmination of the negotiationsas follows, in pertinent part:

9. On November 18, 1988, I headed a delegation ofState and Justice Department officials that met inWashington, D.C. with a high-level Soviet delegation tocontinue the discussions. At this meeting, the Head of theInternational Law Department at the Soviet Ministry ofForeign Affairs, Yuri Rybakov, and I signed a Memor-andum of Understanding to record discussions and under-standings on the subject of promoting mutual understandingin the legal sphere, including sovereign immunity. The


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Memorandum reviewed the three rounds of consultations.It noted that the United States and Soviet delegations fol-lowed different theories of sovereign immunity and, inparticular, that the Soviet Union adhered to the absoluteimmunity of foreign states from suit. The Memorandumalso acknowledged that suits in the courts of one stateagainst a foreign state may create difficulties and tensions,and agreed that better understanding of applicable pro-cedures may serve to minimize potential problems stem-ming from suits against a foreign state. The twodelegations agreed that appearances in court to assert sov-ereign immunity are not regarded as waivers of immunityand noted that the states would provide appropriate posi-tions, consistent with their usual practice, to their courtson the application of their laws on sovereign immunity.The Memorandum closed by confirming the Parties’ inten-tion to continue periodic bilateral consultations on for-eign sovereign immunity and legal proceedings in one stateagainst another state. Once again, at this time, I expressedmy view that it would be consistent with the measures setforth in this Memorandum of Understanding for the SovietUnion to appear through private counsel in this case, inorder to assert the defense of foreign sovereign immunity.

* * * *

11. The Soviet Union has now engaged counsel andhas appeared to assert appropriate defenses to set asidethe default judgment in this case. This action representsthe completion of the U.S. diplomatic objective of con-vincing the Soviet Union to litigate its immunity claims inU.S. courts in all cases. In accordance with our belief thatthis major shift in Soviet behavior and policy warrants thevacating of default judgments entered prior to our effort’scommencement, the United States has filed a Statement ofInterest providing its views on the jurisdictional issues pre-sented by this case. The Plaintiffs’ Statement in Opposi-tion to the Soviet Union’s Motion states that the U.S.Statement of Interest “neglects to mention any specific,concrete foreign policy concerns involving this particular


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case.” To the contrary, this particular case involves verysubstantial and specific foreign policy concerns. To myknowledge, the Soviet appearance in this case is the sec-ond time that the Soviet Union has appeared in a UnitedStates court in a proceeding brought solely against theSoviet Government, and not against one of its agencies orinstrumentalities. More importantly, to my knowledge,this is the first time that the Soviet Union has appeared ina proceeding that relates solely to alleged governmentalacts, unrelated in any way to a commercial undertakingor commercial considerations. The Soviet Union’s appear-ance in this case indicates its intent to regularize its activ-ities in the United States, and to participate in cases againstit in United States courts. Such steps could lead to generalprinciples that would greatly increase the likelihood thatthe Soviet Union, as well as persons who sue it, obtaindecisions on the merits that are likely to resolve difficultdisputes.

12. As the accompanying Kamman Declaration indi-cates, this case has become a significant issue in bilateralUnited States-Soviet relations. The United States Govern-ment has expended considerable effort to urge the SovietGovernment to appear in this case and raise its defensesincluding the contention that it is absolutely immune,before the court instead of through diplomatic channels.In light of the Soviet view of international law and Sovietdomestic law, the Soviet Union’s decisions to appear inthese cases is a very important development in the processof adapting to United States procedures, including theFSIA. Against this background, I believe that United Statesinterests would be served, as well as the interests of jus-tice, if counsel for the Soviet Government were permittedto make its arguments to the court.

Declaration of Abraham D. Sofaer, id. at 1–13. The declaration of Deputy Assistant Secretary of State for

European and Canadian Affairs Curtis W. Kamman elaboratedon the foreign policy implications of the Wallenberg case. In par-ticular, the declaration stated Mr. Kamman’s view that “theSoviets’ willingness to appear and to participate in these pro-


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ceedings is an important step to remove an irritant in our bilat-eral relations.” A copy of the November 18, 1988 Memorandumof Understanding discussed in the Sofaer Declaration is attachedto the Kamman Declaration.

On March 9, 1990, the district court set aside the default judg-ment against the Soviet Union and dismissed the case on theground that action was barred by sovereign immunity. Von Dardelv. Union of Soviet Socialist Republics, 736 F. Supp. 1 (D.D.C.1990). Further background on the case and discussion of the inap-plicability of the noncommercial torts exception to the FSIA areprovided in Cumulative Digest 1981–88 at 1610–1617.

2. Applicability to Foreign Naval Vessel Engaged in Commercial Activity

On June 25, 1989, the Presidente Rivera ran aground in U.S.internal waters off Marcus Hook in the Delaware River, spillingoil. The Presidente Rivera was an auxiliary ship of the UruguayanNavy, one of its two oil tankers operating under charter to theUruguayan state-owned oil company (ANCAP). At the time ofthe incident, the ship was preparing to offload some Brazilian fueloil, with the balance to be delivered to ANCAP.

A memorandum of July 13, 1989 by David Small, AssistantLegal Adviser for Oceans, Environment and International ScientificAffairs, reviewed the status of the ship. The memorandum firstdiscussed the basic principles of sovereign immunity of govern-ment vessels and relevant U.S. law:

Both the United States and Uruguay accept the restrictivetheory of sovereign immunity for government vessels, i.e.,the immunity of a government vessel, under internationallaw, from the enforcement jurisdiction of the coastal statedepends on the nature of the activities engaged in by thevessel at the time of the incident. Only warships and othergovernment ships operated for non-commercial purposesand not engaged in commercial activity are entitled to sov-ereign immunity. Under international law governmentships operated for commercial purposes are treated in thesame fashion as merchant ships.


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The rule appears in the International Convention forthe Unification of Certain Rules regarding the Immunityof State Owned Vessels, Brussels, 1926, 26 Am. J. Int’l L.Supp. 566 (1932), entered into force in 1937, to whichUruguay but not the United States is a party, and in arti-cles 34 and 35 of the Treaty on the Law of InternationalCommercial Navigation, Montevideo, March 19, 1940,37 Am. J. Int’l L. Supp. 109, 114 (1943), not in force, whichUruguay has ratified but which the United States has notsigned. Both Conventions provide that, except for men-of-war, supply vessels, and other vessels “which are theproperty of the State, or operated by it, and which areemployed, at the time when the claim arises, in some pub-lic service outside the field of commerce,” vessels whichare the property of the contracting States or operated bythem are subject to the laws and rules of responsibilityapplicable to private vessels.

The rule later appeared in treaties of more generalacceptance, the 1958 Geneva Conventions of the TerritorialSea and the Contiguous Zone (article 21) and on the HighSeas (article 9), after the Socialist States failed to achievesovereign immunity for merchant vessels engaged in com-mercial service which had been nationalized and were nowowned or operated by the State for those purposes. Whilethe United States is a party to both of these 1958 GenevaConventions, Uruguay is not a party to either one.Nevertheless, Uruguay made no comments on theInternational Law Commission’s reports which includedthese provisions in its draft law of the sea convention.Further, the 1958 High Seas Convention is expressly a cod-ification of customary international law.

This rule is also reflected in the 1982 UN Conventionon the Law of the Sea, articles 32 and 236 (regarding sov-ereign immunity) and subsection B of Section 3 of Part II(regarding merchant ships). While the United States hasnot signed the 1982 Law of the Sea Convention, theUnited States considers the non-seabed provisions to bedeclarative of customary international law. We are unawareof any objections by Uruguay during the negotiations to


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the restrictive immunity provisions. Uruguay has signedbut not ratified the LOS Convention.

Although a government-owned vessel may not be enti-tled to sovereign immunity under international law, U.S.law imposes other limits on civil suits involving foreigngovernment-owned vessels. In particular, under the FSIA,28 U.S. Code sec. 1605(b) and (c), a foreign state-ownedvessel may not be arrested as a means of enforcing a mar-itime lien against the vessel or its cargo. Rather, these sub-sections of the FSIA permit an in personam proceedingagainst the government-owner but otherwise use in remrules and procedures.

Memorandum, “Immunity of Uruguayan Oil Tanker PresidenteRivera,” July 13, 1989, available at www.state.gov/ s/l, pp. 1–3.The memorandum concluded that the vessel in this case was notentitled to sovereign immunity but would be afforded certain pro-tections under U.S. law:

The Presidente Rivera is properly characterized, at thetime of its grounding, as a government ship operated forcommercial purposes and engaged in commercial activity,and not as a warship. The vessel does not meet all the cri-teria set out in the LOS Convention’s definition of a war-ship, article 29. While the ship belongs to the armed forcesof Uruguay, under the command of an officer duly com-missioned by that government and whose name appearsin the appropriate service list, and is manned by a crewunder regular armed forces discipline, it does not bear theexternal marks distinguishing warships of its nationality.The ship’s name and home port appear on the stern, andthe ship’s name appears on the bow, traditional markingsof merchant ships. The ship bears no hull number or othermarking characteristic of a warship or other governmentvessel on non-commercial service. It appears to be oper-ating in civilian colors: red hull, white upperworks. Furtherthe ship is carrying SOLAS (Safety of Life at Sea) andCOFR (certificate of financial responsibility) papersrequired of merchant ships. Further the oil is documented


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in a bill of lading originally destined for Consolidated Edisonand New Jersey Power and Light Companies. The vessel isclearly a government tanker, on commercial service, char-tered to the Uruguayan state oil company (ANCAP).

Although the Presidente Rivera is not entitled to sov-ereign immunity under international law (because thePresidente Rivera was engaged in commercial activitywhen the accident occurred), the commercial activityexception of the FSIA would permit civil suit against theGovernment of Uruguay only in accordance with its terms.(Even if the ship had not been engaged in commercial serv-ice, the FSIA would permit suits in tort against the Govern-ment of Uruguay.)

Id. at 3.

3. Litigation against the United States in Foreign States

In July 1989 the Office of Diplomatic Law and Litigation, Officeof the Legal Adviser, provided guidance to a U.S. Embassy on thepolicies and practice of the United States Government with regardto litigation against it arising in foreign states. The guidanceexplained that the U.S. does not assert sovereign immunity incases where the U.S. would not recognize a foreign state’s immu-nity under the Foreign Sovereign Immunities Act (“FSIA”). Thispolicy “applies even where local law on sovereign immunity wouldpermit us otherwise to claim sovereign immunity. . . . It is theposition of the U.S. that [the FSIA] is consistent with internationallaw on sovereign immunity of foreign states.” Telegram from theDepartment of State.

Included in the guidance was the text of a diplomatic noteproviding an explanation of these U.S. policies to the foreign gov-ernment and application to actions brought by locally employedlocal nationals under local labor law seeking wages, benefits, ormonetary damages in connection with employment. The textreads, in pertinent part:

It is the strict policy of the United States that wheneverthe United States Government, including its agencies andinstrumentalities, is made a party to a foreign legal pro-


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ceeding and is properly served, the United States will retainlegal counsel and enter an appearance in court.

Customary international law requires that before aforeign sovereign may be required to appear before a courtof the receiving state, proper notice of suit must be pro-vided by the receiving state through diplomatic channelsor under an applicable treaty, and that at least forty-fiveto sixty days be provided after such service before anycourt appearance or responsive pleading is required.Moreover, United States Embassies and consulates are mis-sions of the United States Government. These missions arenot separate juridical entities subject to suit. Accordinglyany suit involving a mission of the United States must bebrought against the United States Government, rather thanits diplomatic or consular mission.

It is the consistent practice of the United States not toplead sovereign immunity in foreign courts for instanceswhere, under United States law, the United States wouldnot recognize a foreign state’s immunity if it were sued inthe United States. In the United States, the sovereign immu-nity of foreign states is set forth in a statute, the ForeignSovereign Immunities Act of 1976, 28 U.S.C. 1602 et seq.A copy of this law is attached. This law provides for cer-tain exceptions to sovereign immunity, including cases inwhich the action is based on a commercial activity carriedon in the United States by a foreign state. The law definescommercial activity as “either a regular course of com-mercial conduct or a particular commercial transaction oract. The commercial character of an activity shall be deter-mined by reference to the nature of the course of conductor particular transaction or act, rather than by referenceto its purpose.”

As the claim [at issue] . . . is a monetary claim for ter-mination benefits under [foreign state] labor law by a [for-eign] national employee, the United States Governmenthas determined that this claim is within the commercialclaim exception to foreign sovereign immunity under U.S.law. Accordingly, the U.S. Government will appear in courtfor this case and will not raise sovereign immunity. . . .


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This determination does not waive any sovereign, diplo-matic or other immunity or any other defenses to whichthe United States may be entitled in this case or any othercase, including immunity from execution should any judg-ment be rendered in this case.

4. Execution Against Property of Foreign States

On April 14, 1989, the Embassy of Italy sent a diplomatic noteto the Department of State asking whether the Foreign SovereignImmunities Act (“FSIA”) provided protection with regard to exe-cution against foreign state property in the United States analo-gous to the protection provided under Italian law. The Embassy’snote included a copy of an Italian law, Decree No. 1621 ofAugust 30, 1925, which stated in pertinent part, that “[p]ersonalor real property, ships, credits, notes, bonds, securities, assets andany other possessions belonging to a foreign State, cannot be sub-ject to seizure or attachment without the authorization of theMinister of Justice. . . . The regulations mentioned above applyonly to States that assent to reciprocity, which has to be declaredwith a decree of the Minister.”

On October 16, 1989, the Department of States responded asfollows:

The Department refers the Embassy to the United StateForeign Sovereign Immunities Act of 1976 (the “FSIA”),which governs all suits against foreign states and theiragencies and instrumentalities in the United States andwhich is consistent with the United States view of inter-national law on foreign sovereign immunity. As section1602 of the FSIA makes clear, claims of foreign states toimmunity, including the immunity of foreign state’s prop-erty from jurisdiction and the immunity of foreign state’sproperty from attachment and execution, are decided bythe courts of the United States and the fifty states in con-formity with the FSIA.

Under the FSIA, the immunity of a foreign state fromjurisdiction is treated differently from the immunity of aforeign state’s property from attachment or execution. In


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general, the immunity of a foreign state from jurisdictionis not as broad as the immunity of a foreign state’s prop-erty from attachment and execution, in part because it isexpected that states will honor valid judgments enteredagainst them and because of potential difficulties that arisewith seizure of foreign state property.

In particular, sections 1609, 1610 and 1611 of theFSIA pertain to attachment and execution of property ofa foreign state and its agencies and instrumentalities. Theprinciples laid down in these sections provide substantialprotection to the property of a foreign state in the UnitedStates.

Section 1609 states the rule that a foreign state’s prop-erty shall be immune from arrest and execution except asprovided in section 1610 of the FSIA, or where an inter-national agreement to which the United States is a partyprovides otherwise. Section 1610 provides for certain lim-ited exceptions to immunity from attachment or execu-tion. Section 1611 describes the types of property that arecompletely immune from execution.

Section 1610(a) of the FSIA permits courts in theUnited States to order execution against the property inthe United States of a foreign state under certain limitedcircumstances. The only foreign state property availablefor execution is property used for a commercial activityin the United States. Moreover, absent a waiver, this com-mercial property can only be attached for the five typesof judgments listed in the statute at subsections 1610(a)(2)through (a)(6). Importantly, in a claim based upon thecommercial activity exception to immunity from jurisdic-tion, only property of the foreign state that is used for theactivity on which the claim is based is subject to execu-tion to satisfy that particular judgment.

The Department of State notes that the FSIA providesadditional grounds for the attachment and execution ofproperty of separate agencies or instrumentalities of for-eign states engaged in commercial activity in the UnitedStates under section 1610(b) of the FSIA. Section 1610(b)provides that any property in the United States of such an


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agency or instrumentality shall not be immune fromattachment or execution if the agency or instrumentalityhas waived immunity, or the judgment relates to a claimfor which the agency or instrumentality is not immuneunder certain provisions of the FSIA.

The Department also notes that the FSIA defines agen-cies and instrumentalities of a foreign state as separate legalpersons which are organs or political subdivisions of a for-eign state, or which are majority owned by the foreign state.The Department wishes to assure the Government of Italythat well-established law of the United States respects theseparate juridical identities of a foreign state and its agen-cies and instrumentalities. Thus, United States law does notgenerally permit execution against the property of a foreignstate to satisfy a judgment against an agency or instru-mentality of that foreign state, or vice-versa.

Even under those very limited circumstances whereexecution may proceed against foreign state property inthe United States, section 1610(c) of the FSIA requires thata court must order such execution. In addition, in theUnited States, execution against property upon a judgmentis taken by a court only after a separate proceeding isbrought specifically to consider the matter of execu-tion. The FSIA is consistent with this two step schemeby providing for distinct standards applicable to the ques-tion of immunity of foreign state property from attach-ment and execution in sections 1609, 1610 and 1611.

Moreover, a U.S. court can only order execution aftera reasonable time has elapsed following the entry of ajudgment. Such procedural protections were specificallyincluded in the law in order to provide a foreign state suf-ficient time to carry out its own procedures to honor ajudgment entered against it. The United States wouldrequest that Italy also accord such procedural protectionsto the United States on the basis of reciprocity and inter-national law.

Finally, section 1610(d) of the FSIA forbids attach-ment of property of a foreign state prior to the entry ofjudgment unless the foreign state has explicitly waived itsimmunity from such pre-judgment attachment.


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The Department wishes especially to draw the atten-tion of the Embassy to section 1611 of the FSIA, whichprovides absolute immunity from execution for certainproperty, unless the foreign state has made an explicitwaiver. First, funds of foreign states that belong to a for-eign central bank or monetary authority held for the bankor the authority’s own account are not subject to attach-ment or execution. Such funds are those used or held inconjunction with central banking activities.

Section 1611 also protects property that is or is intendedto be used in connection with a military activity, and is ofa military character or is under the control of a militaryauthority or defense agency. This military property is notsubject to attachment or execution. The United StatesCongress, in passing this statute, clearly indicated its intentto protect military property that is essential to military oper-ations, such as fuel and office equipment, although not initself of a military character. This protection was enacted,in part, to ensure that foreign states would not permit exe-cution against military property of the United States undera reciprocal application of the FSIA.

The FSIA is consistent with U.S. obligations underinternational law to accord appropriate protections, suchas immunity from attachment and execution, to diplo-matic and consular property, including diplomatic andconsular bank accounts used to maintain and carry outthe functions of diplomatic and consular missions.

Accordingly, as described above, the United States pro-vides absolute protection from attachment and executionto certain foreign state property. Such protection is analo-gous to the protection provided in the Italian decree no.1621. (The Department notes its understanding that thisdecree was converted into law no. 1263 on July 15, 1926.)In the view of the United States Government, for reciproc-ity to exist under the Italian law no. 1263 and decree no.1621, the Government of Italy should determine whetherthe United States would provide effective immunity fromexecution for property of the state of Italy in a reciprocalcase of comparable nature in the United States. As describedearlier in this note, U.S. law provides substantial protection


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to the property of a foreign state in the United States. Thus,the fundamental issue is whether immunity from executionis actually granted in practice. Accordingly, the United Statesexpects that the Government of Italy will provide protec-tion to equivalent United States property in Italy on thebasis of reciprocity, as stated in the Italian law.

The U.S. response is available at www.state.gov/s/l.On May 11, 1990, officials of the United States and Italy met

in Rome to exchange views on reciprocity between the two coun-tries with regard to pre-judgment attachment of and executionagainst foreign state property. At the request of the Italian dele-gation, the U.S. delegation agreed to provide additional docu-mentation with regard to procedural rules authorizing theexecutive branch to intervene in judicial proceedings against aforeign state; U.S. case law illustrating the ability of courts to takeinto account foreign policy considerations when deciding execu-tion issues; and U.S. case law showing the limited number ofinstances when pre-judgment attachment or execution has beenpermitted against foreign state property. The note transmittingthe requested information stated, in pertinent part:

[A]s we have previously informed the Government of Italy,intervention in judicial proceedings against a foreign statemay arise in two ways. In some cases U.S. courts requestthe Attorney General to file an amicus brief to assist thecourt in its determination of a particular issue. In othercases, the United States participates in the case as an ami-cus on its own initiative where foreign relations issues areinvolved and circumstances warrant such participation.

* * * *

With respect to the second request, we are providingthe following U.S. court decisions:

1. Jackson v. People’s Republic of China, 794 F.2d 1490(1986) (including the statement of interest of theUnited States). We refer you to page 1496, paragraph2 of the court’s decision: “In considering whether itshould exercise its equitable discretion and whether


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extraordinary circumstances were involved, the courtproperly gave consideration to the Secretary of State’sassessment of the foreign policy implications of thedefault judgment.”

2. Carl Marks & Co., Inc. v. U.S.S.R., 841 F.2d 26(1988) (including the statement of interest of theUnited States).

3. Liberian Eastern Timber v. Government of theRepublic of Liberia, 659 F.Supp. 606 (1987) (includ-ing the statement of interest of the United States).

4. Gregorian v. Izvestia, 871 F.2d 1515 (1989) (includ-ing the statement of interest of the United States).

5. Von Dardel v. U.S.S.R., 736 F.Supp. 1 (1990). (Wenote for your consideration the court’s reliance on theUnited States’ arguments raised in its third statementof interest filed in this case.)

The U.S. delegation [provides the following] citations toU.S. case law that show that pre-judgment attachment or exe-cution against foreign state properties is rarely permitted.

United States v. Arlington, 669 F.2d 925 (4th Cir.1982).

Libra Bank v. Banco Nacional de Costa Rica, 676 F.2d47 (2d Cir. 1982).

S & S Machinery Co. V. Masinexportimport, 706 F.2d411 (2d Cir. 1983).

O’Connell Machinery Co. v. M.V. Americana, 734 F.2d115 (2d Cir. 1984).

Letelier v. Republic of Chile, 748 F.2d 790 (2d Cir.1984).

Hercaire International, Inc. v. Argentina, 821 F.2d 559(11th Cir. 1987).

Atwood Turnkey Drilling. Inc. v. Petroleo Brasileiro,875 F.2d 1174 (5th Cir. 1989).

Ferrostaal Metals Corp, v. S.S. Lash Pacifico, 652F.Supp. 420 (S.D.N.Y. 1987).

Gadsby & Hann v. Socialist Republic of Romania, 698F.Supp. 483 (S.D.N.Y. 1988).


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Bowers v. Transportes Navieros Ecuadorianpa, 719F.Supp. 166 (S.D.N.Y. 1989).

In summary, the Department wishes to reiterate thatU.S. law provides substantial protection to the propertyof a foreign state in the United States. Accordingly, theUnited States renews its request that the Government ofItaly will provide protection to equivalent United Statesproperty in Italy on the basis of reciprocity, as stated inthe Italian law.

Text of note contained in Telegram from the Department of Stateto U.S. Embassy, Rome, September 5, 1990.

5. Applicability of FSIA to Individuals Sued in their Official Capacity

On May 9, 1990, the U.S. Court of Appeals for the Ninth Circuitaffirmed dismissal of a complaint against an official of the PhilippineGovernment on the basis of the defendant’s sovereign immunity.Chuidian v. Philippine National Bank, 912 F.2d 1095 (9th Cir.1990), aff’ng No. CV 86-2255-RSWL, slip op. (D.C.Cal. Apr. 14,1988). Plaintiff Chuidian, a Philippine citizen, had sued Raoul Daza,a Philippine citizen and member of the Philippine PresidentialCommission on Good Government (“Commission”) for instruct-ing the Philippine National Bank to dishonor a letter of credit issuedby the Republic of the Philippines to Chuidian. Daza’s actions weretaken in his capacity as a member of the Commission, establishedby the government of President Corazon Aquino and charged withrecovering “ill-gotten wealth” accumulated by Marcos and his asso-ciates. Plaintiffs claimed in personam jurisdiction on the basis ofpersonal service of Daza in the Philippines.

In the proceedings below, the United States had taken the posi-tion that Daza, being sued in his individual capacity, was pro-tected from suit in accordance with general principles of sovereignimmunity, rather than in accordance with the Foreign SovereignImmunities Act (“FSIA”). The district court found that Daza wasentitled to immunity and dismissed without reaching the ques-tion of the applicability of the FSIA. See Cumulative Digest1981–1988 at 1581–1582.


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The appellate court affirmed the dismissal based on sovereignimmunity. It concluded, however, that individuals were covered bythe FSIA and that Daza’s immunity must be and was establishedunder the Act. The court explained its conclusion as follows:

. . . While section 1603(b)[of Title 28 United States Code]may not explicitly include individuals within its definitionof foreign instrumentalities, neither does it expresslyexclude them. The terms “agency,” “instrumentality,”“organ,” “entity,” and “legal person,” while perhaps morereadily connoting an organization or collective, do not intheir typical legal usage necessarily exclude individuals.Nowhere in the text or legislative history does Congressstate that individuals are not encompassed within the sec-tion 1603(b) definition; indeed, aside from some languagewhich is more commonly associated with the collective,the legislative history does not even hint of an intent toexclude individual officials from the scope of the Act. Suchan omission is particularly significant in light of numer-ous statements that Congress intended the Act to codifythe existing common law principles of sovereign immu-nity. As pointed out above, pre-1976 common lawexpressly extended immunity to individual officials act-ing in their official capacity. If in fact the Act does notinclude such officials, the Act contains a substantial unan-nounced departure from prior common law.

The most that can be concluded from the precedingdiscussion is that the Act is ambiguous as to its extensionto individual foreign officials. Under such circumstances,we decline to limit its application as urged by Chuidianand the government. We conclude that the consequencesof such a limitation, whether they be the loss of immunityurged by Chuidian or the reversion to pre-Act commonlaw as urged by the government, would be entirely incon-sistent with the purposes of the Act.

It is generally recognized that a suit against an indi-vidual acting in his official capacity is the practical equiv-alent of a suit against the sovereign directly [citationsomitted]. Thus, to take Chuidian’s argument first, we can-not infer that Congress, in passing the Act, intended to


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allow unrestricted suits against individual foreign officialsacting in their official capacities. Such a result wouldamount to a blanket abrogation of foreign sovereignimmunity by allowing litigants to accomplish indirectlywhat the Act barred them from doing directly. It wouldbe illogical to conclude that Congress would have enactedsuch a sweeping alteration of existing law implicitly andwithout comment. Moreover, such an interpretation woulddefeat the purposes of the Act: the statute was intendedas a comprehensive codification of immunity and its excep-tions. The rule that foreign states can be sued only pur-suant to the specific provisions of sections 1605–07 wouldbe vitiated if litigants could avoid immunity simply byrecasting the form of their pleadings.

Similarly, we disagree with the government that theAct can reasonably be interpreted to leave intact the pre-1976 common law with respect to foreign officials. . . .

The principal distinction between pre-1976 commonlaw practice and post-1976 statutory practice is the roleof the State Department. If individual immunity is to bedetermined in accordance with the Second Restatement,presumably we would once again be required to give con-clusive weight to the State Department’s determination ofwhether an individual’s activities fall within the traditionalexceptions to sovereign immunity [citations omitted]. Asobserved previously, there is little practical differencebetween a suit against a state and a suit against an indi-vidual acting in his official capacity. Adopting the ruleurged by the government would promote a peculiar vari-ant of forum shopping, especially when the immunity ques-tion is unclear. Litigants who doubted the influence anddiplomatic ability of their sovereign adversary wouldchoose to proceed against the official, hoping to secureState Department support, while litigants less favorablypositioned would be inclined to proceed against the for-eign state directly, confronting the Act as interpreted bythe courts without the influence of the State Department.

Absent an explicit direction from the statute, we con-clude that such a bifurcated approach to sovereign immu-nity was not intended by the Act. First, every indication


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shows that Congress intended the Act to be comprehen-sive, and courts have consistently so interpreted its pro-visions [citation omitted]. Yet the rule urged by thegovernment would in effect make the statute optional: byartful pleading, litigants would be able to take advantageof the Act’s provisions or, alternatively, choose to proceedunder the old common law.

Second, a bifurcated interpretation of the Act wouldbe counter to Congress’s stated intent of removing the dis-cretionary role of the State Department [citation omitted].Under the government’s interpretation, the pre-1966 com-mon law would apply, in which the State Department hada discretionary role at the option of the litigant. But theAct is clearly intended as a mandatory rather than anoptional procedure. To convert it to the latter by allow-ing suits against individual officials to proceed under theold common law would substantially undermine the forceof the statute. There is no showing that Congress intendedsuch a limited effect in passing a supposedly comprehen-sive codification of foreign sovereign immunity.

Furthermore, no authority supports the continued valid-ity of the pre-1976 common law in light of the Act. Indeed,the American Law Institute recently issued the Restatement(Third) of Foreign Relations Law, superseding the SecondRestatement relied upon by the government in this action.The new restatement deletes in its entirety the discussion ofthe United States common law of sovereign immunity, andsubstitutes a section analyzing such issues exclusively underthe Act [citation omitted].

For these reasons, we conclude that Chuidian’s suitagainst Daza for acts committed in his official capacity asa member of the Commission must be analyzed under theframework of the Act. We thus join the majority of courtswhich have similarly concluded that section 1603(b) canfairly be read to include individuals sued in their officialcapacity [citations omitted].

921 F.2d at 1102–1103.The court of appeals then addressed Chuidian’s arguments

that three exceptions to immunity under the FSIA were applica-


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ble to his claim, including the waiver exception, the “takings”exception, and the torts exception. It concluded that none of thethree were applicable to the case at hand.

The court first dismissed Chuidian’s argument that Daza’simmunity was implicitly waived under 28 U.S.C. §1605(a)(1)because the Philippine National Bank (“Bank”) and the PhilippineExport and Foreign Loan Guarantee Corporation (“GuaranteeCorporation”) participated in the litigation, allegedly withoutraising the sovereign immunity defense:

Since the Bank and the Guarantee Corporation are bothinstrumentalities of the Republic of the Philippines,Chuidian argues that their participation should waive theimmunity of other Philippine instrumentalities, includingDaza [citations omitted].

We see no need to decide whether the Bank and theGuarantee Corporation have in fact waived sovereign immu-nity. It is uncontested that Daza has no official ties witheither institution, aside from working for the same gov-ernment. The Bank and the Guarantee Corporation arestate-owned commercial enterprises, while Daza is employedby the Commission, an executive agency involved in polit-ical and financial matters. Chuidian urges us to hold thata waiver by one foreign instrumentality simultaneouslywaives immunity for all other instrumentalities of the samestate, even though the instrumentalities are wholly unre-lated. But to adopt such a cavalier disregard for the sepa-rate juridical existence of foreign instrumentalities isunwarranted and contrary to existing law and policy.

In a slightly different context, the Supreme Court hasinstructed us on the need to respect the separateness of for-eign instrumentalities. In First National City Bank v. BancoPara El Comercio Exterior de Cuba (Bancec), 462 U.S. 611,77 L.Ed.2d 46, 103 S.Ct. 2591 (1983)( Bancec), Bancecbrought suit on a letter of credit issued by First NationalCity Bank (now Citibank). Citibank counterclaimed, assert-ing a right to set off the value of assets seized by the Cubangovernment. Bancec asserted sovereign immunity. The courtultimately rejected this defense, but nonetheless cautionedagainst “freely ignoring the separate status of government


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instrumentalities.” “Due respect for the actions taken byforeign sovereigns and for principles of comity betweennations leads us to conclude . . . that government instru-mentalities established as juridical entities distinct and inde-pendent from their sovereign should normally be treated assuch.” Id. at 626–27 (citation omitted). The Court foundsupport for its conclusion in the legislative history of sec-tion 1610(b) of the Act, which generally prohibits execu-tion against the property of one instrumentality to satisfya judgment against another. The legislative history on sec-tion 1610 states in part:

Section 1610(b) will not permit execution against theproperty of one agency or instrumentality to satisfy a judg-ment against another, unrelated agency or instrumental-ity. There are compelling reasons for this. If U.S. law didnot respect the separate juridical identities of differentagencies or instrumentalities, it might encourage foreignjurisdictions to disregard the juridical divisions betweendifferent U.S. corporations or between a U.S. corporationand its independent subsidiary.

House Report at 6628–29 (citation omitted), quotedin Bancec, 462 U.S. at 627–28. The Court concluded that,as a general rule, the policies opposing execution uponone instrumentality for judgments against another simi-larly militated against allowing suits against one instru-mentality for the wrongs of another. Bancec, 462 U.S. at626–28.

Thus, a person injured by the Guarantee Corporationcould not assert a claim against Daza, nor could the holderof a judgment against the Guarantee Corporation executeupon property belonging to Daza, even though both areinstrumentalities of the Republic of the Philippines. Thepolicies identified in Bancec similarly lead us to concludethat any waiver of immunity by the GuaranteeCorporation or the Bank should not operate against Daza.The Republic of the Philippines has established theseinstrumentalities as separate juridical entities, and absentallegations of fraudulent purposes, see id. at 629, we musttreat them as such.


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* * * *

Practical considerations also support our decision.Different foreign instrumentalities may have different abil-ities to claim sovereign immunity. In this case, for exam-ple, one may easily imagine a situation in which Dazawould have immunity but the Bank or the GuaranteeCorporation would not. The Guarantee Corporation andthe Bank, as commercial enterprises, may lack immunityunder the commercial activities exception, 28 U.S.C. § 1605(a)(2). Daza, on the other hand, as a purely polit-ical actor clearly would not be denied immunity under thecommercial exception. Under Chuidian’s view of the law,the Bank would nevertheless be required to assert a friv-olous defense of sovereign immunity to avoid waivingDaza’s immunity. Because there is no showing thatCongress intended such a result, we are satisfied that onlyDaza (or his sovereign), and not juridically separatePhilippine instrumentalities, can waive Daza’s immunity.Chuidian does not contend that any action by Daza him-self amounts to an implied waiver. Therefore, we hold thatsection 1605(a)(1) is inapplicable.

Id. at 1103–1105.The court of appeals also refused to find that preventing pay-

ment under the letter of credit amounted to a taking of Chuidian’sproperty in violation of the United States Constitution, for whichan exception is provided under 28 U.S.C. § 1605(a)(3):

. . . The Act does contain a “takings” exception: section1605(a)(3) states that immunity does not extend to cases“in which rights in property taken in violation of inter-national law are in issue.” (Emphasis added.) Thus, evenif Chuidian could demonstrate a taking under UnitedStates law, section 1605(a)(3) would not apply unless thetaking also violated international law.

Expropriation by a sovereign state of the property ofits own nationals does not implicate settled principles ofinternational law [citations omitted]. Chuidian is a citi-zen of the Republic of the Philippines, the state which,


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through its agent Daza, allegedly confiscated Chuidian’sproperty. Hence, even if Daza’s actions did constitute ataking, they did not contravene international law.Therefore, section 1605(a)(3) cannot provide an excep-tion to immunity.

Id. at 1105.The court also rejected Chuidian’s argument that immunity shouldbe denied under 28 U.S.C. § 1605(a)(5) because Daza’s actionsconstituted a tort:

We have previously rejected litigants’ attempts to rechar-acterize takings claims as tort claims. In Myers v. UnitedStates, 323 F.2d 580 (9th Cir. 1963), the governmentallegedly damaged plaintiffs’ property during the con-struction of a road. Plaintiffs brought an action for tres-pass and waste under the Federal Tort Claims Act (FTCA),which permits suits against the government under cir-cumstances similar to section 1605(a)(5). We held thatplaintiffs’ recharacterization of their takings claim did notallow them to proceed under the FTCA.

It is clear to us that the claims of the appellantsasserted against the United States are to recover dam-ages for the taking for public use of property claimedto be owned by the appellants. . . . The repeated char-acterization by the appellants of the taking by theUnited States as one of trespass and the commissionof waste . . . does not convert the claims to cases sound-ing in tort and thereby confer jurisdiction on the DistrictCourt under the Federal Tort Claims Act. The FifthAmendment to the Constitution prohibits the taking ofprivate property for public use without just compensa-tion. To us the claims of appellants against the UnitedStates are founded upon the Constitution, and the actsof the United States complained of are in the nature ofinverse condemnation.

Id. at 583.


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The Fifth Circuit applied Myers in the international con-text in De Sanchez, 770 F.2d at 1398–99, a case factuallysimilar to the present one. De Sanchez, an associate of for-mer Nicaraguan president Somoza, was the holder of acheck issued to her by a Nicaraguan state bank. Followingthe overthrow of Somoza, the bank’s new directors stoppedpayment on the check. De Sanchez sued the bank, arguingfor exceptions to immunity under sections 1605(a)(3) (tak-ings) and 1605(a)(5) (tort). After rejecting the takings claim,the court declined to consider the allegations sounding intort. Citing Myers, the court held that De Sanchez’s claim

is not the type of tort claim that the [section 1605(a)(5)] exception was intended to cover. Mrs. Sanchez’sclaim, although sounding in tort, is essentially a claimfor an unjust taking of property. As noted, Congresshas provided an exception in Section 1605(a)(3) fortakings of property that violate international law. Wedo not believe that Congress intended plaintiffs to beable to rephrase their takings claims in terms of con-version and thereby bring the claims even where thetakings are permitted by international law.

Id. at 1398.

We agree with the reasoning of the Fifth Circuit. Daza’sinstruction to stop payment to Chuidian, like the bank’srefusal to honor De Sanchez’s check, is in substance a tak-ing of property, not a tortious injury to property. As such,it should be considered only under the takings exceptionof section 1605(a)(3). To hold otherwise would be to allowplaintiffs to escape the requirements of section 1605(a)(3)through artful recharacterization of their takings claims.

Id. at 1105–1106.Finally, the court rejected Chuidian’s argument that Daza did

not commit the acts complained of while acting in his officialcapacity, but rather out of malice against Chuidian, holding that:


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The most Chuidian can allege is that Daza experienced aconvergence between his personal interest and his officialduty and authority. Such a circumstance does not serve tomake his action any less an action of his sovereign.

Id. at 1107.

B. HEAD OF STATE IMMUNITY

1. Suit by Libya against U.S. and U.K. Officials

In 1988, a number of Libyan plaintiffs brought suit in the U.S.District Court for the District of Columbia against the Presidentand other U.S. officials, Prime Minister Margaret Thatcher of theUnited Kingdom, and the United States and the United Kingdomin connection with injuries suffered in airstrikes against Libya inApril 1985. For a discussion of the air strikes, see CumulativeDigest 1981–1988 at 3405–3410. At the end of 1988, the courtdismissed the case on the grounds that Prime Minister Thatcherwas entitled to head of state immunity, the U.K.’s actions wereacts of state, the U.S. had not waived sovereign immunity, andall the U.S. officials were acting in their official capacities. Thecourt denied sanctions requested by defendants, however. Saltanyv. Reagan, 702 F.Supp. 319 (D.D.C. 1988).

The plaintiffs appealed the district court decision. The UnitedStates and the United Kingdom moved for summary dispositionof the appeal. In its reply to the opposition to its motion, the U.S.argued that it had not waived sovereign immunity. As to plain-tiffs’ contention that the U.S. did not have immunity because theair strikes violated international law, the reply argued:

Plaintiffs’ insistence that the United States must be heldaccountable for its “war crimes” is most remarkable forwhat is omitted —any citation to “[s]pecific language in[a] treaty waiving the immunity of the United States.”Canadian Transport Co. [v. United States,] 663 F.2d[1081,] 1092 [D.C.Cir. 1985]. Without that specific lan-guage, “the treaty must be interpreted in accord with the


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rule that treaty violations are normally to be redressedoutside the courtroom.” Id. This was the same point madein Argentine Republic v. Amerada Hess Shipping Corp.,109 S.Ct. 683, 692 (1989), when the Court concluded thata foreign state does not waive its immunity under theForeign Sovereign Immunities Act (FSIA), 28 U.S.C.1602–1611, “by signing an international agreement thatcontains no mention of a waiver of immunity to suit. . . .”

Plaintiffs do not argue that the air strikes violated aninternational agreement which contains an express waiverof the United States immunity. As such, without an expresswaiver, they have no claim for damages against the UnitedStates for violation of international law.

United States’ Reply to Appellant’s Opposition to Motions forSummary Dispositions, Saltany v. Reagan, No. 89-5051, June 26,1989, p. 4, available at www.state.gov/s/l/.

The reply also addressed the plaintiffs’ assertion that thePresident and other U.S. officials may be amenable to suit for vio-lations of customary international law:

Once again, plaintiffs fail to cite any specific treaty oragreement that creates or imposes individual damages lia-bility in any situation even remotely like the one presentedhere. Moreover, plaintiffs proceed as if this Court hadnever considered the issue of a United States officer’samenability to suit under international law for his officialactions. In Sanchez-Espinoza, [770 F.2d 202 (D.C. Cir.1985)] this Court held that a suit against the Presidentunder the Alien Tort Statute for violating customary inter-national law—assuming the Statute applies to govern-mental as opposed to private acts—would have to bebrought against him in his official capacity and, thus, bebarred by sovereign immunity. 770 F.2d at 206–07.

Id. at 6–7. The reply also addressed the foreign sovereign immunity and

head of state issues presented by the U.K. plaintiffs’ appeal:


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We are initially disturbed by plaintiffs’ insistence on pur-suing their action against the United Kingdom. “Actionsagainst foreign sovereigns in our courts raise sensitive issuesconcerning the foreign relations of the United States” andhave been the source of irritation in our bilateral relationswith defendant states, which often placed diplomatic pres-sure on our State Department. Verlinden B.V. v. CentralBank of Nigeria, 461 U.S. 480, 487, 493 (1983). The FSIAwas enacted to “free the Government from the case-by-case diplomatic pressures” by imposing a “comprehensivescheme” that expressly provides when a foreign State maybe sued and when it may not. Id. at 488–89.

The claims against the United Kingdom here fallsquarely in the latter category. In Amerada Hess, theSupreme Court ruled unanimously and unequivocally thatthe FSIA provides the “sole basis for obtaining jurisdic-tion over a foreign state in our courts.” 109 S.Ct. at 686.Seven members of the Court further agreed that a foreignstate’s use of military force allegedly in violation of inter-national law fell outside any of the exceptions to sover-eign immunity provided by the FSIA. Id. at 690–92. Whenplaintiffs filed their appeal here, with the ink barely dryin Amerada Hess, no conceivable argument could be madethat their appeal was warranted by existing law or by agood faith argument for reversal of existing law.

The United States agrees with and supports the UnitedKingdom’s request for sanctions in these circumstances.The important goals of Congress in enacting the FSIA can-not be met if litigants may hail foreign sovereigns intocourt on frivolous FSIA claims with impunity. Deterrenceof such suits, through the imposition of sanctions, willassure foreign sovereigns that United States courts, guidedby the FSIA, will not condone attempts by plaintiffs tointrude into sensitive political and military judgments andactivities of the defendant state.

The United States also agrees that sanctions are appro-priate for plaintiffs’ appeal against Prime Minister Thatcher.The Supreme Court long ago recognized the binding andconclusive nature of the executive’s suggestion of immu-nity. See Ex Parte Peru, 318 U.S. 578, 588–89 (1943); The


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Schooner Exchange v. M’Faddon, 11 U.S. (7 Cranch) 116,136–39, 147 (1812). Plaintiffs did not address this author-ity below; nor is it addressed here.

Suits against foreign heads of state, like suits againstforeign sovereigns, raise serious diplomatic concerns.Through the imposition of sanctions under Rule 38, Fed.R. App. P., plaintiffs like these must be discouraged fromattempting to circumvent the strictures of the FSIA by press-ing frivolous claims against a foreign head of governmentor other foreign officials for the acts of their government.

Id. at. 7–10 (footnotes omitted). The U.S. court of appeals affirmed the district court’s dismissal

of the case, but reversed the district court’s denial of sanctions.Saltany v. Reagan, 886 F.2d 438 (D.C.Cir. 1989). The Court alsogranted the U.K.’s request for attorneys’ fees and costs in havingto pursue a frivolous appeal, finding that Argentine Republic v.Amerada Hess, 488 U.S. 429 (1989) “clearly bars plaintiff’s claimagainst the United Kingdom and that so much was apparent tocounsel for plaintiffs before they imposed upon the United Kingdomthe burden of this appeal.” Id. at 441. The Supreme Court deniedthe plaintiffs’ petition for certiorari, 495. U.S. 932 (1990).

2. Divorce Action against President of Foreign Country

On January 31, 1989, General H.M. Ershad, President of thePeople’s Republic of Bangladesh, was sued by Mareium Mumtazin New York state court, seeking dissolution of their alleged mar-riage. Mumtaz v. Ershad, Index No. 74258/89 (N.Y. Sup. Ct.).On March 20, 1990, the Embassy of Bangladesh formallyrequested that the U.S. Government suggest the immunity ofPresident Ershad in the case.

On May 30, 1990, the United States Attorney for the SouthernDistrict of New York filed a suggestion of immunity of GeneralErshad. This submission described the nature of head of stateimmunity as follows:

3. Under customary rules of international law, recognizedand applied in the United States, the head of a foreign


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state is immune from the jurisdiction of United States fed-eral and state courts. See Saltany v. Reagan, 702 F.Supp.319 (D.D.C. 1988), aff’d in relevant part, No. 89-5051(D.C. Cir. Sept. 29, 1989) (per curiam), petition for cert.filed, No. _ (U.S. Mar. 22, 1990) (dismissal of complaintas against U.K. Prime Minister Thatcher); Kline v. Kaneko,141 Misc. 2d 787, 535 N.Y.S.2d 303 (Sup. Ct. 1988), aff’dmem., sub nom. Kline v. Cordero De La Madrid, 546N.Y.S.2d 506 (1st Dep’t 1989)(dismissal of suit againstwife of President of Mexico); L. Oppenheim, 1International Law section 348, 349 (8th ed. 1955); G.Hackworth, 2 Digest of International Law section 170(1941)(discussion of dismissal of divorce case brought inEngland against foreign head of state). The Supreme Courthas mandated that the courts of the United States arebound by suggestions of immunity, such as this, which aresubmitted to the courts by the Executive Branch. Ex PartePeru, 318 U.S. 578, 588–89 (1943). See also Republic ofMexico v. Hoffman, 324 U.S. 30, 36 (1945). Indeed, inPeru, the Supreme Court, without further review of theExecutive’s determination, declared that the suggestion ofimmunity must be accepted by the Judiciary as a “con-clusive determination by the political arm of the Govern-ment” that the continued retention of jurisdiction wouldjeopardize the conduct of foreign relations. 318 U.S. at589; see Spacil v. Crowe, 489 F.2d 614, 617 (5th Cir.1974). Accordingly, upon the filing of a suggestion ofimmunity such as this, it becomes the “court’s duty” tosurrender jurisdiction for which immunity has been rec-ognized. Peru, 318 U.S. at 588; see also Hoffman, 324U.S. at 35.

4. That the courts of the United States are mindful ofthe Supreme Court’s teaching with respect to ExecutiveBranch suggestions of immunity is evidenced by suchrecent cases as Gerritsen v. De la Madrid, CV 85-5020-PAR (C.D. Cal. 1986) (in suit against Mexican PresidentDe la Madrid and others for conspiring to deprive plain-tiff of constitutional rights, action against De la Madriddismissed pursuant to suggestion of immunity); Estate of


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Silme G. Domingo v. Marcos, No. C82-1055V (W.D.Wash. 1982) (action alleging political conspiracy by thenPresident Ferdinand E. Marcos and Imelda Marcos, thenFirst Lady of the Philippines, and others dismissed againstPresident and Mrs. Marcos pursuant to suggestion ofimmunity); Psinakis v. Marcos, No. C-175-1726 (N.D.Cal. 1975) result reported in (1975) Digest of UnitedStates Practice of International Law, pp. 344–45 (libelaction against Ferdinand Marcos dismissed pursuant tosuggestion of immunity).

5. This traditional and appropriate deference of thejudiciary to Executive Branch suggestions of immunity ispredicated on “compelling” considerations arising out ofthe conduct of our foreign relations. Spacil v. Crowe, 489F.2d at 619. Several reasons support the justification forthis deference.

First, (s)eparation-of-powers principles impel a reluc-tance in the judiciary to interfere with or embarrass theexecutive in its constitutional role as the nation’s primaryorgan of international policy. Id., citing United States v.Lee, 106 U.S. 196, 209 (1882). See also Peru, 318 U.S. at588. Second, in comparison with the Executive’s institu-tional resources and extensive experience in the day-to-dayconduct of the country’s foreign affairs, the Judiciary is ill-equipped to second-guess Department of State determi-nations that may affect such interests. Spacil, 489 F.2d at619. Finally, as the Court of Appeals for the Fifth Circuitalso observed in Spacil, “[p]erhaps more importantly, inthe chess game that is diplomacy, only the executive hasa view of the entire board and an understanding of therelationship between isolated moves.” Id.

Suggestion of Immunity Submitted by the United States ofAmerica, Mumtaz v. Ershad, at 2–5, Index No. 74258/89 (N.Y.Sup. Ct.), available at www.state.gov/s/l.

Attached to the suggestion of immunity was an affirmationby the Legal Adviser, advising the court of the views of the U.S.Government with regard to the immunity of President Ershad and


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the implications of the matter for the foreign policy interests ofthe United States. In pertinent part, the Legal Adviser’s affirma-tion stated:

5. In [a letter to the Department of Justice requesting fil-ing of a suggestion of immunity], I noted that PresidentErshad is entitled to head of state immunity under cus-tomary international law. I also described the particularimportance attached by the Department of State to obtain-ing a prompt dismissal of this suit because of the signifi-cant foreign policy implications of such an action againstthe head of state of a friendly foreign country. . . .

6. The Department of State also places particularimportance on the appropriate assertion of head of stateimmunity because of its implication for reciprocal treat-ment of our President if subject to the jurisdiction of aforeign state. We would clearly expect another state toextend head of state immunity to our President if namedas a defendant in a case similar to this one. The failure toextend such immunity would have a serious adverse effecton our relationship with that state.On June 15, 1990, the U.S. Government filed a memorandum

of law in support of the suggestion of immunity in response tothe plaintiff’s assertions that immunity did not apply because theclaim involved personal, and not official, acts of President Ershad.The memorandum pointed out that the suggestion of immunitywas binding upon the court:

It has long been settled that suggestions made by theUnited States that immunity be granted or denied are con-clusive on the courts. See United States v. Lee, 106 U.S.196, 209 (1882). As the Supreme Court has observed,courts must follow “the action of the political branch, andwill not embarrass the latter by assuming an antagonisticjurisdiction.” Id. . . .

* * * *

Against this weight of authority plaintiff urges this Courtto become the first to hold that a suggestion of immunity


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filed by the Executive Branch is not binding on the judi-ciary. . . . Plaintiff’s attempt to distinguish factually thecases cited in the Suggestion of Immunity is unavailing.None of those decisions contains the faintest hint that thecourt’s decision to adhere to the suggestion of immunitydepended on the nature of the conduct before the court.Indeed, in Ex Parte Peru, the Supreme Court couched itsdecision in broad terms holding that upon filing of a sug-gestion of immunity, it becomes the “court’s duty” to sur-render the jurisdiction for which immunity has beenconferred. Using similarly broad language, the New YorkCourt of Appeals held that the question of whether sov-ereign immunity should obtain “ceased to be a judicialquestion when the Department of State [] authoritativelyrecognized the claim of immunity.” United States ofMexico v. Schmuck, 293 N.Y. [264] at 272, 56 N.E. 2d[577] at 580–81 [1944]. . . .

* * * *

Giving an executive suggestion of immunity conclu-sive effect is warranted because the claim of a foreign sov-ereign of immunity from suit presents a political ratherthan a judicial question. See New York & Cuba Mail S.S.Co. v. Republic of Korea, 132 F.Supp. 684, 686 (S.D.N.Y.1955); Et Ve Balik Kurumu v. B.N.S. International SalesCorp., 25 Misc. 2d 299, 204 N.Y.S. 971, aff’d withoutop., 17 A.D.2d 927, 233 N.Y.S.2d 1013 (lst Dep’t 1960).Under such circumstances a court’s proper function is toenforce the “political decisions” of the State Departmentto grant or deny immunity. New York & Cuba Mail S.S.Co., 132 F.Supp. at 656. The political determination ofimmunity binds the courts and has the effect of with-drawing the cause from the sphere of litigation. Wolchokv. Statni Bank Cesoslovenska, 15 A.D.2d 103, 104, 222N.Y.S.2d 140 (1st Dep’t 1961); see Peru, 318 U.S. at 588;Matter of United States of Mexico v. Schmuck, 293 N.Y.262, 272, 56 N.E.2d 577 (1944).

* * * *


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In short, the practice of the courts to follow the exec-utive determination does not entail an abdication of judi-cial power; rather, “it is a self-imposed restraint to avoidembarrassment of the executive branch in the conduct offoreign affairs.” New York & Cuba Mail S.S. Co., 132F.Supp. at 686.

. . . Although the United States does not know whetherplaintiff in fact would have no alternative forum in whichto adjudicate this case, this question is not relevant. As inother settings where a defendant is entitled to immunity,the assertion of this immunity may leave an allegedlywronged plaintiff without civil redress. See Gregoire v.Biddle, 177 F. 2d 579, 580–81 (2d Cir. 1949) (L. Hand,J.), cert. denied, 339 U.S. 949 (1950); United States ofMexico v. Schmuck, 293 N.Y. at 272.

Memorandum of Law in Support of the Suggestion of ImmunityFiled on Behalf of the Defendant by the United States, Mumtazv. Ershad, pp. 5, 7, 8–9, 10, 11–12, Index No. 74258/89 (N.Y.Sup. Ct.), available at www.state.gov/s/l.

On June 27, 1990, in an unpublished opinion, the Court dis-missed the case, deferring to the suggestion of immunity filed bythe U.S. Government with regard to President Ershad, Mumtazv. Ershad, Index No. 74258/89 (N.Y. Sup. Ct. June 27, 1990).The plaintiff appealed the decision.

On December 6, 1990, President Ershad announced his res-ignation as President of Bangladesh. The plaintiff moved for recon-sideration of the court’s dismissal, based on this development. OnJanuary 23, 1991, the U.S. Government filed a motion of changedcircumstances with the appellate division of the court, stating thatErshad was no longer entitled to head-of-state immunity and that“the determination of the United States that Ershad is no longerentitled to head-of-state immunity is binding on this Court.”Further, although as a former head of state Ershad enjoyed immu-nity “for official acts performed pursuant to governmental author-ity as head of state,” he was “no longer entitled to immunity inany action involving a purely private matter.” Notice of ChangedCircumstances submitted by the United States of America at 3–4,Mumtaz v. Ershad, Index No. 74258/89 (N.Y. App. Div.), avail-able at www.state.gov/s/l.


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3. Deposition of Foreign President and Vice President

On May 10, 1990, President Corazon Aquino and Vice PresidentSalvador Laurel of the Republic of the Philippines were noticedfor deposition by the defendant Westinghouse in The Republic ofthe Philippines v. Westinghouse Electric Corp., Civ. Action No.88-5150 (D.N.J.) (DRD). After the Philippines refused to producePresident Aquino or Vice President Laurel, the court directed thedefendant to move to compel the depositions and invited theDepartments of State and Justice to appear as amici curiae on themotion. On July 9, 1990, the United States filed a statement ofinterest in the matter. The statement provided the views of theUnited States as follows:

4. Discovery in U.S. courts involving such high level offi-cers of a friendly foreign state is novel and implicates for-eign policy interests of the United States. Because suchcases are also rare in other countries, U.S. practice maywell influence how foreign courts handle this issue in thefuture. In particular, foreign courts confronted with arequest to compel discovery against a U.S. President orVice President could apply reciprocally the standards usedby U.S. courts. . . .

5. The United States therefore believes that U.S. courtsshould not require personal discovery from a foreign headof state or vice head of state in the absence of a demon-strated need for testimony concerning material facts in thepersonal knowledge of that individual. Cf. SocieteNationale Industrielle Aerospatiale v.United States-DistrictCourt, 482 U.S. 522, 546 (1987) (enjoining U.S. courts to“exercise special vigilance to protect foreign litigants fromthe danger that unnecessary, or unduly burdensome, dis-covery may place them in a disadvantaged position” andto “demonstrate due respect . . . for any sovereign inter-est expressed by the United States.”).

6. In addition, the United States believes that it wouldbe appropriate for the Court, to the extent consistent withprinciples of fairness to the parties concerned and withthe needs of the Court, to be receptive to proposals to min-


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imize any intrusion on the dignity of President Aquino’s andVice President Laurel’s offices, and on the performance oftheir official duties, that personal discovery can entail.

United States Statement of Interest, The Republic of The Philip-pines v. Westinghouse Electric Corp. at 2–4 July 9, 1990, avail-able at www.state.gov/s/l. At a hearing on September 7, 1990, thecourt denied the motion to compel the depositions. Transcript ofHearing at 26–28.

4. Deposition of Foreign Minister

At the end of December 1988, the U.S. District Court for theWestern District of Washington granted a request by plaintiffs todepose Foreign Minister Raul Manglapus of the Philippines. Estateof Domingo v. Republic of Philippines, No. C82-1055VR (W.D.Wash. 1988). On June 22, 1989, the plaintiffs moved to compelthe Republic of the Philippines to produce Foreign MinisterManglapus after he did not appear for a June 5, 1989 depositionfor which he had been served with a subpoena by the plaintiffs.On July 14, 1989, the United States filed a statement of interestexpressing its views on the motion to compel:

The United States notes that, insofar as the requested orderis premised upon the subpoena recently served on SecretaryManglapus, the foreign minister of a friendly foreign state,a question could be raised regarding his immunity fromsuch subpoena. The Schooner Exchange v. McFaddon, 11U.S. (7 Cranch) 116, 138–139 (1812). Domingo v.Marcos, No. C82-1055V (W.D. Wash., Dec. 23, 1982);Chong Boon Kim v. Yim Young Shik, Civ No. 12565 (Cir.Ct., lst Dir. Ha. 1963), cited at 48 Am. J. Int’l L., 1986(1964); Restatement (Second) of the Law of ForeignRelations, Section 66. In view of this Court’s earlier order,however, and on the further understanding that theGovernment of the Philippines and Secretary Manglapushimself are willing for him to be deposed on matters relat-ing to his period of residence in the United States as a pri-vate citizen, provided only that the time and place are


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convenient, the United States does not express any viewon whether Secretary Manglapus may enjoy any form ofimmunity from the jurisdiction of the courts of the UnitedStates in connection with these proceedings. Our silenceon these or any other issues in these proceedings shouldnot be taken as an indication of our views.

The United States is, nonetheless, of the view that itwould be appropriate for the Court, to the extent consis-tent with principles of fairness to the parties concernedand with the needs of the Court, to be receptive to pro-posals that such deposition be scheduled at a time andplace convenient to the Foreign Secretary, and such otherproposals as may be made in order to minimize the intru-sion on the performance of Secretary Manglapus’ officialduties or on the dignity of his office.

In general, as the Supreme Court stated in SocieteNational Industrielle Aerospatiale v. United States Districtfor the Southern District of Iowa, “we have long recog-nized the demands of comity in suits involving foreignstates, either as parties or as sovereigns with a coordinateinterest in the litigation. See Hilton v. Guyot, 159 U.S.113 (1895). American courts should therefore take careto demonstrate due respect . . . for any sovereign interestexpressed by a foreign state.” 482 U.S. 522, 107 S.Ct.2542, 2552 (1987). In keeping with the principles of inter-national comity, we believe that it is appropriate to seekto accommodate the schedule and duties of a high-levelforeign official in such matters. The compelling of per-sonal discovery with respect to a Foreign Secretary ofanother nation is in any event a novel and exceptional cir-cumstance, with significant potential for implicating theforeign policy interests of the United States. Not only issuch accommodation important in the interests of bilat-eral relations with the country concerned, but it is alsoimportant in terms of the treatment which we wouldexpect to be granted by foreign courts to the United StatesSecretary of State.

Statement of Interest of the United States at 2-4, available atwww.state.gov/s/l.


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On July 19, 1989, Chief Judge Barbara J. Rothstein deniedthe motion to compel Foreign Minister Manglapus to appear fora deposition. The Court stated, in part:

[T]he Philippines was remiss in failing to inform plaintiffsabout Foreign Minister Manglapus’ unavailability for adeposition in the United States. . . . However, the courtdoes not believe that sanctions should follow nor will itorder Foreign Minister Manglapus to appear for a depo-sition in the United States. Given the circumstances of hispresence in San Francisco and the demands of his posi-tion, the court does not find it unreasonable that he failedto appear on the previously scheduled date. That date wasselected unilaterally by plaintiffs and did not take intoaccount the witness’s other commitments.

Order Denying Motion to Compel Deposition of Raul Manglapus,C82-1055VR, at 3 (July 19, 1989).

C. DIPLOMATIC AND CONSULAR PRIVILEGES AND IMMUNITIES

1. Diplomatic Privileges and Immunities

a. Appointment, accreditation and notification of diplomatic personnel

On May 23, 1989, the Department of State sent a circular noteto chiefs of mission in Washington, D.C., concerning standardsfor accreditation of foreign diplomatic personnel assigned to theUnited States, and for registration of nondiplomatic staff mem-bers of diplomatic missions.

As set forth in the note, the United States requires that, to berecognized as a diplomatic agent, a person must possess a recog-nized diplomatic title and in addition must perform duties of adiplomatic nature. Accreditation of diplomats is solely within thediscretion of the Department of State, and requests for accredi-tation in diplomatic status of personnel performing duties of anadministrative and technical nature are incompatible with both


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Department policy and the Vienna Convention on DiplomaticRelations (1961). The note also informed chiefs of mission thatany promotion from the administrative and technical staff todiplomatic agent status must be accompanied by a formal posi-tion description for each person or detailed description of thediplomatic duties that each would perform.

Enclosed with the note of May 23, 1989, was an earlier cir-cular note addressing the same subject in greater detail, datedMay 1, 1985. See Cumulative Digest 1981–1988 at 904–908. Seealso 83 Am. J. Int’l L. 910 (1989).

b. Violations of criminal law

(1) New U.S. policies on abuse of diplomatic immunity

On November 15, 1989, the Department of State sent a diplo-matic note to all chiefs of mission in the United States explainingnew measures adopted by the Department to address the prob-lems of criminal violations committed by diplomats and otherabuses of diplomatic immunity:

Despite cooperative measures among the Department ofState, United States law enforcement authorities, and theaddressee missions, there continues to exist a relativelysmall, but unacceptable, number of members of the for-eign diplomatic community in the United States who abusetheir immunity from criminal jurisdiction under interna-tional law. The Department has taken a number of reaf-firming measures, particularly since enactment of theDiplomatic Relations Act of 1978 and the ForeignMissions Act of 1982, to ensure that the activities of theforeign diplomatic community and other persons who haveimmunity from criminal jurisdiction by virtue of their offi-cial status as representatives of a foreign government orinternational organization conform with U.S. and appli-cable provisions of international law. Nonetheless, theDepartment of State, sharing the concern of the UnitedStates Congress and the public at large, has devised astrengthened, comprehensive program for regulating diplo-


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matic immunities, in a manner that is both effective andconsistent with international law.

Under international law and practice persons extendedimmunity from the jurisdiction of host country lawsnonetheless are obligated to respect those laws. As allnations recognize, diplomatic immunity is based upon theprinciple that duly accredited members of diplomatic mis-sions must be able to pursue their official duties free fromharassment and possible intimidation and without imped-iment to their performance of those duties. However,immunity is not a license for misconduct. It is in fact adoctrine intended to benefit the functioning of the mis-sion, not to personally benefit its individual members.Consequently, the Government of the United States in thefirst instance looks to the chiefs of diplomatic missions,to their counterparts in missions to international organi-zations, and to the heads of international organizationsheadquartered or maintaining offices in the United Statesto counsel members of their staffs, as well as family mem-bers who enjoy derivative immunity, on their duty torespect the laws and regulations of this country. Ultimately,the United States will hold the Chief of Mission and thesending government responsible for the conduct of per-sons sent to the United States as diplomatic representa-tives or of others entitled to immunity. The Departmentalso expects all missions to consider in good faith requestsmade for waivers of immunity and, in addition, to takeappropriate action against those who may abuse theirimmunity.

The Department of State reiterates that criminal viola-tions will not be tolerated by the United States Governmentor the community at large. While the Department will con-tinue to take necessary action as required by internationallaw to safeguard and preserve the immunity of personsallegedly involved in criminal behavior, the Departmentwishes to communicate the corrective measures consistentwith international law that are being taken in cases involv-ing serious criminal conduct, in particular crimes of vio-lence, recurrent offenses of a less serious nature, or otheregregious abuses of immunity.


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In this regard, the Department wishes to emphasizethe following points:

1. The Chiefs of Mission must ensure that the mem-bers of their missions and eligible members of their fam-ilies apply for and receive identity cards issued by theDepartment of State. Those cards contain not only theofficial identification of the person but also a statementof the extent of the bearer’s immunity. Only persons prop-erly notified to and accepted by the United StatesGovernment can be issued documents stating their immu-nity, and have their status confirmed through the Officeof Protocol of the Department of State. In order to ensurethat proper notification is given of termination of missionmembers upon departure, except for those missions sub-ject to a bilateral ceiling restricting the number of officialemployees at the mission, henceforth notification of newpersonnel to be accredited must include either informa-tion on which person is being replaced at the mission andthe date of termination of the predecessor, or a certifica-tion that the new person will occupy a new position. . . .

2. A diplomatic agent possessing proper identificationmay not be arrested or detained. It is emphasized, how-ever, that the United States has a duty to protect the safetyand welfare of the public, including other diplomats, andto take reasonable steps to prevent the commission ofcrimes. United States law enforcement authorities there-fore have been instructed that, in circumstances wherepublic safety is in imminent danger or it is apparent thata serious crime may otherwise be committed, policeauthorities may intervene to the extent necessary to haltsuch activity, even in cases involving diplomatic agents.This includes the power of the police to defend themselvesand others from personal harm. At the same time, lawenforcement authorities will also take any necessary actionto ensure that a diplomatic agent does not bring harm tohimself. Mission personnel having a lesser degree of immu-nity, of course, are also subject to these measures, as wellas any other measures consistent with their more limitedimmunity.


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3. Persons with immunity from criminal jurisdiction,consistent with international law, are subject to criminalinvestigation to the same extent as any other person resid-ing in the United States, as may be required. Chiefs ofMission are requested to instruct members of their mis-sions, and the family members of those members, to coop-erate fully with such investigations. United States lawenforcement authorities have been instructed to pursue inves-tigations vigorously, to prepare cases carefully and com-pletely, and to document properly each incident of allegedcommission of a crime. These steps are required so thatcharges against alleged offenders may be pursued as faras possible in the United States judicial system consistentwith their immunity. These steps are also necessary toensure that investigative reports provide sufficient infor-mation to initiate diplomatic measures against an allegedoffender. Such steps may be important also to protect for-eign mission personnel alleged to have been involved incriminal misconduct, as investigation of allegations ofwrongdoing will determine whether or not they are sub-stantiated.

4. As a matter of general policy, in all cases involvingallegations of criminal misconduct, the Departmentrequests the sending government to waive immunity sothat allegations of criminal or other misconduct may beadjudicated fully and resolved pursuant to U.S. law. Wherea waiver of immunity is refused, the United StatesGovernment normally will require in the case of seriousoffenses that the alleged offender depart the country,including, where necessary, in the case of serious offensesby family members, departure of the mission member fromwhom the family member’s immunity derives. Even wherea waiver of immunity has been granted, the Departmentretains discretion to require the departure of the allegedoffender where necessary. For the guidance of the mission,the Department considers serious offenses to include: (1)any felony, (2) any crime of violence, such as an attackwith a firearm or dangerous weapon, (3) driving underthe influence of alcohol or drugs, which causes injury to


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persons. In addition, the Department is particularly con-cerned about those situations where there is a pattern ofrecurrent, though less serious, offenses, especially thoseinvolving drugs or driving without insurance.

5. The Department of State further, as a matter of pol-icy, seeks to prevent the return to the United States of per-sons entitled to immunity who, as alleged offenders, havebeen required to leave this country. The Department willnot accept such persons in representative capacities there-after which would establish any degree of immunity fromcriminal jurisdiction in their behalf.

6. In all cases involving injury to person or damage toproperty, the Department of State intends to pursue vig-orously the interests of the aggrieved parties in obtainingprompt restitution by individual offenders or from theirgovernments.

7. The Department wishes to remind the missions thatin any case involving criminal activity no immunity existsagainst the arrest and prosecution of a person formerlyentitled to privileges and immunities who returns to theUnited States following the termination of his or her offi-cial duties, unless it can be proved that the crime relatedto the exercise of official functions. The defense is adju-dicated by the courts. The Department recognizes that thethreat of prosecution may serve, as a practical matter, toprevent individuals who commit crimes while in privilegedstatus from returning to the United States. To ensure thatsuch individuals do not return without appropriate reviewby United States authorities, the Department reaffirms itsrequirement that the sending government forward the pass-port of the alleged offender (and of family members inappropriate cases) to the Department before he or shedeparts the United States so that the visa may be revokedand the form 1-94 returned to the Immigration andNaturalization Service. Should the alleged offender leavethe United States before the visa is cancelled, theDepartment reserves the right to refuse a replacement forthe offender (or his or her principal in the case of a crimecommitted by a dependent) on the mission staff, to the


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extent permitted under international obligations, until theoutstanding visa is revoked.

8. The Department of State has measures already inplace to prevent persons, for whom there is reason tobelieve that they have committed a serious criminaloffense, from reentering the United States in a diplomaticor consular capacity after having been required to leavethis country. These measures include entering data on thealleged offender in the Department’s Automated VisaLookout System. This information is shared with theImmigration and Naturalization Service and used by theINS at ports of entry into the United States. . . .

9. In addition, the Department of State is seeking leg-islation which would add a new category of ineligibilityfor visas and for admission to the United States. This newprovision would exclude from the United States personsfor whom there is reason to believe that he or she com-mitted a serious criminal offense in the United States, forwhom immunity from criminal jurisdiction was exercised,and who left the United States as a consequence, thus pre-venting adjudication of guilt or innocence in United Statescourts.

10. The Department of State defines “member of thefamily” for purposes of immunity from criminal jurisdic-tion as a person who is in one of the following relation-ships to an official representative of a foreign governmentor another person who has immunity from criminal juris-diction by virtue of his or her official status:

(A) the spouse of such a representative or other per-son and his or her unmarried children under 21 years ofage, who are not members of some other household, andwho reside exclusively in the principal’s household, if thespouse or children are not nationals (in the case of a diplo-matic agent) or (in the case of other representatives)nationals or permanent residents of the United States;

(B) the unmarried children of such representative orother person who are under 23 years of age and attendingan institution of higher education on a full-time basis, ifthey are not nationals (in the case of a diplomatic agent) or


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(in the case of other representative) nationals or permanentresidents of the United States; and

(C) under exceptional circumstances and with theexpress advance approval of the Department of State,other persons who are not members of some other house-hold, who reside exclusively in the principal’s household,and who are recognized by the sending State as membersof the family forming part of the household.

* * * *

The Department of State reminds the Chiefs of Missionthat, as in the case of personal immunity of individuals,the inviolability of diplomatic and consular pouches isbased upon the need of missions to have free communi-cation with their governments and missions in other coun-tries or elsewhere in the United States. The Departmentwill not tolerate abuses of this inviolability, to bring intothe United States or transport within the United States ille-gal substances, such as narcotics, explosives, firearms andother material illegal under United States law and regu-lation. The Government of the United States will take allsteps consistent with international law to detect, prevent,and punish such abuse.

In conclusion, the Department of State urges the Chiefsof Mission to ensure that members of their missions, andtheir dependents, pay their just debts, and that all neces-sary and appropriate steps are taken by waiver of immu-nity, insurance, or otherwise to discharge obligationsarising from the presence and activities of the mission,their members and dependents. The Department stronglyrecommends that the missions and their members obtainliability insurance, in addition to the level of motor vehi-cle insurance already required by the U.S. Government,to cover property losses or injury arising out of their activ-ities. Where the Department learns that missions or theirmembers have failed to discharge legitimate debts withina reasonable time, or are otherwise financially liable foractivities undertaken in the United States, upon request,the Department will intervene to secure payment. In par-


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ticular, it is the Department’s practice to assist in resolv-ing outstanding debts of mission members where the com-plainant notifies the Department of the matter in writing,and can produce satisfactory evidence 1) that a debt orcivil liability is owed, 2) that the matter has been broughtto the attention of the mission member concerned and tothe head of the mission, without resolution for an unrea-sonable period (pending without resolution for six monthsor more), and 3) immunity would preclude judicial oradministrative action. The Department must advise theChiefs of Mission that reliance on immunity to evade afinancial obligation under law could call into question amission member’s continued acceptability in the UnitedStates. In addition, the departure of a mission memberwithout settling outstanding financial liabilities could affectthe Department’s willingness to accept a replacement, andcould cause the United States to advise prospective cred-itors of the financial unreliability of the mission or itsmembers.

The Department will closely study the manner in whichthe respective missions discharge this responsibility andwill take those diplomatic measures which will be botheffective and consistent with international law.

Note from the Department of State to Chiefs of Mission,Washington, D.C., November 15, 1989. Dept. of State Publication2 Foreign Affairs Manual (“FAM”), Exhibit 233.4 to 2 FAM 230.Many of these policies and practices were adopted as Departmentof State regulations and may be found at 2 FAM § 230,Immunities and Liabilities of Foreign Representatives in the UnitedStates.

The visa ineligibility provision referred to in paragraph 9 ofthe note, excluding persons for whom immunity from criminaljurisdiction was exercised where there is reason to believe that heor she committed a serious criminal offense in the United States,was adopted in 1990 in section 131 of Pub. L. No. 101-246, 104Stat.15, Foreign Relations Authorization Act for FYs 1990 and1991. The exclusion is codified at section 212(a)(2)(E) of theImmigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(E).


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(2) Report to Congress on compensation for victims of crimes

Section 131(d) of the Foreign Relations Authorization Act,Fiscal Years 1990 and 1991, Pub. L. No. 101-246, 104 Stat. 15,required the State Department to prepare a report on the needfor and feasibility of a compensation program for victims of crimescommitted by persons with diplomatic immunity in the UnitedStates (referred to as “diplomatic crimes” in the report). OnOctober 23, 1990, the State Department transmitted the reportto Congress, available at www.state. gov/s/l.

The introduction reviewed the purpose and rules regulatingdiplomatic immunity. In particular, it addressed the existing reme-dies available for such crime:

Certain remedies do exist if a diplomat commits a crime.The receiving state may request the sending state to waivethe offender’s diplomatic immunity. In recent years, theU.S. has vigorously pursued this option, requesting waiverin every instance where there is probable cause to believethat a person entitled to immunity has committed a crime,and has obtained results. (Regulations to be adopted bythe Department will formally require a request for waiverin every case.) If the sending state declines to waive immu-nity, or for other reasons, the receiving state may declarethe offending diplomat (or other mission members) per-sona non grata (“PNG”). If the diplomat fails to leave,he or she will be stripped of diplomatic immunity. Thereceiving state may also request the sending state to pros-ecute the offending diplomat under the sending state’sown laws. While these remedies may prevent or deterfuture abuses by the particular offending diplomat, theydo not address the losses sometimes incurred by the vic-tims of diplomatic crime.

Such victims may be able to receive compensationthrough other means.6 For example, in some instances thesending state may be willing to waive immunity from civiljurisdiction as well as inviolability (to permit execution[of a monetary award]). In other instances, . . . an indi-vidual with criminal immunity may nevertheless be sub-ject to civil jurisdiction (although again a waiver of


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inviolability would be necessary to permit execution). Thiswould be the case, for example, with a member of theadministrative and technical staff of a mission who com-mits a crime outside the course of his official duties. Incertain other cases, the Foreign Sovereign Immunities Actof 1976 might provide the victim with an avenue for relief.[Footnote omitted.] Where an action is not only criminalbut also tortious in nature, recovery might be possiblethrough a suit against the foreign government concerned,if it could be shown that the individual who committedthe offense was acting within the scope of his office oremployment. Finally, where relief is not otherwise obtain-able, the Department may seek an ex gratia payment fromthe foreign government.8

As a general matter, except in instances of vehicularnegligence or cases where the sending government agreesto an ex gratia payment, victims of crimes by diplomatsand their families have received no financial compensa-tion for their losses. This fact has understandably arousedindignation on the part of many Americans. At the sametime, however, the records available to the Department ofState indicate that the number of actual cases involvingalleged criminal offenses in which diplomatic immunitywould likely have precluded recovery of physical andfinancial losses suffered by U.S. citizens or permanent res-idents is relatively small. The Department is aware of onlya few such cases arising in the first six months of 1990,and a handful of such cases arising in 1989. Of these, noneinvolved serious injuries, and in one case compensationwas in fact received. [Footnote omitted.]

6 See Study and Report Governing the Status of Individuals withDiplomatic Immunity in the United States 57–58 (United StatesDepartment of State, March 18, 1988). The report was preparedpursuant to Public Law 100–204, Foreign Relations AuthorizationAct, Fiscal Years 1988 and 1989, section 137.

* * * *8 Ex gratia payments have been received from a number of gov-ernments, including Panama, Swaziland, Mexico and Nigeria. Inmany such cases, the payments were made in connection with auto-mobile accidents. Id., pp. 2–3.


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The report reviewed prior Congressional consideration of com-pensation for crime victims during the passage of the DiplomaticRelations Act of 1978, id. at 5–6, and victim compensation pro-grams in existence in the United States and abroad, id. at 6–8.The report indicated that the Department of State was not awareof any U.S. state or foreign country that had established a fundor program specifically to compensate victims of a crime com-mitted by someone entitled to diplomatic immunity, but notedthat “in principle there does not appear to be any reason whyindividuals in states with compensation programs could notalready recover under those programs for injuries caused by diplo-matic crimes.” Id. at 9.

The report examined two means of creating a compensationprogram specifically including victims of such crime. First, itpointed out that Congress could take steps to ensure that statecompensation programs in the United States include victims ofpersons entitled to diplomatic immunity in their compensationschemes. The Victims of Crime Act of 1984, 42 U.S.C. §§10601–10603, provided for federal grants to state crime victimcompensation programs that meet the act’s eligibility criteria;Congress could amend the Act to require state programs to includecompensation for victims of such crimes. The report addressedthe merits of this method as follows:

This approach avoids much of the expense involved inestablishing a separate fund for diplomatic crime victimsand maintains a uniform approach to compensation forvictims of crime in a locality, regardless of the status ofthe perpetrator. Funding for a state program covering vic-tims of diplomatic and other crimes would continue, asat present, to be provided by the federal and state gov-ernments in partnership. The administration and proce-dure of the program, including standards for compensationand payment of awards and rights of appeal, wouldremain the same as the state currently applies in manag-ing its program.

While the handling of some cases might conceivablypresent issues of sensitivity from a foreign relations per-spective, it is to be noted that decisions in commercial,


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tort and certain other kinds of cases that are broughtdirectly against foreign states under the Foreign SovereignImmunities Act are also made outside the ExecutiveBranch. Further, there might be some instances in whichfull compensation could not be granted because of statu-tory limits on recovery. [Footnote omitted.] However, thiscircumstance would not be unique to victims of diplo-matic crime, since the limits on recovery are also appli-cable to victims of other crimes who seek compensationunder these programs. Moreover, for victims of diplomaticcrime the other possible remedies discussed earlier wouldremain, including waiver and ex gratia payment. The uti-lization of state mechanisms does not represent, at pres-ent, a perfectly complete solution inasmuch as two statesstill do not have any victim compensation programs. Froma practical standpoint, however, this would probably notpresent a serious problem, since those states do not havea large diplomatic population, and of course they couldadopt victim compensation programs should they find itadvantageous to do so.

Id. at 10.The report then addressed compensating victims of crimes com-

mitted by persons with diplomatic immunity through a separatefund administered by the federal government. The report’s discus-sion of the problems with this approach, some of which would beequally applicable to state compensation programs, concluded:

The comparatively small number of diplomatic crimes doesnot appear to justify establishing a separate federal struc-ture. Moreover, a separate federal structure would face anumber of practical problems. Any such program wouldhave to take into account certain evidentiary difficultiesarising from the diplomatic context. Foreign diplomaticofficials could not be compelled to assist a compensationboard in its investigation, and therefore there could becases in which it would be very difficult for the board todetermine whether a victim’s allegations were true, espe-cially where there were no witnesses. This could be a prob-lem since the board’s authority to make payments would


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presumably depend upon a finding not only that the losswas caused by a criminal act but also that the perpetra-tor was a diplomat. Further, establishment of a separatebureaucratic structure for a limited number of cases couldbe inefficient and costly. Centralized consideration of crim-inal acts could also cause victims to incur greater expenseand inconvenience in presenting their cases.

Id. at 11.The report also considered alternatives to compensation pro-

grams. With regard to further restrictions on the scope of immu-nity, the report made the following comments:

In addition to placing U.S. diplomats at risk of specula-tive charges before hostile foreign courts with potentiallyinadequate legal protections, proposals to remove diplo-matic immunity also present other significant problems.A unilateral removal of immunity would place the UnitedStates in violation of its treaty obligations, create tensionsin the international community, and undermine friendlytreaty relations. The risk of exposure to sanctions in a for-eign country might also deter some individuals from join-ing the foreign service, or prompt others to resist servingin countries with underdeveloped or hostile legal systemswhere effective diplomatic relations may be particularlynecessary.

Id. at 4–5. As to requiring diplomatic missions to carry insurance to cover

criminal activity, the report made the following comments:

First, it would likely be difficult to find insurance com-panies willing to furnish this kind of insurance. The com-mercial insurance market does not generally provideinsurance against criminal activity. There are liability plansthat could insure an Embassy for the negligent acts of itsemployees. However, most crimes are intentional, ratherthan negligent, acts. Moreover, the insurance may be lim-ited to official conduct. [Footnote omitted.] Second, evenif insurance companies were willing to offer insurance


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against criminal activity, they might only be willing to doso for countries whose diplomats had a good history ofcomplying with U.S. law. In the case of nations with poordiplomatic crime records, insurance companies might notbe willing to shoulder the additional risk. Finally, if therewere insurance companies willing to provide this form ofinsurance, their rates would undoubtedly be very high andburdensome for the less developed nations which, as aconsequence, might not be able to maintain their missionin the United States or might impose similar requirementson the United States.

Id. at 5.In its conclusion, the report took the following position on

how to compensate for victims of diplomatic crimes:

The utilization of state victim compensation programswould appear to offer the most practical approach to pro-viding compensation for victims of diplomatic crime.While those programs could serve as a model for the estab-lishment of a federally administered program to providesuch compensation, as noted above, the administrativeand financial burdens associated with such a federal pro-gram are uncertain but potentially significant. TheDepartment of State does not believe that the dimensionsof this problem are so substantial as to justify the creationof a separate system at the federal level for adjudicatingclaims arising out of diplomatic crimes.

The need for compensatory adjudications by federalofficials is still less compelling when viewed in light of thefact that these victim compensation programs are in placein almost all states, including those in which diplomaticpersonnel are most heavily concentrated. Legislation toensure coverage in these programs for victims of diplo-matic crime, which would underscore Congress’ concernfor such victims, would appear to be achievable throughrelatively simple means. The Department of State wouldbe prepared to support legislative action to that end.


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Id. at 12–13.For current codification, see 42 U.S.C. §§ 10601–10608.

(3) Waiver of diplomatic immunity in criminal case in the United States

On January 8 and 9, 1989, Corporal Rudy A. Van Den Borre, amember of the administrative and technical staff of the Embassyof Belgium in Washington, D.C., allegedly shot and killed twopersons in Florida. Corporal Van Den Borre voluntarily turnedhimself into the police in Florida on January 12, 1989. As a mem-ber of the administrative and technical staff, Corporal Van DenBorre was entitled to immunity from the criminal jurisdiction ofthe United States pursuant to Articles 31 and 37(2) of the ViennaConvention on Diplomatic Relations.

At the request of the prosecutors in Florida, the Departmentof State asked the Government of Belgium to waive Corporal VanDen Borre’s diplomatic immunity so that he could be prosecutedfor the murders. The Government of Belgium agreed to such awaiver on the condition that the death penalty would not besought or imposed in the case.

On January 27, 1989, the prosecutor filed an affidavit inFlorida state court providing the following assurances:

I hereby proclaim that this State Attorney will not seek orobtain the death penalty against Mr. Van Den Borre for theshooting deaths of Michael J. Egan and Gerald Simons.Attached herewith is a judicial ratification of these assur-ances through the trial Court order, which makes themlegally binding on the State [of Florida] as well as the Court.

These written assurances are conditioned on theGovernment of Belgium waiving the diplomatic immunityafforded to Mr. Van Den Borre in accordance with Article32 of the Vienna Convention on Diplomatic Relations andon assurance that the Government of Belgium will notrevoke or withdraw the waiver.

I certify that I have discussed this matter with the StateAttorney for the 17th Judicial Circuit, in and for BrowardCounty Florida and that the State Attorney concurs in


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offering this assurance in support of obtaining a waiverof diplomatic immunity from the [Belgian] Government.Finally, I certify that I have discussed this matter withauthorized representatives of the arresting agencies as wellas the relatives of Michael J. Egan and that they concurin offering this assurance. Prosecutor’s Affidavit in Aid ofWaiver of Diplomatic Immunity, State of Florida v. VanDen Borre, Case No. 89-1055 CFA, January 27, 1989.

On the same day, the trial court issued an order approving, accept-ing and ratifying the prosecutor’s affidavit. On January 31, 1989,the Government of Belgium waived Corporal Van Den Borre’simmunity from criminal jurisdiction for judicial proceedings aris-ing out of the two murders. Van Den Borre was convicted of thetwo murders by the Circuit Court for Broward County, Florida,Case Nos. 89-2203 and 89–2875, aff’d, Van Den Borre v. State,596 So.2d 687 (Fla. 1992).

2. Consular Privileges and Immunities: Immunity from Criminal Charges

On December 1, 1988, Bahrudin Bijedic, the consul-general ofYugoslavia in Chicago, was arrested on charges of conspiracy tolaunder U.S. currency belonging to Americans through Yugoslavia.Bijedic filed a motion requesting that the court find that he wasentitled to immunity in the case, on three grounds: first, that hewas entitled to immunity on the basis of a most-favored-nation(“MFN”) clause in the U.S.-Serbian Consular Convention; sec-ond, that his actions fell within the scope of consular immunityin the Vienna Convention on Consular Relations (“VCCR”); and,third, that he was immune because he was not charged with agrave crime within the meaning of the VCCR.

On March 21, 1989, the U.S. Government filed its responseopposing Bijedic’s motion. Government’s Memorandum of Lawin Response to Defendant’s Motion to Recognize the Applicabilityof Consular Immunity, United States v. Cole, 717 F. Supp. 309(E.D. Pa. 1989), available at www. state.gov/s/l.

The brief pointed out that the plain language of the U.S.-Serbian Convention (Convention Defining the Rights, Immunities


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and Privileges of Consular Officers, October 14, 1881, UnitedStates-Serbia, 22 Stat. 968, T.S. No. 320) and the consistent prac-tice of the United States provide that MFN clauses only applyreciprocally. The brief explained the overall role of reciprocity inconsular relations and under the VCCR as follows:

Reciprocity is an appropriate and permissible standardunder U.S. and international law for determining the treat-ment to be accorded consular personnel in the UnitedStates. The concept of reciprocity is deeply engrained inthe custom and history of the exchange of diplomatic andconsular representatives, arising out of the concept thatthe best method to assure desirable treatment for one’sown government personnel in a foreign country is to treatthat foreign country’s representatives in this country recip-rocally. . . . One commentator notes that “the real sanc-tion of diplomatic law is reciprocity. Every State is botha sending and receiving State. Its own representativesabroad are hostages and even on minor matters their treat-ment will depend on what the sending State itself accords.”E. Denza, Diplomatic Law 2 (1976).

That countries may choose to grant each other recip-rocal advantages in the area of consular and diplomaticimmunities that are not given to third states, is expresslyaddressed and permitted in the Vienna Conventions onboth Consular and Diplomatic Relations, [citing Article72 of the VCCR and Article 47 of the VCDR]. . . . Thus,the VCCR permits states to extend to each other higherimmunities than those provided for in the VCCR itself,but very clearly envisions that such extensions are to begranted on a reciprocal basis.

Id. at 5–7.The U.S. brief then discussed the consistent policy and prac-

tice of the U.S. Government, which permits the extension of MFNtreatment under consular conventions only after the other statehas provided formal written assurances of reciprocal treatmentto U.S. personnel serving in that state, even where the agreementin question does not include reciprocity in the text. The briefdescribed this U.S. policy and practice as follows:


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In addition to consular treaties, MFN clauses frequentlyappear in commercial treaties, where they provide for suchthings as MFN treatment for import of the goods of oneparty into the territory of the other, or that nationals areentitled to MFN treatment with regard to doing businessin the territory of the other. Until 1923, the general prac-tice of the U.S. Government was to consider all MFNclauses in U.S. international agreements as “conditional,”that is, as requiring reciprocity on the part of the countryclaiming the benefits of a treaty between the United Statesand a third country. See generally, 5 G. Hackworth, Digestof International Law, 271–75 (1943). In 1923, however,the U.S. changed its position and adopted the uncondi-tional most-favored-nation clause in its commercialtreaties. This change was occasioned by the U.S. beliefthat the principle of automatic equality of treatment andone uniform practice for all trading partners was in itscommercial interest. Id. at 271–72.

The U.S. Government, however, did not change itsview that MFN clauses in consular conventions were con-ditioned on the basis of reciprocity. Thus, in 1931, theDepartment of State stated: “The recent change in ourtreaty-making policy as regards matters of commerce doesnot affect earlier treaties which do not contain theseunconditional most-favored-nation clauses. . . . At no timehave the favored national provisions in our ConsularConventions been construed by the Department as otherthan conditional provisions.” Id. at 274. In response to a1931 inquiry from Switzerland about the application ofan MFN clause in an 1850 treaty with that country, theDepartment wrote:

This Department has consistently held that the most-favored-nation clause with respect to rights andprivileges of consular officers does not embrace uncon-ditionally specific rights and privileges which aregranted on the basis of reciprocity to consular officersof third countries, but that the right to enjoy such spe-cific rights and privileges is embraced in the most-favored-nation clause in the event that the country


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whose consular officers assert such rights of privilegesthereunder accords in fact the same rights and privi-leges to American consular officers in their territories.Id. at 275. [Footnote omitted.]

In addition to the Swiss inquiry, there are numerousinstances of U.S. refusals to extend automatically MFNtreatment to consular officers on the basis of MFN clausesin consular conventions, despite the change in practiceafter 1923 with regard to commercial MFN clauses. TheDigest of International Law lists examples form Italy(1925), Denmark (1926), Spain (1927), Latvia (1928),Italy (1930), and Japan (1939). See, 4 G. Hackworth,Digest of International Law, 701–05, 784–85 (1942).

Of particular importance is an instance in 1930 involv-ing interpretation of the MFN clause of the U.S.—SerbiaConsular Convention, the clause at issue in this case. Ina diplomatic note to the Department of the YugoslavLegation regarding the privilege of duty free importationof articles for personal use, the Department cited ArticleII of the 1881 Convention, and stated:

The Department of State does not however, considerthat Yugoslav consular officers assigned to the UnitedStates are entitled under the most-favored-nation clauseof the Convention to exemption from duty on articlesimported for their personal or family use unless it beshown that a like privilege is extended to Americanconsular officers in Yugoslavia. Upon receipt of infor-mation from the Yugoslav Legation that American con-sular officers assigned to Yugoslavia are accorded thisprivilege, the Department of State will take steps witha view to having such benefit extended to Yugoslavconsular officers assigned to the United States, underthe most-favored-nation clause of Article II of theConsular Convention concluded between the UnitedStates and Serbia in 1881.

Id. at 704 (emphasis added).


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The majority of consular conventions in force containingMFN clauses were undertaken by the U.S. in the latterpart of the 19th century and the early part of the 20thcentury. It is important to understand that during thisperiod essentially the same level of limited immunitieswere afforded all foreign consular representatives serv-ing at consulates in the United States. [Footnote omitted.]

The incentive to invoke MFN clauses increased greatlyin the 1960s. At that time the U.S. ratified several bilat-eral consular conventions which dramatically increasedprivileges and immunities for consular personnel of cer-tain states, such as the U.S.S.R. and Poland, where it wasclearly in the national interest of the U.S. to assure a higherlevel of privileges and immunities for U.S. consular offi-cers assigned to these states. See, L. Lee, Vienna Con-vention on Consular Relations, 133–34 (1966). [Footnoteomitted.] As the grant of privileges and immunities of anytype in the United States creates an extraordinary situa-tion where the recipient is raised above the law applica-ble to ordinary residents of the U.S., particularly so wherethe recipient receives complete immunity, the U.S. is care-ful to extend such privileges and immunities only wherethere is a clear basis under treaty or express grant of leg-islation in the absence of a treaty. Thus, the requirementthat reciprocity be guaranteed as a condition to extendmost-favored- nation treatment in the area of consularprivileges and immunities continued in U.S. practice andpolicy as a means of ensuring the clear legal authority todo so.

The Executive and Congress were well aware that thesenew bilateral agreements might increase the interest ofother governments in invoking the MFN clauses to attainhigher privileges and immunities. The U.S. Governmentmade clear to Congress that it would continue to accordMFN treatment only where conditions of actual reciprocitywere met. See Consular Convention with the Soviet Union:Hearings Before the Senate Comm, on Foreign Relations,89th Cong., lst Sess. 23–24 (1965); Consular Conventionwith the Soviet Union: Hearings Before the Senate Comm,


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on Foreign Relations, 90th Cong., 1st Sess. 3–4, 12, 18,143, 159, 299 (1967).

Other contemporaneous U.S. statements and practicemake clear that the U.S. Government continued to requirethe guarantee of reciprocal treatment before accordinganother government’s consular personnel most-favored-nation treatment. For example, during Senate considera-tion of the Vienna Convention on Consular Relations in1969, the Department of State was asked about the effectof MFN clauses on provisions in that treaty. In respondingthat bilateral MFN clauses would not affect the VCCR, theDepartment specifically stated “that many United Statesbilateral consular treaties having the most-favored-nationclause specifically require reciprocity before such clausetakes effect. Other earlier United States treaties do not havesuch a condition of reciprocity. The Department of Statehas, however, for many years made reciprocity a prerequi-site for according such most-favored-nation treatment withregard to those earlier treaties.” S.Exec. Rep. No. 91-9, 91stCong., lst Sess. 19 (1969). [Footnote omitted.]

Recent examples of inquiries from foreign governmentsregarding MFN clauses and the treatment accorded there-under, and the Department of State responses to thoseinquiries, are further evidence that formal assurances ofreciprocity are required before the U.S. will extend MFNtreatment.

The U.S. Government accorded MFN treatment in twocases in which the foreign government expressly guaran-teed that the U.S. would receive the same treatment in itscountry. An Exchange of Notes contains the request of theGovernment of the Philippines to invoke an MFN clausefor heightened immunity for its consular officers in theUnited States, and confirmed that “consular officers ofthe United States enjoy reciprocally in the Philippinesrights, privileges, exemptions and immunities no less favor-able in any respect than those that are enjoyed by Polishconsular officers in the United States.” The U.S. responseprovides that the request “is granted on the basis of therepresentations and guarantee of reciprocity set forth in


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the Embassy’s note.” See also, M. Nash, 1978 Digest ofUnited States Practice in International Law, 605–06(1980) (MFN treatment for property tax exemptiongranted to Chile, on assurances of reciprocal treatment;U.S. stated in its note of response that “continued exemp-tion . . . will be based upon the strictest reciprocity.”)These examples illustrate, again, the long held principlethat foreign governments must formally request theextension of MFN treatment and provide guarantees ofreciprocal treatment in order to receive MFN treatmentfor consular officers. [Footnote omitted.]

The U.S. has declined to extend MFN treatment inother cases. In 1975, the Austrian Government sent adiplomatic note to the Department seeking heightenedimmunity for its consular officers in the United States onthe basis of an MFN clause. The U.S. responded that itwould be prepared to grant such immunity “on the con-dition that United States consular personnel serving inAustria will receive the same immunities requested forAustrian consular officers in the United States.” E.McDowell, 1975 Digest of International Law 257–58(1976). As described in Cocron v. Cocron, 84 Misc.2d335, 338, 375 N.Y.S.2d 797, 803–04 (1975), the AustrianGovernment’s response did not acknowledge reciprocaltreatment for U.S. consular personnel in Austria, but objectedto the Department’s requirement of reciprocity. The courtnoted that: “it is clear that, based upon the above notes, theState Department has not extended immunity to the defen-dant in this case.” However, because the State Departmentdid not take a formal position in the case denying immu-nity under the MFN clause to the defendant, the courtundertook its own examination of the question, finding:

First, the most-favored-nation clause does not embrace,unconditionally, the specific rights and privileges whichare granted on the basis of reciprocity to the consularofficers of third countries; the country whose consularofficers assert such rights and privileges must, in fact,accord the same rights and privileges to American con-sular officers in their territories. The United States


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Department of State has interpreted the most-favored-nation clause of consular treaties as containing sucha qualification of reciprocity even though not expresslyincluded in the treaty (47 Iowa L. Rev. 672). This inter-pretation is in accord with the State Department’s posi-tion in this case as regards the most-favored-nationclause of the United States—Austria Treaty. Thus, untilthe Austrian Government acknowledges reciprocity,this most-favored-nation clause is not to be given effecthere so as to confer the immunity requested by thedefendant.

Id., 84 Misc. 2d at 339–40; 375 N.YS. 2d at 805 (emphasis added).

Other recent examples of U.S. Government practiceinclude correspondence with Thailand in 1981 . . . inwhich the U.S. responded to a request from Thailand toextend MFN treatment for sales tax exemption by requir-ing an assurance of reciprocity, and correspondence withSweden in 1988, in which the U.S. responded to a requestfor heightened immunity by pointing out the requirementfor reciprocity.

In addition, the Fourth Circuit recognized U.S. prac-tice with regard to the condition of reciprocity in refus-ing to extend heightened privileges and immunities to aconsular officer from Thailand convicted on drug charges.U.S. v. Chindawongse, 771 F.2d 840, 848 n.10 (4th Cir.1985), cert. denied, 474 U.S. 1085 (1986).

As set forth in the Declaration of [Deputy Legal Adviser]Mary V. Mochary . . . the Government of Yugoslavia hasnever invoked the most-favored-nation clause of the UnitedStates—Serbia Convention. Nor has the Government ofYugoslavia ever provided the necessary formal assurancesguaranteeing that United States personnel serving at U.S.consulates in Yugoslavia are entitled to reciprocal treat-ment. Under these circumstances, consular officers ofYugoslavia in the United States such as defendant Bijedicare entitled only to the privileges and immunities accordedto consular officers by the Vienna Convention on ConsularRelations.


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Id. at 8–19.The brief also pointed out that an MFN clause in a consular

convention cannot be invoked by an individual:

In general, a treaty creates obligations only as betweenthe states that are parties and not between one party andthe nationals of the other party, or between the nationalsof the two parties. Thus, absent an express provision in atreaty, an individual cannot, on his/her own, seek to acti-vate a portion of the treaty. Absent a provision to the con-trary, international treaties, even though directly benefitingprivate persons, do not create private rights or provide fora private cause of action in domestic courts. A. McNair,Law of Treaties 323 (1961); 14 M. Whiteman, Digest ofInternational Law 293–94 (1970); Restatement (Third)of the Foreign Relations Law of the United States, section907 comment a and reporter’s note 1 (1986). As stated inUnited States ex. rel. Lujan v. Gengler, 510 F.2d 62, 67(2d Cir.), cert. denied, 421 U.S. 1001 (1975): “[E]venwhere a treaty provides certain benefits for nationals of aparticular state—such as fishing rights—it is traditionallyheld that ‘any rights arising from such provisions are,under international law, those of states and . . . individ-ual rights are only derivative through the states,’” quot-ing Restatement (Second) of the Law of Foreign Relations,section 115, comment e (1965). Thus, treaties do not gen-erally confer privately enforceable rights in the absence oftreaty language clearly manifesting such intent. See gen-erally, Head Money Cases, 112 U.S. 580, 598–99 (1884);Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C.Cir. 1984) (Bork, J. concurring), cert. denied 470 U.S.1003 (1985); Dreyfus v. Von Finck, 534 F.2d 24–29 (2dCir. 1976); L. Henkin, Foreign Affairs and the Constitution224 (1972).

The U.S.–Serbia Consular Convention does not pro-vide the individual consular officer with the right to invokeany of its provisions. Although consular officers wouldderive benefits from invocation of the MFN clause of the


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convention, it is clear that such benefits are not grantedfor the personal benefit of the officer, but to ensure thateach state is able to perform efficiently the functions ofthe consular mission in the other state. Accordingly, thedefendant is not the proper entity to invoke the MFNclause of this convention.

Id. at 19–20Consul-General Bijedic also argued that the actions alleged in

the indictment fell within the scope of consular immunity for “actsperformed in the exercise of consular functions” set out in Article43 of the VCCR. Consular functions are defined in Article 5 of theVCCR. The U.S. Government’s brief addressed the procedure andlegal standards for determining consular immunity, as follows:

Whether a particular action or activity would be consid-ered an exercise of a person’s consular functions is a mat-ter for judicial determination. See United States v.Chindawongse, 771 F.2d 840, 848 (4th Cir. 1985), cert.denied, 474 U.S. 1085 (1986); Milhaupt, The Scope ofConsular Immunity under the Vienna Convention onConsular Relations: Towards a Principled Interpretation,88 Colum. L. Rev. 841 (1988). The State Department hasalso opined that it is for the courts to determine the ques-tion of whether a particular act by a consular officer waswithin his “official function.” In October of 1979, theEmbassy of the Socialist Federal Republic of Yugoslaviaasked the Department of State for information relating tothe scope of consular immunity for official activities,referred to in Article 43 of the VCCR. In essence,Yugoslavia inquired how the applicability of Article 43 ofthe VCCR to a particular case might be determined, con-strued, or interpreted. The Department of State replied inan aide memoire dated October 28, 1978, which also dis-cussed the threshold question of recognized or acceptedconsular functions under international law. Its substan-tive paragraphs read:

The Department of State reads this provision as requir-ing judicial and administrative authorities in the receiving


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state to refrain from exercising jurisdiction over consularofficers and consular employees once it is established thatthe activity giving rise to the judicial or administrativeproceeding was performed in an official capacity and inpursuit of the exercise of accepted consular functions.

Regarding the scope of the immunity provided, theDepartment regards itself as being in a position to giveadvice to sending states concerning whether a particularactivity qualifies as a recognized consular function.Reference is made for this purpose to applicable interna-tional agreements, whether of a bilateral or multilateralnature. A listing of consular functions is, for example, con-tained in article 5 of the Vienna Convention. Such a listwould be supplemented by any consular functions recognizedas acceptable through mutual agreement between two statesor through mutually recognized state practice.

Nevertheless, it is the Department’s view that, in thevast majority of cases, it is only the trier of facts which isin a position to make the determination as to the “official”nature of the activity. To this end, the State Departmentdoes not normally make a certification or other finding,intended to be binding on the affected receiving state author-ity, that any particular activity by a consular official doesor does not constitute an “official act.”

M. Nash, 1978 Digest of United States Practice inInternational Law, 629–30 (1980) (emphasis added).[Footnote omitted.]

* * * *

There is little case law that serves as a guide in devel-oping useful criteria for determining whether particularcriminal conduct is within the scope of a consular func-tion. In the context of a civil case, the Department of Statehas advised a court that an act is performed in the exer-cise of a consular function, first, if there is a logical nexusbetween the act and the function, and second, if the actcan reasonably be considered part of a course of actionappropriate to the performance of the function. See Briefof the United States as amicus curiae in Gerritsen v.


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Escobar y Cordova, No. CV 85-5020, pages 12–13 (C.D.Cal., filed August 27, 1988).11 Therefore, while an actamounting to a serious crime would not be, per se, out-side the scope of a consular function, the seriousness ofthe crime would be a fact the court could weigh in deter-mining whether the act was within the scope of the con-sular function. Cf. L. v. The Crown, 68 I.L.R. 175 (NewZealand Supreme Court 1977) (consular officer’s sexualassault against passport applicant found to be “as uncon-nected with the duty to be performed by the consular offi-cer as an act of murder.”) In determining the applicabilityof “official acts” immunity, the court should consider allof the facts and circumstances as a whole; the absence orpresence of any one fact should not be determinative.Therefore, considering all the facts of a particular case,an act that substantially deviates from a course of actionappropriate to the performance of the function would notbe an act performed in the exercise of that function.

* * * *

Consular immunity under the VCCR is not intendedto benefit the individual. The VCCR states in its Preamblethat “the purpose of such privileges and immunities is notto benefit individuals but to ensure the efficient perform-ance of functions by consular posts on behalf of theirrespective States.” [Footnote omitted.] Thus, one com-mentator has suggested that the determinative questionunder the VCCR “is not whether the defendant consularofficer deserves immunity solely because he would havebeen unable, without the act, to perform the function, butwhether the consular process would be impeded if con-sular officers were amenable to the jurisdiction of thereceiving state for such acts.” See Milhaupt, supra, 88Colum. L. Rev. at 857–88 (emphasis in original). Applica-tion of this principle leads one to the inescapable conclu-sion that protection of the consular process does notrequire granting immunity to a consular officer who know-ingly conspires to assist Americans to launder United Statescurrency to avoid the payment of taxes owed to the receiv-ing state. Cf. United States v. Chindawongse, 771 F.2d


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840, 848 n.10 (4th Cir. 1985), cert. denied, 474 U.S. 1085(1986) (no immunity under VCCR for conspiracy to dis-tribute heroin); United States v. Coplon, 84 F.Supp. 472,474 (S.D.N.Y. 1949) (no immunity, pursuant to 22 U.S.C.section 288d, for United Nations employee for conspir-acy to commit espionage, since acts did not fall withindefendant’s function as employee of the U.N.).

11 In a Statement of Interest of the United States filed in the case ofIndiana v. Strom, No. 45 603-8801-CF-00010 (Super. Ct., Ind.), thegovernment similarly advised the court that in deciding a claim ofimmunity under the VCCR, the court should determine “(1) whetherthe alleged conduct falls within the outer perimeter of a recognizedconsular function; and (2) whether there is a clear logical nexusbetween the alleged conduct and a recognized consular function.”

Id. at 26–27, 29–30, 32–33.The defendant also argued that the crime he allegedly com-

mitted was not a grave crime within Article 41 of the VCCR,and that he therefore could not be arrested or tried. The UnitedStates opposed this argument in its brief as follows:

By making this assertion, the defendant has confused thedistinct concepts of “inviolability” and “immunity.” . . .[T]he text of the treaty, both in its plain language and writ-ten context, as well as the treaty’s negotiating history, showthat whether the crime charged here is grave is not rele-vant to the issue of the defendant’s immunity. . . . [A] con-sular officer’s immunity from criminal jurisdiction islimited to “acts performed in the exercise of consular func-tions.” Article 41 provides a separate protection to con-sular officers—it extends to them “personal inviolability”[except in the case of a grave crime] which it defines as“freedom from arrest or detention.”

Id. at 36–37. Furthermore, the U.S. argued that the defendant was charged

in this case with a felony, which the United States defines as agrave crime. Accordingly, his arrest pursuant to a warrant did notviolate the VCCR. The brief provided the following informationon the definition of “grave crime” in the VCCR:


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The Vienna Consular Convention does not define themeaning of the term “grave crime.” Nonetheless, the U.S.has consistently and publicly interpreted the term “gravecrime” to apply to any felony; this interpretation is appro-priate under the VCCR, and is supported by the Treaty’snegotiating history. . . . The extensive negotiating historyof this provision makes clear that the negotiators rejectedany definition requiring a certain number of years ofimprisonment. Moreover, there was no discussion con-cerning whether the term should be limited to crimes thatare dangerous or threaten harm, contrary to the defen-dant’s assertion. See Official Records of the United NationsConference on Consular Relations, U.N. Doc. A/CONF.25/16. Several states also noted at the Vienna Conferencethat it is up to the receiving State to determine what wouldconstitute a grave crime. See id. (Pakistan at p. 365;Byelorussia p. 52; India p. 53.) The United StatesGovernment, through the Department of State, as theagency responsible for implementing the Vienna ConsularConvention, has consistently applied the term grave crimein the United States as including all felonies. See S. Exec.Rep. 91-9, 91st Cong., lst Sess. 14, 8. Guidance for LawEnforcement Officers: Personal Rights and Immunities ofForeign Diplomatic and Consular Personnel, Departmentof State Publication 9533, at 7 (March 1987) (“Consularofficers may be arrested pending trial provided that theunderlying offense is a felony and that the arrest is madepursuant to a decision by a competent judicial authority(e.g., a warrant issued by an appropriate court)”).

Id. at 41 n. 14.On June 7, 1989, the district court denied the defendant’s

motion in full, after considering each of the grounds raised by thedefendant, and found that he was not entitled to consular immu-nity for the acts charged in the indictment, based on the factsalleged therein. United States v. Cole, 717 F. Supp. 309 (E.D. Pa.1989), aff’d without opinion, U.S. v. Spanjol, 958 F. 2d 365 (3dCir. 1992).


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D. INTERNATIONAL ORGANIZATIONS

United Nations Special Rapporteur

On May 24, 1989, the United Nations Economic and Social Council(“ECOSOC”) adopted a resolution concluding that “a differencehas arisen between the United Nations and the Government ofRomania” and requesting an advisory opinion from theInternational Court of Justice “on the legal question of the appli-cability of article VI, section 22, of the Convention on Privilegesand Immunities of the United Nations (‘General Convention’) inthe case of Mr. Dumitru Mazilu as Special Rapporteur of the Sub-Commission.” Resolution 1989/75. The referenced sub-commis-sion was the Sub-Commission on the Prevention of Discriminationand Protection of Minorities, a subordinate entity of theCommission on Human Rights, created by the Economic and SocialCouncil in 1946.

The question arose in the context of the inability of Mr. Mazilu,a Romanian national resident in Romania, to fulfill his functionsas Rapporteur due to the actions of the Government of Romania,a state party to the General Convention. Mr. Mazilu was elected amember of the Sub-Commission in 1984. In 1985 the Sub-Commission requested Mr. Mazilu to prepare a report on humanrights and youth. Mr. Mazilu did not come to the 1987 session ofthe Sub-Committee at which he was scheduled to give his report,apparently due to ill health. The Sub-Commission deferred con-sideration of the report until its next session in 1988, notwith-standing the scheduled expiration of Mr. Mazilu’s term as a memberof the Sub-Commission in 1987. In the meantime, the U.N. madeattempts to contact Mr. Mazilu in Romania. The Romanian gov-ernment stated that he had been retired for health reasons.

In a series of letters, Mr. Mazilu stated that he had been forcedto retire, and was refused a travel permit, despite his willingnessto come to Geneva for consultations with U.N. authorities.Accordingly, U.N. authorities contacted the Romanian govern-ment seeking assistance in locating Mr. Mazilu so that a memberof the Sub-Commission could visit and help him complete hisreport. The Romanian Government rejected the U.N. effort as inter-ference in Romania’s internal affairs.


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Following more fruitless efforts to contact Mr. Mazilu, theEconomic and Social Council passed its resolution seeking theadvisory opinion from the International Court of Justice. TheUnited States filed a written statement in the case with the Courton July 27, 1989, and additional comments on August 31, 1989,both available at www.state.gov.

a. Jurisdiction of the Court

In addressing the jurisdiction of the Court to render an advisoryopinion in the matter, the United States referred to the Court’sauthority to render advisory opinions, set forth in Article 65,paragraph 1, of its Statute, and ECOSOC’s authority to requestadvisory opinions on legal questions arising within its scope ofactivities, pursuant to Article 96, paragraph 2 of the U.N. Charterand General Assembly Resolution 89(1)(1946). The United Statesthen concluded that the Court had jurisdiction in the instant case:

In fulfilling its task to undertake studies on specific sub-jects, the Sub-Commission regularly appoints “special rap-porteurs” to carry out the necessary research and to reporthis or her findings to the Sub-Commission. Legal ques-tions relating to the privileges and immunities to whichsuch a special rapporteur is entitled while engaged in theseactivities are accordingly legal questions arising within thescope of the activities of the Sub-Commission and its par-ent body, ECOSOC. The Court therefore has jurisdictionunder Article 65, paragraph 1 of its Statute to render anadvisory opinion on the question presented to it byECOSOC.

Written Statement of the Government of the United States ofAmerica, I.C.J. Pleadings, Applicability of Article VI, Section 22,of the Convention on the Privileges and Immunities of the UnitedNations (1989), p. 5.

The United States also addressed the Court’s discretion notto provide an advisory opinion, consistent with the Court’srepeated statements that it should only refuse to do so where com-pelling reasons would justify the refusal:


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This request for an advisory opinion, the first ever byECOSOC, presents the Court with no compelling reasonto refuse the request. Indeed, the humanitarian concernsunderlying the request, as well as the necessity for theUnited Nations to ensure that its experts receive the priv-ileges and immunities to which they are entitled, providethe Court with strong grounds to render the requestedadvisory opinion, and to render it on a priority basis inaccordance with ECOSOC Resolution 1989/75.

Id. at 6. The United States filed additional comments on August 31,

1989, to respond to the Government of Romania’s WrittenStatement asserting that the Court was without jurisdiction torender the advisory opinion because of Romania’s reservationwith respect to Article 30 of the Convention on the Privileges andImmunities of the United Nations. Article 30 provides that if thereis a difference between the United Nations and a Member aris-ing out of the interpretation or application of the Convention, anadvisory opinion shall be requested on any legal question involved.

The United States first argued that section 30 of theConvention was not relevant to this request for an advisory opin-ion, which was brought on the independent authority of article96, paragraph 2 of the Charter and the General Assembly reso-lution authorizing ECOSOC to request advisory opinions of theCourt on legal questions arising within the scope of its activities.In particular, the U.S. noted:

The advisory opinion issued by the Court with respect toReservations to the Genocide Convention fully supportsthis conclusion. In that case, the General Assembly of theUnited Nations requested the Court to respond to severalquestions concerning the effect of reservations to thatConvention and of objections to those reservations. As apreliminary matter, the Court first considered whetherArticle IX of that Convention—which also calls for sub-mission of disputes to the Court—prevented the Courtfrom rendering the advisory opinion sought by the GeneralAssembly:


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The existence of a procedure for the settlement of dis-putes, such as that provided by Article IX, does not initself exclude the Court’s advisory jurisdiction, forArticle 96 of the Charter confers upon the GeneralAssembly and the Security Council in general termsthe right to request this Court to give an Advisoryopinion “on any legal question.”5

ECOSOC therefore has the authority to request anadvisory opinion under both the General Convention andunder the Charter, although only under the Conventioncould the resulting opinion be “decisive.” Accordingly, themere existence of section 30 does not deprive the Courtof jurisdiction to render this advisory opinion pursuantto Article 96 of the Charter and General Assembly reso-lution 89(1). It necessarily follows that Romania by itsunilateral action in connection with the Convention couldnot prevent ECOSOC from requesting an advisory opin-ion in the exercise of its independent authority to makesuch a request pursuant to Article 96 of the Charter.

5 Reservations to the Convention on the Prevention and Puni-shment of the Crime of Genocide, Advisory Opinion, I.C.J. Report1951, at p. 20.

Additional comments of the Government of the United States ofAmerica, I.C.J. Pleadings, Applicability of Article VI, Section 22,of the Convention on the Privileges and Immunities of the UnitedNations (1989) at 5–7.

The United States also argued that Romania’s reservation tosection 30 of the Convention on Privileges and Immunities didnot address requests for an advisory opinion, but only the effectto be given any such opinion:

The first sentence of Romania’s reservation specificallyaddresses only “the terms of section 30 which provide forthe compulsory jurisdiction of the International Court ofJustice in differences arising out of the interpretation orapplication of the Convention.” (emphasis added.)[Footnote omitted.] It is in regard to the exercise of such


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compulsory jurisdiction that the first sentence goes on toassert the requirement for “the consent of all parties tothe dispute.” This is clear not only from the context inwhich this reservation is asserted, i.e., with reference torequirements of the first sentence of section 30, but fromthe references in the reservation to “parties to the dis-pute.” A request for an advisory opinion technically doesnot involve such “parties to the dispute.”

The second sentence of the reservation addresses onlythe legal effect to be given to an advisory opinion renderedby the Court pursuant to that section, specifically address-ing the provisions contained in section 30 which stip-ulate that “the advisory opinion . . . is to be acceptedas decisive.” Indeed, this aspect of the reservation, con-trary to Romania’s construction, clearly contemplatesrequests for advisory opinions under section 30 and sim-ply seeks to prevent the resulting opinions from being“accepted as decisive.” While this part of Romania’s reser-vation prevents advisory opinions issued under section 30from being “decisive” on the legal questions addressed inthe opinions, it does not prevent the Court from render-ing such advisory opinions in the first instance.7

7 See Memorandum from The Legal Counsel, United Nations, citedin Statement of the United States, p. 5., fn. 3. Moreover, were theRomanian reservation incorrectly construed to apply to a requestfor advisory opinions under Article 96 of the Charter, a possibleconflict would arise between the General Convention and theCharter, in which case Article 103 of the Charter would becomerelevant. Article 103 provides that, “In the event of a conflictbetween the obligations of the Members of the United Nationsunder the present Charter and their obligations under any otherinternational agreement, their obligations under the present Chartershall prevail.” See Memorandum from the Legal Counsel, id. at 22.

Id. at 7–9.Finally, the U.S. comments addressed Romania’s argument that

there was no difference between the U.N. and Romania regardingthe interpretation of the Convention, thereby depriving the Courtof jurisdiction over a request for an advisory opinion:


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Neither the Charter nor the General Convention, however,establishes the existence of a dispute as a prerequisite toa request for an advisory opinion. Article 96, paragraph2 of the Charter simply authorizes requests to the Courtfor advisory opinions on legal questions; Article 65, para-graph 1 of the Statute of the Court gives the Court juris-diction to render such opinions. As a result, the Court hasjurisdiction to render the opinion requested by ECOSOCpursuant to Article 96 of the Charter whether or not adispute exists.

Section 30 of the General Convention does not referto “disputes” either, but instead provides that, if a “dif-ference” arises between the United Nations and one of itsMembers, a request shall be made to the Court for an advi-sory opinion. In this regard, while Romania and the UnitedNations may share the same general view that the privi-leges and immunities provided experts under Article VI,section 22 are functional in character, they manifestly dis-agree over the application of Article VI in the specific caseof Mr. Mazilu as a special rapporteur. Romania appearsto claim that this is merely “a difference of opinion” withrespect to the “factual elements” of Mr. Mazilu’s situation.However, the question of whether Mr. Mazilu is entitledto the privileges and immunities set forth in Article VI, sec-tion 22 is a legal one which turns on an application of thatprovision to the facts of this case. In any event, becauseECOSOC has not requested this advisory opinion undersection 30, the question of whether a “dispute” exists doesnot arise even under Romania’s construction of its reser-vation to that provision of the General Convention.

Id. at 10–11.Abraham D. Sofaer, Legal Adviser of the Department of State,

presented the oral argument of the United States before the Court,available at www.state.gov/s/l. As to the jurisdictional issues, theLegal Adviser noted:

The jurisprudence of this Court establishes that a reser-vation to a dispute settlement provision in a multilateral


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convention, however clearly expressed, cannot deprive theUnited Nations or any authorized United Nations bodyof its independent authority to seek, and this Court of itsdiscretion to provide, an advisory opinion concerningappropriate legal questions.

[T]he Court reaffirmed this principle in Judgments ofthe Administrative Tribunal of the ILO upon ComplaintsMade against Unesco. While the Court in that case upheldthe authority of Unesco to request an advisory opinionunder Article XII of the Statute of the AdministrativeTribunal, which permits an international organization tochallenge a decision of the Tribunal on jurisdictional andprocedural grounds, it expressly confirmed that Unescoalso had the general power to request advisory opinions onlegal questions arising within the scope of its activities underArticle 96 of the agreement between Unesco and the UnitedNations—though it had chosen not to predicate its requeston that general power.

As the Court’s decisions in these cases suggest, disputesettlement provisions in multilateral conventions are notto be construed as displacing, but rather as supplement-ing the general authority of United Nations bodies to seeklegal advice from this Court. Hence, no reservation to suchprovisions can be effective to deprive those general author-ities of their intended force. Any other rule would enablea State to reduce the intended scope of the Court’s advi-sory jurisdiction under Article 96 by refusing to agree toa dispute settlement provision under particular multilat-eral conventions.

I.C.J. Pleadings, Applicability of Article VI, Section 22 of theConvention on the Privileges and Immunities of the UnitedNations (1989), p. 34.

With regard to Romania’s argument that there was no disputebetween the United Nations and Romania over the applicabilityof the Convention, the Legal Adviser asserted:

Romania’s description of the Convention’s application toMr. Mazilu is at odds with that of the United Nations and withthe high value that must be placed on the independence of


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rapporteurs and other experts. The limitations proposedby Romania cannot be applied consistently with the preser-vation of this value because: the privileges and immuni-ties accorded to Mr. Mazilu, though limited to the needsof his function, cannot arbitrarily be denied within theterritory of any State, even that of his own nationality;because Romania cannot be recognized to possessabsolute, unverifiable discretion in determining his capac-ity to perform, particularly in light of substantial and cred-ible evidence to the contrary; and because the UnitedNations body that appointed Mr. Mazilu, not Romania,must decide when his job expires.

The United States recognizes, of course, that this Courthas the discretion to refuse to issue an advisory opinionif the circumstances warranted such restraint. Nothing inthe present case supports such abstention, however. Thequestion posed is not hypothetical, but concerns a realand ongoing controversy between the United Nations andRomania, over a matter of fundamental importance to theUnited Nations and Romania, and involving a humandimension that the Secretary-General was specificallyrequested by the Sub-Commission “to follow closely. . . .”

Id. at 35–36.On December 15, 1989, the Court issued an advisory opinion,

finding as a preliminary matter that it had jurisdiction. First, theCourt determined that ECOSOC’s request for an advisory opin-ion fulfilled the conditions of Article 96, paragraph 2 of the U.N.Charter because the issue was a legal question arising within thescope of the activities of ECOSOC. Next, the Court dismissedRomania’s argument that its reservation to section 30 of theConvention precluded the Court from exercising jurisdiction:

The jurisdiction of the Court under Article 96 of theCharter and Article 65 of the Statute, to give advisoryopinions on legal questions, enables United Nations enti-ties to seek guidance from the Court in order to conducttheir activities in accordance with law. These opinions areadvisory, not binding. As the opinions are intended for


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the guidance of the United Nations, the consent of Statesis not a condition precedent to the competence of theCourt to give them.

[I]n the present case, the resolution requesting the advi-sory opinion made no reference to Section 30, and it isevident from the dossier that, in view of the existence ofthe Romanian reservation, it was not the intention of theCouncil to invoke Section 30. The request is not madeunder that Section, and the Court does not therefore needto determine the effect of the Romanian reservation tothat provision.

Applicability of Article VI, Section 22, of the Convention on thePrivileges and Immunities of the United Nations (AdvisoryOpinion, Dec. 13, 1989), 1989 I.C.J. 177 at 188.

Finally, the Court addressed the propriety of the Court giv-ing an advisory opinion. Citing the “compelling reason” doctrine,and its obligation to consider whether “to give a reply would havethe effect of circumventing the principle that a State is not obligedto allow its disputes to be submitted to judicial settlement with-out its consent,” the Court determined that it found no compellingreason to refuse an advisory opinion. 1989 I.C.J. 177 at 190–92.

b. Merits

As explained in the written statement of the United States,

The General Convention accords various privileges andimmunities to the United Nations as an organization, torepresentatives of Members of the United Nations, toUnited Nations officials and to experts on missions forthe United Nations. Article VI, section 22 of the GeneralConvention specifically requires States Parties to accordto “experts (other than officials coming with the scope ofarticle V) performing missions for the United Nations”such privileges and immunities as are necessary for theindependent exercise of their functions, and sets out whatthose privileges and immunities are “in particular.”


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Written Statement of the Government of the United States ofAmerica, I.C.J. Pleadings, Applicability of Article VI, Section 22,of the Convention on the Privileges and Immunities of the UnitedNations, July 27, 1989, at 2.

As to whether Mr. Mazilu was an expert on a mission for theUnited Nations within the meaning of article VI of the Conventionon Privileges and Immunities of the United Nations, the U.S.Statement pointed out that the Sub-Commission, as a body estab-lished by virtue of powers conferred by the U.N. Charter, clearlyfalls within the Convention. The United States then addressed theapplicability of article VI to special rapporteurs of the Sub-Commission:

Article VI . . . may be read to apply to individuals whohave been appointed or elected under the auspices of theUnited Nations or one of its organs to perform a specificmission, but who serve in their personal capacity and donot officially represent a Member State of the UnitedNations.

Special rapporteurs appointed by the Sub-Commissionare similarly experts on missions for the United Nations.The Sub-Commission appoints individuals to be specialrapporteurs to monitor worldwide compliance with humanrights standards in that area or to collect data and pro-duce reports on specialized topics within that area. whileserving as Sub-Commission special rapporteurs, these indi-viduals must act in their personal capacity, not as repre-sentatives of governments.

As a member of the Sub-Commission, Mr. Mazilu wasan “expert on a mission for the United Nations” withinthe meaning of Article VI of the General Convention byvirtue of holding that office. The provisions of Article VIalso applied to Mr. Mazilu from the time the Sub-Commission appointed him as a special rapporteur on thetopic of human rights and youth in 1985. Although theterm of Mr. Mazilu as Member of the Sub-Commissionexpired on December 31, 1987, his appointment as SpecialRapporteur continued after that date. The decision of theSub-Commission in September 1987 extending considera-tion of Mr. Mazilu’s report until the Sub-Commission’s 1988


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session, with full knowledge that his term would expirebefore that time, effectively continued Mr. Mazilu’sappointment as Special Rapporteur, and therefore as anexpert on a mission for the United Nations, beyond the expi-ration of his term as a Member of the Sub-Commission.

While some types of missions by their very nature arecomplete when a term of appointment expires, this is notthe case in connection with missions involving the com-pletion and submission of reports. In such cases, the expertinvolved may need additional time to complete the assign-ment, and the agency involved may—as in this instance—require the expert’s participation in the consideration ofthe report when it is completed.

In short, Mr. Mazilu became an expert on a missionfor the United Nations within the meaning of Article VIfrom the beginning of his term of office as a member ofthe Sub-Commission in 1984. His status as an expert ona mission for the United Nations continues by virtue ofhis ongoing assignment as Special Rapporteur for the Sub-Commission on human rights and youth, which the Sub-Commission concluded was necessary in order to permithim to complete and present to report he was assigned.

Id. at 13–15.The U.S. statement then addressed the applicability of article

VI, section 22 as between a state and its own nationals:

Traditionally, the subjects of international law are States.The relationship between a State and its nationals has beenviewed as an incident of the sovereignty of States, andaccordingly outside the scope of international law. Certainexceptions, however, have been recognized, for example,in the area of human rights. An exception of particularrelevance to this case has developed exclusively on thebasis of the consent of States and relates to the rela-tionship between a State and its nationals employed byinternational organizations. In the view of the UnitedStates, derogations of sovereignty of the State over suchnationals must be construed with appropriate respect for


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the sovereign rights of the State concerned as well as theobjective of the fulfillment of the purposes of internationalorganizations.

An analysis of the terms of Article VI, section 22, ofits history and the practice under the General Conventiondemonstrate that its provisions specifically obligateRomania, in the circumstances of this case, to permit theUnited Nations and Mr. Mazilu to communicate regard-ing Mr. Mazilu’s mission for the Sub-Commission and toallow Mr. Mazilu to travel to Geneva to complete thatmission.

. . . Section 22 enumerates the following specific priv-ileges and immunities to which . . . experts are entitled:

(a) immunity from personal arrest or detention . . . ;

* * * *

The obligation to accord the specified privileges andimmunities is unqualified. Section 22 makes no distinc-tion between the privileges and immunities to be accordedexperts who are nationals of a State Party and those to beaccorded to other experts. Moreover, it is clear that wherethe drafters of the General Convention intended to makesuch a distinction, they did so. Section 15 of the GeneralConvention makes inapplicable “as between a represen-tative and the authorities of the State of which he is anational” the privileges and immunities accorded to rep-resentatives of Members. Section 22 contains no compa-rable provision.

Id. at. 15–18.The United States also found support for the proposition that

parties to the Convention must apply the provisions of article VI,section 22 to their own nationals who are experts, in the historyof the Convention and subsequent practice of the parties to it:

. . . With respect to the immunity of officials of the UnitedNations from suit or legal process, the United NationsPreparatory Commission stated in its study of privilegesand immunities:


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While it will clearly be necessary that all officials,whatever their rank, should be granted immunityfrom legal process in respect of acts done in thecourse of their official duties, whether in the coun-try of which they are nationals or elsewhere, it is byno means necessary that all officials should havediplomatic immunity . . . .12

The subsequent practice of the parties to the GeneralConvention also supports this view. At least eight States,including the United States, have become parties to theGeneral Convention subject to reservations restricting orprecluding the application of certain privileges and immu-nities as between those States and their nationals.[Footnote omitted.] The reservation of the United States,for example, provides that,

Paragraph (b) of section 18 regarding immunity fromtaxation and paragraph (c) of section 18 regardingimmunity from national service obligations shall notapply with respect to United States nationals andaliens admitted to permanent residence.

The United Nations and at least one State Party to theGeneral Convention informally expressed disagreementwith the United States reservation and others like it. Intheir view, the obligation of States Parties to accord allprivileges and immunities to qualified persons, includingtheir own nationals, was so central to the proper func-tioning of the United Nations as to make those reserva-tions inconsistent with the object and purposes of theGeneral Convention.14 Both the reservations and the result-ing responses, however, demonstrate the view that, in theabsence of a reservation, the privileges and immunitiesaccorded by the General Convention under Section 18 toofficials apply as between a State Party and its nationals.The same conclusion applies equally to experts underSection 22 of the General Convention.

12 Report of the Preparatory Commission of the United Nations,[London, 1945] p. 62.


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* * * *14 See, e.g., Note No. 3822 from the Permanent Representative ofthe Kingdom of the Netherlands to the United Nations to theSecretary-General of the United Nations, date October 13, 1970.

Id. at. 18–20.The U.S. statement then addressed more specifically what lim-

itations, if any, a state could place upon the privileges and immu-nities accorded to its nationals who are experts on missions forthe United Nations. In the view of the United States:

. . . The privileges and immunities a State Party must accordto experts who are its nationals are, of course, qualified inaccordance with the general principles which informed thedrafting of the General Convention. One such principle wasthat “no official can have, in the country of which he is anational, immunity from being sued in respect of his non-official acts and from criminal prosecution.”15

Thus, for example, if an individual serving as an expertwere convicted of a serious non-political crime unrelatedto the United Nations mission in the State of which hewas a national, that State would retain a sovereign rightto imprison him even if this restricted his ability to per-form his mission for the United Nations. In such a case,the State of nationality would be obligated to afford theexpert as full an opportunity to perform his mission asthe circumstances reasonably would allow, but travel out-side the State’s jurisdiction and custody would not neces-sarily be required.

Mr. Mazilu has not been prosecuted for, or evenaccused of, any crime. Therefore, in the view of the UnitedStates, the refusal of the Government of Romania to allowMr. Mazilu to travel to Geneva, in the circumstances ofthe instant case, violates subsection (a) of section 22, whichobligates Romania to accord Mr. Mazilu immunity fromdetention for the purposes of performing his official acts,i.e., the preparation and presentation of his report. TheGovernment of Romania refuses to grant Mr. Mazilu thenecessary official authorization to travel to Geneva to per-form his mission for the United Nations. In that respect,


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the Goverment of Romania continues to detain Mr. Maziluin Romania. In addition, the refusal of the Governmentof Romania to allow the United Nations and Mr. Maziluto communicate, in the circumstances of the instant case,violates subsection (d) of Article VI, section 22, obligat-ing the Government of Romania to accord Mr. Mazilu theright to communicate with the United Nations.

15 Report of the Preparatory Commission of the United Nations,[London, 1945] p. 62.

Id. at. 20–21.In its additional comments of August 31, 1989, the United States

addressed Romania’s arguments that Mr. Mazilu was no longer aspecial rapporteur; that special rapporteurs were not experts; andthat even if Mr. Mazilu were such an expert, Romania need notaccord him any privileges and immunities due to the fact that he isnot actually on any mission in Romania.

In rebutting Romania’s argument that “the Convention doesnot place rapporteurs, whose activities are occasional, on the samefooting as the experts who carry out missions for the UnitedNations,” the U.S. statement provided as follows:

. . . An analysis of Article VI, including the practice of theUnited Nations under that Article, [footnote omitted]demonstrates that special rapporteurs of the Sub-Commission are experts within the meaning of that Article.[Footnote omitted.]

The only ground on which Romania disputes this con-clusion is that the activities on special rapporteurs are too“occasional.” Nothing in the text of Article VI providesa basis for excluding special rapporteurs from the cate-gory of experts on this ground. Quite to the contrary, the“occasional” character of the activities of an expert is oneof the primary factors for distinguishing experts from offi-cials of the Organization.

Additional Comments of the Government of the United States ofAmerica, I.C.J. Pleadings, Applicability of Article VI, Section 22,of the Convention on the Privileges and Immunities of the UnitedNations, August 31, 1989, at 15–16.


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In his oral statement, Abraham D. Sofaer, Legal Adviser forthe Department of State, noted that this was the first time thatECOSOC had requested an advisory opinion from the court, andthat it had done so in response to a situation that threatened theability of ECOSOC and its subsidiary organs to carry out theirwork. The Legal Adviser’s comments on the merits of the ques-tion addressed the limited nature of the question before the Courtas follows:

The United Nations has avoided any suggestion that thescope of Mr. Mazilu’s privileges and immunities extendbeyond the needs of his functions . . . , and nothing inthe record requires any restriction in this case on thelegitimate scope of national control over United Nationsexperts by their home States. The United States wouldbe greatly concerned with any claim that an individualcould use his immunity as a United Nations expert toevade the legitimate domestic laws of his State, fairlyapplied. The United Nations in this respect has pointedout its obligation under the Convention in such circum-stances is to waive immunity.

I.C.J. Pleadings, Applicability of Article VI, Section 22, of theConvention on the Privileges and Immunities of the UnitedNations (1989), at 37.

In its advisory opinion of December 15, 1989, theInternational Court of Justice held, unanimously, “that ArticleVI, Section 22, of the Convention on the Privileges and Immunitiesof the United Nations is applicable in the case of Mr. DumitruMazilu as a special rapporteur of the Sub-Commission onPrevention of Discrimination and Protection of Minorities.”

With regard to the definition of “experts on missions,” theCourt found that the purpose of Section 22 was clearly:

to enable the United Nations to entrust missions to per-sons who do not have the status of an official of theOrganization. . . . The experts thus appointed or electedmay or may not be remunerated, may or may not have acontract, may be given a task requiring work over alengthy period or a short time. The essence of the matter


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lies not in their administrative position but in the natureof their mission.

Applicability of Article VI, Section 22, of the Convention on thePrivileges and Immunities of the United Nations (AdvisoryOpinion, Dec. 1989), 1989 I.C.J. 177, 194.

Next, the Court considered the meaning of “mission” inSection 22:

Section 22, in its reference to experts performing missionsfor the United Nations, uses the word “mission” in a gen-eral sense. While some experts have necessarily to travelin order to perform their tasks, others can perform themwithout having to travel. In either case, the intent ofSection 22 is to ensure the independence of such expertsin the interests of the Organization by according them theprivileges and immunities necessary for the purpose. . . .Accordingly, Section 22 is applicable to every expert onmission, whether or not he travels.

1989 I.C.J. 177, 195. The Court further advised that experts onmissions enjoy the privileges and immunities of the Conventionin the states of which they are nationals, in the absence of a reser-vation, because “the privileges and immunities of Article V andVI are conferred with a view to ensuring the independence ofinternational officials and experts in the interests of theOrganization. This independence must be respected by all Statesincluding the State of nationality and the State of residence.” 1989I.C.J. 177, 195.

The Court then determined that special rapporteurs fell withinthe definition of experts on missions:

[R]apporteurs or special rapporteurs are entrusted by theSub-Commission with a research mission. Their functionsare diverse, since they have to compile, analyse and checkthe existing documentation on the problem to be studied,prepare a report making appropriate recommendations,and present the report to the Sub-Commission. Since their


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status is neither that of a representative of a member Statenor that of a United Nations official, and since they carryout research independently for the United Nations, theymust be regarded as experts on missions within the mean-ing of Section 22, even in the event that they are not, orare no longer, members of the Sub-Commission. Conse-quently they enjoy, in accordance with Section 22, the priv-ileges and immunities necessary for the exercise of theirfunctions, and in particular for the establishment of anycontacts which may be useful for the preparation, thedrafting and the presentation of their reports to the Sub-Commission.

1989 I.C.J. 177, 197Finally, the Court found that section 22 was applicable to Mr.

Mazilu because the facts indicated that he remained a special rap-porteur of the Sub-Commission. Id.

E. OTHER ISSUES OF STATE REPRESENTATION

1. U.S. Custody of Mission at Request of Foreign Government

On May 7, 1989, Guillermo Endara was elected President ofPanama. However, General Manuel Noriega, the then-dictator ofPanama, refused to let him take office. On September 1, 1989,the term of office of the previous constitutionally elected presi-dent, Eric Arturo Delvalle, expired pursuant to the Panamanianconstitution. In anticipation of this expiration, the Panamanianembassy in Washington, D.C., which represented the Delvalle gov-ernment, requested that the U.S. Government take custody ofPanama’s missions in the United States.

Accordingly, on August 31, 1989, the Acting Under Secretaryof State for Management, Jill Kent, signed the following Deter-mination Regarding Missions of Panama in the United States:

Pursuant to the authority of the President of the UnitedStates to conduct foreign affairs under Article II of the


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United States Constitution, including his authority to receiveambassadors, and the authority vested in the Secretary ofState by the Foreign Missions Act, 22 U.S.C. 4301 et seq(“the Act”) and delegated to the Under Secretary forManagement in Department of State Delegation AuthorityNumber 147, dated September 13, 1982, I hereby make thefollowing findings and determinations.

1. As of September 1, 1989, the term of office of theconstitutionally elected head of the Government ofPanama, President Eric Arturo Delvalle, will come to anend pursuant to the constitution of the Republic ofPanama. Because, as of that date, there will exist no con-stitutional head of government recognized as such by theUnited States, the Embassy of Panama has requested thatthe Department take custody of Panama’s diplomatic andconsular property in the United States in order to protectand preserve this property for the benefit of the people ofPanama. The imposition of the following terms, condi-tions and restrictions concerning the property and oper-ation of foreign missions of Panama in the United Statesis reasonably necessary in order to comply with theEmbassy’s request, to fulfill the international legal obli-gations of the United States to preserve and protect prop-erty of the Republic of Panama, and to accomplish thepurposes set forth in 22 U.S.C. 4301(c) and 4304(b),including protecting the interests of the United States.

2. Effective September 1, 1989, all property, real orpersonal, tangible or intangible, wherever located in theUnited States, which is at present owned by theGovernment of Panama currently recognized by the UnitedStates, and which is used for the conduct of bilateral diplo-matic or consular relations, including residential proper-ties, shall be subject to the control and custody of theOffice of Foreign Missions for the purposes of protectingand preserving such property until further notice. Thiscustody and control shall not extend, however, either tobank accounts registered in the name of individuals accred-ited as of August 31, 1989, as diplomatic or consular per-sonnel of Panama, or their dependents, provided that such


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accounts are not held for the benefit of the Governmentof Panama, or to property used exclusively in connectionwith representation of the Republic of Panama before anyinternational organization.

3. The Office of Foreign Missions is hereby author-ized to administer and manage the aforesaid properties insuch a manner and through such procedures as it deemsproper to fulfill the international legal obligations of theUnited States with respect thereto. In addition, to thefullest extent possible, the Office of Foreign Missions shallendeavor to avoid the expenditure of United StatesGovernment funds in connection with these properties.Accordingly, the Office of Foreign Missions may, if finan-cial exigencies relating to the property in question so dic-tate, rent or dispose of any of the properties, real orpersonal, pursuant to 22 U.S.C. 4305(c)(2). Funds result-ing from such rental or disposition shall be used for themaintenance of Panamanian diplomatic or consular prop-erty, or, if exceeding the amount necessary for this pur-pose, held for the account of the Republic of Panama. Inlight of the fact that all property in the United Statesowned or controlled by the Government of Panama is“blocked” pursuant to Executive Order 12635 and theInternational Emergency Economic Powers Act, 50 U.S.C.1601 et seq., any such rental or disposition, and the man-agement of any funds resulting therefrom, shall conformto any regulations and licenses issued pursuant to theseauthorities.

4. Permitting the operation of a foreign mission in theUnited States by any unrecognized authority purportingto be the Government of Panama would be contrary tothe purposes of the Act, including protecting the interestsof the United States. Therefore, effective September 1,1989, any and all benefits, as defined in 22 U.S.C.4302(a)(1), provided to any entity that has been or is here-after designated by the Secretary of State or his delegateas a foreign mission of Panama in the United States, asdefined in 22 U.S.C. 4302(a)(4), shall be provided exclu-sively by and through the Director of the Office of Foreign


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Missions, under such terms and conditions as the Directormay hereafter prescribe, pursuant to 22 U.S.C. 4304. Thisprovision shall not apply to missions representing Panamato international organizations.

5. In order to achieve the objective of preventing theoperation in the United States of a foreign mission of anyunrecognized authority purporting to be the Governmentof Panama, I hereby designate as a benefit, pursuant to22 U.S.C. 4302(a)(1), employment of any agent oremployee by any entity that has been or is hereafter des-ignated by the Secretary of State or his delegate a foreignmission of Panama in the United States, and determinethat it is reasonably necessary to accomplish the purposesset forth in the Act to require any such entity to foregothe acquisition or use of this benefit. This prohibition,however, shall not apply to members of a mission ofPanama to an international organization, provided that:(a) Such individual members have been duly accredited to

and accepted by an international organization as bonafide members of such mission; and

(b) Such individual members confine their activities tomatters and activities directly and exclusively relatedto representation before the relevant internationalorganization and do not in any manner engage in otheractivities, including, but not limited to, public rela-tions, lobbying, propaganda, consular, commercial,economic, or political activities in the United States.

6. Notice is hereby given that, pursuant to 22 U.S.C.4311(a), it shall be unlawful, for any person to make avail-able any benefit to any entity that has been or is hereafterdesignated by the Secretary of State or his delegate as aforeign mission of Panama in the United States in any man-ner contrary to the provisions and restrictions set forth inthis Determination.

7. Pursuant to 22 U.S.C. 4308(b), compliance by anyperson with the provisions of this Determination shall tothe extent thereof be a full acquittance and discharge forall purposes of the obligation of the person making the


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same. No person shall be held liable in any court or admin-istrative proceeding for or with respect to anything doneor omitted in good faith in connection with the adminis-tration of, or pursuant to and in reliance on any provi-sion of this Determination or any instruction orrequirement hereafter promulgated by the Director ofOffice of Foreign Missions in the implementation hereof.

8. Pursuant to 22 U.S.C. 4304(c) and (d), the Directorof the Office of Foreign Missions is hereby designated asthe agent for all foreign missions of Panama within theUnited States for the purposes of effectuating any waiverof recourse by such a mission, or the assignee or benefi-ciary of such a mission, which may be required in theimplementation of this Determination. Wherever relevantand necessary, the granting of such a waiver of recourseby a mission of Panama in the United States is herebyexpressly made a term and condition of receiving any ben-efit pursuant to this Determination of the Act in general.

54 Fed. Reg. 38,924 (1989).

2. Location of Diplomatic and Consular Buildings

a. Limitation on diplomatic agents outside Washington, D.C.

On July 31, 1989, the Department of State sent a circular diplo-matic note to all chiefs of mission regarding the status of officesof diplomatic missions located outside of Washington, D.C. Thenote stated:

The Department of State most recently set forth criteriagoverning accreditation in the United States in its CircularNote of May 1, 1985, including the requirement that adiplomatic agent must reside in the Washington, D.C. area,with the exception of certain designated senior financial,trade, economic and commercial positions in New YorkCity expressly agreed to by the Department. The Depart-ment wishes to remind the Chiefs of Mission that theaccreditation of diplomatic personnel is solely within the


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discretion of the receiving State and that the establishmentof offices forming part of the mission in another localityis not permitted without the prior express consent of thereceiving State.

The Department recently has reviewed its policy ofpermitting governments to maintain such offices in NewYork City headed by a senior diplomat accredited to themission of the sending State in Washington. As a result,the Department has determined that the changing natureof business and commerce in the United States has greatlyreduced the need for such offices, especially as their main-tenance always has constituted an exception to theDepartment’s policy of limiting diplomatic offices and per-sonnel to the Washington, D.C. area. Moreover, a limitednumber of problems stemming from the unusual status ofthese offices and their personnel has convinced theDepartment of the need to change their status.

Accordingly, the Department has adopted the follow-ing new policies, which are effective immediately, con-cerning the operation of diplomatic posts and personneloutside the Washington, D.C. area:1. Those senior financial, economic, trade or commercial

officers presently accredited as diplomatic agents at theirmissions in Washington but assigned to financial, eco-nomic, trade, or commercial offices in New York Cityshall continue to be accepted as diplomatic agents untilthe conclusion of their assignments in New York in thatcapacity.

2. Where the existence of the office and the conditionsfor its establishment have been set forth in an expresswritten bilateral agreement between the United Statesand the sending State in question, concluded prior tothe date of this note, the office may continue to func-tion without change.

3. For all other economic, commercial, trade and finan-cial offices, upon the departure of the present head ofthe office, replacements no longer will be accreditedas diplomatic agents, and the office may continue tofunction in New York only if it is incorporated into an


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existing New York consulate of the sending State, or, ifthere is no consular office in New York, its status ischanged to a miscellaneous foreign government office(none of the personnel of which enjoy diplomatic sta-tus or immunities).

4. The Department will not accept new offices of diplo-matic missions that are located outside of theWashington, D.C. area, nor will it accredit as diplo-matic agents persons who reside outside theWashington, D.C. area, with the exception of thoseStates with which it already has express agreements, asdescribed in paragraph 2.

Note from the Department of State to all Chiefs of Mission, July31, 1989, available at www.state.gov/s/l.

On February 19, 1990, Bulgaria sent a diplomatic note to theState Department stating its view that an agreement existedbetween Bulgaria and the United States permitting Bulgaria’s com-mercial office to move to New York and to be considered part ofthe Bulgarian Embassy in Washington, D.C. On August 24, 1990,the Department of State responded to the Bulgarian note, dis-agreeing with Bulgaria’s assertions, as follows, in pertinent part:

Upon the request of the Embassy of Bulgaria, theDepartment has reviewed its records concerning the estab-lishment of the Bulgarian Trade Office in New York,including the documents referred to in the Embassy’s noteof February 19. The Department has determined that thereis no express bilateral agreement between the United Statesand Bulgaria establishing the New York office as part ofthe Bulgarian diplomatic mission and according privilegesand immunities to the head of that office through accred-itation to the mission. Rather, the Department has per-mitted the Chief of the Trade Office in New York to beaccepted in diplomatic status and listed on the DiplomaticList in Washington as a unilateral policy decision.Accordingly, the replacement of the Trade Office chief willnot be accredited as a diplomatic agent.

The note is available at www.state.gov/s/l.


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b. Embassy property: zoning issues

(1) Sweden

On April 18, 1990, the Republic of Cape Verde filed an applica-tion to the Foreign Missions Board of Zoning Adjustment (“FM-BZA”) concerning the proposed sale of certain property to theKingdom of Sweden. Opponents filed a motion to dismiss alleg-ing that the Department of State, in exercising its approval author-ity in section 205(a) of the Foreign Missions Act, 22 U.S.C. §4305(a), had not complied with section 106 of the NationalHistoric Preservation Act, 16 U.S.C. § 470f. Section 106 providesthat the head of a federal agency having licensing authority overany undertaking must take into account the effect of the under-taking on any historic site or building. The Department of State’sopposition to the motion first noted that, “[t]o have any validity,. . . the Department of State must have ‘license[d]’ the ‘under-taking’ of the Kingdom of Sweden to construct its chancery,thereby ‘triggering the requirements of § 106,’ as the opponentsallege.” Department of State Motion and Memorandum of Pointsand Authorities in Opposition to Motion to Dismiss Applicationfor Failure to Comply with Section 106 of the National HistoricPreservation Act, p. 3, May 25, 1990, available at www.state.gov/s/l.

The Department argued that the approval procedure in sec-tion 205(a) does not in fact involve any “licensing” by theDepartment:

Read together, sections 205 and 206 leave no doubt thatit is the FM-BZA, and not the Department of State,which is the licensing agency with regard to the pend-ing application.

Id. at 6–8.The Department also argued that even if its approval of

chancery location under the Foreign Missions Act did constitutelicensing, sections 206 and 207 of the Foreign Missions Act pre-clude application of section 106 of the National HistoricPreservation Act:


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Section 207 of the Foreign Missions Act . . . was enactedto ensure the primacy of the Secretary of State in admin-istering the provisions of the Act. . . .

In enacting this provision, Congress expressly wishedto avoid conflicting or inconsistent decisions among fed-eral agencies affecting foreign missions. The ConferenceReport on the final bill makes this intent crystal clear:

Section 207 expresses the preemptive effect of the rightof the Federal Government, through the Secretary of State,to preclude the acquisition of any benefits by a foreignmission within the United States. A denial by the Secretaryfor example, of a right of a particular foreign governmentto open or maintain a mission within the United States,or a condition limiting the number of their personnel orother factors relating to the mission, would be control-ling. This is consistent with current practice and reflectsthe policy of Federal preemption in foreign relations. . . .

* * * *

This section also requires coordination among Federalagencies, under the leadership of the Secretary of State, inorder to achieve an effective policy of reciprocity so as tofulfill the purposes of this legislation by precluding anyFederal agency from taking any action inconsistent withthe Foreign Missions Act. The provision has the effect ofrendering unenforceable any rules or regulations of anyFederal agency, to the extent that such rules or regulationswould confer or deny benefits contrary to this title.(Emphasis added.)

H.R. Conf. Rep. No. 97-693, 97th Cong., 2d Sess. 43–44,reprinted in 1982 U.S. Code Cong. & Ad. News 691, 702–03.. . .

* * * *

Section 207 makes it clear that Congress intendedthat chancery location decisions not be subject to theactions of other federal agencies or federal entities. Suchother proceedings, decisions, or review and comment


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present the potential for inconsistent positions amongcompeting federal agencies that could undermine or com-plicate the Secretary’s reciprocity policy under the ForeignMissions Act.

Even action of another federal entity which . . . maynot be outcome-dispositive but which poses an additionalhurdle for a foreign mission to overcome, may undercutthe Secretary’s conduct in the field of foreign relations.Such potential for inconsistent action among differing fed-eral agencies, in short, is precisely and expressly disap-proved under section 207.

Section 206, by its terms, requires historic preserva-tion issues related to chancery location to be consideredexclusively by the FM-BZA, upon the Department ofState’s failure to disapprove under section 205 of the Act.The language of the statutory provisions in question sim-ply leaves no room for an extra proceeding or review orcomment by another federal agency.

Memorandum at 18, 19–20, 21, available at www.state.gov/ s/l.On June 29, 1990, the FM-BZA disapproved the application,

on the grounds that the size of the proposed chancery was incom-patible with the existing historic structure, and that the chancerywould generate an adverse traffic impact. As a preliminary mat-ter, the FM-BZA denied the motion to dismiss, finding that theapplication was properly before the board on the merits, pursuantto the authority of Section 5-1206(c)(1) (in 2001 this section waschanged to 6-1306(c) (1))of the D.C. Code (Section 206(c)(1) ofthe Foreign Missions Act). Order Disapproving Application,Government of the District of Columbia, Board of ZoningAdjustment, BZA Application No. 15263, June 29, 1990.

(2) Turkey

In 1988, the Government of Turkey filed an application to the FM-BZA for permission to expand its chancery by demolishing theexisting building and constructing a new one. The Board deniedthe application on the basis that the proposed chancery was notcompatible with the prevailing scale of existing structures in the


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area, a historic district. The Turkish Government then redesignedthe structure to reduce its size, and reapplied for FM-BZA permission.

In September 1990, the FM-BZA referred the application tothe District of Columbia Historic Preservation Review Board(“HPRB”), seeking its advice on certain historic preservation issues.The HPRB then scheduled a public hearing with respect to Turkey’sapplication. The Department of State filed an objection with theHPRB, challenging its jurisdiction to conduct a public hearing orany other proceeding in the matter:

Section 206(c)(3) of the [Foreign Missions Act (“FMA”)]provides that a determination by the FM-BZA “shall notbe subject to the administrative proceedings of any otheragency or official except as provided in [the FMA].” TheFMA makes no provision for the conduct of a hearing bythe Historic Preservation Review Board.

* * * *

Additionally, section 206(d)(2) of the Foreign MissionsAct specifically addresses the issue of historic preserva-tion. It expressly states that the . . . factor of historicpreservation shall be:

. . . determined by the Board of Zoning Adjustmentin carrying out this section; and in order to insure com-patibility with historic landmarks and districts, substan-tial compliance with the District of Columbia and Federalregulations governing historic preservation shall berequired with respect to new construction and to demoli-tion of or alteration to historic landmarks. (Emphasisadded.)

Where, as here, several federal and District agencies,such as the HPRB, are vested with responsibility underlaw for the review of historic preservation applicationsunder certain circumstances, the Congress made clear insection 206 that the FM-BZA is the exclusive agency toconduct proceedings addressing the historic preservationimplications of an application made by a chancery.


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* * * *

Because decisions on chancery applications have adirect effect on our foreign relations and on the status ofU.S. embassy projects abroad, the Congress created anapproval procedure within the District that “is intendedto insure an expeditious process which will avoid theextensive and overlapping proceedings which are requiredunder existing law and regulations.” H.R. Conf. Rep. No.97-693, 97th Cong., 2d Sess. 41, reprinted in 1982 U.S.Code Cong. & Ad. News 691, at 700.

Objection of U.S. Department of State to Jurisdiction of theHistoric Preservation Review Board to Conduct a Hearing, pp.2–3, December 4, 1990, available at www.state.gov/s/l.

On December 21, 1990, the Director of the Office of ForeignMissions sent a letter to the FM-BZA expressing the views of theDepartment of State on the application, including his determina-tion that the international obligation of the United States to facil-itate the provision of adequate and secure facilities for foreignmissions would be met by approval of the application. The letteralso pointed out that basic security principles were incorporatedinto the siting and design of the proposed structure, and that thenew chancery would improve the State Department’s ability toexercise its responsibilities to protect the mission. Finally, theOffice of Foreign Missions pointed out the Turkish government’ssupport for the United States in its efforts to acquire property inTurkey for U.S. missions, and that it was in the federal interestof the United States to reciprocate. On January 16, 1991, the FM-BZA approved the application, with minor changes. Governmentof the District of Columbia, Board of Zoning Adjustment,Application No. 15427, March 15. 1991.

3. Tax Exemptions

a. Gasoline tax exemption

On July 31, 1989, the Office of Diplomatic Law and Litigation,Office of the Legal Adviser, Department of State, responded toseveral letters from authorities in states of the United States


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requesting information on the legal authority for exempting diplo-matic and consular personnel from gasoline tax. In its replies, theDepartment stated:

The Department’s interpretation [of article 34 of theVienna Convention on Diplomatic Relations and article49 of the Vienna Convention on Consular Relations] ispredicated upon the text of the provisions, negotiating his-tory, and the custom and practice of signatory nations tothe treaties cited above.

[A]rticles 34 of the VCDR and 49 of the VCCR estab-lish a general rule of tax exemption for diplomatic andconsular personnel, with specified exemptions. Subsection(a) of the foregoing provisions excludes from the normalbenefit of an exemption “indirect taxes of a kind normallyincorporated in the price of goods or services.” By theirexpress terms, articles 34 and 49 do not limit enjoymentof the exemption to the party who is legally liable for thetax. They only limit enjoyment where the indirect tax is“normally incorporated in the price of goods or services.”This language is in marked contrast to the real propertytax exemption afforded to mission premises under article23 of the VCDR and article 32 of the VCCR. The missionpremises provisions limit enjoyment of the tax exemptionto the party who is legally liable for the tax. It is clear,therefore, that under the express language of the treaties,the technical legal incidence of the gasoline tax on a partyother than the consumer is not controlling. Rather, thedeterminative factor is whether the tax is “normally incor-porated in the price of goods or services.”

The Department’s interpretation of articles 34 and 49is also based upon the negotiating history of the provi-sions. . . . [This source] indicates that, as originally drafted,the relevant tax provision in the diplomatic relations treatywould have excluded all indirect taxes from the exemp-tion. The drafters believed that this exclusion was over-broad, however, and subsequently narrowed the exclusionso that the final treaty only excludes some indirect taxes,i.e., “normally incorporated” indirect taxes. . . . Normally


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incorporated indirect taxes were excluded from the nor-mal benefit of an exemption for ease of administration.. . . It was thought by the drafters of the diplomatic rela-tions treaty that the amount of tax at issue did not jus-tify the administrative complications in providing anexemption . . . .

We believe that the history and rationale of the taxprovisions indicate that federal and state gasoline taxesare not of the kind intended to be excluded from the nor-mal rule of exemption. First, the gasoline tax does not fallwithin the “normally incorporated” category: it is read-ily segregable from the price of petrol, and, indeed, is oftenseparately identified on the gas pump. Second, an admin-istrative burdensomeness justification has no relevance tofederal and state gasoline tax exemption, which is cur-rently being administered by the oil companies in numer-ous states without complication.

The Department’s position on gasoline tax is consistentwith foreign State practice and understanding under theVienna Conventions. About 140 nations provide a gasolinetax exemption to United States mission personnel, and theseStates rightly expect the United States to reciprocate theirgrant of an exemption. This right of reciprocity is enshrinedin VCDR article 47 and VCCR article 72.

Letters of July 31, 1989, to authorities in Florida and Kentuckyfrom Joan E. Donoghue, Director, Office of Diplomatic Law andLitigation, available at www.state.gov/s/l.

b. Utility tax

On May 1, 1990, the Department responded to a letter from astate authority addressing exemption for diplomatic and consularpersonnel from state and city taxes imposed on the gross revenuesof the electrical utility in Seattle, Washington, which by law areidentified on the electric company billing.

In its reply, the Department of State explained the legal basisfor exemption from utility tax:


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Utility tax exemption for diplomatic and consular missionmembers derives from treaty obligations of the UnitedStates. Treaties to which the United States is a party arethe law of the land and are binding on the several Statesunder the federal supremacy clause (article VI of theConstitution). See United States v. Arlington, 702 F.2d 485(4th Cir. 1983); United States v. Arlington, 669 F.2d 925(4th Cir.), cert. denied, 459 U.S. 801 (1982); United Statesv. Glen Cove, 322 F. Supp. 149 (E.D.N.Y. 1971), aff’d percuriam, 450 F.2d 884 (2d Cir. 1972). Compliance with[the] international treaty obligations [at issue] is not sub-ject to the passage of enabling legislation by the States orlocalities. See H.R. Rep. No. 95-526, 95th Cong., 2d Sess.2 (“Since the (Vienna Convention on Diplomatic Relations)is self-executing, no implementing legislation is needed.”)

In each of the cases cited above, the court declarednull and void real property tax assessments by localauthorities on the ground of inconsistency with tax exemp-tions granted to governments by treaty. In Glen Cove, thecourt elaborated that “[m]uch less should a foreign gov-ernment be deprived of a treaty benefit by the claim thata municipal government within the federal structure haspower to postpone the realization of what the treaty prom-ised. Treaties, after all, are part of the law of every state.”322 F.Supp. at 154–55.

State and city utility taxes imposed on the gross rev-enues of a utility company, like sales and gasoline taxes,are state and local levies from which foreign missions andtheir personnel are exempt under Article 34 of the ViennaConvention on Diplomatic Relations, 23 U.S.T. 3227, andArticle 49 of the Vienna Convention on ConsularRelations, 21 U.S.T. 77. . . . The Department is of the posi-tion that such state and local utility taxes are exemptbecause they are direct, that is, clearly identifiable anduniformly passed on to the consumer. The technical legalincidence of the tax on a party other than the consumeris not controlling. If the tax is readily segregable from theprice of the product or service and the practical incidenceof the tax devolves upon the consumer, it is exempt underthe treaty provisions cited above.


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The Department’s interpretation of Article 34 of theVienna Diplomatic Convention and Article 49 of theVienna Consular Convention is based upon the text of thetreaties and their negotiating history. The language of theprovisions does not exclude from exemption all “pass-along” taxes, but only those indirect taxes that are “nor-mally incorporated into the price of goods or services,”that is, hidden taxes. Where, however, as here, the tax isreadily identifiable, an exception to the general rule ofexemption has no relevance.

Because the grant of utility tax exemption is a treatyobligation, United States Government interests and oper-ations abroad could be affected by our failure to meet thisobligation. Foreign governments rightly expect the UnitedStates to reciprocate their grant of an exemption.

Letter to Assistant City Attorney, Seattle, Washington, May 1,1990, from Gilda Brancato, Attorney-Adviser, Office ofDiplomatic Law and Litigation, available at www.state.gov/s/l.

4. Labor Issues

a. Dependent employment in the United States

On February 16, 1990, the Immigration and NaturalizationService (“INS”) published a final rule revising INS regulationsrelating to employment authorization in the United States fordependents of certain foreign government and international organ-ization officials. 55 Fed. Reg. 5,572 (Feb. 16, 1990), 8 C.F.R. §§214 and 274a. As stated in the rule’s summary, the revisions were“taken in order to improve employment opportunities for depend-ents of United States officials stationed abroad by making bilat-eral agreements more attractive for dependents of foreign officialsstationed in the United States and to conform the regulations withthe provisions of the Immigration Reform and Control Act of1986 (IRCA).”

An interim rule with request for comments had been publishedat 53 Fed. Reg. 46,850 (Nov. 21, 1988) and became effective onNovember 21, 1988. Eight comments had been received on the


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interim rule, which were considered by the INS and the Departmentof State in the final rule’s promulgation. Many of the commentsaddressed new or different rules for employment of dependentsof G-1 principal aliens (employees of missions to internationalorganizations) and G-4 principal aliens (employees of interna-tional organizations).

In particular, six entities disagreed with setting an age limiton eligibility for employment authorization for G-4 dependentchildren. In response, the INS stated:

The age limits established for the non-spouse dependentsof A-1, A-2, G-1 and G-4 principal aliens are reasonableand are based on a Department of State survey of interna-tional practices and agreements on this issue. . . . The priorregulations allowed unmarried children of any age to beconsidered dependents for employment purposes under defacto arrangements while they limited married children toa definite age under bilateral agreements. The ages underbilateral agreements are established by formal negotiationsand, therefore, must be considered benchmarks. It followsthat the ages for employment [under de facto arrangements]should not be more generous. . . . No convincing argumenthas been advanced why the son or daughter of an inter-national organization employee deserves preferentialemployment opportunities when compared to the child ofa diplomat whose government has entered into a bilateralagreement or de facto arrangement. . . .

55 Fed. Reg. 5,572 (Feb. 16, 1990).Several parties argued that G-4s should receive more gener-

ous treatment because they are different from A-1s, A-2s, and G-1s in their loyalties and length of assignments. Other partiescharacterized the regulations as arbitrary, capricious or harshwhen dealing with G-4 dependents. The INS responded:

The argument that G-4s are more loyal to their employ-ing organizations than to their home countries is conjec-ture and does not lead to the conclusion that theirdependents have the right to employment in the host coun-try. Arguments that the Service should differentiate G-4s


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from A-1, A-2, and G-1 aliens because G-4s are “. . . indis-tinguishable from United States citizens similarlyemployed” are not persuasive. They overlook the fact thatsome A-1, A-2, and G-1 aliens are posted to the UnitedStates for lengthy periods of time; in fact, some currentdiplomatic officials have been posted to duty in the UnitedStates for more than 15 years. The arguments also over-look the fact that G-4s are accorded preferential immi-gration inspection when they enter the United States asare A-1, A-2, and G-1 aliens. Furthermore, G-4 principalaliens have no federal income tax liability and many arefree of state and local tax liabilities as well.

* * * *

The Service worked closely with the Department in allphases of developing these regulations. As part of theprocess, the Department of State surveyed the policy andpractices of other countries. The resulting regulationsreflect the application of a standard based on commoninternational practice. If anything, the regulations are gen-erous in dealing with the dependents of G-4 internationalorganization employees. Not all host countries allowdependent employment to the same extent.

Id. at 5,573.Finally, in response to a party who questioned the legality of

regulating employment of dependents and argued that such regula-tion constituted a restriction on entry of its personnel, the INS stated:

The Department of State has advised the Service that theUnited States does not have any international legal obliga-tion with regard to the employment of dependents of rep-resentatives to or officials of international organizations. Inthe absence of such an obligation, the United States is free,pursuant to its domestic law and procedures, to determinethe conditions under which these aliens in the United Statesmay undertake employment in the private labor market.

Id.


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b. Applicability of U. S. labor law

On October 23, 1990, the Diplomatic Law and Litigation Office ofthe Office of the Legal Adviser provided guidance on the applica-bility of U.S. labor laws to foreign missions and their non-diplo-matic personnel, in response to a request from a foreign embassy inthe United States, available at www.state. gov/s/l. The letter includedenumerated excerpts as follows from Department of State letters,telegrams and diplomatic notes. Following a reference to the letterof September 11, 1990, discussed in 4.c., the letter continued:

2. Unclassified telegram from the Department to U.S.missions abroad dated February 14, 1989; Subject: Taxcollection from employees of diplomatic mission:

“Accredited diplomatic agents and administrative andtechnical (“A & T”) staff are exempt from taxation inhost country under the Vienna Convention on DiplomaticRelations (“VCDR”) to which both the U.S. and [hoststate] are parties. Article 33 of VCDR exempts diplomaticagents from host state social security provisions, Article34 exempts diplomatic agents from other host state tax-ation, and Article 37 grants the same treatment to A & Tstaff. Thus, . . . diplomatic agents and A & T staff pay notaxes here, and VCDR requires that U.S. diplomatic agentsand A & T staffers receive the same treatment.

As for U.S. citizen and resident employees of diplo-matic missions here, U.S. statutes explicitly exempt for-eign governments, including diplomatic and consularmissions, from the requirement to withhold income orsocial security taxes from paychecks, or to pay theemployer contribution to the social security system. 26U.S.C. section 340l(a)(5) states that, for purposes of cal-culating wages on which an employer must withholdincome tax, the term “wages” “shall not include remu-neration paid . . . for services by a citizen or resident ofthe United States for a foreign government or internationalorganization. . . .” 26 U.S.C. section 312l(b)(11) excludesfrom the definition of “employment” which gives rise toan employer’s obligation to withhold and pay social secu-


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rity tax, “service performed in the employ of a foreigngovernment (including service as a consular or other offi-cer or employee or a nondiplomatic representative). Underthese statutes a foreign mission has no obligation to col-lect or pay tax obligations of its U.S. citizen or residentemployees.”

3. Unclassified telegram from [the] Department [ofState] to U.S. missions abroad dated June 27, 1989;Subject: Litigation against U.S. Embassy:

“Under restrictive theory of sovereign immunity nowprevailing in international law, states are not permitted toclaim immunity in foreign courts with respect to com-mercial activities in that state. Employment of local nation-als by diplomatic or consular missions is generally deemedto constitute commercial activity, at least to the extent thatwhat is at issue in litigation is benefits provided underterms of employment or under local labor law. Departmentdoes take the position . . . that jurisdiction of local courtsdoes not extend to ordering reinstatement of employeesor other actions inconsistent with autonomy of missionas representative of sovereign government, but claims forlabor benefits or breach of contract money damages cangenerally be adjudicated by local courts.”

4. Letter dated September 24, 1990, to U.S.Department of Labor from the Office of the Legal Adviser,Diplomatic Law and Litigation Office:

“Per our conversation, following are excerpts fromDepartment of State diplomatic notes to all embassiesdated 1981 regarding treatment of private servants ofdiplomatic personnel:

“The Secretary of State [expresses] deep concern ofthe Department of State over the evidence that some mem-bers of diplomatic missions have seriously abused orexploited household servants who are in the United Statesunder nonimmigrant A-3 visas.

“The Department is confident that all [embassies] areaware that promotion of the increased observance of inter-nationally recognized human rights by all countries isstated by statute to be a principal goal of the foreign pol-icy of the United States.


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. . . [Where a United States consular officer abroad is

uncertain that a prospective domestic servant fully under-stands the salary and working conditions of the profferedemployment, consular officers should require a writtenemployment contract.] United States consular officers willcarefully review such contracts prior to the issuance of avisa to ensure that the wages and other conditions ofemployment are reasonable in light of the work involvedand the costs of living in this country. That contract mustcontain the following information:

1. A description of the duties to be performed by thealien;

2. The wages to be paid on an hourly or weekly basis;3. Total hours of guaranteed employment per week,

amount of overtime work which may be required ofthe employee, and conditions for overtime payment;

4. A statement that the employee will be free to leavethe employer’s premises at all times other than dur-ing regular or overtime working hours;

5. The total amount of money, if any, to be advanced bythe employer, with details of specified items, such asair fare, and the terms for repayment of the advance;

6. Express provisions for any offsetting charges forroom and board viewed as part of compensation;

7. A provision governing termination by either partyto the contract; and

8. A statement that a duplicate of the contract has beenfurnished to the employee in a language he or she canunderstand.

c. Applicability of local workers compensation plans

On September 11, 1990, the Office of Diplomatic Law andLitigation of the Office of the Legal Adviser responded to a let-ter from a foreign government regarding its intent to withdrawfrom California’s workers compensation plan for the employeesof its consulates located in California. Instead, the foreign gov-ernment wished to apply its own workers compensation plan,


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because, in its view, it was more generous and comprehensive andwould ensure the same benefits for all its U.S. employees. TheDepartment’s letter recommended that, before terminating par-ticipation in the California plan, the foreign government considerthe legal obligations of diplomatic and consular missions asemployers in the United States, and potential liability to itsemployees or to California following termination.

The letter, available at www.state.gov/s/l, addressed these legalobligations in further detail, as follows:

1. Foreign Missions as Employers

Under international law, a sovereign state is notimmune in the courts of another state from lawsuits aris-ing out of its commercial acts. The Foreign SovereignImmunities Act of 1976, 28 U.S.C. 1330, 1602 et seq.,expressly incorporates this principle into U.S. law. See 28U.S.C. 1605(a)(2). In any lawsuit involving a claim towhich it is not immune, a foreign state, including its polit-ical subdivisions, agencies and instrumentalities, is liableto the same extent as a private individual under like cir-cumstances. Id. section 1606.

The courts of many countries have concluded that theemploying of local residents is a commercial activity andthat foreign sovereigns are therefore not immune to law-suits arising out of these employment relationships.Moreover, under both the Vienna Convention onDiplomatic Relations (article 41) and the ViennaConvention on Consular Relations (article 55), the per-sonnel of foreign missions are obliged to respect host statelaws and regulations. Taken together, these provisionsmean that, as employers in the United States, [foreign]missions are subject to relevant federal and state employ-ment laws and regulations unless they are exempted fromthese rules by U.S. or international law.

Certain U.S. statutes contain express exemptions forforeign governments as employers. See 26 U.S.C.3401(a)(5) (foreign governments need not withhold incometax from the salaries of their foreign national employees);26 U.S.C. 3121(b)(1) (foreign missions exempt from with-


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holding Social Security taxes from their employees’salaries); and 26 U.S.C. 3306(a) and (c)(11) (foreign mis-sions exempt from paying federal unemployment tax onthe salaries of their employees). . . . At least one state hasinterpreted its laws as exempting foreign consulates fromparticipating in a mandatory state-administered unem-ployment compensation scheme. [Citation omitted.] Inaddition, it is the U.S. position that international law pre-cludes a host state from requiring a diplomatic or con-sular mission to employ any particular person. Thus, weregard foreign missions as exempt from any requirementto reinstate a former employee found to have a right underlocal law to reemployment—as, for example, following asuccessful action for wrongful discharge.

I am aware of no U.S. law, treaty provision, or rule ofcustomary international law, however, that exempts a send-ing state from participating in a workers compensationplan if local law so requires [consistent with the ViennaConventions on Diplomatic and Consular Relations]. [Itis recommended that the Embassy] determine, throughprivate counsel or in consultation with the [locality], (1)whether a foreign government is required to participatein such a plan and, if so, (2) what action by the Statewould be required to exempt [the foreign government]from this requirement.

2. Potential Liability of [the Foreign Government]

* * * *

A. Liability to Employees

Even if the benefits offered under the [foreign gov-ernment’s] plan are more generous than those under theCalifornia plan, an employee might assert rights underCalifornia law to the benefits of the local plan. . . . [I]t isnot unforeseeable that some workers might try to “dou-ble dip” by collecting benefits under both . . . plans. It ispossible that California law would require the [foreign]


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government to compensate an employee as provided underthe local plan regardless of benefits previously provided.

Perhaps more problematic for [the foreign govern-ment], it is also possible that an employee covered by [theforeign government’s] plan could sue in tort on a cause ofaction that would have been precluded if [the foreign gov-ernment] were participating in the California plan. Boththe cost of litigating or settling such a suit, and the poten-tial costs of jury verdicts favorable to plaintiffs, should beconsidered in determining whether it makes sense for yourgovernment to withdraw from the California plan. In myview it is essential that [the foreign government] obtainexpert counsel in evaluating these issues.

B. Liability to the State of California

Unless [the foreign government] is legally exempt fromparticipating in the California plan, the State of Californiamight take legal action to collect mandated employer pay-ments. Such action could come either immediately after [theforeign government] announces its withdrawal or at a laterdate, possibly after California pays state-mandated work-ers’ compensation to an employee who has attempted to“double dip,” as described above. If [the foreign govern-ment] is not exempt from participating in the plan, liabilityto the State could become large as years pass. Thus, it isimportant to clarify [the foreign government’s] liability andto ensure that withdrawal is consistent with California law.

Cross reference

Applicability of civil cause of action for terrorist acts to foreigngovernments and officials, Chapter 3.B.1.c.

Protection of Lebanese Embassy, Chapter 9.A.3.Immunity of U.S. naval vessels, Chapters 12.A.9. and 13.2.b.


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CHAPTER 11

Trade, Commercial Relations, Investment and Transportation

A. TRANSPORTATION BY AIR

Transition Agreement for U.S. Carriers in the Berlin Air Service

Following World War II, the four Allies (the United States, USSR,United Kingdom, and France) exercised control over Berlin avi-ation pursuant to their rights as occupying powers. This includedthe right of the three western Allied air carriers to provide exclu-sive air service between Berlin and West German cities, the so-called “Inner German Service,” and international air service toand from the Western Sectors of Berlin. On September 12, 1990,the four Allies, the Federal Republic of Germany and the GermanDemocratic Republic signed the Treaty on the Final Settlementwith Respect to Germany, which provided, in Article 7, for ter-mination of the rights and responsibilities of the four AlliedPowers relating to Berlin and to Germany as a whole, includingthose relating to the aviation regime. A separate declaration onOctober 1, 1990, suspended the Allied rights and responsibilitiespending the entry into force of the Treaty. See Ch.4.A.2., supra.

With the resumption of German sovereignty over Berlin air-space, the Berlin air service provided by the western Allied car-riers lacked any legal basis because, absent special agreement,German law bars both “cabotage” (the carriage of passengers,goods or mail for remuneration by a foreign carrier between twodomestic points) and “seventh freedom” services (service of a for-eign carrier from a third country to a domestic point without astop in the foreign carrier’s country). Accordingly, the UnitedStates, United Kingdom, and France sought transitional arrange-

395

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ments that would permit their carriers to seek commercial alter-natives that would bring them into compliance with German lawwithout suffering undue financial loss. On October 9, 1990, theUnited States and the other Western Allies each entered into anexchange of notes with the Federal Republic of Germany settinga transition period for Berlin air services by the carriers of theformer Western Allies following German unification. Specifically,the agreement provided that the existing air services to and fromBerlin provided by the Allied carriers could continue after Germanunification to operate intra-German scheduled services and inter-national European scheduled and charter services for a transitionperiod through the end of the summer traffic season of 1993 atgradually reduced levels.

B. COMMUNICATIONS

U.S. Radio and Television Broadcasting to Cuba

a. U.S. law

In 1983 Congress passed the Radio Broadcasting to Cuba Act,authorizing radio broadcasts to Cuba by the United StatesInformation Agency (“USIA”) to further the open communica-tion of accurate information and ideas to the people of Cubathrough radio broadcasts. Pub.L. No. 98-111; 97 Stat. 749; 22U.S.C. §§ 1465, 1465a. In 1988, Congress authorized USIA toconduct a test of television broadcasting to Cuba for the samepurposes. Title V of Pub.L. No. 100-459; 102 Stat. 2186, 2220(1988). See Cumulative Digest 1981–1988 at 786–789.

On February 16, 1990, Congress passed the TelevisionBroadcasting to Cuba Act, which stated that USIA “shall providefor the open communication of information and ideas throughthe use of television broadcasting to Cuba. Television broadcast-ing to Cuba shall serve as a consistently reliable and authoritativesource of accurate, objective, and comprehensible news.” Section243, Pub.L. No. 101-246; 104 Stat. 15, 22 U.S.C. § 1465bb. Thespecific findings and purposes of the Act were set forth in detailin section 242, 22 U.S.C. § 1465aa. The Act also provided thatno appropriated funds may be obligated and expended until the


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President determined that the test of television broadcasting to Cubaauthorized by Pub. L. No. 100-459, 102 Stat. 2186 (1988), “hasdemonstrated television broadcasting to Cuba is feasible and willnot cause objectionable interference with broadcasts of incum-bent domestic licenses.” Id., § 247(b)(1), 22 U.S.C. § 146 5ee(b)(1). Finally, the Act provided that the program authorized bythis Act shall be designated the “USIA Television Marti Program.”Section 243(c), 22 U.S.C. § 1465bb(c).

Test broadcasts of TV Marti began on March 27, 1990. OnJuly 27, 1990, the President submitted a report to Congress onthe results of the test broadcasts, as required by section 247(b)(2)of the Act, 22 U.S.C. § 1465ee(b)(2). The Report discussed, interalia, TV Marti’s technical feasibility, its audience in Cuba and theCuban Government’s reaction. In particular, the Report describedlegal considerations relating to the program:

There is no legal basis for objection per se to radio andtelevision broadcasts from one country to another. Article19 of the Universal Declaration of Human Rights, awidely-cited but non-binding resolution adopted by theUnited Nations assembly in 1948, provides that:

Everyone has the right of freedom to hold opinionswithout interference and to seek, receive and impart infor-mation and ideas through any media and regardless offrontiers.

This concept is expressed in other international instru-ments including the International Covenant on Civil andPolitical Rights and the Helsinki Final Acts. While suchprovisions do not affirmatively grant governments theright to send radio or television programs into anothercountry, the precedent is well established. Stations whichoperate across borders include the BBC External Service,Vatican Radio, Radio Berlin International (GDR), anduntil recently, Radio Moscow from Cuba in the Englishlanguage. Initiatives undertaken by the United States ininternational broadcasting have further fostered the freeflow of information. Radio Free Europe, Radio Liberty,and RIAS-TV (Radio-TV in the American Sector, Berlin)

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have provided information to those otherwise unable toobtain it; they have continued despite protestations fromaffected governments relating to program content andnational sovereignty.

Radio Marti and TV Marti continue this tradition of[Voice of America] VOA programming. The Governmentof Cuba, entities such as the Vatican, the Soviet Union,the United Kingdom, as well as other governments, havelong engaged in the cross-frontier international broad-casting of information and ideas.

At the same time, however, there is an obligation notto cause harmful interference to another country’s broad-casts. As the largest user of the electromagnetic spectrum,the United States actively supports the international legalregime which allocates the radio frequency spectrum andallows for the registration of radio frequency assignmentsin order to ensure orderly international use of the fre-quency spectrum and to avoid harmful interferencebetween radio stations of different countries. Cuba andthe United States are both party to the InternationalTelecommunication Convention (Nairobi, 1982) and tothe Radio Regulations (Geneva, 1979) which complementit. (The term “radio” encompasses all forms of broad-casting including “television.”) The obligations describedin these agreements relate to frequency use and are neu-tral with regard to program content of the signal.

The fundamental obligation regarding the use of radio(TV) frequencies as expressed in Article 35 of theInternational Telecommunication Convention is for radiotransmissions to avoid harmful interference to frequenciesused by other members:

All stations, whatever their purpose, must be establishedand operated in such a manner as not to cause harmful inter-ference to the radio services or communications of otherMember. . . .

The Radio Regulations permit member countries widelatitude in their use of frequencies, notwithstanding otherdetailed provisions, so long as stations do not cause harm-ful interference.


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Administrations of the Members shall not assign to astation any frequency in derogation of either the Tableof Frequency Allocations given in this Chapter or theother provisions of these Regulations, except on theexpress condition that harmful interference shall notbe caused to services carried on by stations operatingin accordance with the provisions of the Conventionand of these Regulations.

Report to Congress on TV Marti Test Broadcasts to Cuba at 7–8,available at www.state.gov/s/l.

On August 26, 1990, the President issued a determinationconcluding that the test broadcast “has demonstrated televisionbroadcasting to Cuba is feasible and will not cause objectionableinterference with the broadcasts of incumbent domestic licenses.”Presidential Determination No. 90-35, August 26, 1990, 55 Fed.Reg. 38,659 (1990). A statement by White House Press SecretaryMarlin Fitzwater on August 27, 1990, explained:

The President has determined that TV Marti broadcastswill continue in a manner which is consistent with ourinternational obligations. TV Marti is an integral part ofU.S. policy to provide free access to information for peo-ple who are denied that right. We regret the Cubanregime’s decision to attempt to deny the free flow of infor-mation by jamming. But we recall the experience of RadioFree Europe and Radio Liberty in which the broadcastswere jammed for years, yet people were able to listen.

26 WEEKLY COMP. PRES. DOC. 1292, (Sept. 3, 1990).

b. Cuban objections and International Telecommunications Union

At the Plenipotentiary Conference of the International Tele-communication Union (“ITU”) in Nice in May and June, 1989,the Cuban government had raised objections to U.S. radio broad-casts to Cuba. In response to the Cuban objections, the UnitedStates Delegation issued the following written statement:


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Contrary to the Cuban representative’s erroneous allega-tion, U.S. Voice of America (VOA) medium frequencybroadcasting to Cuba complies fully with the NorthAmerican Regional Broadcasting Agreement (NARBA),the 1981 Region 2 MF Broadcasting Agreement, and theRadio Regulations of the ITU. The VOA Station broad-casting on 1180 KHz has been broadcasting for manydecades and is registered with the International FrequencyRegistration Board (IFRB).

. . . All people who support the free flow of informa-tion must totally reject Cuban Government attempts toattack legitimate international broadcasting for “inter-fering in internal Cuban affairs.” Indeed, the CubanGovernment itself broadcasts to other countries in the MFbroadcasting band. The program content of the VOA’s“Radio Marti,” the proposed “TV Marti,” or any otherstation cannot be a matter for debate. As reflected inArticle 19 of the United Nations Universal Declaration ofHuman Rights, all people enjoy the right to seek, receive,and impart information and ideas through any media,regardless of frontiers.

Licensed broadcasting from United States territorydoes not cause harmful interference to registered Cubanstations. While, from time to time, private individualsmake extra-legal radio broadcasts to Cuba, my govern-ment continues to make every effort to enforce U.S. lawsagainst such unauthorized transmissions. In just one exam-ple, on May 22 the U.S. Federal Communications Co-mmission seized the equipment of an unlicensed Mobilestation broadcasting to Cuba on 6666.6 KHz.

In sharp contrast to the United States fulfillment of itsinternational treaty obligations, the Cuban Government-owned stations, whether unregistered with the IFRB, oper-ating outside their registered parameters, or operating inviolation of its previous obligations under a regional agree-ment, have been causing harmful interference to U.S. com-mercial medium wave broadcasting stations since 1959. . . .

Over the past two years we have repeatedly expressedour concern about harmful interference caused to legiti-


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mate U.S. broadcasting by Cuban stations not entered inthe Master International Frequency Register and operat-ing at excessive power, particularly those stations broad-casting on the 1040 and 1160 KHz frequencies. The CubanGovernment has ignored our repeated oral and writtenprotests and in recent months has purposely escalated itsinterference by adding a high-powered station on the 830KHz frequency.

* * * *

The United States insists that, as required by Articles35 and 44 of the ITU Convention and Article 6 andRegulation No. 1416 of the Radio Regulations, unregis-tered Cuban stations cease transmission until such timeas they can be operated in a manner that does not resultin harmful interference to registered stations.

Statement of the U.S. Delegation, Plenipotentiary Conference ofthe International Telecommunication Union, June 1989.

At the close of the conference, the Cuban government made areservation on signing the Final Act of the ITU PlenipotentiaryConference, denouncing U.S. radio and proposed TV broadcastsand “reserv[ing] the right to adopt any measures it considers nec-essary, including broadcasts to United States of America territoryon the frequencies it considers most appropriate in order to safe-guard its rights and respond adequately to the radio and televisionbroadcasts aimed at Cuba from the United States of America.”Final Acts of the Plenipotentiary Conference, Nice, 1989, p. 166(Statement No. 62 of Cuba). In response, the United States issueda counter-declaration: “The United States of America . . . recallsits rights to broadcast to Cuba on appropriate frequencies free ofjamming or other wrongful interference and reserves its rights withrespect to existing interference and any future interference by Cubawith United States broadcasting.” Id. at 187.

On May 13, 1989, the Cuban government wrote to theInternational Radio Frequency Board (“IFRB”) of the ITU request-ing the Board’s review of a frequency assignment to the UnitedStates on the ground that it was causing harmful interference to


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two Cuban stations. The Cuban government argued that this inter-ference was in violation of Radio Regulation No. 2666 andrequested that the IFRB include a note regarding the harmful inter-ference next to the Cuban frequency assignments. Regulation No.2666 states that in principle, except for certain frequency bands,broadcasting stations shall not employ power exceeding that nec-essary to maintain national service of good quality within thefrontiers of the country concerned.

On June 26, 1989, the IFRB agreed to include such a note.On October 11, 1989, the IFRB requested the U.S. Government’sviews on the conformity of the U.S. frequency assignment withRadio Regulation No. 2666. IFRB telefax 30D(BC)/ 0.2364/89.

On February 27, 1990, the Acting U.S. Coordinator andDirector, Bureau of International Communications andInformation Policy, Kenneth W. Bleakley, responded to the IFRB’srequest. His letter stated that the assignment of the frequency wasconsistent with Radio Regulation No. 2666, and that IFRB reviewwould be inappropriate for the following reasons:

1. No. 2666 is a general rule to which appropriate excep-tions can be made, at the discretion of the administrationoperating the AM-broadcasting station and consistent withother relevant provisions of the Radio Regulations. Theprovision has existed for considerable time and a patternof conduct has emerged over the years among ITUMembers and the Board.

2. It is the practice of many ITU Members, includingCuba, to operate broadcasting stations in the MF-bandfor international and external service, as amply demon-strated in ITU plans and frequency lists (e.g., Rio Planand the Regions 1 & 3 LF/MF Plan) and in widely usednon-ITU publications, such as the Work Radio TVHandbook. Radio conferences of all three ITU Regionshave accepted these stations (including Marathon) forinclusion in MF-broadcasting plans. This usage is par-ticularly prevalent in Region 2.

3. It would be inappropriate for the IFRB to review afinding on a station assignment which has been operatingfor more than 25 years in accordance with a regional agree-


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ment to which both ITU Members involved in this matterwere party, and one which the Board itself processed undera regional plan within the past ten years including a reviewof the assignment for conformity with the regulations otherthan with respect to harmful interference.

4. It would be inappropriate for the IFRB to reviewthe finding on the basis of No. 1421b, i.e., on the groundsof actual harmful interference. This Administration hasno record of any interference reports from Cuba on 1180KHz and expects to receive none in light of the circum-stances surrounding the bringing into use of this frequency.

Letter from Acting Director and Coordinator Bleakley to G.C.Brooks, Chairman, International Frequency Registration Board,International Telecommunication Union, February 27, 1990, avail-able at www.state.gov/s/l.

On November 3, 1989, the Cuban government wrote to theITU regarding the proposed U.S. television broadcasts to Cubapursuant to the TV Marti program. The letter argued that thebroadcasts would constitute “flagrant violations” of the ITUConvention and Radio Regulation No. 2666, as well as interfer-ence in the internal affairs of Cuba. The chairman of the IFRBforwarded the letter to the U.S. Government requesting additionaltechnical information and comments. Letter from G.C. Brooks,Chairman, International Frequency Registration Board, January12, 1990, available at www.state.gov/s/l.

On April 2, 1990, the IFRB notified the U.S. Government thatit viewed the establishment of this television station as a viola-tion of Radio Regulation No. 2666, and requested the UnitedStates to modify the station’s technical characteristics to conformwith the regulation and eliminate harmful interference.

In response, the U.S. Government reiterated its view that theIFRB had established no basis for its involvement in the matter,in pertinent part as follows:

We have endeavored to determine the basis for your com-munication to us by reviewing the Board’s “essentialduties” listed in Article 10 of the International Telecom-munication Convention (Nairobi, 1982) and the “func-


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tions” set forth in Article 10 of the Radio Regulations(Geneva, 1979), instruments to which the United Statesand Cuba are party. The only applicable provisions appearto be those relating to advice and assistance to adminis-trations, [found in No. 70 of the Nairobi Convention andNo. 999 of the Radio Regulations].

* * * *

All other duties and functions of the IFRB relate to theorderly recording and registration of frequency assignments(including provisions 1438–1443 [relied on by the IFRB]),to radio conference preparations, and to other non-relevantmatters. We conclude that your letter of April 2, initiated bya November 3, 1989, communication from Cuba to SecretaryGeneral Tarjanne, constitutes advice and assistance eventhough the Cuban letter from last November does not con-tain such a request. Given our understanding of the Board’sactions, your letter to this Administration does not appearto be in keeping with normal IFRB or ITU procedures.

* * * *

With respect to the remaining substantive points ofyour letter, the Administration of the United States ispleased to submit the following comments:

— Efficient use of the radio spectrum—we do notagree with the Board’s implication that the use of a highantenna cannot be an efficient use of the radio spectrum.Many factors are involved in the effective, efficient andeconomical use of spectrum. In fact, the system has beendesigned to take account of accepted international tech-nical standards and to achieve a highly efficient use of thespectrum, including measures to minimize side lobe radi-ation which allows sharing with other broadcast stationsand to use time sharing to avoid harmful interference;

— No. 2666 of the Radio Regulations—we do not sharethe Board’s opinion regarding the intent and spirit of the pro-vision . . . . There are many ITU members throughout theworld that use the frequencies identified in No. 2666 for


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international broadcast services. These include stations ofthe BBC External Service (U.K.), Vatican Radio, RadioBerlin International (German Democratic Republic), AllIndia Radio, and until several weeks ago, “RadioMoscow” from Cuba in the English language. We do con-cur with your description of the customary practice regard-ing No. 2666, [which] permits exceptions to fullcompliance with the provision and it is for Administrationsto comply with (and interpret) the provision. The UnitedStates has determined that this customary practice is appli-cable to the frequency assignment at Cudjoe Key, Florida.

— Report of Harmful Interference—with respect toparagraphs 5 and 6 relating to the recent Cuban report ofharmful interference dated “27 Nov” [sic], the UnitedStates acknowledged the complaint by return telex on thesame day (March 27). We are confident that the opera-tion of the Cudjoe Key station is consistent with our obli-gations under the ITU Regulations and, to the best of ourknowledge, is not causing harmful interference to Cubanstations. We note that “time sharing,” as cited in provi-sion 1944 of the Radio Regulations, is one method wehave used to avoid interference.

Letter from Bradley P. Holmes, Coordinator and Director of theBureau of International Communications and Information Policy,Department of State, to Gary C. Brooks, Chairman, InternationalFrequency Registration Board, April 16, 1990, available atwww.state.gov/s/l.

The United States rejected assertions by the IFRB in a May 8,1990letter basing IFRB involvement on No. 80 of the Nairobi Conventionand Nos. 1438 and 1442 of the Radio Regulations, stating:

No. 80 of the Nairobi Convention deals with additionalduties of the IFRB respecting conferences. The provisiondoes not grant authority to the Board to assume whateveradditional duties it deems appropriate based on its owninterpretation of the Radio Regulations. We invite you toexamine the derivation of this provision from its prede-cessor (No. 167) in the Montreux Convention (1965). The


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phrase “in accordance with the procedure provided in theRadio Regulations” was added in the Malaga-Torre-molinos Convention (1973) in No. 68. This addition wasdesigned by the Members to ensure that the activities ofthe IFRB relating to conferences conform to the provisionsof the Radio Regulations; it did not broaden the scope ofthe essential duties of the IFRB.

We are also concerned that your continued referenceto Nos. 1438 and 1442 of the Regulations fails to takeinto account the context in which these provisions appear.The provisions appear in a section of Article 12,Notification and Recording in the Master InternationalFrequency Register of Frequency Assignments to TerrestrialRadiocommunications Stations; they do not appear inArticle 10, Section I (Functions of the Board). The timingof the Board’s communications to the United States clearlyindicates that these provisions could not be used by theBoard to justify its actions since the notification processassociated with the Cudjoe Key station has not advancedeven to the stage where an appropriate entry has appearedin an IFRB Circular. . . .

* * * *

The United States also continued to object to other aspects of theIFRB’s comments, stating:

We are particularly troubled by the Board’s characteriza-tion of No. 2666. This provision establishes a general rulefor frequency use to promote greater frequency sharingand to promote practices that minimize harmful interfer-ence and, as an integral part of the text, clearly indicatesthat exceptions to that rule are permissible. An exceptionto the general rule is, therefore, in full compliance withthe Regulation itself. . . .

Additionally, we believe that any view the IFRB hasexpressed with regard to harmful interference on the basisof a Cuban registration is unsupportable. . . . The rightto international protection afforded by No. 1416 is . . .not available to this Cuban assignment; protection fromharmful interference must depend on its actual operation


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rather than on the projected hours notified to the IFRB.The United States, mindful of the international recogni-tion obtained for the Cuban use of this frequency, con-ducted extensive monitoring in and around the city ofHavana to determine the actual use of the frequency con-cerned and took this information into account in the sub-mission of the notice form. At present the Cudjoe Keystation commences operation at approximately 03:45hours local time.

No Cuban broadcasting exists at this time, as verifiedby daily monitoring. Within moments of the time CudjoeKey begins its broadcast, Cuban stations begin to trans-mit jamming signals, which continue for the duration ofthe operation of the Cudjoe Key station. Cudjoe Key ceasesoperation at approximately 06:00 hours time, prior to thecommencement of Cuban programming. In our view, sat-isfactory time-sharing of the frequency would be accom-plished without the express agreement of the Cubanadministration, absent the Cuban jamming transmissions.

Letter from Kenneth W. Bleakley, Acting Coordinator and Directorof the Bureau of International Communications and InformationPolicy, Department of State, to Gary C. Brooks, Chairman,International Frequency Registration Board, July 9, 1990, avail-able at www.state.gov/s/l.

On June 22, 1990, the U.S. councillor submitted a statementto the ITU Administrative Council regarding statements made bythe Cuban representative regarding TV Marti. The U.S. statementexplained the objectives of TV Marti in providing objective andaccurate information to the Cuban people. Among other things,the statement rejected Cuban assertions that the broadcasts vio-lated Cuban sovereignty, noting that “all ITU members, particu-larly that large majority which provides an internationalbroadcasting service, recognize that radio and television signals donot constitute ‘a threat or use of force against the territorial integrityor political independence’ of another country, as defined under theU.N. Charter.” Statement submitted by U.S. Councillor Earl Barbelyto the Administrative Council of the ITU, June 22, 1990.

On September 3, 1990, the IFRB responded to the U.S.Government’s July 10, 1990 letter. The IFRB discussed the issueregarding its authority as follows:


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2. . . . [I]t is to be recalled that the Board derives itsgeneral authority from Article 10 of the NairobiConvention and through No. 80 (Nairobi 1982), the pro-visions of the Radio Regulations, Resolutions of WorldAdministrative Radio Conferences and, in some cases,instructions to the Board recorded in the minutes ofPlenary Meetings of such conferences. With regard to theRadio Regulations, the functions of the Board are givenin Article 10 and here RR 998 is particularly pertinent.

3. The Board considers that No. 80 and other provi-sions of Article 10 (Nairobi 1982) provide a direct link tothe provisions of Article 10 of the Radio Regulations, con-sequently, to RR 998 and hence to Section VII of Article12 of the Radio Regulations. Your contention that RR1438 and RR 1442 solely refer to the notification andrecording procedures is inconsistent with past practiceadopted by your Administration. You will no doubt recallthat in a letter dated 3 October 1985 the Board wasrequested by the U.S. Department of State to carry out astudy under Section VII of Article 12 concerning harmfulinterference to your HF broadcasting transmission by sta-tions under the jurisdiction of the USSR, Czechoslovakiaand Poland. None of these stations had been notified tothe IFRB. However, the operation of your HF broadcast-ing stations were governed by the provisions of Article 17of the Radio Regulations. Despite this fact, it is clear that,at that time, your Administration recognized that SectionVII of Article 12 was not limited to the notification processand had a wider scope to cover cases of harmful interfer-ence in respect of telecommunication services which werenot subject to Article 12 procedure of notification and reg-istration.

* * * *

5. You may wish to note that in accordance with RR1240, the Board is required to examine each notice withrespect to:


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“(a) its conformity with the Convention, the Table ofFrequency Allocations and the other provisions of theRadio Regulations with the exception of those provisionsrelating to the probability of harmful interference whichare the subject of Nos. 1241 and 1242”.

Regarding RR 2666, the Board considers in the fre-quency bands included in the provision, that as a generalrule, stations are limited to providing a national servicewithin the frontiers of the country concerned and notsolely as you express “. . . to promote greater frequencysharing and to promote practices that minimize harmfulinterference . . .” which are largely covered by No. 158(Nairobi 1982) and Article 6 of the Radio Regulations.

The Board agrees that exceptions to the general ruleare permissible but cannot agree that “An exception tothe general rule is, therefore, in full compliance with theregulation itself.” Such a view would make RR 2666meaningless. In the case of station Cudjoe Key, the char-acteristics of the station are such that it cannot be regardedas a legitimate exception to the general rule.

6. The international recognition of CD-De la Habanais for the hours 0000-2400 and information available fromother sources has no bearing on the application of theRadio Regulations. Consequently, the Cuban station hasthe right to operate over the whole 24 hours. Additionally,the Board considers that it would be impracticable to applyRR 1431 generally except when the Board is informedthat a station is operating outside the recorded hours ofoperation.

Letter from V.V. Kozlov, Acting Chairman, IFRB to the U.S.Coordinator and Director, Bureau of International Commu-nications & Information Policy, Department of State, September 3,1990(emphases in original), available at www.state.gov/s/l.

The letter concluded by stating the IFRB’s unfavorable find-ing on the Cudjoe Key station with respect to Radio Regulation1240. The difference in views between the U.S. Government andthe IFRB regarding the interpretation of the radio regulations con-tinued, and TV Marti has remained broadcasting during the earlymorning hours when no Cuban broadcasting occurs.


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C. OTHER TRADE AGREEMENTS AND RELATED ISSUES

1. Taxation

a. Council of Europe and Organisation for Economic Co-operation and Development tax treaty

On November 8, 1989, President George H.W. Bush transmittedthe Council of Europe-OECD Convention on MutualAdministrative Assistance in Tax Matters, done at StrasbourgJanuary 25, 1988, signed by the United States in Paris on June28, 1989 (“the Convention”), to the Senate for advice and con-sent to ratification. S. Treaty Doc. No. 101-6 (1989).

The Convention was concluded by the member states of theCouncil of Europe (“COE”) and the member countries of theOrganisation for Economic Co-operation and Development(“OECD”), and is open to ratification, acceptance, or approvalby any of the member States of the COE or the OECD. TheConvention was the first multilateral tax treaty of its kind andwas consistent with the U.S. Model Tax Treaty and with othertax treaties then in force for the United States. It entered intoforce on April 1, 1995.

The Secretary of State’s report to the President that wasincluded in the transmittal documents explained the U.S. viewson the Convention as follows:

Under the Convention, the Parties will exchange infor-mation for the assessment, recovery, and enforcement oftax(es) and tax claims, and to assist in the prosecution ofa taxpayer. Like information exchange under the U.S. ModelTreaty, information exchange under the Convention is notlimited to cases of suspected tax evasion.

The Convention applies, inter alia, to taxes on incomeor profits, taxes on capital gains, and taxes on net wealthimposed on behalf of a Party. Consistent with the U.S.Model Treaty, the United States will exchange informa-tion only on taxes imposed by the Federal government, andwill not exchange information on state or local taxes.

The taxpayer protections available under theConvention are at least as extensive as those available


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under the U.S. Model Treaty. Information provided by theUnited States to another party may not be released to athird party without U.S. consent. Neither the OECD, theCouncil of Europe, nor any other international organiza-tion would have access to the taxpayer information.

Section II of the Convention provides for assistance inthe recovery of taxes, but permits member States to reserveon these provisions. The United States intends to reserveon these provisions because the U.S. competent tax author-ity has not made use of the broad collection assistanceprovisions in four existing tax treaties which contain them.

Section III of the Convention provides for assistancein service of documents, but again permits States to reserveon this provision. The United States intends to do so onassistance in service of documents, as documents may beand are generally served by mail in the United States. Noassistance by the United States is needed. The United Stateswill, however, not reserve on Paragraph Three of thisSection, which affirms access by any Party to the postalsystem of any other Party for the service of documents.

Id. at v–vi. See also 84 Am. J. Int’l L. 245 (1990).

b. Conventions on avoidance of double taxation

(1) U.S.-India

On October 31, 1989, President Bush transmitted the Conven-tion between the Government of the United States of America andthe Government of the Republic of India for the Avoidance ofDouble Taxation and the Prevention of Fiscal Evasion withRespect to Taxes on Income, together with a related Protocol,signed at New Delhi on September 12, 1989, to the Senate for itsadvice and consent to ratification. S. Treaty Doc. No. 101-5(1989). The Convention, the first tax treaty between the UnitedStates and India, follows in general the pattern of the United StatesModel Tax Treaty with certain modifications reflecting the sta-tus of India as a developing country.


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The Report of the Secretary of State to the President, datedOctober 24, 1989, submitting the Convention for transmittal tothe Senate and included in the transmittal documents, describesthe Convention as follows, in pertinent part:

The Convention provides maximum rates-of-tax at sourceon payments of dividends, interest and royalties which, ineach case, are higher than the rates specified in the UnitedStates Model. Dividends from a subsidiary to a parent cor-poration are taxable at a maximum rate of 15 percent;other dividends may be taxable at source at a 25 percentrate. Interest is, in general, taxable at source at a maximumrate of 15 percent, although interest received by a financialinstitution is taxable at a maximum rate of 10 percent, andinterest received by either of the two Governments, by cer-tain governmental financial institutions, and by residentsof a Contracting State on certain Government approvedloans, is exempt from tax at source.

The royalty provisions contain several significantdepartures from standard United States tax treaty policy.In general, industrial and copyright royalties are taxableat source at a maximum rate of 20 percent for the firstfive years, dropping to 15 percent thereafter. Where thepayor of the royalty is one of the Governments, a politi-cal subdivision or a public sector corporation, tax will beimposed from the date of entry into force of the treaty ata maximum rate of 15 percent. Payments for the use of,or the right to use, industrial, commercial or scientificequipment are treated as royalties, rather than as businessprofits, and are subject to a maximum rate of tax at sourceof 10 percent. The most significant departure from pastpolicy in the royalty article is the fact that certain servicefees, referred to in the Convention as “fees for includedservices,” are treated in the same manner as royalties, andnot, as would normally be the case, as business profits.Included services are defined as technical consultancy serv-ices which either: (i) are ancillary and subsidiary to thelicensing of an intangible or the rental of tangible personalproperty, both of which give rise to royalty payments, or,


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(ii) if not ancillary or subsidiary, make available to thepayor of the service fee some technical knowledge, expe-rience, skill, etc., or transfer to that person a technicalplan or design. A detailed memorandum of understand-ing was developed by the negotiators to provide guidanceas to the intended scope of the concept of “included serv-ices” and the effect of the memorandum is agreed to in anexchange of notes. These are included for informationonly. Fees for all other services are treated either as busi-ness profits or as independent personal services income.Although not reflected in the Convention, under Indianlaw, certain service fees related to defense contracts areexempt from Indian tax.

The Convention preserves for the United States theright to impose the branch profits tax. It preserves forboth Contracting States their statutory taxing rights withrespect to capital gains.

The Convention also contains rules for the taxationof business profits which, consistent with other UnitedStates tax treaties with developing countries, provide abroader range of circumstances under which one partnermay tax the business profits of a resident of the other. TheConvention defines a permanent establishment to includea construction site or a drilling rig where the site or activ-ity continues for a period of 120 days in a year. This com-pares with a twelve-month threshold under the UnitedStates Model, and six months under the typical develop-ing country tax treaty. In addition, the Convention con-tains reciprocal exemption at source for shipping andaircraft operating income, including income from the inci-dental leasing of ships, aircraft or containers (i.e., wherethe lessor is an operator of ships and aircraft). TheConvention differs from the United States Model in thatincome from the non-incidental leasing of ships, aircraftor containers (i.e., where the lessor is not an operator ofships or aircraft) is not covered by the article. Income fromsuch non-incidental leasing is treated as a royalty, taxableat source at a maximum rate of 10 percent.

The treatment under the Convention of various classesof personal service income is similar to that under other


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United States tax treaties with developing countries.The Convention contains provisions designed to pre-

vent third-country residents from treaty shopping, i.e.,from taking unwarranted advantage of the Convention byrouting income from one Contracting State through anentity created in the other. These provisions, consistentwith recent tax legislation, identify treaty shopping interms both of third-country ownership of an entity, andof the substantial use of the entity’s income to meet liabil-ities to third-country persons. Notwithstanding the pres-ence of these factors, however, treaty benefits will be allowedif the income is incidental to or earned in connection withthe active conduct of a trade or business in the State of res-idence, if the shares of the company earning the income aretraded on a recognized stock exchange, or if the competentauthority of the source State so determines.

As with all United States tax treaties, the Conventionprohibits tax discrimination, creates a dispute resolutionmechanism and provides for the exchange of otherwiseconfidential tax information between the tax authoritiesof the parties. The Convention authorizes access by theGeneral Accounting Office and the tax writing committeesof Congress to certain information exchanged under theConvention which is relevant to the functions of these bod-ies in overseeing the administration of United States laws.

In an exchange of notes, the United States and Indiaagree that, although the Convention does not contain atax sparing credit, if United States policy changes in thisregard, the Convention will be promptly amended to incor-porate a tax sparing provision. These notes are alsoincluded for information only.

Id. at iii–v. See also 84 Am. J. Intl L. 246 (1990).

(2) Other conventions

During 1989 and 1990 other conventions for avoidance of dou-ble taxation transmitted to the Senate for its advice and consentto ratification included:


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— Supplementary Protocol to the Convention for the Avoidanceof Double Taxation and the Prevention of Fiscal Evasion with respectto Taxes on Income between the United States and Tunisia, S. TreatyDoc. No. 101-9 (1990). For the Senate Foreign Relations CommitteeReport on the Tax Convention with Tunisia and the SupplementaryProtocol, see S. Exec. Rep No. 101-23 (1990).

— Convention for the Avoidance of Double Taxation and thePrevention of Fiscal Evasion with respect to Taxes on Incomebetween the United States and Finland, S. Treaty Doc. No. 101-11 (1990).

— Convention for the Avoidance of Double Taxation and thePrevention of Fiscal Evasion with respect to Taxes on Incomebetween the United States and Spain, S. Treaty Doc. No. 101-16(1990).

2. Intellectual Property: International Registration of Audio-visual Works

On January 24, 1990, the President transmitted to the Senate foradvice and consent to ratification the Treaty on the InternationalRegistration of Audiovisual Works, done at Geneva, April 20,1989. The Treaty establishes a multilateral system to facilitateenforcement of rights, to increase legal security concerning audio-visual works in foreign countries, and to contribute to the fightagainst piracy. In his letter of transmittal, the President noted thatthe registration system established by the Treaty is voluntary, foruse at the option of the producers (or “rightsholders”) of audio-visual works. The President’s letter of transmittal was accompa-nied by a report from the Department of State to the Presidenton the Treaty and the regulations thereunder, dated December 22,1989, which explained as follows:

The purpose of the Treaty is to facilitate enforcement ofrights and increase the legal security in transactions relat-ing to audiovisual works and to contribute to the fightagainst piracy. The Treaty provides for the establishmentof an international register for applications and relatedmaterials concerning the exercise of rights in audiovisualworks such as motion pictures and television programs,


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including in particular rights relating to their exploitation.Statements recorded in the International Register are givenprima facie effect in countries party to the Treaty. Publicaccess to the elements entered into the international sys-tem will be facilitated by publication in a timely gazette.A comprehensive database of rights owners will also bemaintained from which WIPO will be able to provide infor-mation electronically to interested parties. The Inter-national Bureau of the World Intellectual PropertyOrganization will serve as the secretariat for the Treaty.

Essentially, this Treaty is procedural in nature; it is nota substantive copyright treaty and explicitly provides thatit shall not be interpreted as affecting national copyrightlaws. The International Register established by the Treatyis voluntary in the sense that it may be used at the optionof the producers or rightsholders of audiovisual works.Further, there are to be no financial contributions fromgovernments; rather the International Register is to be self-financing from the payment of fees for registration andother services, and the sale of publications such as theGazette. The start-up costs are to be borne by theGovernment of Austria and the International Register willbe located in Austria.

S. Treaty Doc. No. 101-8 at v–vi (1990). Among the articles summarized in the Acting Secretary’s

Report are the following:

Article 4 is the most important article in the Treaty in thatit deals with the legal effects of statements recorded in theInternational Register. As a general rule each ContractingState undertakes to recognize that a statement recordedin the International Register shall be considered true untilthe contrary is proved. However, this principle is subjectto two exceptions. Article 4(l)(i) makes an exception forcases where under a Contracting State’s copyright or otherintellectual property law the statement cannot be valid.The second exception, Article 4(l)(ii), applies in caseswhere the statement is contradicted by another statement


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recorded in the International Register. Article 4(2) is asafeguard clause that provides that the Treaty does notaffect the copyright law, or other intellectual property law,of any Contracting State or any rights under the BerneCopyright Convention for the Protection of Literary andArtistic Works or any other treaty concerning intellectualproperty rights.

Article 5 provides for an Assembly consisting of allthe Contracting States and sets forth in detail the various“tasks” of that body, including the establishment of a con-sultative committee of representatives of non-governmentalorganizations with an interest and expertise in audiovi-sual works. This committee will have an important advi-sory role concerning registration fees and theAdministrative Instructions which govern the administra-tion of the Treaty and the Regulations.

Pursuant to Article 5(7) most of the decisions of theAssembly will be taken by a simple majority vote exceptfor amendments of the Regulations, which require a two-thirds vote, and amendments of certain articles regardingthe Assembly itself and finances, which require a three-fourths vote.

In order to encourage adherence to the Treaty, theexpenses of one delegate to the Assembly from eachContracting State shall be paid from funds of the Union.

Id. at vi.The report also summarized the regulations annexed to the

Treaty and approved at the diplomatic conference. The regula-tions set out the definitions, requirements, and procedures forapplications for registration under the treaty. Finally, the reportnoted that United States ratification would not require any amend-ments to U.S. copyright law, or any other implementing legisla-tion and concluded:

Ratification of the Treaty on the International Registrationof Audio-visual Works is supported by the Copyright Office,as the principal substantive agency interested in the Treaty.In the private sector the American Film Marketing Association,


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a trade association representing 111 member companieswho license the distribution rights of American independ-ent films in the international market, strongly supports expe-ditious ratification. The Motion Picture Association ofAmerica has no official position on the Treaty.

Id. at viii. See also 84 Am. J. Int’l L. 738 (1990).

3. Investment

a. International Court of Justice case against Italy

On July 20, 1989, the International Court of Justice rejected aclaim by the United States that the Government of Italy had inter-fered with the investment of a United States corporation in Italy,in violation of the Treaty of Friendship, Commerce, andNavigation signed February 2, 1948 (63 Stat, 2255, T.I.A.S. No.1965). Case Concerning Elettronica Sicula S.p.A (ELSI), 1989I.C.J. Reports 15, reprinted in 28 I.L.M. 1109 (1989). The juris-diction of the Court was based on article XXVI of the FCN Treaty,which permits either Party to submit to the ICJ any dispute regard-ing the interpretation or application of the treaty that the Parties“shall not satisfactorily adjust by diplomacy.”

The application of the United States instituting the proceed-ings before the ICJ had been filed on February 6, 1987. Afterascertaining the views of the Parties, the ICJ formed a Chamberof five judges to hear the case. Following the filing of writtenpleadings in 1987 and 1988, oral proceedings were held in TheHague from February 13 to March 3, 1989. For a discussion ofthe case, see Cumulative Digest 1981–1988 at 3382–3387.

b. Prohibition on foreign control of U.S. company

On February 1, 1990, President George H.W. Bush prohibited theacquisition of control of MAMCO Manufacturing, Inc.(“MAMCO”) by the China National Aero-Technology Importand Export Corporation (“CATIC”) and ordered CATIC and itssubsidiaries and affiliates to divest all of their interest in MAMCOby May 1, 1990. Order Pursuant to Section 721 of the DefenseProduction Act of 1950, 55 Fed. Reg. 3,935 (Feb. 1, 1990).


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Section 721, known as the Exon-Florio provision, 50 U.S.C.App. § 2170, was added by section 5021 of the Omnibus Tradeand Competitiveness Act of 1988 to permit the President to reviewcertain mergers, acquisitions, and takeovers that “could result inforeign control of persons engaged in interstate commerce in theUnited States.” Section 5021, Pub. L. No. 100-418, 102 Stat.1425 (1988). Section 721(a) authorizes the President or hisdesignee to investigate “to determine the effects on national secu-rity of mergers, acquisitions, and takeovers . . . by or with for-eign persons” that could result in such foreign control.

Within 15 days of an investigation’s completion, the President“may take such action for such time as the President considersappropriate to suspend or prohibit any acquisition, merger, ortakeover, of a person engaged in interstate commerce in the UnitedStates . . . by or with foreign persons so that such control will notthreaten to impair the national security.” Section 721(c). Section721(d) requires the President to make specific findings concern-ing national security and other available provisions of law. Seediscussion in Cumulative Digest 1981–1988 at 2637–2641.

The MAMCO/CATIC decision was the first time that thePresident exercised the authority to prohibit foreign control of aU.S. company under the Exon-Florio provision. Consistent with thisstatute, the President’s February 1 order made the required findingsand authorized certain measures as follows, in pertinent part:

Section 1. Findings. I hereby make the following findings:

(1) There is credible evidence that leads me tobelieve that, in exercising its control of MAMCOManufacturing Inc. (“MAMCO”), a corporationincorporated under the laws of the State of Washing-ton, the China National Aero Technology Importand Export Corporation (“CATIC”) might takeaction that threatens to impair the national securityof the United States of America; and(2) Provisions of law, other than section 721 andthe International Emergency Economic Powers Act(50 U.S.C. 1701–1706), do not in my judgment pro-vide adequate and appropriate authority for me toprotect the national security in this matter.


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Section 2. Actions Ordered and Authorized. On the basisof the findings set forth in Section 1 of this Order, Ihereby order that:

(1) CATIC’s acquisition of control of MAMCO andits assets, whether directly or through subsidiaries oraffiliates, is prohibited.(2) CATIC and its subsidiaries and affiliates shalldivest all of their interest in MAMCO and its assetsby May 1, 1990, 3 months from the date of thisOrder, unless such date is extended for a period notto exceed 3 months, on such written conditions asthe Committee on Foreign Investment in the UnitedStates (“CFIUS”) may require. Immediately upondivestment, CATIC shall certify in writing to CFIUSthat such divestment has been effected in accordancewith this Order.(3) Without limitation on the exercise of authorityby any agency under any other provisions of law,and until such time as the divestment is completed,CFIUS is authorized to implement measures itdeems necessary and appropriate to verify thatoperations of MAMCO are carried out in such amanner as to ensure the protection of the nationalsecurity interests of the United States. Such meas-ures may include but are not limited to the fol-lowing: On reasonable notice to MAMCO, CATIC,or CATIC’s subsidiaries or affiliates (collectively“the Parties”), employees of the United StatesGovernment, as designated by CFIUS, shall be per-mitted access to all facilities of the Parties locatedin the United States (a) to inspect and copy any books, ledgers, accounts,correspondence, memoranda, and other recordsand documents in the possession or under the con-trol of the Parties that concern any matter relat-ing to this Order.(b) to inspect any equipment, containers, packages,and technical data (including software) in the pos-session or under the control of the Parties; and(c) to interview officers, employees, or agents of theParties concerning any matter relating to this Order.


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(4) The Attorney General is authorized to take anysteps he deems necessary to enforce this Order.

Section 3. Reservation. I hereby reserve my authority,until such time as the divestment required by this Orderhas been completed, to issue further orders with respectto the Parties as shall in my judgment be necessary to pro-tect the national security.

Order, 55 Fed. Reg. 3,935 (Feb. 1, 1990). Section 721(f) requires the President to report to Congress

whenever he decides to take action under section 721(c). ThePresident’s report to Congress on February 1, 1990, regarding hisdecision to order divestment of MAMCO by CATIC elaboratedon the reasons for the decision and described the role of theCommittee on Foreign Investment in the United States (“CFIUS”),an interagency committee chaired by the Secretary of the Treasury,as the President’s designee in Section 721 investigations. The reportprovided, in pertinent part:

2. The United States welcomes foreign direct investmentin this country; it provides foreign investors fair, equitable,and nondiscriminatory treatment. This Administration iscommitted to maintaining that policy. There are circum-stances in which the United States maintains limited excep-tions to such treatment. Generally these exceptions arenecessary to protect national security. Of those foreignmergers, acquisitions, and takeovers which have beenreviewed under the Exon-Florio provision to determineeffects on national security, this is the first time I haveinvoked section 721 authority. My action in this case isin response to circumstances of this particular transaction.It does not change our open investment policy and is nota precedent for the future with regard to direct investmentin the United States from the People’s Republic of Chinaor any other country.

* * * *

3. I have made the findings required by section 721.Specifically, confidential information available to me con-cerning some of CATIC’s activities raises serious concerns


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regarding CATIC’s future actions. It is my determinationthat this information constitutes the “credible evidence”required by the statute. Moreover, I have determined thatno law, other than section 721 and the InternationalEmergency Economic Powers Act, provides adequate andappropriate authority to protect against the threat to thenational security posed by this case.

4. MAMCO voluntarily notified the Committee onForeign Investment in the United States (“CFIUS”) ofCATIC’s intention to acquire MAMCO. CFIUS has beendesignated by Executive Order No. 12661 to receive noti-fications and to review and investigate to determine theeffects on national security of foreign mergers, acquisi-tions, and takeovers. On November 30, 1989, CATIC pur-chased all of the voting securities of MAMCO. Theacquisition was consummated while CFIUS review of thetransaction was in progress, an action not prohibited bythe statute.

CATIC is an export-import company of the Ministryof Aerospace Industry of the People’s Republic of China.CATIC has business dealings with various companies inthis country, in several sectors including commercial air-craft. The Ministry engages in research and development,design, and manufacture of military and commercial air-craft, missiles, and aircraft engines.

MAMCO machines and fabricates metal parts for air-craft. Much of MAMCO’s production is sold to a singlemanufacturer for production of civilian aircraft. Some ofits machinery is subject to U.S. export controls. It has nocontracts with the United States Government involvingclassified information.

5. On December 4, 1989, CFIUS made a determina-tion to undertake a formal investigation and so informedthe parties to the transaction. CFIUS undertook the inves-tigation in order to assess MAMCO’s present and poten-tial production and technological capabilities and thenational security implications of CATIC’s purchase ofMAMCO.

6. During the investigation, CFIUS asked for andreceived information from MAMCO in addition to that


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provided in the initial filing. Officials of the Departmentsof Commerce and Defense, representing CFIUS, visitedMAMCO to gather information to assist CFIUS in itsassessment of MAMCO’s current production and tech-nological capabilities.

7. In its investigation, CFIUS also considered the ade-quacy of all laws, other than the Exon-Florio provision,to deal with the national security concerns posed by thetransaction.

8. Because of the sensitive nature of the evidence inthis investigation, CFIUS will be available, on request, toprovide the appropriate committees, meeting in closed ses-sions, with a classified briefing.

Report of the President to Congress, White House, Office of thePress Secretary, February 1, 1990, 26 WEEKLY COMP. PRES.DOC. 164–165 (Feb. 12, 1990).

On March 19, 1990, Charles H. Dallara, Assistant Secretaryof the Treasury for International Affairs, testified before the HouseSubcommittee on Commerce, Consumer Protection, and Com-petitiveness concerning implementation of section 721. AssistantSecretary Dallara reviewed the experience to date of CFIUS:

It may come as no surprise to you that CFIUS has consid-ered a wide range of transactions. They include foreign pur-chases of everything from lawn seed and tulip bulb companiesto defense contractors, whose operations are classified.

A few statistics might be appropriate to provide youan idea of the scope of CFIUS activity. Since the 1988 TradeAct became law in August 1988, CFIUS has reviewed over280 transactions. During 1989, filings with CFIUS repre-sented about 30 percent of the total annual number of for-eign acquisitions of U.S. companies valued at more than$1 million. At the present time, notifications are comingto CFIUS at the rate of 350 a year. Some 350 filings annu-ally would represent, we estimate, around 50 percent ofannual acquisitions valued at more than $1 million.

To date, CFIUS has undertaken a formal investigationonly seven times. In two of those cases, notification was


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withdrawn with CFIUS permission. One investigation isin progress. Four cases have reached the President’s deskfor decision. In only one of the cases has the Presidentexercised his statutory authority to prohibit a foreignacquisition. In order for the President to suspend or pro-hibit a foreign investment, he must meet two criteria. First,he must determine that the foreign interest might takeaction which threatens to impair national security. Second,he must find that existing laws are not adequate or appro-priate to protect national security. These are strict stan-dards, as is appropriate, since Exon-Florio authorityshould be used only in unusual circumstances. Such a caseoccurred last month when the President ordered the divest-ment of the China National Aero-Technology Import andExport Company’s (CATIC) acquisition of MAMCOManufacturing, Inc. (MAMCO).

Foreign Acquisitions and National Security: Hearing before theHouse Comm. On Energy and Commerce, 101st Cong. 8–34(1990) (testimony of Charles H. Dallara, Assistant Secretary forInternational Affairs, Dept. of Treasury). Draft regulations forthe implementation of the Exon-Florio provision were publishedin the Federal Register on July 14, 1989, 54 Fed. Reg. 29,744-01(July 14, 1989). Final rules were published at 56 Fed. Reg. 58,774-01 (Nov. 21, 1991). For current regulations, see 59 Fed. Reg.27,178 (May 25, 1994).

Cross references

Tax Convention with Indonesia, Chapter 12.A.8.b.Patent issues in outer space activities, Chapter 12.B.Tourism agreements, Chapter 14.


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CHAPTER 12

Territorial Regimes And Related Issues

A. LAW OF THE SEA AND RELATED BOUNDARY ISSUES

1. UN Law of the Sea Resolution

On November 20, 1989, the United Nations General Assemblydebated and adopted a resolution on the law of the sea settingforth a program for continued efforts to bring the 1982 Law ofthe Sea Convention into force and for implementation of its terms.UN Doc. A/RES/44/26 (1989). During the debate, the UnitedStates Permanent Representative to the United Nations,Ambassador Thomas R. Pickering, made the following points object-ing to certain aspects of the resolution:

The United States views the 1982 United NationsConvention on the Law of the Sea as a major accom-plishment in the development of the international lawof the oceans. The Convention has many positive aspectsand the United States has actively supported and pro-moted observance of the vast majority of its provisions.

Unfortunately, the Convention also contains provi-sions on deep-sea-bed mining that are fundamentally unac-ceptable to the United States. Our concerns were clearlystated in 1982, when we announced our decision not tosign the Convention. We have followed closely develop-ments regarding sea-bed mining since 1982 and we areaware that there has been an evolution in the thinking ofsome other Governments. We are encouraged by therecognition of many States that re-evaluation of the

425

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sea-bed regime is necessary and we have noted with inter-est the recent statement of the Chairmen of the Group of77 expressing readiness for a dialogue and the Group’s sup-port for efficiency and cost-effectiveness in the sea-bedregime. The draft resolution removes thinly veiled criti-cisms of the United States contained in earlier resolutions.It welcomes the willingness of States to explore all possi-bilities of addressing outstanding issues and invites Statesto renew efforts to facilitate universal participation in theConvention.

* * * *

The United States shares the desire for a universallyacceptable convention. We are concerned that, notwith-standing what appears to be a genuine desire for dialogue,many countries do not understand that from the UnitedStates perspective the sea-bed regime remains seriouslyflawed. We do not believe that a dialogue can succeedunless it is based on an understanding of this point. Wetherefore believe it would be premature now to considernegotiations. We believe that fundamental reform is a taskthat exceeds the capabilities of the Preparatory Commissionand for this reason we do not participate in theCommission. Nevertheless, we continue to be willing toexchange views with any State in the interest of determin-ing whether circumstances exist for a dialogue that willlead to a universally acceptable convention.

Notwithstanding the improvement in the draft reso-lution, the United States continues to object to certainaspects of it. In particular, we cannot join in the call forall States to consider early ratification of or accession tothe Convention to allow entry into force of the sea-bedregime, when we have objections to that regime. In addi-tion we continue to object to the funding of thePreparatory Commission from the general budget of theUnited Nations. We believe it should be funded by thoseStates participating in it.

For these reasons, regrettably, we must oppose thedraft resolution.


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Having expressed our concern regarding the sea-bedregime, I should like now to express my Government’ssupport for the emphasis placed on efforts to encourageStates to bring their national laws into conformity withinternational law, as reflected in the provisions of theConvention concerning traditional uses of the oceans. MyGovernment has been active in supporting and promot-ing compliance with these provisions and discouragingclaims that are inconsistent with international law. In par-ticular we welcome the action by many States to revisetheir laws and regulations to ensure conformity with inter-national law and encourage others to do likewise.

I should like to take this opportunity to point out thatthe United States does not view the call upon all States tosafeguard the unity of the Convention as a limitation oneither the right or the duty of all States to act in accor-dance with those portions of the Convention which reflectcustomary international law.

U.N. Doc. A/44/PV.61, at 41–42.

2. Salvage at Sea

a. International Convention on Salvage

On April 28, 1989,a diplomatic conference convened under theauspices of the International Maritime Organization (“IMO”)adopted the International Convention on Salvage, IMO Doc.LEG/CONF.7/27 (May 2, 1989)(“1989 Convention”). The 1989Convention is intended to succeed the International Conventionfor the Unification of Certain Rules with Respect to Assistanceand Salvage at Sea concluded at Brussels in 1910 (“1910Convention”). No provision of that long-standing treaty specifi-cally addresses the marine environment and the importance ofsalvage operations in protecting the environment from damage.In fact, the 1910 Convention, which entered into force for theUnited States in 1913, incorporates the traditional admiralty prin-ciples of “no-cure, no-pay” (i.e., salvors receive no remunerationfor salvage services unless their efforts are successful) and the lim-itation of the total salvage award to the maximum value of the

Territorial Regimes and Related Issues 427

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property salved. Thus, under the 1910 Convention, even in caseswhere failure to salvage carries a risk of serious environmentalharm, salvors are dissuaded from undertaking salvage operationsif success appears unlikely or if the projected value of the vesseland cargo salved are unlikely to cover expenses. The United Statesindicated that it does not intend to renounce the 1910 Convention,however, until all relevant parties to the 1910 Convention areparties to the new 1989 Convention.

The primary objectives of the 1989 Convention are to main-tain a viable commercial salvage industry and promote salvageoperations where the marine environment is threatened. TheConvention offers increased protection for the marine environ-ment in five principal ways:

1. The concept of “damage to the environment” is explic-itly recognized as a significant consideration withinthe salvage context.

2. Reciprocal obligations are imposed upon both the vesselowner and the salvor to “exercise due care to prevent orminimize damage to the environment,” and these dutiesmay not be altered or negated by contract.

3. The “skill and efforts of the salvors in preventing or min-imizing damage to the environment” has been added as afactor to be considered by salvage tribunals along withthe traditional criteria in determining the amount of thebasic salvage award.

4. In situations involving a threat of damage to the environ-ment, a financial incentive has been provided to encouragesalvors to undertake what would otherwise be commer-cially unattractive cases: specifically, the shipowner’s guar-antee of special compensation for salvage services renderedin such cases.

5. States Parties are urged to take into account the “need forcooperation between salvors, other interested parties andpublic authorities in order to ensure the efficient and suc-cessful . . . salvage operations for the purpose . . . of pre-venting damage to the environment. . . .”

The most controversial and significant issue in the negotiationswas the question of how to allocate projected increases in salvage


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costs under the new international regime among the commercialinterests involved. The U.S. urged revision of the pre-existing allo-cation scheme to reflect more equitably the respective traditionalresponsibilities of ship and cargo owners in maritime ventures.Extensive negotiations resulted in the adoption of a compromisewith two principal components: (1) an understanding that thetotal salved value need not be exhausted by the salvage award(payable by both shipowners and cargo owners in proportion totheir respective salved values) before special compensation (a guar-antee of expenses and a possible bonus in cases threatening envi-ronmental damage) is payable by shipowners (CommonUnderstanding Concerning Articles 13 and 15 of the InternationalConvention on Salvage, 1989, Attachment 1 to IMO Doc.LEG/CONF.7/27 (2 May 1989)); and (2) a resolution requestingamendment of the York-Antwerp Rules to ensure that the specialcompensation is not shifted to cargo owners through the generalaverage process. Resolution Requesting the Amendment of theYork-Antwerp Rules, 1974, Attachment 2 to IMO Doc.LEG/CONF.7/27 (May 2, 1989).

Other important issues of particular interest to the UnitedStates included adoption, with minor amendment, of a U.S. pro-posal to exclude certain offshore mineral platforms and drillingunits from the scope of the convention (article 3); and adoption,with minor amendment, of U.S. proposals concerning applicationof the convention to state-owned vessels (article 4), state-ownedcargoes (article 25), and certain humanitarian cargoes (article 26).

The 1989 Convention, as adopted by the conference, was gen-erally consistent with existing U.S. law, with certain exceptionsrelated to the new approach to salvage compensation set forth inarticles 13 and 14. The Convention was opened for signature onJuly 1, 1989. In 1991 U.S. law was amended to add considera-tions of “preventing or minimizing damage to the environment.”Pub. L. No. 102-241, § 40, 105 Stat. 2225, 46 App. § U.S.C. 729.The Convention entered into force, with the United States as aparty, on July 14, 1996.

b. Sunken warships: The C.S.S. Alabama

In 1984 French divers located the wreck of the C.S.S. Alabamaseven miles off the coast of France. The C.S.S. Alabama was built


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in England in 1862 for the Confederacy and had had a success-ful career as a destroyer of Union commerce until she was sunkin 1864 by the U.S.S. Kearsage. Both the United States and Franceclaimed title to the wreck.

France claimed title to the C.S.S. Alabama because the wreckwas located within the French territorial sea, even though at thetime of its sinking the ship was beyond the then-claimed Frenchterritorial sea of three nautical miles.

On September 14, 1987, the U.S. Embassy in Paris delivereda note to the French Ministry of Foreign Affairs asserting title tothe C.S.S. Alabama:

The United States considers that the CSS Alabama and itsassociated artifacts constitute property title to which isvested in the U.S. Government. As the U.S. Governmenthas never abandoned title thereto, the United Statesrequests that the Government of France ensure that nosalvage operation or any other activity is approved orundertaken to raise the vessel or its artifacts without theprior approval of the United States.

The French Ministry of Foreign Affairs replied in a note of January5, 1988:

There is no need to examine what the condition of thewreckage was at the time of the sinking of this privateership of the U.S. Southern Confederacy off the coast ofCherbourg by a Union warship on June 19, 1864, becausethe uncontested fact to be borne in mind is that the wreck-age was discovered on October 30, 1984 in the public mar-itime domain of France on the bed of its territorial sea.

* * * *

The Embassy’s note verbale of September 14, 1987states that the United States “considers” the CSS Alabamato be the property of the United States yet fails to cite anylegislative document governing the return of property ofthe Confederate States after the defeat.

* * * *


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Nevertheless, in accordance with our archeologicallegislation, no excavation, salvage, or refloating operationmay be carried out without the consent of the Minister ofCulture and Communication, who makes his decision onthe advice of the Higher Council on ArcheologicalResearch.

Therefore, such an operation would only be conductedfor the purposes of scientific research and with respect forthe higher interests involved. The French authorities wouldhave no objection to the idea of engaging in a U.S.-Frenchcooperative effort by forming a binational team to whichthe operation could be assigned.

On February 26, 1988, the Department replied:

As stated in its note of September 14, 1987, the UnitedStates regards the remains of the CSS ALABAMA and itsassociated artifacts as property of the United States. Thisremains the position of the United States and the UnitedStates considers it inappropriate for another sovereignState to intrude into United States’ domestic law on thequestion of Confederate States’ property.

* * * *

In reaffirming the position of the United States, theUnited States in no way purports to dispute the fact that,although the CSS ALABAMA sank in 1864 on the highseas, the final resting place of the vessel is now within theterritorial sea of France. The United States recognizes thelegitimate interests of France resulting from the locationof the CSS ALABAMA. However, this in no way extin-guishes the ownership rights of the CSS ALABAMA.

In light of the location of the CSS ALABAMA, coop-eration between France and the United States regardingany recovery of the CSS ALABAMA or its artifacts is apractical necessity. Thus the United States welcomes thesuggestion of your Government regarding cooperation andwould propose that the two Governments begin discus-sions toward this end.


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The French Embassy in Washington replied in a note dated May2, 1988:

Pertinent provisions of French law exist controlling theissue of wrecks which are of archeologic, historic or artis-tic interest title to which is either unknown or cannot befound.

The French authorities responsible for applying thedecree of 26 December 1961 must be assured of the valid-ity of titles to property which are presented to them.

In this regard the French authorities are prepared toexamine the documents which the Government of theUnited States may wish to provide them.

Moreover, the Government of France would raise noobjection to a proposal that experts of both States meetto discuss guidelines to regulate any cooperative French-U.S. undertaking to raise the wreck of the CSS Alabama.The French authorities would be able to take part in suchtalks at any time after 15 May 1988.

During a meeting in Paris on June 29, 1988, the United Statesprovided to the French government, among other things, anAugust 24, 1962, letter from the Judge Advocate General statingthat the Alabama was considered the property of the United Statesand that there was no record that it had ever been abandonedformally, and an October 29, 1969, letter from the acting admi-ralty counsel of the Navy to a British company stating that theAlabama was the property of the United States. On May 19, 1989,Mr. Richard de Warren, First Secretary of the Embassy of Francein Washington, D.C., informed the Department of State that theFrench government had decided that title to the C.S.S. Alabamaand its associated artifacts remained in the United States.

On October 3, 1989, France and the United States signed inParis an executive agreement concerning protection and study ofthe wreck of the C.S.S. Alabama and its artifacts. 29 I.L.M. 941(1990); 20 UNLOS Bull. 26 (March 1992). The agreement estab-lished a scientific committee “on a basis of equality,” to be com-posed of two representatives from each government and of expertsdesignated by each. The Director of Naval History, Departmentof the Navy, and the Chief Historian of the National Park Service


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were appointed as the U.S. representatives. The Committee wasrequired to review any measure related to scientific activities orany project concerning the wreck of the Alabama, and any deci-sion required the agreement (i.e., consensus) of the representa-tives of both governments.

Article 3 of the agreement provided for protective measuresas follows:

The provisions adopted by the French Government toestablish a zone of protection around the wreck of the CSSAlabama shall remain in force for the term of this agree-ment, unless the Parties decide otherwise. The competentFrench authorities may amend these provisions, as neces-sary. Neither Party shall take measures adversely affect-ing the wreck or its associated artifacts without theagreement of the other Party.

If the conservation of the wreck is compromised, thecompetent French authorities may take, on their ownauthority or at the request of the United States authorities,the conservation measures necessitated by the situation. Inthe event such urgent action is taken by the French author-ities, they will notify the United States authorities promptlyof the full details regarding such action.

Among other things, article 4 of the agreement required propos-als adopted by the Scientific Committee to be submitted to theFrench Minister of Culture for the necessary authorizations “withdue regard for the procedures provided for by French law.” SeeAct No. 89-874 of 1 December 1989 concerning MaritimeCultural Assets and Amending the Act of 27 September 194Regulating Archaeological Excavations, 1 December 1989,reprinted in 16 UNLOS Bull. 12 (Dec. 1990). Article 8 author-ized the Scientific Committee to agree, “as necessary,” upon pro-cedures to govern the United Kingdom’s participation in theoperations. The participation of the United Kingdom was basedon the fact that a Tribunal of Arbitration established by theU.S.–U.K. Treaty of Amity, May 8, 1871, 17 Stat. 863, T.S. No.133, 12 Bevans 170, awarded $15,500,00 in gold to the UnitedStates “on account of the depradations of the Alabama and cer-


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tain other Confederate cruisers fitted out in British jurisdiction.”6 Moore, DIGEST § 1050 at 999 (1906); see also 1 Moore,International Arbitration at 653–59 (1898).


3. U.S.-USSR Maritime Boundary Agreement

On June 1, 1990, the United States and the Soviet Union reachedagreement on a maritime boundary. Agreement between the UnitedStates of America and the Union of Soviet Socialist Republics onthe Maritime Boundary done at Washington, D.C., signed byJames A. Baker III and Eduard A. Shevardnadze, June 1, 1990(“the Treaty”). See S. Treaty Doc. No. 101-22 (1990). The pre-amble indicates that the treaty was intended to resolve issues con-cerning the maritime boundary of the two countries and to ensurethat where coastal state jurisdiction could be exercised in theabsence of a maritime boundary by either party in accordancewith international law, such jurisdiction was exercised by eitherthe United States or the Soviet Union.

On September 26, 1990, President George H.W. Bush trans-mitted the agreement to the Senate for advice and consent to itsratification. The President’s letter stated, in pertinent part:

I believe the agreement to be fully in the United Statesinterest. It reflects the view of the United States that themaritime boundary should follow the 1867 ConventionLine. The agreement resolves differences over where eachParty has the right to manage fisheries and oil and gasexploration and development, as well as exercise othersovereign rights and jurisdiction, in these marine areas.Through its transfer of jurisdiction provisions, it alsoensures that coastal state jurisdiction, in accordance withinternational law, is exercised by one or the other Partyin all marine areas within 200 nautical miles of either orboth coasts. Therefore, the agreement will permit moreeffective regulation of marine resource activities and otherocean uses and removes a significant potential source ofdispute between the United States and the Soviet Union.


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Id. at iii.In transmitting the Treaty to the Senate, the President included

the report of the Department of State, which described its termsas follows:

Article 1 records the agreement of the Parties that the linedescribed as the “western limit” in Article 1 of [theConvention Ceding Alaska, signed March 30, 1867] (the1867 Convention Line), is the maritime boundary. It alsodescribes the legal effect of the boundary, obligating eachParty to respect the boundary as limiting the extent of itscoastal state jurisdiction otherwise permitted by interna-tional law for any purpose. It thereby settles the issue ofwhere each side may, consistent with international law,manage offshore resources (the fishery resources of thewaters as well as the oil and gas and other resources ofthe seabed and subsoil) and other ocean uses in marineareas that both claimed or could have claimed.

Article 2 describes the maritime boundary and indi-cates that it is defined by lines connecting geographic posi-tions set forth in an Annex, which is an integral part ofthe Agreement.

The maritime boundary proceeds north and south ofthe Bering Strait from the mid-point between Big DiomedeIsland (Soviet) and Little Diomede Island (U.S.). North ofthe Strait, the boundary extends due north along themeridian of this mid-point as far as permitted under inter-national law. South of the Strait, the boundary generallyextends from the same mid point southwestward to 167degrees East Longitude (the end point of the ConventionLine, as described in the 1867 Convention). This end pointlies slightly beyond 200 nautical miles of the respectivecoasts of the United States and the Soviet Union.

Article 3 makes clear that the exercise by either Partyof sovereign rights and jurisdiction in the special areas [asdefined in the Article] does not constitute unilateral exten-sion of coastal state exclusive economic zone jurisdictionbeyond 200 nautical miles of its coasts. The transfer ofexclusive economic zone sovereign rights and jurisdiction


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in the special areas is possible because these areas lie within200 nautical miles of the coast of one of the Parties andthat Party has, through this Agreement, consented to theexercise by the other Party of such sovereign rights andjurisdiction in these areas. Each Party is obligated to ensurethat any special area in which it exercises such rights andjurisdiction is characterized in its laws and legislation, andis represented on its charts, in a manner to distinguish itfrom the exclusive economic zone of that Party.

* * * *

Article 4 contains a disclaimer to make clear that themaritime boundary does not affect or prejudice eitherParty’s position with respect to the rules of internationallaw relating to the law of the sea.

Article 5 defines coastal state jurisdiction as referringto sovereignty, sovereign rights, or any other form of juris-diction with respect to the waters or seabed and subsoilthat may be exercised by a coastal state in accordance withthe international law of the sea. The Agreement does notaffect the right of hot pursuit under the international lawof the sea.

Article 6 calls for any dispute over the interpretationof the Agreement to be resolved by negotiation or otherpeaceful means agreed by the Parties.

Article 7 provides that the Agreement will enter intoforce on the date of exchange of instruments of ratifica-tion.

A White House Fact Sheet, dated June 1, 1990, explained that,under Article 3,

The U.S.S.R. transfers to the United States jurisdiction inthree “special areas” within 200 miles of the Soviet coast,beyond 200 miles of the U.S. coast, and on the U.S. sideof the maritime boundary. The United States transfers toU.S.S.R. jurisdiction in one “special area” within 200 milesof the U.S. coast, beyond 200 miles of the Soviet coast, andon the Soviet side of the maritime boundary.


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26 WEEKLY COMP. PRES. DOC. 868 (June 4, 1990).By an exchange of notes on June 1, 1990, the parties agreed to

apply the Agreement provisionally “as of June 15,1990, pendingits entry into force.” T.I.A.S. 11,451. The Senate provided adviceand consent to the Treaty on September 16, 1991.

The text of the Agreement and an Annex defining the mar-itime boundary by means of geographic positions, the report ofthe Department of State, and an illustrative chart of the maritimeboundary are included in S. Treaty Doc. No. 101-22. See also, 84Am. J. Int’l L. 885 (1990); McNeill, America’s Maritime Boundarywith the Soviet Union, 44 Naval War College Review, No. 3 at46 (1991), reprinted in Moore and Turner, READINGS ONINTERNATIONAL LAW FROM THE NAVAL WAR COL-LEGE REVIEW 1978–1994 and Charney and Alexander,International Maritime Boundaries at 447.

4. Rights and Freedoms of International Community in Navigation

a. Innocent passage: U.S.-USSR uniform interpretation

On September 23, 1989, U.S. Secretary of State James A. BakerIII and Soviet Foreign Minister Eduard A. Shevardnadze issuedon behalf of their respective Governments a UniformInterpretation of the Rules of International Law GoverningInnocent Passage. The Uniform Interpretation recorded the twocountries’ common understanding of the legal regime for inno-cent passage by ships, including warships, through the territorialsea. The Uniform Interpretation provided as follows:

1. The relevant rules of international law governing inno-cent passage of ships in the territorial sea are statedin the 1982 United Nations Convention on the Lawof the Sea (Convention of 1982), particularly in PartII, Section 3.

2. All ships, including warships, regardless of cargo, arma-ment or means of propulsion, enjoy the right of inno-cent passage through the territorial sea in accordance


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with international law, for which neither prior notifica-tion nor authorization is required.

3. Article 19 of the Convention of 1982 sets out in para-graph 2 an exhaustive list of activities that would ren-der passage not innocent. A ship passing through theterritorial sea that does not engage in any of thoseactivities is in innocent passage.

4. A coastal State which questions whether the particu-lar passage of a ship through its territorial sea is inno-cent shall inform the ship of the reason why itquestions the innocence of the passage, and providethe ship an opportunity to clarify its intentions or cor-rect its conduct in a reasonably short period of time.

5. Ships exercising the right of innocent passage shall com-ply with all laws and regulations of the coastal Stateadopted in conformity with relevant rules of interna-tional law as reflected in Articles 21, 22, 23 and 25 ofthe Convention of 1982. These include the laws andregulations requiring ships exercising the right of inno-cent passage through its territorial sea to use such sealanes and traffic separation schemes as it may prescribewhere needed to protect safety of navigation. In areaswhere no such sea lanes or traffic separation schemeshave been prescribed, ships nevertheless enjoy the rightof innocent passage.

6. Such laws and regulations of the coastal State may nothave the practical effect of denying or impairing theexercise of the right of innocent passage as set forthin Article 24 of the Convention of 1982.

7. If a warship engages in conduct which violates suchlaws or regulations or renders its passage not innocentand does not take corrective action upon request, thecoastal State may require it to leave the territorial sea,as set forth in Article 30 of the Convention of 1982.In such case the warship shall do so immediately.

8. Without prejudice to the exercise of rights of coastaland flag States, all differences which may arise regard-ing a particular case of passage of ships through theterritorial sea shall be settled through diplomatic chan-nels or other agreed means.


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Dep’t St. Bull. (Nov. 1989), at 25–26.; 14 UNLOS Bull. 13 (Dec.1989), 28 I.L.M. 144 (1989).

Secretary Baker and Foreign Minister Shevardnadze also issueda joint statement:

Since 1986, representatives of the United States of Americaand the Union of Soviet Socialist Republics have been con-ducting friendly and constructive discussions of certain inter-national legal aspects of traditional uses of the oceans, inparticular, navigation.

The Governments are guided by the provisions of the1982 United Nations Convention on the Law of the Sea,which, with respect to traditional uses of the oceans, gen-erally constitute international law and practice and bal-ance fairly the interests of all States. They recognize theneed to encourage all States to harmonize their internallaws, regulations and practices with those provisions.

The Governments consider it useful to issue theattached Uniform Interpretation of the Rules ofInternational Law Governing Innocent Passage. BothGovernments have agreed to take the necessary steps toconform their internal laws, regulations and practices withthis understanding of the rules.

Dep’t. St. Bull., supra, at 26; 14 UNLOS Bull.12 (Dec. 1989).United States warships had been exercising in the Black Sea to

demonstrate that the United States did not accept the restrictionsof a Soviet border regulation then in effect purporting to limit inno-cent passage of warships in Soviet territorial seas to specific sealanes. None of the sea lanes were in the Black Sea. Rules forNavigation and Sojourn of Foreign Warships in the Territorial andInternal Waters and Ports of the U.S.S.R., Art. 12, translated in 24I.L.M. 1715, 1717 (1985). The U.S. presence had led to a “bump-ing incident” in February 1988 between U.S. and Soviet warshipsin the Black Sea. For additional information, see Aceves, Diplomacyat Sea: U.S. Freedom of Navigation Operations in the Black Sea,Naval War College Review (Spring 1993), reprinted in Moore andTurner, READINGS ON INTERNATIONAL LAW FROM THENAVAL WAR COLLEGE REVIEW, 1978–1994 at 243.


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The Soviet regulation was subsequently altered consistent withthe Uniform Interpretation, removing limitations on innocent pas-sage of warships to designated sea lanes. Press guidance preparedin connection with the joint statement and Uniform Interpretationstated:

Since the Soviet border regulations have been brought intoconformity with the 1982 Convention on the Law of theSea, we have assured the Soviet side that the United Stateshas no reason to exercise in the Soviet territorial sea in theBlack Sea its right of innocent passage under the U.S.Freedom of Navigation Program.

The warships of either country, of course, retain theright to conduct innocent passage in the territorial sea ofeach other incident to normal navigation. The United Stateswill continue to conduct routine operations in the BlackSea. . . . We retain our right to exercise innocent passage inany territorial sea in the world.

Telegram to all diplomatic and consular posts, September 28,1989. See also 84 Am. J. Int’l L. 239 (1990).

b. Advance notice

The U.S. Government made a number of diplomatic protests in1989 and 1990 to foreign states regarding their requirements thatother states provide advance notice or seek permission prior topassage through their territorial seas. Beginning in 1979, theUnited States has protected maritime rights of navigation andoverflight guaranteed to all nations under international law throughits Freedom of Navigation program. The program combines diplo-matic action, including formal diplomatic protests addressing spe-cific maritime claims that are inconsistent with international law,with the operational assertion by U.S. naval and air forces of inter-nationally recognized rights and freedoms. GIST, December 1988.

As part of this effort, the U.S. protested a Republic of Djiboutilaw that required advance notice of entry into Djibouti’s territo-rial waters by foreign vessels with nuclear propulsion or carryingradioactive substances. A telegram of March 31, 1989, made thefollowing points:


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— The United States respects coastal nation maritimeclaims which are consistent with customary internationallaw, as reflected in the 1982 United Nations Conventionon the Law of the Sea (LOS Convention), if the rights andfreedoms of the United States and others are recognizedin those areas.— The United States intends to continue its exercise ofnavigation and overflight rights and freedoms consistentwith the balance of interests reflected in the LOS con-vention.— The United States will not acquiesce in restrictive uni-lateral acts of other coastal nations which purport torestrict the rights and freedoms of the international com-munity in navigation and overflight and other related highseas uses.— While the Government of Djibouti has signed the LOSConvention and the United States has not signed theConvention, those parts of the Convention which relate totraditional uses of the ocean, such as navigation and over-flight, reflect customary international law and practice.— Customary international law, as reflected in the LOSConvention, provides that all ships enjoy the right of inno-cent passage through the territorial sea. Neither warships,nor any other type of ship, regardless of means of propul-sion or materials carried, may be required to give noticeto, or obtain the permission of, the coastal nation beforeexercising the right of innocent passage through the ter-ritorial sea.— The right of innocent passage is one of the most fun-damental rights existing on the oceans and may not beimpaired in any way. In support of the right of innocentpassage, United States government policy is neither to rec-ognize nor to respect in practice any nation’s claim thatvessels of any type must obtain another nation’s permis-sion, or provide prior notification, merely to pass throughits territorial sea.

* * * *

— In its proclamation of December 27, 1988 extendingthe United States’ territorial sea from 3 to 12 nautical


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miles, the United States emphasized that “within the ter-ritorial sea of the United States the ships of all countriesenjoy the right of innocent passage” in accordance withinternational law.

Telegram from the Department of State to U.S. Embassy, Djibouti,March 31, 1989.

In June 1989 the U.S. Government protested a Sudanese lawpurporting to require prior permission for the passage of militaryvessels through Sudan’s territorial waters. In addition to the pointsmade in the protest to Djibouti, discussed above, the U.S. notealso stated the following:

At the eleventh session of the Third United Nations Con-ference on the Law of the Sea, formal amendments whichwould have afforded coastal states the right to requireprior notification or authorization for the innocent pas-sage of warships were withdrawn. The withdrawal wasaccompanied by a statement from the chair that clearlyplaced the security interests of coastal states within thecontext of articles 19 and 25 of the Convention. Neither ofthese articles permit the imposition of authorizationrequirements on ships exercising the right of innocent pas-sage through the territorial sea.

Telegram from the Department of State to U.S. Embassy, Khartoum,June 2, 1989.

In the same month, the United States protested a Finnishdecree requiring prior notification of warships and non-com-mercial ships entering Finland’s territorial sea, prohibiting inno-cent passage through fortified or other areas declared to be ofmilitary importance, and requiring the use of pilot service andpublic sea lanes when navigating Finland’s territorial sea. Afterrepeating the legal bases for the right of innocent passage madein prior protests to other states, described above, the United Statesaddressed Finland’s limitation of innocent passage to non-mili-tary areas and its navigational requirements:

The Government of the United States also wishes torecall to the Government of Finland that the right of inno-


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cent passage through the territorial sea extends to thewhole of the territorial sea except as it may be suspendedtemporarily when such suspension is essential for the pro-tection or security of the coastal state and is duly pub-lished. This limited right to suspend innocent passage isrecognized in customary international law as reflected inArticle 25 of the United Nations Convention on the Lawof the Sea, as well as in the second paragraph of Article9 of the Finnish decree.

The Government of the United States also wishes torecall to the Government of Finland that there is no author-ity in international law to require compulsory pilotage ofvessels entitled to sovereign immunity engaged in innocentpassage through the Finnish territorial sea, as is asserted byArticle 10 of the Finnish law.

* * * *

The Government of the United States also seeks theassurances of the Government of Finland that the provi-sions of article 10 and 12 regarding the public sea lanesin the Finnish territorial sea apply only to those sea lanesestablished as necessary for the safety of navigation aftertaking into account the relevant factors required by inter-national law.

Telegram from the Department of State to U.S. Embassy Helsinki,June 2, 1989. The telegram also provided as follows concerningthe background of the protest to Finland:

— The claim . . . to deny any right of innocent passagethrough those portions of the Finnish territorial sea whichare fortified areas or other areas declared by the Finnishgovernment to be of military importance, and in Article 21to limit arrival of government vessels in such areas only tothe time between sunrise and sunset, are without founda-tion in international law. The national security interestswhich these provisions are apparently designed to protectwould seem capable of adequate protection through thegenerally recognized provisions for temporary suspensionof innocent passage set out in . . . [the decree].


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— The United States is concerned that Article 21, limitingarrival of government vessels in such areas between sunriseand sunset, could be applied in a manner to restrict furtherthe innocent passage of vessels. The United States seeks theassurances of the Government of Finland that Article 21 isnot intended to impose restrictions on the right of all ves-sels to engage in innocent passage through such areas incon-sistent with international law. — While the United States has no objection to theGovernment of Finland offering pilotage services to UnitedStates warships and other government ships operated fornon-commercial purposes and engaged in innocent pas-sage through the territorial sea of Finland, the Governmentof the United States understands that, consistent with theimmunities of those vessels, such services may be acceptedor declined at the discretion of the flag state.

* * * *

— Customary international law, as reflected in article 22of the Law of the Sea Convention, permits a coastal stateto establish sea lanes in its territorial sea where neededfor the safety of navigation; after taking into account therecommendations of the competent international organi-zations (i.e., the international maritime organization); anychannels customarily used for international navigation,the special characteristics of particular ships and chan-nels; and the density of traffic.— Articles 10 and 20 of the Finnish law do not specifythe criteria to be used by Finland in specially regulatingsea lanes.— Thus the U.S. seeks assurances of the Government ofFinland that it will follow these generally recognized prin-ciples of international law in regulating any sea lanes inits territorial sea.

Telegram from the Department of State to U.S. Embassy Helsinki,June 2, 1989.

The United States also transmitted a diplomatic note toAlbania through the French government protesting an Albanianrequirement that warships obtain prior authorization before


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engaging in innocent passage through its territorial sea, reiterat-ing legal arguments made in prior protests to other states. In addi-tion, the United States protested Albania’s establishment of a 15nautical mile territorial sea, noting that “as is well known, cus-tomary international law, as reflected in article 3 of the 1982United Nations Convention on the Law of the Sea, recognizes aterritorial sea breadth of up to a limit not exceeding twelve nau-tical miles, measured from baselines determined in accordancewith the convention. That practice is followed by a vast major-ity of the coastal states.” Telegram from the Department of Stateto U.S. Embassy, Paris, June 17, 1989. Albania enacted DecreeNo. 7366 to establish the width of its territorial sea at twelvemiles on March 9, 1990. 16 UNLOS Bull. 2 (Dec. 1990).

In July 1989 the United States protested a Romanian decreerequiring prior approval for military vessels Telegram to U.S.Embassy, Bucharest, July 11, 1989. The U.S. also protested a 1988Haitian note verbale to the United Nations purporting to pro-hibit the entry of any vessel carrying hazardous wastes into theHaitian territorial sea or exclusive economic zone. Telegram fromthe Department of State to U.S. Embassy, Port au Prince, July 20,1989. In background points the U.S. elaborated the legal basesfor its protest of the Haitian hazardous waste prohibition:

— The United States recognizes the right of states to con-trol the entry into and passage through their land territory,ports and internal waters, of all types of conveyances car-rying hazardous wastes— The United States strongly supported the recently con-cluded Basel Convention on the Transboundary Movementof Hazardous Wastes, which . . . includes a notice andconsent regime for the transit of hazardous waste througha party’s land territory and internal waters.— While under customary international law coastal stateshave certain rights to enact laws and regulations in theinterest of preservation of the environment, that legisla-tion must conform to international law as reflected in theLOS Convention, must not hamper innocent passage, andmust give due regard to the high seas freedom of naviga-tion in the EEZ guarantee to all states.


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— A restriction on innocent passage for environmentalreasons could be cited as a precedent for limiting inno-cent passage of vessels in the future for other reasons.— During the [Basel] negotiations the United States vig-orously opposed attempts to extend that notice and con-sent regime for passage of ships carrying hazardous wastesthrough the territorial sea and EEZ of a party.— The text of the Convention as adopted . . . did notchange existing rights of innocent passage and freedomof navigation.

Id. In the summer of 1990 Yugoslavia protested the innocent pas-

sage of the U.S.S. Belknap through the Yugoslav territorial seathat occurred on June 2, 1990, without advance notice as requiredby Yugoslav law. The U.S. response explained that its actions werewholly in accordance with customary international law on theright of innocent passage as reflected in the 1982 United NationsConvention on the Law of the Sea:

In this connection the Embassy of the United States invitesthe attention of the Federal Secretariat to the UniformInterpretation of the Rules of International Law GoverningInnocent Passage attached to the joint statement issued bySoviet Foreign Minister Shevardnadze and Secretary ofState Baker in Jackson Hole, Wyoming, USA on 23September 1989. This statement noted that, with respectto traditional uses of the oceans, the provisions of the1982 United Nations Convention on the Law of the Sea,which Yugoslavia has ratified, generally constitute inter-national law and practice and balance fairly the interestsof all states. The uniform interpretation states that allships, including warships, regardless of cargo, armamentor type of propulsion enjoy the right of innocent passagethrough the territorial sea in accordance with internationallaw, for which neither prior notification nor authoriza-tion is required.

Accordingly, the United States continues to find itselfunable to accept the validity under international law ofparagraph 3 of Article 17 of the law on the coastal sea


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and continental shelf of the SFR of Yugoslavia and wouldtake this opportunity to encourage the Government ofYugoslavia to harmonize its laws with the provisions ofthe 1982 Law of the Sea Convention.

Telegram from the Department of State to U.S. Embassy, Belgrade,August 30,1990.

c. Flag state control

(1) U.S. jurisdiction over foreign-flagged vessels

On February 10, 1990, two foreign-flagged vessels collided ininternational waters near the Cuban coast. One of the vessels wasa passenger cruise ship registered in Liberia and carrying a largenumber of U.S. citizens. Upon this vessel’s return to Miami, theNational Transportation Safety Board (“NTSB”) began an inves-tigation of the accident. The Liberian government also conductedan investigation on behalf of Liberia, the flag state. The NTSBsubpoenaed several of the ship’s crew members for informationconcerning the collision. When the crew refused to comply, theNTSB sought a court order to compel compliance.

The district court declined to enforce the subpoenas. NationalTransportation Safety Board v. Carnival Cruise Lines, Inc., 723F. Supp. 1488 (S.D.Fla. 1989). First, the court found that Congresscould authorize the NTSB to conduct investigations of accidentstaking place outside U.S. territory where, as in this case, “the con-duct . . . has a substantial, direct, and foreseeable effect in theterritory of the United States.” Id. at 1491.

Turning to the question of whether Congress had in factauthorized the NTSB to investigate an accident that occurred ininternational water between foreign-flagged vessels, the courtobserved:

[I]n the “delicate field of international relations there mustbe present the affirmative intention of the Congress clearlyexpressed.” McCulloch v. Sociedad Nacional de Marinerosde Honduras, 372 U.S. 10, 21–22 (1963) (quoting Benzv. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 147


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(1957)).7 Thus, this court must apply the well-establishedrule of statutory construction that Congress, unless a con-trary intent appears in the statute, is presumed to intendonly territorial application of a statute. Foley Bros. v.Filardo, 338 U.S. 281 (1949).

7 Although the court assumes, without deciding, that legislationauthorizing an investigation of this accident may be justified underthese circumstances by relying upon the “effects doctrine,” the courtrecognizes that this doctrine has been criticized abroad. See KathleenHixson, Extraterritorial Jurisdiction under the Third Restatementof Foreign Relations Law of the United States, 128 Fordham Int’lLaw J. 127, 138–39 (1988). Thus, an exercise of jurisdiction onthis basis may implicate sensitive issues of international law.

Id. at 1492. Using this standard, the court found that the NTSBdid not have jurisdiction to investigate this accident, and that ithad exceeded its authority in issuing the subpoenas.

(2) Maritime interdiction

On September 15, 1990, the Department of State reviewed fun-damental practices and terminology of maritime interdiction forseveral posts involved in maritime law enforcement. TheDepartment’s telegram described some of the most commonlyemployed practices and terminology:

Exclusive Jurisdiction: A fundamental tenet of interna-tional law is that, with limited exceptions, vessels in inter-national waters are subject to the exclusive jurisdiction ofthe flag state. Therefore, in most circumstances, no statemay board a foreign flag vessel in international watersduring times of peace without the permission of the flagstate or the consent of the master.

Exceptions: Piracy and slave trade are considered uni-versal crimes subject to the jurisdiction of all states. Inaddition, vessels without nationality are subject to thejurisdiction of all states. Unauthorized broadcasting maysubject the vessel to the jurisdiction of states other thanthe flag state. Therefore, boarding of foreign vessels sus-


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pected of engaging in these activities in internationalwaters is permitted without the permission of the flagstate, or consent of the master, in the exercise of theright of visit. . . . However the international communitydoes not now equate maritime drug trafficking with theseexceptions. Boarding of such ships must be with the per-mission of the flag state or the consent of the master. Inaddition, foreign flag vessels could be boarded withoutthe consent of the master or the permission of the flagstate pursuant to the right of self defense or when author-ized by the UN Security Council.

Master’s Consensual Boarding: Consent by the mas-ter of a foreign flag vessel to boarding by law enforcementofficials of another state in international waters, for thepurpose of gathering information. The master determinesthe scope, conduct and duration of the boarding. Flag stateauthorities are not contacted prior to the boarding. Noenforcement jurisdiction, such as arrest or seizure, may beexercised during a consensual boarding of a foreign flagvessel without the permission of the flag state (whether ornot the master consents), even if evidence of illegal activ-ity is discovered.

Flag State-Authorized Non-Consensual Boarding:Boarding by foreign law enforcement officials in interna-tional waters, following flag state grant of authority toboard. Permission to board can, but may not, includeauthority to search and/or take enforcement action. If thegrant of authority is given in a specific case, the processis also known as a special arrangement.

Shipboarding agreement: A bilateral agreement inwhich the flag state grants advance permission to foreignlaw enforcement officials to board in international watersits non-sovereign immune flag vessels for specified pur-poses, thereby mooting need for the master’s consent. Suchan agreement may include advance permission to exerciseenforcement jurisdiction on behalf of either the flag stateor the foreign state. Such an agreement renders case-by-case flag-state permission unnecessary. . . . A shipboard-ing agreement may also be reciprocal in its operation. . . .


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Article 17 Agreement: A bilateral agreement thatimplements Article 17 of the 1988 United NationsConvention against Illicit Traffic in Narcotic Drugs andPsychotropic Substances. Article 17 sets forth the proce-dures for verifying registry of foreign vessels suspected ofengaging in illicit trafficking and the procedures requiredfor obtaining flag State permission to board the foreignvessel and take law enforcement action. See, for example,the US/Panama exchange of notes of 1 May 1990.

Shiprider agreement: A bilateral agreement authoriz-ing a law enforcement official of a coastal state (“therider”) to ride aboard a law enforcement vessel of anothercountry to assist the coastal state in enforcing its lawsagainst its own vessels. The agreement may also includeprovisions for the law enforcement vessel to enter thecoastal state’s territorial sea, to enforce the other state’slaws against its own and third nation vessels. Such anagreement may permit a law enforcement vessel to enterthe coastal state’s territorial sea without the shiprider ifone is not readily available.

Pursuit and Entry Agreement: Allows foreign lawenforcement vessels and aircraft to enter, on a case-by-case basis, the recognized territorial sea or sovereign air-space of a coastal state to investigate a suspect or to pursuea suspect fleeing from international waters. Such an agree-ment may incorporate coastal state enforcement author-ity with or without a shiprider.

Internal Waters: Waters landward of the baseline fromwhich the breadth of the territorial sea is measured. Thecoastal state exercises the same sovereignty over internalwaters as it does over its land territory.

Territorial Sea: A belt of sea adjacent to the land ter-ritory and internal waters of a coastal state over whichthe coastal state has sovereignty. The maximum breadthof the territorial sea is 12 nautical miles measured frombaselines determined in accordance with international law.

Territorial Waters: Not a legal term. Often used todenote both territorial sea and internal waters together.Sometimes inaccurately used as a synonym for territorialsea.


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International Waters: Those portions of the oceansseaward of the outer limit of the territorial sea. Not a legalterm; see “EEZ” and “high seas.”

EEZ/Patrimonial Sea/Zone of Authority: The exclu-sive economic zone (EEZ) is an area beyond and adjacentto the territorial sea, subject to the specific legal regimeestablished in the 1982 Law of the Sea Convention, underwhich the rights and jurisdiction of the coastal State andthe rights and freedoms of other States are governed bythe relevant provisions of the LOS Convention. The coastalstate does not have sovereignty over its EEZ; however, thecoastal state enjoys the right to exercise certain resource-related sovereign rights and jurisdiction in its EEZ. In theEEZ all states enjoy the high seas freedoms of navigationand overflight and other internationally lawful uses of thesea related to those freedoms. The EEZ derived from theconcept of the “patrimonial sea.”

The patrimonial sea concept was promoted in the 1950sand 1960s with variable content by some Latin Americancountries. Today it has no agreed legal meaning or content.Consequently, use of this term should be avoided, eventhough some Latin countries would like to use it as a meansof converting the limited coastal state sovereign rights andjurisdiction in the EEZ into a 200 nautical mile territorialsea. The United States does not recognize any territorial seabroader than 12 nautical miles.

The term “zone of authority” has no agreed legalmeaning, and its use should be avoided.

High seas. All parts of the sea that are not included inthe exclusive economic zone, in the territorial sea, or inthe internal waters of a State, or in the archipelagic watersof an archipelagic State. (An archipelagic State is a Stateconstituted wholly by one or more archipelagoes, i.e.group[s] of islands, meeting particular geographic andlegal criteria set out in part IV of the 1982 LOSConvention. Archipelagic waters are the waters of an arch-ipelagic State enclosed by baselines drawn in accordancewith international law.)

Right of visit. The right of a warship, in peacetime, toverify, in accordance with international law reflected in


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article 110 of the 1982 LOS Convention, the registry ofa foreign vessel encountered on the high seas which is rea-sonably suspected of falling within [certain] exceptions .. . . The warship may board the foreign vessel withouteither the consent of the master or the permission of theflag State.

Telegram from the Department of State, September 15, 1990.

(3) Boarding and search on the high seas

On January 30, 1990, the U.S. Coast Guard cutter Chincoteagueintercepted a Panamanian registered coastal freighter, the M/VHermann, in international waters of the Gulf of Mexico becauseit was suspected of carrying narcotics or other contraband. Afterthe master of the vessel refused the Coast Guard’s request toboard, the United States Government received confirmation ofthe vessel’s Panamanian registry and obtained permission fromthe Government of Panama to board and inspect the vessel inaccordance with international maritime law and practice. See U.N.Doc. S/21127 Annex, February 5, 1990. Nevertheless, the M/VHermann’s master refused to allow the boarding. The U.S. CoastGuard, after further consultation with U.S. and Panamanianauthorities, advised the vessel that it would use necessary forceto board it if it did not stop and permit the boarding that hadbeen authorized by the flag state.

At this time, the Cuban government, which stated that it wasin communication with the master of the vessel, informed the U.S.Interest Section in Havana that the crew was Cuban and that thevessel should be allowed to continue its voyage unimpeded. SeeNote dated 31 January 1990 from the Ministry of Foreign Affairsof Cuba to the Interests Section of the United States of Americain the Embassy of Switzerland in Havana, UN Doc. S/21121Annex II. U.S. authorities advised the Government of Cuba thatit would defer the law-enforcement action for several hours sothat the Government of Cuba could instruct the master and hiscrew to cooperate with the lawful exercise of authority pursuantto the instructions of the flag state. Cuban authorities, however,responded that they had ordered the master of the M/V Hermann


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to resist any boarding attempts by the U.S. Coast Guard. SeeLetter dated 3 February 1990 from the Acting PermanentRepresentative of the United States of America to the UnitedNations Addressed to the Secretary-General, U.N. Doc. S/21122.

The Coast Guard cutter Chincoteague followed the vesselthroughout the night of January 30–31, 1990, in internationalwaters and exercised graduated measures in an effort to stop it.These included attempting to hail the vessel by radio and loud-hailer, flashing signal lights, spraying water across the vessel’sdecks and down its stack, firing warning shot across its bow, andfiring small-caliber rounds at the vessel’s engines in order to dis-able—but not sink—it. The M/V Hermann refused to stop andeventually entered the Mexican territorial sea. The Coast Guardcutter broke off pursuit prior to this point. On January 31, 1990,the United States protested the actions of the Government of Cubain a note to the Cuban Interests Section of the CzechoslovakEmbassy in Washington:

By instructing the crew of the Hermann to resist an author-ized boarding by Coast Guard officials, the Governmentof Cuba jeopardized the lives and safety of its citizens anddemonstrated blatant disregard for legitimate law enforce-ment efforts to interdict illicit trafficking in the region.The Government of the United States is unable to under-stand the Government of Cuba’s action in the face ofrepeated Cuban assurances that the Cuban Governmentseeks cooperation with the United States on combattingillegal drug trafficking.

The Government of the United States holds theGovernment of Cuba responsible for having exposed thecrews of both the “Hermann” and the involved CoastGuard vessel to unnecessary danger and calls upon theGovernment of Cuba to offer an explanation of its behav-ior in this incident.

The note is available at www.state.gov/s/l.In its response Cuba claimed the United States was attempt-

ing to “extend the applicability of United States laws to othersovereign, independent countries” since “the vessel in question


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had a Cuban crew and had been leased from the owners by aCuban firm.” Note from Cuban Ministry of Foreign Affairs toU.S. interests section, Swiss Embassy, Havana, February 1, 1990,U.N. Doc. S/21121 Annex I, February 3, 1990.

In a letter dated February 5, 1990, from the chargé d’affairesof the Permanent Mission of Panama to the United NationsSecretary-General, the Government of Panama confirmed its rolein the Hermann incident:

The vessel concerned flies the Panamanian flag, and theGovernment of Panama gave express permission for UnitedStates authorities to board and inspect it. In such cases,considering that the country taking the action does so forand on behalf of the sovereign country where the ship isregistered, Panama accepts that all necessary measuresmay, even must, be taken including the use of force.

U.N. Doc. S/21127, February 5, 1990.On February 9, 1990, the United Nations Security Council

met in response to a request by the Government of Cuba toaddress the situation involving the M/V Hermann, U.N. Doc.S/21120. February 2, 1990. In his response to the representativeof the Government of Cuba, the United States representative,Ambassador Alexander M. Watson, expressed the U.S. positionon the jurisdiction of the flag state over vessels flying its flag:

Even Fidel Castro in his 1 February speech regarding thisincident admitted that Panamanian flag vessels with Cubancrews have submitted in the past to United States CoastGuard inspection during “normal times.” Cuba cannotclaim the right to override the sovereignty of the flag coun-try—a sovereignty enshrined in centuries of maritime law.If the Government of Cuba wishes to exercise jurisdictionover a vessel, it should register the vessel under the Cubanflag. It is not difficult to imagine the chaos that wouldresult if all Governments behaved as Cuba’s did on thisoccasion.

United States actions were taken with the authoriza-tion of the flag State and conducted in accordance with


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customary international law and practice codified in arti-cle 6 of the [H]igh [S]eas Convention of 1958 and article92 of the [L]aw of the [S]ea Convention of 1982, and mostrecently in article 17 of the 1988 United NationsConvention against Illicit Traffic in Narcotic Drugs andPsychotropic Substances.

* * * *

The procedures set out in article 17 of the Vienna nar-cotics trafficking convention were followed by the request-ing State, the United States, and by the flag State, Panama,in this case. . . . Nowhere in international jurisprudence isthe Government of the State of nationality of the master orany other crew member authorized to countermand theauthority and sovereignty of the flag State.

If the authority to board and inspect could be frus-trated by the refusal of a ship captain to honor suchauthority, the entire flag-State system of jurisdiction onthe high seas would collapse. The fact that some or all ofthe crew may be of a nationality different from that of theflag State in no way diminishes the authority of the flagState. Again, if an inspecting vessel had to receive author-ity from each State with citizens serving as crewmenaboard or from whomever may have chartered the vessel,the entire flag-State system would be subverted.

* * * *

The incident is not a spat between the United Statesand Cuba. . . . The only States involved are the UnitedStates and Panama. Cuba has no standing to complain.The issue here is one of supporting international law. TheGovernment of Cuba acted as if it had the right to frus-trate a lawful inspection duly authorized by the flag State.That is a prescription for chaos at sea.

U.N. DOC. S/PV.2907, February 9, 1990, at 26–37.The Security Council took no further action on the Cuban

request. Shortly after this incident, in an address before theAmerican Society of International Law and the American Bar


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Association in Washington, D.C. on March 30, 1990, UnderSecretary for Political Affairs Robert M. Kimmitt reiterated theimportance of the procedures established to secure flag state con-sent to boarding:

International maritime law, codified in the High SeasConvention of 1958 and the Law of the Sea Conventionof 1982, provides important tools for maritime interdic-tion. In addition to thousands of inspections each year ofU.S.-flagged vessels, the U.S. Coast Guard also inspectshundreds of foreign-flagged vessels, exercising the long-standing rights of approach and consensual boarding.Recognizing the exclusive jurisdiction of the flag state fornonconsensual boarding and law enforcement, we haveestablished effective consultative processes with most mar-itime nations. We seek—and generally receive—prompt andeffective cooperation to permit the Coast Guard to inspectvessels whose masters deny consent and to enforce lawsagainst narcotics smugglers.

“International Law and the War on Narcotics,” U.S. Departmentof State, Bureau of Public Affairs, Current Policy No. 1267, p. 2–3.

On May 1, 1990, long-standing practice on the exchange ofinformation on ships registered in Panama and on authorizing orrequesting cooperation by U.S. authorities with respect to vesselsregistered in Panama was confirmed by an exchange of notessigned by Secretary of State James A. Baker III and ForeignMinister Julio Linares of Panama. The notes are available atwww.state.gov/s/l.

(4) Responsibility in response to protest

On November 30, 1989, the U.S. Embassy in The Hague, Nether-lands, delivered a note to the Dutch government protesting activ-ities at sea of two Dutch registered vessels that had hazardednavigation and jeopardized the safety of U.S. warships in 1988and 1989. The note was prompted by the desire of the UnitedStates to avoid a repetition of these activities in conjunction witha U.S. Navy missile test from a submarine on the high seas sched-uled for December 4, 1989. The note stated, in pertinent part:


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The Government of the United States of America wishes toinform the Government of the Netherlands of dangerousmaneuvers by M/V Sirius and M/V Greenpeace which havecreated clear and intentional hazards to navigation of UnitedStates Navy vessels and jeopardized safety at sea.

The Government of the United States of Americawishes to recall that under customary international law,the flag state has certain duties with regard to ships of itsregistry, including the exercise of control and jurisdictionto ensure that master, officers, and crew observe interna-tional regulations concerning safety of life at sea and pre-vention of collisions.

Article 94(6) of the 1982 United Nations Conventionof the Law of the Sea, which reflects customary inter-national law on this point, states that “[A] state whichhas clear grounds to believe that proper jurisdiction andcontrol with respect to a ship have not been exercisedmay report the facts to the flag state. Upon receivingsuch a report, the flag state shall investigate the matterand, if appropriate, take any action necessary to remedythe situation.”

* * * *

The Government of the United States of Americawishes to emphasize that we respect the right ofGreenpeace and every other organization to express itsopinions through peaceful demonstrations. However, allstates are obligated to take appropriate action in accor-dance with international law against dangerous conductwhich hazards navigation or jeopardizes safety at sea.States of registry have a special responsibility to enforcerespect for applicable rules of the road and safety.

Accordingly, the Government of the United States ofAmerica requests that the Government of the Netherlandsinvestigate the hazardous activities of M/V Sirius and M/VGreenpeace, ships under the Netherlands registry, and takethe necessary and appropriate action to prevent repeti-tions. The Government of the United States would furtherrequest that the outcome of the investigation be providedto the Government of the United States.


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Telegram from the Department of State to U.S. Embassy, TheHague, November 30, 1989.

In this telegram, the Department reviewed several furtherpoints to be raised with the Dutch government:

— In recent years, certain Greenpeace vessels haveadopted dangerous tactics and intentionally created haz-ardous situations at sea. Those tactics have included: usingships and small boats as a threat to safe navigation bycrossing directly in front of other vessels; blocking chan-nels in restricted waters; hazarding safe docking proce-dures; endangering harbor safety by cutting moorings; andother reckless maneuvers which violate international rulesof the road and local laws.— The U.S. is sending diplomatic protests to flag statesof offending vessels and requesting appropriate action toenforce respect for safety at sea.

* * * *

— The United States . . . urgently requests that the Govern-ment of the Netherlands take immediate steps to preventM/V Greenpeace from interfering with the December 4 test,including, if necessary, deflagging the vessel.— The United States reserves, and will exercise, its rightto protect its vessels and crews engaged in lawful high seasactivities from interference or activities endangering itsvessels and crews, including, if necessary, boarding ves-sels to prevent such interference.— Under international law, every state has a duty to effec-tively exercise control and jurisdiction over ships flyingits flag.

* * * *

— The United States may also find it necessary to denysuch vessels access to its ports, if the vessels continue tohazard the safety of life and navigation at sea of UnitedStates vessels.

Id. On December 1, 1989, the Department of State sent two vir-

tually identical notes to the Governments of Sweden and Finland,


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protesting the hazardous activities of vessels registered under theflags of those states, again in anticipation of attempts to interferewith the U.S. Navy missile test on December 4, 1989. Telegramfrom the Department of State to U.S. Embassy, Stockholm,December 1, 1989; Telegram from the Department of State toU.S. Embassy, Helsinki, December 1, 1989. On December 4, 1989,the Department of State sent a similar note to the Government ofthe Federal Republic of Germany. Telegram from the Departmentof State to U.S. Embassy, Bonn, December 4, 1989.

5. Limits of the Territorial Sea: Drawing of Baselines

The U.S. Government also made a number of protests in 1989and 1990 to foreign states regarding improperly drawn baselinesfor measuring the territorial sea, as part of the U.S. Freedom ofNavigation Program. GIST, December 1988, noted supra in 4.b.

In a note protesting a Djibouti claim of straight baselines, theU.S. stated:

The Government of the United States . . . maintains itsview that, as recognized in customary international lawand as reflected in the 1982 United Nations Conventionon the Law of the Sea, unless exceptional circumstancesexist, baselines are to conform to the low-water line alongthe coast as marked on a state’s official large-scale charts.Straight baselines may only be employed in localities wherethe coastline is deeply indented and cut into, or wherethere is a fringe of islands along the immediate vicinity ofthe coast. It is the position of the Government of theUnited States that, in the case of Djibouti, the Seba islandsare not fringing islands so as to permit the drawing ofstraight baselines, and, therefore, the baseline must be thelow-water line along the coast of each island, and themainland.

Telegram from the Department of State to U.S. Embassy, Djibouti,March 31, 1989. The telegram also explained that:

Exceptions [to the low-water line baselines] are permittedwhere the coastline is deeply indented and cut into or


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where there is a fringe or islands along the immediatevicinity of the coast wherein a nation may employ straightbaselines. Straight baselines where utilized, however, mustnot depart from the general direction of the coast and thesea areas enclosed must be clearly linked to the landdomain. It is our position that the Seba Islands are notfringing islands. The [1982 Law of the Sea] Conventiondoes not define the term “fringing island.” TheDepartment’s Limits of the Sea Series, No. 106, (LIS-106),however, sets forth proposed tests for a determination offringing islands, which are not met by the Seba Islands.

Id.In June 1989 the United States protested Sudan’s claim of cer-

tain areas as territorial waters. After stating the same general rulesas to baselines made in the Djibouti protest, above, the UnitedStates continued:

— . . . Straight baselines must not depart to any appre-ciable extent from the general direction of the coast. Inaddition, baselines cannot be drawn to or from shoalwaters which are not low tide elevations that have a light-house or similar installation, permanently above sea lever,erected thereon;— A closing line of not more than 24 nautical miles inlength may be used to close a juridical bay and the waterarea of the resultant bay must be greater than that of a semi-circle whose diameter is the length of the line drawn acrossthe mouth of the bay;— Archipelagic states do not include mainland stateswhich possess non-coastal archipelagos. Therefore, base-lines, including straight baselines, cannot be drawn aroundmainland nations’ coastal archipelagos.

Telegram from the Department of State to U.S. Embassy,Khartoum, June 2, 1989.

In addition, background points provided to the embassystated:


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— Excessive baselines are objectionable since baselinesmark the demarcation between a nation’s internal and ter-ritorial waters and serve as the line from which the breadthof a nation’s territorial sea is measured. The United Statesdoes not itself utilize straight baselines, even in the excep-tional circumstances in which they are permitted. Thoughthe U.S. also has an island archipelago, it recognizes that,as a mainland nation, this archipelago is not eligible forarchipelagic baseline treatment.

Id.The United States protested Albania’s claim of excessive

straight baselines in a note transmitted through the Governmentof France in June 1989. In particular, the protest stated:

— The United States wishes to point out that, for the mostpart, the Albanian coastline, being neither deeply indentedand cut into, nor having a fringe of islands in its imme-diate vicinity, does not meet the geographic criteriarequired under international law for the establishment ofstraight baselines. Further the baselines segments from theCape of Rodom (Muzhit) to the mouth of the Wjose River,and from the Cape of Gjuhe to the Cape of Sarande,enclose waters which are neither juridical bays nor his-toric waters.

Telegram from the Department of State to U.S. Embassy, Paris,June 17, 1989.

In August 1989 the United States protested a Mauritanianordinance maintaining a straight baseline along a sector ofMauritania’s coast, concluding that the “straight baseline drawnby the Government of Mauritania does not meet the criteria fora straight baseline as is recognized in customary international lawas reflected in the 1982 United Nations Convention on the Lawof the Sea.”

In December 1989, the United States protested a Costa Ricandecree establishing straight baselines for sections of Costa Rica’sPacific coast. After repeating the basic rules governing baselines,the note added:


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Additionally, baselines must not depart to any apprecia-ble extent from the general direction of the coast, and thesea areas lying within the lines must be sufficiently closelylinked to the land domain to be subject to the regime ofinternal waters.

While the Pacific coastline of Costa Rica contains twoembayments, it is neither deeply indented and cut into,nor fringed with many islands, as those standards areemployed and understood in international law. Further-more, several segments which close off geographical baysare longer than twenty four nautical miles and thereforeexceed the juridical bay closing line length that is permit-ted under international law.

Telegram from the Department of State to U.S. Embassy San Jose,December 13, 1989.

In January 1990 the United States protested through theUnited Nations the establishment of maritime boundaries by theDemocratic People’s Republic of Korea for several reasons, includ-ing the use of a straight baseline to measure the breadth of its ter-ritorial sea. The United States pointed out that the exceptionalcircumstances of a deeply indented coastline or a fringe of islandsalong the immediate vicinity of the coastline did not exist withregard to the Democratic People’s Republic of Korea. The UnitedStates also protested an announcement by the Democratic People’sRepublic of Korea purporting to establish a maritime boundaryof 50 nautical miles in the Sea of Japan and a military maritimeboundary coincident with its claimed exclusive economic zonelimit in the Yellow Sea, pointing out that “as recognized in cus-tomary international law and as reflected in the 1982 UnitedNations Convention on the Law of the Sea, the maximum breadthof the territorial sea is twelve nautical miles measured from prop-erly drawn baselines.” The United States transmitted its views onthese issues to the United Nations for publication in the Law ofthe Sea Bulletin, published by the Office of the SpecialRepresentative of the Secretary-General for the Law of the Sea,making clear that the protest was “made without prejudice to thelegal position of the Government of the United States of Americawhich has not recognized the Government of the DemocraticPeople’s Republic of Korea.” Law of the Sea Bulletin, No. 15(May 1990), pp. 8–9.


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6. Coastal State Economic Jurisdiction

In 1989 the United States made several protests of foreign states’assertions of rights in their exclusive economic zones (“EEZ”)that were inconsistent with international law. These protests werealso made as part of the U.S. Freedom of Navigation program,discussed above.

In March 1989, the United States protested a Djibouti lawseeking to assert sovereign and exclusive rights over certain activ-ities in the EEZ:

Regarding Article XIII of Law No. 52/AN/78, relating toDjibouti’s exclusive economic zone, the Government ofthe United States notes that the term “sovereign rights”is used with respect to matters over which internationallaw affords coastal states only “jurisdiction” and that thewording of Article XIII in other respects deviates from theaccepted international law formulations. The Governmentof the United States hopes that the Government of Djiboutiintends to interpret and apply Article XIII consistentlywith international law as reflected in the 1982 UnitedNations Convention on the Law of the Sea, includingArticle 56 thereof. The Government of the United Statesis not prepared to recognize any claims in excess of thosepermitted under customary international law as reflectedtherein.

Telegram from the Department of State to U.S. Embassy, Djibouti,March 31, 1989. Background points provided as follows:

— Customary international law, as reflected in Article 56of the LOS Convention, provides that a nation has “juris-diction” over the establishment and use of artificial islands,installations and structures, as well as marine scientificresearch within its exclusive economic zone. Article XIIIof Djibouti’s law No. 52/AN/78 asserts “sovereign andexclusive rights” as opposed to “jurisdiction” over suchactivities. The LOS Convention does not recognize anycoastal nation’s sovereignty in the EEZ, but does grant tocoastal states “sovereign rights,” inter alia, for economic


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exploitation and exploration of the natural resources ofthe EEZ.— International law as reflected in the LOS Conventiongrants to coastal states jurisdiction only over “marine sci-entific research” and not over the broader category of “sci-entific research.” The United States does not consideractivities such as hydrographic surveys, the purpose ofwhich is to obtain information for the making of naviga-tional charts, and the collection of information that,whether or not classified, is to be used for military pur-poses, to be marine scientific research and therefore theyare not subject to coastal state jurisdiction.— The LOS Convention was drafted in such a manner asto enable a nation to incorporate its provisions directlyinto law. In any instance in which there is a deviation,questions will undoubtedly be raised about the intendeddifferences.

Id.In July 1989 the United States addressed certain questionable

portions of a 1986 Romanian decree establishing an EEZ. In par-ticular, the U.S. stated:

The Government of the United States notes Romania’sDecree No. 142 of April 25, 1986 concerning Romania’sestablishment of its exclusive economic zone. In particu-lar, Article 3 states that in its exclusive economic zone,Romania shall exercise sovereign rights for the purposeof exploring and exploiting, conserving and managing liv-ing and non-living national resources “and otherresources” on the sea-bed, in its subsoil, and in the super-adjacent water column. Articles 3 and 9 of Decree No.142 further state that Romania shall exercise jurisdictionin the exclusive economic zone with regard to the estab-lishment and use of artificial islands, installations, andstructures; marine scientific research; and the protectionand conservation of the marine environment, includingthe right to exercise control in order to prevent infractionsand other violations of customs, fiscal, health, and immi-gration regulations, without limiting the exercise of this


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jurisdiction to that provided for in the generally recognizednorms of international law reflected in the relevant provi-sions of the 1982 United Nations Law of the Sea Con-vention. The United States Government seeks assurancesthat the aforementioned sections of Articles 3 and 9 areintended to comport with articles 56, 60, and 246 of the1982 United Nations Convention on the Law of the Sea.

The Government of the United States also notes thatArticle 11 of Romania’s Decree No. 142 purports toauthorize rules relating to the safety of navigation inRomania’s exclusive economic zone and seeks assurancesthat the aforementioned article 11 is intended to comportwith articles 60 and 211.1 of the 1982 United NationsConvention on the Law of the Sea.

Telegram from the Department of State to U.S. Embassy,Bucharest, July 11, 1989.

As noted in 4.b., supra, the United States also protested a1989 Haitian note to the UN purporting to prohibit the entryinto Haiti’s territorial sea and EEZ by any vessel transportinghazardous waste.

7. State Authority over the Contiguous Zone

The U.S. Government made a number of diplomatic protests in1989 and 1990 to foreign states regarding their assertions ofauthority over areas beyond the limits of the territorial sea, alsoas part of the Freedom of Navigation Program noted in 4.b.,supra.

In June 1989 the U.S. Government protested a Sudanese lawpurporting to establish a zone of six nautical miles beyond its ter-ritorial sea to prevent infringement of security laws. The UnitedStates noted that “the right of a coastal state to enforce its lawsfor security purposes does not extend beyond the limits of its ter-ritorial sea.” Telegram from the Department of State to U.S.Embassy, Khartoum, June 2, 1989.

The telegram elaborated further on the security zone issue inpoints provided for background use by the embassy:


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— Customary international law, as reflected in the LOSConvention, does not recognize the right of coastal nationsto enforce security laws or otherwise restrict the exerciseof freedoms of navigation and overflight beyond the ter-ritorial sea. The law enforcement jurisdiction permittedin a contiguous zone adjacent to the territorial sea is lim-ited to enforcement of its custom, fiscal, immigration andsanitary laws. Accordingly, the United States does not rec-ognize any claimed right of a coastal state to enforce itssecurity laws seaward of the territorial sea or otherwiserestrict or regulate the high seas freedoms of navigationand overflight.

Id.Also in June 1989 the United States made an inquiry concern-

ing a Venezuelan law asserting its authority to establish, for thepurposes of maritime vigilance and police, and for the security ofVenezuela, a three-nautical-mile contiguous zone. The United Statesraised the following points with Venezuelan officials:

— Both the United States Government and the Govern-ment of Venezuela are parties to the 1958 GenevaConvention on the Territorial Sea and the ContiguousZone which states that the maximum breadth of the ter-ritorial sea and contiguous zone is twelve nautical milesmeasured from the baseline.— In ratifying the 1958 Geneva Convention, theGovernment of Venezuela reserved the right to assert acontiguous zone wider than twelve nautical miles in theGulf of Paria and adjacent zones, in the area between thecoast of Venezuela and the island of Aruba, and the Gulfof Venezuela, which reservation the United States foundnot acceptable in 1962.— While neither the Government of Venezuela nor theUnited States Government has signed the 1982 LOSConvention, we understand the Government of Venezuelaaccepts, as does the Government of the United States, thoseparts of the 1982 LOS Convention which relate to tradi-tional uses of the ocean, such as navigation and overflight,as reflective of customary international law and practice.


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— Customary international law now recognizes that themaximum breadth of a contiguous zone is twenty-fournautical miles measured from the baseline from which theterritorial sea is measured, and the maximum breadth ofthe territorial sea is twelve nautical miles measured fromthe same baseline.— Customary international law, as reflected in both the1958 Territorial Sea Convention and the 1982 LOSConvention, does not recognize the right of coastal states toassert powers or rights for security purposes in peacetimethat would restrict the exercise of the high seas freedoms ofnavigation and overflight beyond the territorial sea.— Article 3 of Venezuela’s territorial waters, continentalshelf, conservation of fisheries and airspace law, of July2, 1956, seems to establish, for purposes of maritime vig-ilance and police, and for the security of Venezuela, a zoneequivalent to three nautical miles, contiguous to its terri-torial sea.— We assume that the Government of Venezuela wouldnow implement such a zone consistent with article 33 ofthe LOS Convention.— In the event that Venezuela intends to implement orrevise Article 3 of that 1956 law consistent with article33 of the LOS Convention, which reflects customary lawand fairly balances the legitimate interests of coastal statesand maritime nations alike, the United States would beprepared to withdraw its objection to Venezuela’s reser-vation to paragraph 2 of article 24 of the 1958 GenevaConvention on the territorial sea and the contiguous zone.

Telegram from the Dept. of State to U.S. Embassy, Caracas, June18, 1989.

The United States protested, on the same grounds, a 1988Haitian decree seeking to assert jurisdiction over its contiguouszone for security reasons (Telegram from the Department of Stateto U.S. Embassy, Port au Prince, July 20, 1989) and Syrian lawsclaiming a six-nautical-mile security zone beyond its territorialsea (Telegram from the Department of State to U.S. EmbassyDamascus, October 20, 1989).


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In December 1989 the Government of Oman established atemporary naval protection zone encompassing portions of thehigh seas off Oman for a 15 day period, in order to enhanceOman’s ability to provide security during a meeting in Oman ofthe heads of state of the Gulf Cooperation Council. According tothe Omani notice to mariners, all shipping should avoid enteringthe zone, or be liable to being stopped and searched. The UnitedStates protested the Omani action:

The Government of the United States wishes to bring tothe attention of the Government of Oman that, while cus-tomary international law as reflected in the 1982 UnitedNations Convention on the Law of the Sea permits acoastal state to suspend temporarily the right of innocentpassage in specified areas of its territorial sea when suchsuspension is essential for the protection of its security,the international law of the sea does not recognize theright of coastal states to assert powers or rights for secu-rity purposes which would restrict the exercise of highseas freedom of navigation beyond the territorial sea.

The Government of the United States therefore objectsto the claim made by the Government of Oman containedin Notice to Mariners No. 6/89, which is inconsistent withinternational law and reserves its rights and those of itsnationals in regard to this and other maritime claims madeby the Government of Oman which are inconsistent withinternational law.

Telegram from the Dept. of State to U.S. Embassy, Muscat,December 6, 1989.

In background information provided to the embassy, theUnited States provided the following information:

— Customary international law provides that, exceptwhere acts of interference derive from powers conferredby treaty, a warship which encounters on the high seas aforeign ship, other than a ship entitled to sovereign immu-nity, is not justified in boarding the ship unless in hot pur-suit from the territorial sea, or there is reasonable groundfor suspecting that the ship is engaged in piracy, the slave


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trade or unauthorized broadcasting, or is without nation-ality, or if of the same nationality as the warship thoughflying a foreign flag or refusing to show its flag.— Customary international law, as reflected in the LOSConvention, therefore does not permit a warship to stopand search any vessel on the high seas in peacetime in thecircumstances contemplated by this notice to mariners.

Id.In January 1990 the United States protested in a note to the

United Nations an announcement by the Democratic People’sRepublic of Korea purporting to establish a 50-nautical-mile mil-itary maritime boundary in the sea of Japan, and a military mar-itime boundary coincident with the claimed exclusive economiczone limit in the Yellow Sea. In particular, the United States stated:

The Government of the United States wishes . . . to recallthat customary international law, as reflected in the 1982United Nations Convention of the Law of the Sea, doesnot recognize the right of coastal States to assert powersor rights for security purposes in peacetime which wouldrestrict the exercise of the high seas freedoms of naviga-tion and acknowledges that, in 1953, the SupremeCommander of the Korean People’s Army signed anarmistice agreement which is still in effect. The militaryboundary, however, was not promulgated until 1977,twenty-three years following the armistice, and thereforethe armistice agreement cannot be deemed to justify thesecurity zones. In that connection, the United States notesthat the United Nations command has told the KoreanPeople’s Army that the armistice agreement has no provi-sion for either side to unilaterally extend its rights or priv-ileges into international waters.

15 UNLOS Bull. 8 (May 1990). The note made clear that theobjections were “made without prejudice to the legal position ofthe Government of the United States of America which has notrecognized the Government of the Democratic People’s Republicof Korea.”


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In December 1990 the United States protested a provision inNamibian law claiming authority to establish control within thefull extent of Namibia’s 200-nautical-mile exclusive economiczone to prevent infringement of its fiscal, customs, immigration,and health laws. The U.S. note stated, in pertinent part:

As recognized in customary international law and asreflected in articles 33 and 56 of the 1982 United NationsConvention on the Law of the Sea, the right of a coastalstate to prevent infringement of its fiscal, customs, immi-gration, and health laws within its territory or territorialsea does not extend beyond 24 nautical miles from thebaselines from which the breadth of the territorial sea ismeasured. The Government of the United States notes thatNamibia has ratified the 1982 United Nations Conventionon the Law of the Sea which, in its relevant articles, reflectsthe above described customary international law and fairlybalances the legitimate interests of coastal and maritimestates alike. The Government of the United States wouldhope that Namibia will harmonize its domestic law withthat international law. In that connection, the Governmentof Namibia may wish to consider establishing a contigu-ous zone consistent with international law, in which thosepowers may lawfully be exercised.

Telegram from the Dept. of State to U.S. Embassy, Windhoek,December 13, 1990. Namibia amended its law along the linessuggested in 1991. Territorial Sea and Exclusive Economic Zoneof Namibia Amendment Act, 1991, reprinted in 21 UNLOS Bull.64 (Aug. 1992).

8. Straits and Archipelagos

a. Cuban ship reporting system and traffic separation scheme

On September 1, 1989, the Government of Cuba implemented atraffic separation scheme in the Old Bahama Channel, which hadbeen adopted by the International Maritime Organization (‘IMO’)at the forty-eighth session of the Maritime Safety Committee.


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IMO Document MSC 48/25, paragraph 12.3.3. In conjunctionwith the separation scheme, Cuba established at the same time amandatory ship reporting system to control vessel movement inthe Old Bahama Channel, which took effect before it could beconsidered by the IMO. The United States recognized the Cubantraffic separation scheme as consistent with international law andIMO requirements and procedures, but objected to the ship report-ing scheme. The United States notified the IMO of its objection, pro-viding the following views:

2. Although the proposed system is similar to several pre-viously approved by the Organization, it appears that thereporting requirement in the Old Bahama Channel wouldbe mandatory rather than voluntary as are all other pre-viously approved ship reporting systems. Consistent withcustomary international law as reflected in the 1982United Nations Convention on the Law of the Sea, theGovernment of the United States of America will not rec-ognize a mandatory ship reporting system through aninternational strait which would have the practical effectof hampering the right of transit passage.

3. In addition, the Government of the United States ofAmerica objects strongly to any unilateral action which isnominally an International Maritime Organization meas-ure being implemented prior to consideration by theOrganization.

4. While the Government of the United States ofAmerica shares the desire of the Government of Cuba, asexpressed in SN/Cir. 141, that the risk of collisions, strand-ings, and other marine casualties be reduced to the mini-mum, it believes that the voluntary ship reporting systemapproved by the International Maritime Organization willbe more effective in achieving this objective. Such a sys-tem would be consistent with international standards andwould enjoy the broad support of maritime nations. TheGovernment of the United States of America is preparedto support appropriate voluntary ship reporting systemssubmitted for International Maritime Organizationapproval by Member Governments.

Annex to IMO Document NAV 36/18/1, September 14, 1989.


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b. Archipelagos

(1) Indonesia

On April 4, 1989, in response to an inquiry from a lecturer at theFaculty of Law, University of Sydney, Australia, David H. Small,Assistant Legal Adviser for Oceans and InternationalEnvironmental and Scientific Affairs, provided the views of theUnited States on the reported closure in 1988 of the Straits ofSunda and Lombok by the Republic of Indonesia, as follows:

Prior to the Third United Nations Conference on the Lawof the Sea, international law did not permit archipelagicclaims. Although the 1982 Law of the Sea Convention isnot yet in force, the archipelagic provisions reflect cus-tomary international law and codify the only rules bywhich a nation can now rightfully assert an archipelagicclaim. Recognition of Indonesia’s archipelagic claim bythe United States in 1986 and reaffirmed in 1988 was con-ditioned on Indonesia’s commitment that its claim wasthen and would be in the future applied toward otherStates and their nationals in full conformity with interna-tional law. . . . They include copies of two letters initialedby the two governments on May 2, 1986 and extracts fromU.S. Senate Treaty Document 100–22, [Convention for theAvoidance of Double Taxation and the Prevention of FiscalEvasion with Respect to Taxes on Income, and RelatedProtocol and Exchange of Notes, July 11, 1988, UnitedStates-Indonesia], August 5, 1988, reprinting the side lettersdated July 11, 1988 and the explanation of the Secretary ofState regarding them. While Indonesia recently ratified thistreaty, the U.S. Senate has not yet given its advice and con-sent to accession.

The United States was not notified by Indonesia of theclosure of the Straits of Lombok and Sunda but, on learn-ing that Indonesia may have ordered its Navy to closethose straits for naval exercises and might be conductingnaval exercises in a manner that hampered internationaltransit rights, expressed its concern to the appropriateIndonesian governmental officials.


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The United States is of the view that interference withthe right of straits transit passage or archipelagic sea lanespassage would violate international law as reflected in the1982 Law of the Sea Convention and the commitmentsIndonesia made that its practice regarding the archipel-agic claim was now fully consistent therewith, on whichbasis the United States was able in 1986 to be the firstmaritime nation to recognize Indonesia’s archipelagicclaim.

Indonesian archipelagic sea lanes and air routes havenot been proposed by Indonesia, acted upon by the com-petent international organizations or designated byIndonesia in accordance with the procedures described inarticle 53 of the LOS Convention. All normal internationalpassage routes through the archipelago are subject to theregime of archipelagic sea lanes passage in any event. Thefundamental rules for archipelagic sea lanes passage andtransit passage are the same. No nation may, consistent withinternational law, prohibit passage of foreign vessels or air-craft or act in a manner that interferes with straits transitor archipelagic sea lanes passage. See articles 44 and 54 ofthe 1982 Law of the Sea Convention which reflect the cus-tomary international law on point.

Applying the objective criteria set forth in Parts III andIV of the LOS Convention, it is clear that Lombok, Sundaand Malacca are unquestionably “straits used for inter-national navigation” and, therefore, are subject to thestraits transit regime, while Lombok and Sunda also qual-ify as “normal passage routes used for international nav-igation or overflight” and thus are subject to the regimeof archipelagic sea lanes passage.

The United States cannot accept either express closureof the straits or conduct that has the effect of denying nav-igation and overflight rights. While it is perfectly reason-able for an archipelagic state to conduct naval exercisesin its straits, it may not carry out those exercises in a waythat closes the straits, either expressly or constructively,that creates a threat to the safety of users of the straits,or that hampers the right of navigation and overflightthrough the straits or archipelagic sea lane.


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The tax convention referred to in Assistant Legal Adviser Small’sletter was transmitted by the President to the Senate on August 5,1988, for advice and consent to ratification. Included in the trans-mittal was the report of the Department of State submitting theTreaty to the President, which explained the territorial issuesinvolved in that treaty as follows:

The Convention was to have been signed in April 1974.How ever, signature of the convention was postponedpending agreement on a territorial definition of“Indonesia” in Article 3, paragraph 1(a). This problemwas finally resolved by means of an agreed interpretationof Article 3(1)(a), in an exchange of notes, confirming theunderstanding that the United States recognizes theIndonesian archipelago and Indonesia respects interna-tional transit rights therein.

S. Treaty Doc. No. 100-22 (1988) at 3. Article 3(l)(a) of the Con-vention provides that, for purposes of the Tax Convention only,unless otherwise required by the context, the term “‘Indonesia’comprises the territory of the Republic of Indonesia and the adja-cent seas which (sic) the Republic of Indonesia has sovereignty, sov-ereign rights or jurisdictions in accordance with the provisions ofthe 1982 United Nations Convention on the Law of the Sea.” Theexchange of notes set forth the agreed interpretation as follows:

The United States recognizes the archipelagic States prin-ciples as applied by Indonesia on the understanding thatthey are applied in accordance with the provisions of PartIV of the 1982 United Nations Convention on the Law ofthe Sea and that Indonesia respects international rightsand obligations pertaining to transit of the Indonesianarchipelagic waters in accordance with international lawas reflected in that Part.

Id. at 21–22.On November 30, 1990, the United States and Indonesia

exchanged instruments of ratification of the Tax Treaty, whichaffirmed the exchange of notes on the agreed interpretation of


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Article 3(1)(a) of the Convention. See also 83 Am. J. Int’l L. 559(1989).

(2) Cape Verde

In June 1989 the United States raised a number of maritime issueswith Cape Verde, including a proposal that the United States rec-ognize Cape Verde’s claim to archipelagic rights, as long as theclaim would be defined consistently with international law andwould respect the rights of other states. In particular, the UnitedStates had concerns regarding a Cape Verde law that recognizedinnocent passage only along established navigation routes andregarding Cape Verde’s declaration at the time it ratified the Lawof the Sea Convention asserting that coastal states have the rightto adopt measures relating to innocent passage to safeguard secu-rity interests. Points addressing these concerns that were raisedwith the Cape Verde government included those made in priorprotests to other states and the following:

— While the United States Government has neither signednor ratified the LOS Convention, it considers those parts ofthe convention which relate to all traditional uses of theocean, such as navigation and overflight and the archipelagicregime, to reflect present international law and practice.— The United States has, on that basis, exchanged letterswith Indonesia which makes the United States the firstmaritime state to recognize Indonesia’s archipelagic claim;— The United States would be prepared to consider tak-ing the same step with Cape Verde provided adequateassurances are made regarding our concerns.

* * * *

— We would regard it as satisfactory were the [CapeVerde] Article [on navigation rights] revised to providefor the navigation rights recognized under internationallaw, i.e., innocent passage through archipelagic waters andterritorial seas and transit passage or archipelagic sea lanespassage through and over straits used for internationalnavigation.


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Telegram from the Department of State to U.S. Embassy, Praia,June 18, 1989.

9. Brazilian Port Visit of U.S. Nuclear Submarine

In late October 1990 several United States Navy ships, includingthe nuclear-powered attack submarine U.S.S. Greenling, visitedthree Brazilian ports while participating with Brazil in a navalexercise. Prior to the visit the U.S. Government requested Braziliangovernment approval, which was granted only after requestingand receiving from the U.S. Government a statement on the oper-ation of, and safety measures adopted by, U.S. nuclear-poweredwarships in foreign ports.

On October 30, 1990, a Brazilian group, the AssociacaoPernambucana, de Defensa da Natureza, (“ASPAN”), sought aruling from a Brazilian federal court in Recife, Brazil to requirethe Brazilian government to order the immediate departure of theU.S.S. Greenling from Brazilian territorial waters. The judgedenied the request. The next day, which was a national holiday,ASPAN requested reconsideration. The judge on duty overruledthe original judge, ordering the U.S.S. Greenling to leave Brazilianterritorial waters immediately and setting a fine of ten millioncruzeiros a day should the submarine remain within “the 200 mileBrazilian territorial waters.” At the time the order was issued, theU.S.S. Greenling had already left Recife.

On November 12, 1990, the U.S. Embassy in Brasilia deliv-ered a note of protest to the chief of the Environment Departmentof the Brazilian Foreign Ministry. In pertinent part, the note stated:

The United States Government views with serious concernthe recent ruling by Recife federal judge RobertoWanderley, and the press coverage that implies that theU.S.S. Greenling was ordered to leave Recife and barredfrom operating in Brazilian territorial seas. As the BrazilianGovernment is aware, it is a widely accepted principle ofinternational law that warships are sovereign representa-tives of nations and visits to the other’s ports are basedon government-to-government arrangements. We believethat they are not subject to local judicial jurisdiction, as


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portrayed by Judge Wanderley’s ruling. Any attempt tosubject a sovereign warship to such jurisdiction wouldclearly contravene longstanding international practice thatis crucial to relations among all nations. Additionally, theimpression left by Judge Wanderley’s ruling that the U.S.S.Greenling presented a public hazard during the port visitis baseless—and inconsistent with the proven safety recordof U.S. nuclear powered warships. U.S. nuclear poweredwarships have visited Brazilian ports for over 20 years incomplete safety.

It should be noted that: (A) the Government of theUnited States requested approval from the Government ofBrazil for the U.S.S. Greenling to make operational visitsto the above mentioned Brazilian ports and that suchapproval was granted; (B) the Government of the UnitedStates assumed all commitments regarding safety meas-ures for the U.S.S. Greenling to stay in Brazilian watersas requested by the Government of Brazil; (C) the U.S.S.Greenling’s captain was never notified of JudgeWanderley’s decision; and (D) that we cannot be certainwhen or if the U.S.S. Greenling left Brazilian watersbecause when a submarine is submerged it is difficult toestablish communications with it.

In order to resolve this issue and to avoid future prob-lems the Government of the United States hereby requeststhat the Government of Brazil adopt the judicial measuresit may deem appropriate to attempt to reverse the deci-sion by Judge Wanderley which overruled the decision byJudge Francisco Alves Dos Santos Jr. and determined thatthe Government of Brazil order the U.S.S. Greenling toleave Brazilian territorial waters.

Telegram from U.S. Embassy Brasilia to the Department of State,November 9, 1990.

10. Marine Scientific Research: U.S. Policy

In a February 28, 1989, telegram to its overseas posts, the UnitedStates clarified United States policy on marine scientific research


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by foreign scientists in its territorial sea following extension of theU.S. territorial sea from three to 12 nautical miles by Presidentialproclamation in December 1988:

[I]n accordance with customary international law, asreflected in the 1982 United Nations Convention on theLaw of the Sea, the United States will now control accessto conduct marine scientific research by foreign scientistsin the extended twelve mile territorial sea. Permission toconduct such research may be obtained by contacting theDepartment of State. . . . The United States continues tosupport and encourage the conduct of marine scientificresearch off its coasts and will expeditiously processrequests from foreign governments or private citizens.

Telegram from the Department of State, February 28, 1989.In response to requests from several posts for further infor-

mation concerning U.S. policy on marine scientific research, theDepartment sent a further telegram elaborating on U.S. policy asfollows:

Research vessels of the United States continuously con-duct scientific research in the world’s oceans, frequentlyin the waters off the coasts of foreign states. Such researchis generally referred to as marine scientific research, orMSR. . . .

U.S. Policy: The policy of the United States is toencourage freedom of marine scientific research. PresidentReagan in his March 10, 1983 statement accompanyingthe U.S. exclusive economic zone (EEZ) proclamation,stated that the U.S. had chosen not to exercise its right toassert jurisdiction over marine scientific research in ourEEZ, but that we would recognize the right of othercoastal states to exercise jurisdiction over marine sci-entific research within 200 nautical miles of their coastsif that jurisdiction is exercised reasonably in a mannerconsistent with international law, as reflected in the 1982U.N. Law of the Sea Convention.

The President’s statement and accompanying fact sheeton U.S. oceans policy made clear that the reason the U.S.


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was declining to assert jurisdiction was because of the U.S.interest in encouraging MSR and promoting its maximumfreedom while avoiding unnecessary burdens. The factsheet noted further that the Department of State will takesteps to facilitate access by U.S. scientists to foreign EEZ’sunder reasonable conditions.

A result of the President’s ocean policy statement isthat the U.S. now requests permission through diplomaticchannels for U.S. research vessels to conduct MSR within200 nautical miles of a state asserting such jurisdiction.The U.S. also recognizes coastal state jurisdiction overmarine scientific research on the continental shelf.

The telegram also provided the following definitional information:

Marine Scientific Research: MSR is the general term mostoften used to describe those activities undertaken in theocean and coastal waters to expand scientific knowledgeof the marine environment. MSR includes oceanography,marine biology, fisheries research, scientific ocean drilling,geological/geophysical scientific surveying, as well as otheractivities with a scientific purpose. MSR is not defined inthe Law of the Sea Convention because a widely accepteddefinition could not be developed. When activities are con-ducted similar to those mentioned above for commercialresources purposes, most governments, including the U.S.,do not treat them as MSR. The U.S. does not claim juris-diction over fisheries research except when it involves com-mercial gear or commercial quantities of fish, and eventhen it may qualify as scientific research. The U.S. doesclaim jurisdiction over marine mammal research.

Activities such as hydrographic surveys, the purposeof which is to obtain information for the making of nav-igational charts, and the collection of information thatwhether or not classified is to be used for military pur-poses, are in most instances considered by the U.S. not tobe MSR and not subject to coastal state jurisdiction. Assuch, it is extremely important that these activities in theEEZ not be treated as MSR . . . . However, if theseactivities are to be conducted within the coastal state’s


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territorial sea, which may extend to 12 nautical miles, thencoastal state permission is required.

Telegram from the Department of State, April 19, 1989.

11. Maritime Search and Rescue: U.S.-Mexico Agreement

On August 7, 1989, Secretary of State James A. Baker III andMexican Foreign Minister Fernando Solana signed an Agreementon Maritime Search and Rescue setting forth guidelines for coop-eration between the two States’ authorities, the U.S. Coast Guardand the Mexican navy, “in responding to or coordinating theresponse to distress cases in which life or property is threatenedat sea” (article I). In particular, the agreement included provisionsfor:

— Exchanging information to increase effectiveness ofmaritime search and rescue (article IIIA);— Facilitating cooperation in search and rescue, includ-ing developing common search and rescue procedures,providing prompt permission for entry of search and res-cue units into the territorial sea of the other State, andestablishing means of communication for joint search andrescue operations (article IIIB);— Establishing liaison relationships between the twoStates’ authorities (article IIIC); and— Creating maritime search and rescue regions to ensurethat efficient and coordinated search and rescue coverageis provided for defined areas (article IV).

The agreement provides that it is not intended to amend appli-cable national laws and regulations, nor to affect in any wayMexican and U.S. rights and duties based on treaties and otherinternational agreements and understandings.

The Agreement entered into force in June 1990. The text ofthe Agreement is available at www.state.gov/s/l.


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B. OUTER SPACE

1. Commercial Launch Services: United States-People’s Republic of China

On January 26, 1989, the Governments of the United States ofAmerica and of the People’s Republic of China signed aMemorandum of Agreement Regarding International Trade inCommercial Launch Services. This agreement was the last of threerequired by President Reagan’s decision, announced September9, 1988, to issue export licenses enabling certain United States-made communications satellites to use Chinese space launch serv-ices. On December 17, 1988, two other implementing agreements,one on satellite technology safeguards and one on liability forsatellite launches, were signed by the Government of the UnitedStates of America and the Government of the People’s Republicof China. Texts of the three agreements are available at 28 I.L.M.598 (1989).

Two of the satellites would be built by Hughes Aircraft foran Australian entity, AUSSAT, and the third, a Hughes-built satel-lite (formerly known as Westar 6 and salvaged from orbit by thespace shuttle in November 1984), would be overhauled for ASI-ASAT, a Hong Kong-based consortium composed of companiesfrom the United Kingdom, Hong Kong, and the People’s Republicof China.

On January 30, 1989, Acting U.S. Trade Representative AlanV. Holmer issued guidelines for U.S. implementation of theMemorandum of Agreement, effective upon its entry into force. 54Fed. Reg. 4,931 (Jan. 31, 1989). The three agreements entered intoforce on March 16, 1989. Licenses were issued and the Governmentof the People’s Republic of China was notified on the same day.See also 83 Am. J. Int’l L. 561 (1989).

2. Application of U.S. Patent Law to Outer Space Activities

On September 21, 1989, Susan Biniaz, Attorney-Adviser in theOffice of the Assistant Legal Adviser for Oceans, InternationalEnvironmental and Scientific Affairs, Department of State,


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testified before the Subcommittee on Space Science andApplications of the Committee on Science, Space, and Technologyof the House of Representatives regarding legislation to applyU.S. patent law to certain activities in outer space. In particular,the testimony discussed the importance of the legislation for theSpace Station Agreement and the legislation’s clarification thatU.S. patent law will only apply to foreign-registered space objectsif the foreign state of registry agrees. The testimony, in pertinentpart, provided as follows:

The Department of State supports the proposed legislation,which would codify the applicability of U.S. patent law tocertain activities in outer space and provide appropriateflexibility for variations contained in international agree-ments. The proposed legislation, if enacted, will enable theUnited States to enter into force the Space StationIntergovernmental Agreement, which was signed by theUnited States, nine members of the European Space Agency,Japan, and Canada on September 29, 1988. The SpaceStation Agreement contains provisions on intellectual prop-erty that cannot fully be implemented by the United Stateswithout legislation such as H.R. 2946. Thus, State sup-ports early enactment of the proposed legislation.

The Department of State supports . . . the clarificationcontained in H.R. 2946 to the effect that U.S. patent lawwill not apply to foreign-registered space objects unlessthe foreign state of registry so agrees.

Under the Outer Space Treaty and RegistrationConvention, the state that registers a space object retainsjurisdiction and control over it. We therefore want toensure (as does the European Space Agency and Canada)that, in the absence of the agreement of the registeringstate, U.S. patent law does not apply to space objects reg-istered by a foreign state, even if such space objects are“under the jurisdiction or control” of the United States.

. . . [The proposed legislation] makes clear that thelegislation will operate in a manner that is fully consistentwith the Outer Space Treaty and the Registration Convention.


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Finally, we also support the element of H.R. 2946 thatprovides additional flexibility to enable the United Statesand a foreign state to agree to the application of U.S.patent law to space objects registered by that foreign state,whether or not such objects are under the “jurisdiction orcontrol” of the United States.

The testimony is available at www.state.gov/s/l.The Patents in Space Act was approved effective November 15,

1990, Pub. L. No. 101-580, 104 Stat. 2863, 35 U.S.C. § 105.

Cross reference

U.S. sovereignty over the exclusive economic zone surroundingthe Commonwealth of the Northern Marian Islands, Chapter5.B.2.

Applicability of Foreign Sovereign Immunities Act to foreign navalvessel, Chapter 10.A.2.

Marine Environment and Conservation, Chapter 13.


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CHAPTER 13

Environment and Other Transnational Scientific Issues

ENVIRONMENT

1. Marine Conservation

a. Intergovernmental Resolution on Dolphin Conservation

In September 1990, the United States participated in meetingsheld in Costa Rica of both the Inter-American Tropical TunaCommission (“IATTC”) and the governments of all relevantcoastal and fishing nations to pursue negotiation of a new inter-national program for the conservation and protection of dolphinsincidentally killed in the Eastern Tropical Pacific Ocean purseseine fishery for yellowfin tuna.

On September 19, 1990, the intergovernmental meetingadopted a resolution committing the governments to the estab-lishment of such an international program on dolphins. In per-tinent part, the intergovernmental resolution recorded agreementof the governments as follows:

The governments participating in the intergovernmentalmeeting in San Jose, Costa Rica, on September 18 and19, 1990, have agreed on the following:

(1) To establish an international program for thereduction of incidental mortality of dolphins caught inassociation with tuna in the purse seine fishery of theEastern Tropical Pacific Ocean.

(2) The objectives of the program will be:

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A. In the short term, to achieve a significant reduction ofthis mortality.

B. Over the long term, to make every effort to reduce dol-phin mortality to insignificant levels approaching zero.It is the goal of the governments to achieve such areduction while maintaining optimum utilization andconservation of the tuna resource.(3) The international program will include the fol-

lowing elements:A. Limits on dolphin mortality; B. 100 per cent observer coverage;C. Research programs to improve existing fishing gear

and techniques, to assess the dynamics of the fishery,and to develop alternative fishing methods and studythe tuna-dolphin association with the goal of furtherreducing and, if possible, eliminating dolphin mortal-ity;

D. Training programs to achieve, among other things, thehighest standard of performance throughout the inter-national fleet and the development of national researchand other capabilities.(4) The international program should be funded by all

available sources, including, among others, industry, gov-ernments, international organizations, and non-govern-mental organizations.

(5) Responsibility for the program will rest with thestates with coastlines bordering the Eastern Pacific Oceanand states whose vessels fish for tuna in the EasternTropical Pacific Ocean with purse seines. In carrying outthe program, the governments shall seek support fromother entities, including international organizations, non-governmental organizations, and others with relevantexpertise. The Inter-American Tropical Tuna Commissionhas been identified as the entity most appropriate to coor-dinate the technical aspects of the program.

Telegram from the Department of State, September27, 1990.


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b. U.S.-USSR Joint Statement on Bering Sea Fisheries Conservation

On June 4, 1990, the United States and the Soviet Union issueda joint statement committing the two countries to work togetherto resolve the increasing problem of overfishing in an area knownas the “Donut Hole.” The Donut Hole is an area of the high seasin the Bering Sea that is surrounded by the 200 nautical mile zonesof the United States and the Soviet Union (now Russia). The JointStatement is as follows:

In the course of the state visit by the President of the Unionof Soviet Socialist Republics to the United States ofAmerica, the sides reviewed problems posed by the devel-opment of an unregulated multi-national fishery for pol-lock in the central Bering Sea. In light of the magnitudeof that fishery, which accounts for more than one-third ofthe total annual catch of pollock in the Bering Sea, the sit-uation is of serious environmental concern. In particular,there is a danger to the stocks from overfishing. This mayresult in significant harm to the ecological balance in theBering Sea and to those U.S. and USSR coastal commu-nities whose livelihoods depend on the living marineresources of the Bering Sea.

The sides agreed that urgent conservation measuresshould be taken with regard to this unregulated fishery.The sides noted that, in accordance with internationallaw as reflected in the relevant provisions of the 1982United Nations Convention on the Law of the Sea, allconcerned states, including coastal states and fishingstates, should cooperate to ensure the conservation ofthese living resources. To this end, both sides noted thatthey would welcome cooperative efforts towards thedevelopment of an international regime for the conser-vation and management of the living marine resourcesin the central Bering Sea.

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The Statement is available at www.state.gov/s/l. Following the Joint Statement, the U.S. and the USSR entered

into discussions with four countries whose vessels fish in theDonut Hole (Japan, the Republic of Korea, Poland and thePeople’s Republic of China) with the aim of creating a mecha-nism to regulate this fishery.

c. U.S.-Canada Agreement on Fisheries Enforcement

On September 26, 1990, the United States and Canada signed atOttawa an agreement on fisheries enforcement. Article I of theagreement requires each party to take certain measures to enforcethe fisheries laws of the other against its own nationals and ves-sels, as follows:

Each Party shall take appropriate measures consistent withinternational law to ensure that its nationals, residentsand vessels do not violate, within the waters and zones ofthe other Party, the national fisheries laws and regulationsof the other Party. Such measures shall include prohibi-tions on violating the fisheries laws and regulations of theother Party respecting gear stowage, fishing withoutauthorization, and interfering with, resisting, or obstruct-ing in any manner, efforts to enforce such laws and regu-lations; and may include such other prohibitions as eachParty deems appropriate.

H.R. Doc. No. 102-22, at 3 (1990). Article III provides that “eachParty shall endeavour to inform persons conducting fishing oper-ations in the vicinity of maritime boundaries about the expectedfisheries law enforcement practices of the other Party.” Id. OnJanuary 4, 1991, President Bush transmitted the agreement toCongress under provisions of the Magnuson Fishery Conservationand Management Act of 1976, as amended, 16 U.S.C. §1801–1883, which established procedures for Congressionalreview of Governing International Fishery Agreements (“GIFAs”).Although the Fisheries Enforcement Agreement was not in fact aGIFA, it entered into force on December 17, 1991, pursuant to


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procedures usually reserved for GIFAs, as provided by a recentamendment to the Magnuson Act. Fishery Conservation Amend-ments of 1990, Pub. L. No. 101-627, 104 Stat. 4437.

2. Marine Environment

a. U.S.-USSR Agreement on Pollution in Bering and Chukchi Seas

As a result of the potential for oil development in the Bering andChukchi Seas, and tanker traffic associated with such develop-ment, the United States proposed the establishment of a joint U.S.-USSR procedure to deal with marine pollution incidents inOctober 1986. As a first step, the two sides established points ofcontact for reporting pollution incidents. On May 11, 1989,Secretary of State James A. Baker III and Soviet Foreign MinisterEduard A. Shevardnadze signed at Moscow the Agreementbetween the Government of the United States of America and theGovernment of the Union of Soviet Socialist Republics ConcerningCooperation in Combatting Pollution in the Bering and ChukchiSeas in Emergency Situations, which entered into force on August17, 1989, T.I.A.S. No. 11,446.

Under Article I of the Agreement, the parties undertake to ren-der assistance to each other in combating pollution incidents thatmay affect their respective areas of responsibility, regardless ofwhere the incidents may occur. Assistance is to be rendered con-sistent with the provisions of the Agreement, and to that end, theircompetent authorities are to develop a joint Contingency Planagainst Pollution in the Bering and Chukchi Seas (“the Plan”).

Article II defines key terms in the Agreement. A “pollutionincident” is defined as

a discharge or an imminent threat of discharge of oil orother hazardous substance from any source of such a mag-nitude or significance as to require an immediate responseto prevent such a discharge or to contain, clean up or dis-pose of the substance to eliminate the threat to or to min-imize its harmful effects on living resources and marinelife, public health or welfare.


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The “competent authority” with respect to the United States isthe U.S. Coast Guard, and with respect to the Union of SovietSocialist Republics, the Marine Pollution Control and SalvageAdministration attached to the Soviet Ministry of MerchantMarine. The “area of responsibility of a Party” is defined as

the waters within the Bering and Chukchi Seas which arethe respective Party’s internal waters or territorial sea, andthe sea area beyond the territorial sea in which that Partyexercises its sovereign rights and jurisdiction in accordancewith international law. Areas of responsibility of the Partieswhere they are adjacent will be separated by the maritimeboundary between the two countries.

Under article III the United States and the USSR “consistent withtheir means, commit themselves to the development of nationalsystems that permit detection and prompt notification of the exis-tence or the imminent possibility of pollution incidents, as wellas providing adequate means within their power to eliminate thethreat posed by such incidents and to minimize the adverse effectsto the marine environment and the public health and welfare.”Article IV provides for the exchange of up-to-date information,and consultation to guarantee adequate cooperation between theParties’ competent authorities in regard to activities pertaining tothe Agreement and to the Plan. Under article VII, the Plan maybe invoked “whenever a pollution incident occurs that affects orthreatens to affect the areas of responsibility of both Parties or,although only directly affecting the area of responsibility of oneParty, is of such a magnitude as to justify a request for the otherParty’s assistance.” Article XIV provides (1) that nothing in theAgreement shall affect the rights and obligations of either Partyresulting from other bilateral and multilateral international agree-ments; and (2) that the Parties will implement the Agreement inaccordance with rules and principles of general international lawand their respective laws and regulations. See also 84 Am. J. Int’lL. 242 (1990).


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b. South Pacific Regional Environmental Convention

On September 25, 1990, President George H. W. Bush transmit-ted the Convention for the Protection of the Natural Resourcesand Environment of the South Pacific Region, with Annex, andthe Protocol for the Prevention of Pollution of the South PacificRegion by Dumping, with Annexes, done at Noumea, NewCaledonia, on November 24, 1986 to the Senate for advice andconsent to ratification. The transmittal included a second Protocol,the Protocol Concerning Cooperation in Combating PollutionEmergencies in the South Pacific Region. This Protocol was anexecutive agreement and was transmitted for the information ofthe Senate. In urging favorable Senate action on the Conventionand first Protocol, the transmittal letter explained:

The Convention for the Protection of the NaturalResources and Environment of the South Pacific Regionwill create general legal obligations designed to protectthe marine environment of the region from a variety ofsources of marine pollution. In so doing, the Conventionprovides new environmental protection for AmericanSamoa, Guam and the Northern Mariana Islands, as wellas for the Convention area generally.

The Convention and its Protocols on dumping and pol-lution emergencies entered into force on August 22, 1990.Ten countries have ratified or acceded to the Convention.These are: France, Australia, New Zealand, Papua NewGuinea, Solomon Islands, Fiji, the Marshall Islands, theFederated States of Micronesia, Western Samoa, and theCook Islands. Expeditious U.S. ratification of theConvention and Protocol would demonstrate not only ourcommitment to the protection of the marine environmentof the South Pacific but our continuing political commit-ment to the region as well. It would also allow the UnitedStates to participate fully at the first meeting of Parties,which will likely establish the financial and institutionalarrangements for implementing the Convention.


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S. Treaty Doc. No. 101-21 (1990).The report of the Secretary of State to the President submit-

ting the Convention for transmittal to the Senate provided thefollowing further information, in pertinent part:

The Convention area encompasses the 200-nautical-milezones of twenty-four states and territories located in theSouth Pacific region and the areas of high seas beyond200 miles that are entirely enclosed by those zones. AnyParty may add to the Convention area those areas underits jurisdiction which fall within specified coordinates inthe Pacific region if no other Party objects. The Conventionarea does not include internal or archipelagic waters exceptas may otherwise be provided in a protocol.

The Convention does not prohibit nuclear testing,although that was an objective of virtually all the islandstates. Instead, it obligates Parties to take all appropriatemeasures to prevent, reduce and control pollution in theConvention area which might result from the testing ofnuclear devices. The Convention includes a ban on thedumping of radioactive waste in the Convention area.There is no ban on the dumping of low-level radioactive wastein the 1972 Convention on the Prevention of MarinePollution By Dumping of Wastes and Other Matter(“London Dumping Convention”) to which the UnitedStates is a Party. The Convention will promote harmonyin the South Pacific region, an area with unique geographiccircumstances which preliminary scientific evidence indi-cated at the time of signing, was not particularly well-suited for dumping low-level radioactive waste. The UnitedStates was neither engaging in nor had any plans to engagein the dumping of low-level radioactive waste in theConvention area at the time of signing, nor does it now haveany plans to do so.

The United States does not regard our agreement tothe Convention as a precedent for such provisions in otherregional agreements or under the London DumpingConvention. On a related point, it was the Parties’ intentthat the prohibition on storage of radioactive waste in the


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Convention area does not apply to storage either on a ves-sel operating in the Convention area, or offloading or load-ing in port, or to storage on dry land.

The Convention represents the culmination of workrelated to the Action Plan for the South Pacific RegionalEnvironment Program (SPREP), adopted by the Ministerial-Level Conference on the Human Environment in the SouthPacific, held in Rarotonga, Cook Islands, in March 1982.Thus this treaty is referred to as the SPREP Convention.The final text was negotiated at two meetings in November1986, at Noumea, New Caledonia, and has been signed bythirteen nations, including the United States. Also adoptedat that time were two Protocols, one on dumping, submit-ted herein, and the Protocol Concerning Cooperation inCombating Pollution Emergencies in the South PacificRegion, which is appropriately treated as an executive agree-ment. This agreement calls for the establishment of report-ing requirements, response measures and mutual assistancein combating pollution emergencies, and it designates theOrganization to carry out additional administrative func-tions. The United States will implement the PollutionEmergencies Protocol under existing statutory authoritywhich, among other things, defines the hazardous substancesas to which the United States may take action. A copy ofthe Pollution Emergencies Protocol is included for the infor-mation of the Senate.

The Convention and Protocols are considered a majorstep forward both with regard to protecting the environ-ment of the South Pacific and to U.S relations with thestates concerned. The Convention bridges differencesbetween the island states, which have expressed concernover environmental issues, particularly nuclear issues, andthe other states with strategic interest in the region. It isdesigned to reduce tensions by creating a legal frameworkand institutional arrangements for mutual assistance andcooperation, scientific projects, and information exchange.

Id. at 49–50.Major provisions of the Convention outlined in the State

Department’s Report included the following:


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Article 2 defines various Convention terms, includingthe Convention area and “pollution.” The definition of“dumping” is substantially the same as that of the 1972London Dumping Convention. In addition, several wastesare listed which are not to be considered radioactive andthus not subject to the prohibitions of Article 10. To dis-pel any ambiguity that may be raised by the definition ofnon-radioactive substances in Article 2(d), I recommendthat the United States include the following understand-ing at the time of deposit of its instrument of ratification:

In ratifying the Convention, the United States under-stands that wastes and other matter which would be rec-ommended for exemption from regulatory control asradioactive waste by the relevant recommendations, stan-dards, and guidelines of the International Atomic EnergyAgency shall be treated as non-radioactive for the pur-poses of the Convention.

* * * *

Article 4 encourages Parties to conclude bilateral ormultilateral agreements, including regional or subregionalagreements, to further the objectives of the Convention.Such agreements must be consistent with the Conventionand in accordance with international law. The subject mat-ter of the Convention and its Protocols shall be construedin accordance with international law. The Convention doesnot increase rights of States against vessels on the highseas. Nothing in the Convention and its Protocols shallprejudice the present or future claims and legal views ofany Party concerning the nature and extent of maritimejurisdiction, or affect the sovereign rights of States toexploit and develop their own natural resources in a man-ner consistent with the duty to protect the environment.The general provisions of Article 4 are implemented insubsequent articles. Article 4 was not intended to createany independent obligation beyond those specifically estab-lished in other provisions.

* * * *


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Article 10 provides an obligation to take appropriatemeasures to prevent, reduce, and control pollution causedby dumping from vessels, aircraft or man-made structuresat sea, including the effective application of relevant inter-national rules and procedures (understood to be thosepromulgated under the 1972 London DumpingConvention). The Parties agree to prohibit the dumpingof radioactive wastes or other radioactive matter in theConvention area. With regard to dumping of radioactivewastes, the Convention is more restrictive than the LondonDumping Convention. It is the view of the concerneddepartments and agencies that no additional implement-ing legislation is needed with regard to ocean dumping ofradioactive waste. Under U.S. law, 33 U.S.C. § 1412(a),dumping of high-level radioactive waste is absolutely pro-hibited. With regard to low-level radioactive waste, whileU.S. law establishes a permitting process, no applicationsfor such permits have been received and no permits havebeen granted. In fact, the United States has not ocean-dumped any low-level radioactive waste since 1970. U.S.law, 33 U.S.C. § 1414, requires that any permit for theocean dumping of low-level radioactive waste be issuedonly by the Administrator of the Environmental ProtectionAgency, after certain environmental safety and proceduralrequirements have been met, and approval by a joint res-olution of Congress.

The Parties also agree to prohibit the disposal into theseabed and subsoil of radioactive wastes or other radioac-tive matter, without prejudice to the issue of whether suchdisposal is “dumping.” These prohibitions also apply tothe continental shelves of Parties, defined in accordancewith international law, which extend beyond theConvention area.

Article 11 provides an obligation to take all appro-priate measures to prevent, reduce and control pollutionin the Convention area resulting from the storage of toxicand hazardous material. It also obligates Parties to pro-hibit the storage of radioactive wastes or other radioac-tive matter in the Convention area. The United States


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agreed to this prohibition on the understanding (confirmedin the Report of the High Level Conference) that it doesnot apply to vessels or aircraft navigating the Conventionarea, in port, or to storage on dry land.

* * * *

The SPREP Convention does not apply to militaryships and aircraft. Article 4 states that the Convention andits Protocols shall be construed in accordance with inter-national law. Customary international law recognizes thesovereign immunity of such ships and aircraft. However,since the Convention is not explicit in this regard, I rec-ommend that the United States include the followingunderstanding at the time of deposit of its instrument ofratification:

It is the understanding of the United States that as theConvention does not apply to any warship, naval auxil-iary, or other vessels or aircraft owned or operated by astate and used, for the time being, only on governmentnon-commercial service and therefore entitled to sover-eign immunity under international law, each state shallensure, by the adoption of appropriate measures notimpairing operations or operational capabilities of suchvessels or aircraft owned or operated by it, that such ves-sels or aircraft act in a manner consistent, so far as is rea-sonable and practicable, with this Convention.

The Protocol for the Prevention of Pollution of theSouth Pacific Region by Dumping, with Annexes, regu-lates within the Convention area the deliberate disposalat sea (“dumping”) of wastes and other matter. It con-forms very closely to the London Dumping Convention.Annex I lists those substances which may not be dumpedbecause of their potential to harm the marine environ-ment, such as organohalogens, mercury, cadmium, oil, andpersistent plastics, with the addition of organophospho-rous compounds. No additional implementing legislationis needed with respect to organophosphorous compounds.


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These compounds include chemical warfare agents, insec-ticides, and other materials. Under U.S. law, 33 U.S.C. §III 2(a), no dumping permits may be issued for chemicalwarfare agents. With respect to industrial waste the cate-gory into which most organophosphorous compoundswould fall—U.S. law prohibits ocean dumping byDecember 31, 1991 and effectively prohibits dumping inthe interim, 33 U.S.C. §1414b(a). Annex II identifieswastes which may be dumped so long as a prior specialpermit has been obtained, to ensure that special care istaken with regard to such factors as site selection, moni-toring, and disposal methods. Annex III contains envi-ronmental protection criteria for the issuance of a generaldumping permit for the dumping of all wastes and othermatter not listed in Annexes I and II.

Id. At 50–54.The Convention entered into force for the United States on

July 10, 1991. See also 85 Am. J. Int’l L. 155 (1991).

Cross reference

Exclusion of aliens with AIDS, Chapter 1.C.1.Environmental issues in salvage at sea, Chapter 12.A.2.


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CHAPTER 14

Educational and Cultural Issues

TOURISM AGREEMENTS

On July 12, 1989, the United States and Hungary signed anAgreement on the Development and Facilitation of Tourism, avail-able at www.state.gov/s/l. The purpose of the Agreement, as setforth in the preamble, was to encourage the growth of tourism-related investment and trade between the two countries. ArticleI described the procedures for establishment of official, govern-mental tourism promotion offices on a non-profit basis. Theseoffices would not sell services or otherwise compete with private-sector travel agents or tour operators of the host country.

Article II of the Agreement obligated the parties to consulton efforts to reduce or eliminate barriers to travel and tourismbetween the two countries, and to endeavor to simplify travelformalities. Articles III, IV and V provided for exchanges of infor-mation on tourism, including laws, regulations, statistics, train-ing and education, information on new opportunities for tradein tourism-related products and for joint ventures in hotel andtourism facilities. Article III also encouraged discussion of tourismand tourism-related matters during sessions of the U.S.-HungarianJoint Economic and Commercial Committee and the Hungarian-U.S. Business Council.

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CHAPTER 15

Private International Law

INTER-AMERICAN ARBITRATION CONVENTION

The Inter-American Convention on International CommercialArbitration (“Convention”), entered into force for the UnitedStates on October 27, 1990. The Convention was adopted onJanuary 30, 1975, at an Organization of American States con-ference in Panama and was signed by the United States on June9, 1978. The Convention provides a treaty basis for courts inContracting States to enforce agreements to arbitrate disputesarising out of international commerce and to enforce the result-ing arbitral awards. The Convention was modeled after the 1958New York Convention on the Recognition and Enforcement ofForeign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517; T.I.A.S.6997 (entered into force for the United States, Dec. 29, 1970).As explained in a 1986 report of the Senate Foreign RelationsCommittee recommending that the Senate give advice and con-sent to ratification, S. Exec. Rep. 99-24 (1986), the Convention“simply extend[s] to a significant number of countries in LatinAmerica the relationship which the United States already has,through the New York Convention, with over 65 countriesaround the world. U.S. ratification will strengthen the founda-tion on which improved commercial ties with countries in theregion can be built.”

The Senate gave advice and consent to ratification in 1986,subject to the understanding that ratification would not beeffected until implementing legislation was enacted. It also madeits advice and consent subject to the following reservations, whichwere in turn included in the United States Instrument of

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Ratification, as deposited with the Organization of AmericanStates September 27, 1990:

1. Unless there is an express agreement among the partiesto an arbitration agreement to the contrary, where therequirements for application of both the Inter-AmericanConvention on International Commercial Arbitration andthe Convention on the Recognition and Enforcement ofForeign Arbitral Awards are met, if a majority of such par-ties are citizens of a state or states that have ratified oracceded to the Inter-American Convention and are mem-ber states of the Organization of American States, theInter-American Convention shall apply. In all other cases,the Convention on the Recognition and Enforcement ofForeign Arbitral Awards shall apply.

2. The United States of America will apply the rulesof procedure of the Inter-American CommercialArbitration Commission which are in effect on the datethat the United States of America deposits its instrumentof ratification, unless the United States of America makesa later official determination to adopt and apply subse-quent amendments to such rules.

3. The United States of America will apply theConvention, on the basis of reciprocity, to the recognitionand enforcement of only those awards made in the terri-tory of another Contracting State.

132 CONG.REC. S15,767 (1986).On August 15, 1990, Pub.L.No. 101-369, 104 Stat. 448, was

signed into law, incorporating these reservations. 9 U.S.C. §§304–306.

For a full discussion of the Convention and the implement-ing legislation, see Cumulative Digest 1981–1988 at 3709–3715.

Cross reference

International Adoption, Chapter 2.B.


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CHAPTER 16

Sanctions

A. IMPOSITION OF SANCTIONS

1. Missile Technology

a. U.S. legislation

On November 5, 1990, President George H. W. Bush signed theNational Defense Authorization Act for FY 1991, Pub. L. No.101-510, 104 Stat. 1485 (1990), which amended provisions ofthe Arms Export Control Act and Export Administration Act andenacted mandatory sanctions on foreign persons that contributeto missile technology proliferation. Shortly thereafter, theDepartment of State sent a telegram to all diplomatic posts enclos-ing a summary outline of the legislation, as follows:

U.S. Nonproliferation Policy

The centerpiece of [U.S. Government] nonprolifera-tion policy in the area of missile delivery systems is theMissile Technology Control Regime (“MTCR”). US non-proliferation efforts also encompass bilateral dialoguewith countries not associated with the MTCR, as well asother initiatives.

The MTCR

In 1987, the U.S. and six other countries created theMTCR to restrict proliferation of missiles and related

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technology. The “Partners,” as MTCR members are called,now number 15 and make all decisions by consensus. Inessence, the MTCR is a set of export guidelines that eachpartner implements according to its national legislation.The guidelines restrict transfers of missiles and missile-related technology capable of delivering a minimum 500kg payload a distance of 300 km. Complete missile sys-tems and major subsystems, included in MTCR CategoryI, are rarely licensed for export. Other items (listed inCategory II) can be licensed if the transfer does not con-tribute to development of a missile of MTCR range andpayload. All nations, whether or not MTCR partners, areencouraged to implement the guidelines.

Summary of Missile Sanctions Legislation

Prior to its adjournment, the 101st Congress of theUnited States approved a new title to the defense author-ization bill which provides for sanctions against domes-tic and foreign persons who engage after Nov. 5, 1990, intransfers of missiles, missile technology, and componentson the MTCR Export Guidelines Annex with countriesthat do not participate in or associate with the MTCR.The major provisions are detailed below:

U.S. Firms

Sanctions must be imposed on U.S. “persons” (definedas “a natural person as well as a corporation, businessassociation, partnership, society, trust, any nongovern-mental entity, organization or group, and any govern-mental entity operating as a business enterprise, and anysuccessor of any such entity”) who knowingly export, con-spire to export, or facilitate the export of MissileTechnology Control Regime (MTCR) Annex items in vio-lation of U.S. law (Export Administration Act or ArmsExport Control Act). For exports of Category II items, thesanction is a 2-year ban on export licenses for and USGprocurement of MTCR Annex items. For exports ofCategory I items, the sanction is a minimum 2-year ban


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on all dual-use and munitions licenses and all USG pro-curement.

Foreign Firms

Sanctions must be imposed on “foreign persons”(which are defined as any “person” other than a U.S. per-son, and which can include governmental entities) whoknowingly transfer, conspire to export, or facilitate theexport of MTCR Annex items that contribute to missiledevelopment in a non-MTCR country and that would besubject to U.S. jurisdiction if they were U.S. origin, or whoconspire or attempt to engage in such export, who facili-tate such export or who “otherwise engage in the trade”of MTCR items. For Category II transfers, the sanction isa 2-year ban of export licenses and USG procurement forMTCR Annex items. For Category I transfers, the sanc-tion is a minimum 2-year ban on all dual-use and muni-tions licenses and USG procurement. In addition, a transferthat “substantially” contributes to missile development in anon-MTCR country requires an import ban. . . .

Exemption

Sanctions on foreign companies do not apply to trans-fers licensed by an MTCR adherent or intended for anend-user in an MTCR country, or if an MTCR govern-ment is taking enforcement or judicial action against thecompany. There are several minor exemptions to theimport ban on foreign companies including exceptions forproducts deemed essential to national security.

Waiver

Sanctions on foreign companies may be waived if thePresident determines that such waiver is “essential” toU.S. national security. A waiver is also available for prod-ucts essential to national security whose sole supplier isthe offending company.

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b. Missile Technology Control Regime guidelines

During 1989 and 1990, the U.S. Government applied guidelinespromulgated on April 16, 1987, by the Missile TechnologyControl Regime (“MTCR”). The MTCR was established in 1987to limit the proliferation of missiles capable of delivering weaponsof mass destruction and related equipment and technology. TheMTCR guidelines set forth a common export-control policy ofcontrolled items. These export controls are implemented by eachof the thirty-three partners (members) in accordance with itsnational legislation. Although the MTCR is not legally binding,the United States, as an MTCR partner, acts in accordance withthe guidelines when considering the transfer of equipment andtechnology related to missiles.

GUIDELINES FOR SENSITIVE MISSILE-RELEVANT TRANSFERS

1. The purpose of these Guidelines is to limit the risksof nuclear proliferation by controlling transfers that couldmake a contribution to nuclear weapons delivery systemsother than manned aircraft. The Guidelines are notdesigned to impede national space programs or interna-tional cooperation in such programs as long as such pro-grams could not contribute to nuclear weapons deliverysystems. These Guidelines, including the attached Annex,form the basis for controlling transfers to any destinationbeyond the Government’s jurisdiction or control of equip-ment and technology relevant to missiles whose perform-ance in terms of payload and range exceeds statedparameters. Restraint will be exercised in the considera-tion of all transfers of items contained within the Annexand all such transfers will be considered on a case-by-casebasis. The Government will implement the Guidelines inaccordance with national legislation.

2. The Annex consists of two categories of items,which term includes equipment and technology. CategoryI items, all of which are in Annex Items 1 and 2, are thoseitems of greatest sensitivity. If a Category I item is includedin a system, that system will also be considered as


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Category I, except when the incorporated item cannot beseparated, removed or duplicated. Particular restraint willbe exercised in the consideration of Category I transfers,and there will be a strong presumption to deny such trans-fers. Until further notice, the transfer of Category I pro-duction facilities will not be authorized. The transfer ofother Category I items will be authorized only on rareoccasions and where the Government (A) obtains bindinggovernment-to-government undertakings embodying theassurances from the recipient government called for inparagraph 5 of these Guidelines and (B) assumes respon-sibility for taking all steps necessary to ensure that theitem is put only to its stated end-use.

It is understood that the decision to transfer remainsthe sole and sovereign judgment of the United StatesGovernment.

3. In the evaluation of transfer applications for Annexitems, the following factors will be taken into account:

A. Nuclear proliferation concerns;B. The capabilities and objectives of the missile and

space programs of the recipient state;C. The significance of the transfer in terms of the

potential development of nuclear weapons deliv-ery systems other than manned aircraft;

D. The assessment of the end-use of the transfers,including the relevant assurances of the recipientstates referred to in sub-paragraphs 5.A and 5.Bbelow;

E. The applicability of relevant multilateral agree-ments.

4. The transfer of design and production technologydirectly associated with any items in the Annex will besubject to as great a degree of scrutiny and control as willthe equipment itself, to the extent permitted by nationallegislation.

5. Where the transfer could contribute to a nuclearweapons delivery system, the Government will authorizetransfers of items in the Annex only on receipt of appro-

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priate assurances from the government of the recipientstate that:

A. The items will be used only for the purpose stated andthat Such use will not be modified nor the items mod-ified or replicated without the prior consent of theUnited States Government;

B. Neither the items nor replicas nor derivatives thereofwill be re-transferred without the consent of the UnitedStates Government.

6. In furtherance of the effective operation of theGuidelines, the United States Government will, as neces-sary and appropriate, exchange relevant information withother governments applying the same Guidelines.

7. The adherence of all States to these Guidelines inthe interest of international peace and security would bewelcome.

2. Chemical and Biological Weapons

a. Veto of legislation

On November 16, 1990, President George H. W. Bush vetoed theOmnibus Export Amendments Act of 1990, H.R. 4653, 101stCong. (1990), on the basis that it would unduly constrain presi-dential authority in carrying out foreign policy through, amongother things, mandatory imposition of unilateral sanctions relatedto chemical and biological weapons. As discussed in 2.b. below,the President determined at the same time to issue an executiveorder exercising his discretion to impose sanctions. The President’smemorandum of disapproval commented on the legislation, asfollows:

I agree with the principal goals of this bill, which includeimproved export controls for, and sanctions against theuse of, chemical and biological weapons; sanctions onIraq; missile technology sanctions; and reauthorization ofthe Export Administration Act. Indeed, I have recently


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signed into law provisions on missile technology sanctionsand sanctions against Iraq comparable to those containedin this bill. [See discussion of Pub. L. No. 101-510, supra.]H.R. 4653, however, contains elements that I believewould undermine these objectives and our ability to actquickly, decisively, and multilaterally at a time when wemust be able to do so. These provisions unduly interferewith the President’s constitutional responsibilities for car-rying out foreign policy. Rather than signing the bill, I amdirecting action under existing authorities to accomplishthe bill’s principal goals.

I am pleased that the Congress endorses my goal ofstemming the dangerous proliferation of chemical and bio-logical weapons. The Administration has worked closelywith the Congress to design appropriate and effective leg-islation to improve our ability to impose sanctions on thenations that use such weapons and any companies thatcontribute to their spread. Throughout discussions withthe Congress, my Administration insisted that any suchlegislation should not harm cooperation with our part-ners and should respect the President’s constitutionalresponsibilities. Unfortunately, as reported from confer-ence, H.R. 4653 does not safeguard those responsibilities,nor does it meet our broader foreign policy goals.

The major flaw in H.R. 4653 is not the requirementof sanctions, but the rigid way in which they are imposed.The mandatory imposition of unilateral sanctions as pro-vided in this bill would harm U.S. economic interests andprovoke friendly countries who are essential to our effortsto resist Iraqi aggression. If there is one lesson we have alllearned in Operation Desert Shield, it is that multilateralsupport enhances the effectiveness of sanctions.

Because of my deep concern about the serious threatposed by chemical and biological weapons, I have signedan Executive Order directing the imposition of the sanc-tions contained in this bill and implementing new chem-ical and biological weapon export controls. This Executiveorder goes beyond H.R. 4653 in some respects. It sets fortha clear set of stringent sanctions, while encouraging nego-

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tiations with our friends and allies. It imposes an economicpenalty on companies that contribute to the spread of theseweapons and on countries that actually use such weaponsor are making preparations to do so. At the same time, itallows the President necessary flexibility in implementingthese sanctions and penalties. Furthermore, the Executiveorder reaffirms my determination to achieve early conclu-sion of a verifiable global convention to prevent the pro-duction and use of chemical weapons.

The Executive order also directs the establishment ofenhanced proliferation controls, carefully targeted onexports, projects, and countries of concern. On this issue,as well as with other important export control matters,my goal is to pursue effective, multilateral export controlsthat send the clear message that the United States will nottolerate violations of international law.

I am also concerned that other features of H.R. 4653would hamper our efforts to improve the effectiveness ofexport controls. In the rapidly changing situation inEastern Europe, and in bilateral relationships with theSoviet Union, we have demonstrated the ability to adjust,in cooperation with our allies, export controls on hightechnology to reflect the new strategic relationships. LastMay I asked our allies to liberalize dramatically our multi-lateral export controls. Negotiations designed to liberal-ize trade to encourage democratic institutions and openmarket economies will continue. Our multilateral exportcontrols have contributed significantly to the positivechanges brought about in West-East relations. The micro-management of export controls mandated by H.R. 4653can only damage these ongoing efforts.

In other areas, H.R. 4653 would be harmful to closelylinked U.S. economic and foreign policy interests. Forexample, under section 128 of the bill there would beextraterritorial application of U.S. law that could forceforeign subsidiaries of U.S. firms to choose between vio-lating U.S. or host country laws.

Other sections of H.R. 4653 contain useful provisionsthat will be implemented as soon as possible. However,


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additional legal authority is not required to make ourexport control system reflect the economic and nationalsecurity realities of today’s world. In response to recentworld events, I am directing Executive departments andagencies to implement the following changes:— By June 1, 1991, the United States will eliminate alldual-use export licenses under section 5 of the ExportAdministration Act to members of the export controlgroup known as CoCom, consistent with multilateralarrangements. In addition, all re-export licenses under sec-tion 5 to and from CoCom will be eliminated, consistentwith multilateral arrangements.— By June 1, 1991, the United States will remove fromthe U.S. munitions list all items contained on the CoComdual-use list unless significant U.S. national security inter-ests would be jeopardized.— By January 1, 1991, U.S. review of export licenses sub-ject to CoCom Favorable Consideration and NationalDiscretion procedures will be reduced to 30 and 15 days,respectively.— By January 1, 1991, new interagency procedures willbe instituted to make dual-use export license decisionsmore predictable and timely.— By January 1, 1991, the Secretary of State will initiatenegotiations to ensure that supercomputer export controlsare multilateral in nature and not undermined by the poli-cies of other supplier countries. By June 1, 1991, in con-sultation with industry, we will devise and publish amethod to index supercomputer license conditions toreflect rapid advances in the industry and changes in strate-gic concerns.— By January 1, 1991, we will significantly increase thethreshold for Distribution Licenses to free world destina-tions and ensure that at least annually these thresholds areadjusted to reflect changes in technology and are consis-tent with international relationships, including changingrequirements to stem the proliferation of missile technol-ogy and nuclear, chemical and biological weapons.

In summary, H.R. 4653 contains serious and unac-ceptable flaws that would hamper our efforts to prevent

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the proliferation of weapons of mass destruction and toease restrictions on the legitimate sale of dual-use goodsto acceptable users. Rather than sign this bill, I have cho-sen to take a series of steps under existing authorities toensure that mutually shared objectives are met in a timelyand efficient manner. I will work with the Congress, uponits return, to enact an appropriate extension of the ExportAdministration Act.

Memorandum of Disapproval for the Omnibus Export Amend-ments Act of 1990. 26 WEEKLY COMP. PRES. DOCS, 1839–40,(Nov. 19, 1990). On December 4, 1991, President Bush signedinto law H.R. 1724, Miscellaneous Foreign Affairs, Pub. L. No.102-182, 105 Stat. 1233, that included the Chemical andBiological Weapons Control and Warfare Elimination Act of 1991that established sanctions against foreign persons and countriesinvolved in the spread or use of chemical and biological weapons.

b. Executive order

The executive order cited in the President’s memorandum of dis-approval in his veto of the Omnibus Export Amendments Act of1990, cited above, was signed by President Bush on November16, 1990. Exec. Order No. 12,735, 55; Fed. Reg. 48,587 (Nov.16, 1990). The order declared a national emergency under U.S.law to deal with the threat of proliferation of biological and chem-ical weapons and provided as follows, in pertinent part:

By the authority vested in me as President by theConstitution and the laws of the United States of America,including the International Emergency Economic PowersAct (50 U.S.C. 1701 et seq.), the National EmergenciesAct (50 U.S.C. 1601 et seq.), and section 301 of title 3 ofthe United States Code,

I, George Bush, President of the United States ofAmerica, find that proliferation of chemical and biologi-cal weapons constitutes an unusual and extraordinarythreat to the national security and foreign policy of the


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United States and hereby declare a national emergency todeal with that threat.

Accordingly, I hereby order:Section 1. International Negotiations. It is the policy

of the United States to lead and seek multilaterally coor-dinated efforts with other countries to control the prolif-eration of chemical and biological weapons. The Secretaryof State shall accordingly ensure that the early achieve-ment of a comprehensive global convention to prohibitthe production and stockpiling of chemical weapons withadequate provisions for verification, shall be a top prior-ity of the foreign policy of the United States, and theSecretary of State shall cooperate in and lead multilateralefforts to stop the proliferation of chemical weapons.

Sec. 2. Imposition of Controls. As provided herein,the Secretary of State and the Secretary of Commerce shalluse their authorities, including the Arms Export ControlAct and Executive Order no. 12730, respectively, to con-trol any exports that either Secretary determines wouldassist a country in acquiring the capability to develop, pro-duce, stockpile, deliver, or use chemical or biologicalweapons. The Secretary of State shall pursue early nego-tiations with foreign governments to adopt effective meas-ures comparable to those imposed under this order.

Sec. 3. Department of Commerce Controls. (a) TheSecretary of Commerce shall prohibit the export of anygoods, technology, or service subject to his export juris-diction that the Secretary of Commerce and the Secretaryof State determine, in accordance with regulations issuedpursuant to this order, would assist a foreign country inacquiring the capability to develop, produce, stockpile,deliver, or use chemical or biological weapons. TheSecretary of Commerce and the Secretary of State shalldevelop an initial list of such goods, technology, and serv-ices within 90 days of this order. The Secretary of Stateshall pursue early negotiations with foreign governmentsto adopt effective measures comparable to those imposedunder this section.

(b) Subsection (a) will not apply to exports if their des-tination is a country with whose government the United

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States has entered into a bilateral or multilateral arrange-ment for the control of chemical or biological weapons-related goods (including delivery systems) and technology,or maintains domestic export control comparable to con-trols that are imposed by the United States with respectto such goods and technology or that are otherwisedeemed adequate by the Secretary of State.

(c) The Secretary of Commerce shall require validatedlicenses to implement this order and shall coordinate anylicense applications with the Secretary of State and theSecretary of Defense.

Sec. 4. Sanctions Against Foreign Persons. (a) Sanc-tions shall be imposed on foreign persons with respect tochemical and biological weapons proliferation, as speci-fied in subsections (b)(1) through (b)(5).

(b)(1) Sanctions shall be imposed on a foreign personif the Secretary of State determines that the foreign per-son on or after the effective date of this order knowinglyand materially contributed to the efforts of a foreign coun-try referred to in subsection (2) to use, develop, produce,stockpile, or otherwise acquire chemical or biologicalweapons.

(2) The countries referred to in subsection (1) are thosethat the Secretary of State determines have either usedchemical or biological weapons in violation of interna-tional law or have made substantial preparations to do soon or after the effective date of this order.

(3) No department or agency of the United StatesGovernment may procure, or enter into any contract forthe procurement of, any goods or service from any foreignperson referred to in subsection (1). The Secretary of theTreasury shall prohibit the importation into the UnitedStates of products produced by that foreign person.

(4) Sanctions imposed pursuant to this section may beterminated or not imposed against foreign persons if theSecretary of State determines that there is reasonable evi-dence that the foreign person concerned has ceased allactivities referred to in subsection (1).

(5) The Secretary of State and the Secretary of theTreasury may provide appropriate exemptions for pro-


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curement contracts necessary to meet U.S. operational mil-itary requirements or requirement under defense produc-tion agreements, sole source suppliers, spare parts,components, routine servicing and maintenance of prod-ucts, and medical and humanitarian items. They may pro-vide exemptions for contracts in existence on the date ofthis order under appropriate circumstances.

Sec. 5. Sanctions Against Foreign Countries. (a)Sanctions shall be imposed on foreign countries withrespect to chemical and biological weapons proliferation,as specified in subsections (b) and (c).

(b) The Secretary of State shall determine whether anyforeign country has, on or after the effective date of thisorder, (1) used chemical or biological weapons in viola-tion of international law; or (2) made substantial prepa-rations to use chemical or biological weapons in violationof international law; or (3) developed, produced, or stock-piled chemical or biological weapons in violation of inter-national law.

(c) The following sanctions shall be imposed on anyforeign country identified in subsection (b)(1) unless theSecretary of State determines that any individual sanctionshould not be applied due to significant foreign policy ornational security reasons. The sanctions specified in thissection may be made applicable to the countries identi-fied in subsections (b)(2) or (b)(3) when the Secretary ofState determines that such action will further the objec-tives of this order pertaining to proliferation. The sanc-tions specified in subsection (c)(2) below shall be imposedwith the concurrence of the Secretary of the Treasury.

(1) Foreign Assistance. No assistance shall be providedto that country under the Foreign Assistance Act of 1961or the Arms Export Control Act other than assistance thatis intended to benefit the people of that country directlyand that is not channeled through governmental agenciesor entities of that country.

(2) Multilateral Development Bank Assistance. TheUnited States shall oppose any loan or financial or techni-cal assistance to that country by international financial insti-tutions in accordance with section 701 of the International

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Financial Institutions Act (22 U.S.C. 262d).(3) Denial of Credit or Other Financial Assistance.

The United States shall deny to that country any credit orfinancial assistance by any department, agency, or instru-mentality of the United States Government.

(4) Prohibition on Arms Sales. The United StatesGovernment shall not, under the Arms Export ControlAct, sell to that country any defense articles or defenseservices or issue any license for the export of items on theUnited States Munitions List.

(5) Exports of National Security-Sensitive Goods andTechnology. No exports shall be permitted of any goodsor technologies controlled for national security reasonsunder Export Administration Regulations.

(6) Further Export Restrictions. The Secretary ofCommerce shall prohibit or otherwise substantially restrictexports to that country of goods, technology, and services(excluding agricultural commodities and products other-wise subject to control).

(7) Import Restrictions. Restrictions shall be imposedon the importation into the United States of articles (whichmay include petroleum or any petroleum product) that arethe growth, product, or manufacture of that country.

(8) Landing Rights. At the earliest practicable date,the Secretary of State shall terminate, in a manner con-sistent with international law, the authority of any air car-rier that is controlled in fact by the government of thatcountry to engage in air transportation (as defined in sec-tion 101(10) of the Federal Aviation Act of 1958 (49U.S.C. App. 1301(10)).

Sec. 6. Duration. Any sanctions imposed pursuant tosections 4 or 5 shall remain in force until the Secretary ofState determines that lifting any sanction is in the foreignpolicy or national security interests of the United Statesor, as to sanctions under section 4, until the Secretary hasmade the determination under section 4(b)(4).

Id. This Executive Order was revoked by Executive Order No.12938 (Nov. 14, 1994), amended by E.O. 13094 (July 28, 1998).


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B. LIFTING OF SANCTIONS

Removal of Restrictions on Foreign Assistance

Section 620(f) of the Foreign Assistance Act of 1961, as amended(22 U.S.C. 2370(f)) prohibits assistance under that Act toCommunist countries. Under subsection (2) of that provision, thePresident may remove a Communist country from ineligibility toreceive such assistance if he determines and reports to Congressthat removal is important to the national interest of the UnitedStates. The President’s authority to make this determination wasdelegated to the Secretary of State in section 1-201(a)(10) ofExecutive Order No. 12163 of September 29, 1979, as amended.Secretary of State James A. Baker III exercised this authority withregard to four countries during 1989 and 1990: Hungary, Poland,Czechoslovakia, and the German Democratic Republic.

a. Hungary

On September 7, 1989, Secretary of State Baker determined thatit was important to the national interest to remove Hungary fromineligibility to receive assistance under the Act for an indefiniteperiod. A memorandum of justification provided to Congress insupport of that determination made the following points:

Hungary is pursuing a program of significant, Western-oriented political and economic reforms, in an effort toprovide a more legitimate political base and address thecountry’s serious social and financial problems. The rul-ing Hungarian Socialist Workers’ Party last year swept outits old leaders and chose new ones, some of whom arestrong supporters of reform.

On the economic front, the Government of Hungaryhas injected new blood into its reform program, knownas the “New Economic Mechanism,” which combinesstrict austerity measures, market-oriented reforms, andsupport of private initiatives. Key to this effort is the“Company Law” that went into effect January 1 of thisyear. It increases the number of employees a private firm

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may have from 30 to 500 persons, allows 100 percent for-eign ownership of enterprises, and provides for the con-version of state-owned firms to joint stock companies.Other recent reforms have provided for the developmentof commercial banks and liberalized the granting of for-eign trading rights.

Encouraging continued political and economic reformin Hungary is important to the national interest of theUnited States. The package of initiatives which thePresident announced during his recent visit to Budapestrepresents support for economic recovery, political liber-alization and free market solutions. The President’s ini-tiatives include funding in support of a Hungarian-American Enterprise Fund to support the development ofthe growing private sector in Hungary, support for appro-priate economic and political liberalization initiatives, con-certed action by the Government of the United States, WestEuropean countries and Japan in support of Hungarianeconomic reform, and the establishment of a regional envi-ronmental center in Budapest.

Justification for the President’s Determination to Remove theProhibition of Foreign Assistance for Hungary. The determina-tion and justification are available at www.state.gov/s/l.

b. Poland

On September 6, 1989, Secretary of State Baker determined thatit was important to the national interest to remove Poland fromineligibility to receive assistance under the Foreign Assistance Actof 1961 for an indefinite period. The Secretary’s justificationincluded the following points:

The elections, the legalization of Solidarity, the establish-ment of a free press, and the decision to allow Solidarityto form the new government are solid evidence that thepolitical reform process is well underway in Poland.

Poland has also taken the first steps necessary toreform its troubled economy. It joined the International


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Monetary Fund and World Bank in 1986 and has held dis-cussions with the IMF regarding the outlines of a prospec-tive adjustment program. Also in 1986, Poland opened thedoor to joint venture participation by foreign companies;a more liberal law that allows 100 percent foreign owner-ship of investments went into effect on January 1, 1989.Periodic devaluations of the zloty since February 1987 havemade Polish exports more competitive. Other reforms areaimed at increasing reliance on market mechanisms andreducing bureaucratic control over the economy.

Encouraging continued political and economic reformin Poland is important to the national interest of theUnited States. The package of initiatives President Bushannounced during his recent visit to Poland represents sup-port for economic recovery, political liberalization andfree market solutions. The President’s initiatives includesupport for a Polish-American Enterprise Fund to assistprivate entrepreneurs in Poland, support for other appro-priate economic and political liberalization initiatives, con-certed action by the U.S., West European and Japanesegovernments in support of Polish economic reform, anda generous and early debt rescheduling for Poland in theParis Club.

It is worth noting that Poland has for many years beena beneficiary of other U.S. assistance programs not sub-ject to the Foreign Assistance Act’s prohibition. We under-stand that similar proposals for additional assistance arenow under consideration in the Congress. Taken together,these considerations warrant concrete encouragement bythe United States Government to the reform processesunderway within Poland. Removal of Poland, for an indef-inite period, from the application of Section 620(f) of theForeign Assistance Act is intended to acknowledge andfurther encourage such reforms.

Justification for the President’s Determination to Remove theProhibition of Foreign Assistance for Poland, available atwww.state.gov/s/l.

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c. Czechoslovakia

On May 13, 1990, Secretary of State Baker exercised his author-ity pursuant to section 620(f) of the Foreign Assistance Act toremove Czechoslovakia from its application for an indefiniteperiod. 55 Fed.Reg. 24,335 (June 15, 1990). In his justificationin support of the determination, the Secretary noted the follow-ing factors:

On June 8 and 9, the Czech and Slovak Federal Republicis expected to complete its transition to democracy byholding free and open parliamentary elections. The elec-tions will cap a six-month period that began with the top-pling of the communist government late in 1989 and hasseen the implementation of broad political reform.

The Czech and Slovak Federal Republic has . . . takenthe first steps necessary to institute market-oriented eco-nomic reforms. It has applied to rejoin the InternationalMonetary Fund and World Bank and has held discussionswith the IMF regarding the outlines of a prospectiveadjustment program. The Czech and Slovak FederalRepublic is also rewriting its investment laws, which wouldprovide for liberal joint venture regulations suitable toWestern investors. Parliament has passed a budget thatslashes subsidies to industry and the army, and cuts arti-ficial supports for foodstuffs. The crown has been deval-ued by nearly 20 percent this year. These and otherreforms will increase reliance on market mechanism andreduce bureaucratic control over the economy.

Encouraging continued political and economic reformin the Czech and Slovak Federal Republic is important tothe national interest of the United States. President Bushwelcomed President Havel to Washington in February byexpressing his support for economic reform, political lib-eralization and free market solutions. The President haspursued bilateral and multilateral support for reform inthe Czech and Slovak Federal Republic, and is anxious tofurther integrate the Czech and Slovak Federal Republic intothe West, both politically and economically. He has


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encouraged investment in the Czech and Slovak FederalRepublic, called for expanded exchanges, and granted awaiver of the Jackson-Vanik restrictions that has led tothe achievement of most-favored-nation status by theCzechoslovaks.

Removal of the Czech and Slovak Federal Republic,for an indefinite period, from the application of Section620(f) of the Foreign Assistance Act is intended toacknowledge and encourage further such reforms, whichserve important national interests of the United States.

Justification for the Presidential Determination to Remove theSection 620(f) Prohibition of Foreign Assistance for the Czechand Slovak Federal Republic, available at www.state. gov/s/l.

d. German Democratic Republic

On July 12, 1990, Secretary of State Baker exercised his author-ity pursuant to section 620(f) of the Foreign Assistance Act toremove the German Democratic Republic from its application foran indefinite period. 55 F.R. 33,996 (Aug. 20, 1990). In his jus-tification in support of the determination, the Secretary made thefollowing points:

In the past several months, the German DemocraticRepublic has undergone a peaceful revolution in which ithas ceased to have the attributes of a Communist coun-try. On March 18, the GDR held its first free and fair par-liamentary elections, which resulted in the government ofPremier Lothar de Maiziere, a Christian Democrat. . . .

The GDR has taken steps to move away from a cen-trally-controlled economy toward free market mechanisms.It has instituted a new joint venture law allowing foreigninvestment and ownership of East German enterprises.The GDR has passed a new labor law and taken initialsteps to reduce government subsidies. This process willbecome even more pronounced now that the economicand monetary union has been instituted, and the GDR haseffectively adopted the FRG’s economic system.

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Encouraging continued political and economic reformin the GDR is important to the national interest of theUnited States. Although German unification is proceed-ing rapidly, and the GDR will cease to be a separate polit-ical entity at some point in the future, it is important to theU.S. to take steps which acknowledge the reforms whichhave been accomplished, and also to expand our politi-cal, cultural and business contacts with the East Germanpopulations. We underscore our intention that any pro-grams will be non-military in nature.

Removal of the GDR, for an indefinite period, fromthe application of Section 620(f) of the Foreign AssistanceAct is intended to acknowledge and further encouragesuch reforms.

Justification for a Determination Removing the GermanDemocratic Republic From the Application of Section 620(f) ofthe Foreign Assistance Act of 1961, available at www.state. gov/s/l.

2. Lifting of Sanctions against Namibia

As discussed in Chapter 7.A., supra, Namibia gained its inde-pendence in March 1990. At that time, the Office of ForeignAssets Control, U.S. Department of Treasury, issued an amend-ment to the South African Transaction Regulations, to lift U.S.economic sanctions that had been imposed on Namibia under theComprehensive Anti-Apartheid Act of 1986, Pub. Law No. 99-440 (“the Act”). 55 Fed. Reg. 10,618 (Mar. 22, 1990). The actionwas explained in the Federal Register notice as follows:

Namibia, under the illegal administration of South Africa,has been subject to the sanctions imposed against SouthAfrica under the Act. The Act defines “South Africa” toinclude “any territory under the administration, legal or ille-gal, of South Africa.” 22 U.S.C. 5001(6)(B). Implementingthe Act, the [South African Transaction] Regulations definethe terms “South Africa” and “Government of South Africa”(or “South African Government”) to include Namibia. 31CFR 545.306 and 545.312.


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Namibia will gain independence from South Africa onMarch 21, 1990. In view of this event, and the StateDepartment’s determination that Namibia will no longerbe illegally administered by South Africa, the Office ofForeign Assets Control is amending the Regulations to liftthe Act’s sanctions from Namibia.

Regulations implementing required fair labor standards by U.S.firms in Namibia were also amended to reflect Namibia’s inde-pendence. 55 Fed. Reg. 9,722 (Mar. 15, 1990). The FederalRegister notice provided:

Section 2 of Executive Order 12532 of September 9, 1985(50 FR 36861) deals with labor practices of U.S. nation-als and their firms in South Africa. On November 8, 1985the Department of State published draft implementing reg-ulations as a proposed rule for public comment (50 FR46455). The final rule was published on December 31,1985 (50 FR 53308).

The Comprehensive Anti-Apartheid Act of 1986 (Pub.L. 99-440) (“the Act”) codified the measures requiredunder the September 9, 1985 Executive Order. The Actcontains a Code of Conduct (section 208) which codifiesthe fair labor standards specified in Executive Order12532. It also contained several provisions relating to thefair labor standards to be implemented by U.S. firms.These provisions were implemented by the final rule thatwas published by the Department of State on October 30,1986 (51 FR 39655).

In addition, section 3(6) of the Act defined South Africafor purposes of the Act as including any territory under theadministration, legal or illegal, of South Africa. Namibia(a non-self governing territory under the U.N. Charter) wasat the time of the enactment of the Act under such admin-istration. Accordingly, the regulations in parts 60–65 wereextended to U.S. nationals employing more than 25 indi-viduals in Namibia. A new § 62.4 was added to the regu-lations to require such firms to register with the Departmentof State not later than November 30, 1986.

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The Department of State has determined that effectiveupon its independence on March 21, 1990, Namibia willno longer be administered by South Africa within themeaning of section 3(6) of the Act and will be instead anindependent state. Any territory in fact administered bySouth Africa, notwithstanding any claim as to sovereigntyby Namibia, will continue to be considered by theDepartment of State as included in South Africa for pur-poses of the Act, without prejudice to either South Africa’sor Namibia’s claims under international law.

In June 1990 the Department of State wrote to each of the gov-ernors of the states of the United States, urging them to removeany sanctions against Namibia that might still be in effect understate law.


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CHAPTER 17

International Conflict Resolution and Avoidance

A. CAMBODIA AND VIETNAM

1. Proposed Vesting of Vietnamese Assets

On November 17, 1989, the Subcommittees on Asian and PacificAffairs and on International Economic Policy and Trade of theHouse Committee on Foreign Affairs heard testimony on H.R.2166, entitled Payment of Claims of Nations of the United Statesagainst Vietnam. The proposed legislation would have amendedtitle VII of the International Claims Settlement Act of 1949, asamended (22 U.S.C. § 1645), to provide for the vesting ofVietnamese assets, which had been frozen (blocked) under regu-lations of the Office of Foreign Assets Control, Department ofthe Treasury, effective April 30, 1975. The vested assets were tobe used to pay claims of United States nationals on which awardshad been made by the Foreign Claims Settlement Commissionunder Public Law No. 96-606 (the Vietnam Claims Program),approved December 28, 1980. 94 Stat. 3534 (22 U.S.C. §§1645–1645o (1982).

Deputy Assistant Secretary of State David F. Lambertson sum-marized the policy of the Administration with regard to the SocialistRepublic of Vietnam (“SRV”) and the proposed legislation:

We fully understand and support the need to satisfy ournationals’ claims against Vietnam. Nevertheless, we opposeH.R. 2166, which would vest Vietnamese assets blocked inthis country in order to reimburse U.S. claimants. Our oppo-sition to vesting is based upon: (1) the need for sustained

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SRV cooperation on bilateral humanitarian issues; (2) ourpolicy and legal interests in resolving such claims by nego-tiation (in the context of normalization) rather than unilat-eral action; and (3) the failure of the proposed vestinglegislation to account for U.S. Government claims againstVietnam . . . .

Issues Affecting the Question of U.S. Relations with Vietnam:Hearing Before the Subcomm. on Asian and Pacific Affairs andthe Subcomm. on International Economic Policy and Trade ofthe House Comm. on Foreign Affairs, 101st Cong. 57–171 (1989)(testimony of David F. Lamberston, Deputy Assistant Secretaryof State for East Asian and Pacific Affairs, Dept. of State)(“Hearing”) at 63–64 .

In his testimony, Mr. Lambertson also explained the opposi-tion to negotiating a claims settlement with Vietnam while theprocess of negotiations on Cambodia was ongoing:

In view of Vietnam’s lack of cooperation in efforts to achievea settlement at the Paris Conference [the InternationalConference on Cambodia, held at Paris, July 30–Aug. 30,1989], we also believe that any bilateral approach toVietnam to negotiate a claims settlement would be inap-propriate at this time. We know that Vietnam’s leaders arekeenly aware of this issue. They have previously expressedinterest in discussing claims settlement; we have declinedto enter into such discussions since this is primarily a finan-cial issue. Claims settlement in this context would be widelyseen as a step toward ‘normalization.’

Id. at 64–65.For a full discussion of the Administration’s opposition to

vesting of the Vietnamese assets, including testimony by MichaelL. Young, Deputy Legal Adviser of the Department of State andR. Richard Newcomb, Director, Office of Foreign Assets Control,Department of the Treasury, on legal aspects of such vesting, seeCumulative Digest 1981–1988 at 2743– 2751. See also 84 Am.J. Int’l L. 539. The legislation was not adopted.


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2. Cambodian Settlement

In his testimony of November 17, 1989, Mr. Lambertson notedthat it had been “U.S. policy since the early 1980’s that normal-ization of relations with Vietnam can and should be consideredonly in connection with the Cambodian situation.” Hearing at61. A resolution of the Cambodian conflict, he stated, “must bea genuinely comprehensive settlement which provides for effec-tive international verification of the Vietnamese withdrawal, incor-porates formidable obstacles against a Khmer Rouge return topower, and allows for the exercise of genuine self-determinationby the Cambodian people.” Id. at 62. He reviewed efforts as ofthat time to reach a Cambodian settlement:

Last spring, the prospect of a political approach throughan international conference in Paris to resolve theCambodian situation began to take shape. As that con-ference approached, the interest of the Cambodian fac-tions in testing their capabilities on the battlefield afterthe Vietnamese withdrawal made prospects for a success-ful political resolution problematic. We were not certainthat sufficient political will existed among the key partiesto permit a reasonable chance of success for such an ambi-tious undertaking.

We were impressed, however, by the determination ofthe French and Indonesian co-presidents to undertake whatthey, too, recognized was a problematic effort, and by thewillingness of the ASEAN states and others to join in.Finally, Vietnam’s statement that it would withdraw itsforces by the end of September raised the specter of esca-lating violence among the Cambodia factions—making aconcerted attempt to resolve the conflict by negotiationsboth timely and worthwhile. We therefore participatedenergetically, and with a clear interest in nurturing a polit-ical process of national reconciliation, in the effort to forgea settlement in Paris.

The initial sessions of the Conference were promising.Substantial progress was made on the issues of peace-keeping, international guarantees, and reconstruction and

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repatriation of Cambodians on the Thai border. However,the most difficult task was for the parties to reach agree-ment on the creation of a provisional authority to providethe basis for a fair and equal electoral test of who shouldgovern Cambodia.

Despite serious proposals from the French and fromPrince Sihanouk, and encouraging indications of flexibilityfrom the Chinese, Hanoi and the Phnom Penh regime didnot respond and consequently no real negotiations on power-sharing took place . . . .

Id. at 59–60.Representatives of the United States and the other four per-

manent members of the UN Security Council began meeting reg-ularly in Paris and New York in January 1990. On January 15and 16, 1990, the representatives met in Paris for consultationson a comprehensive political settlement to the Cambodian con-flict. At this meeting, they agreed on the following principles asa guide to resolution of the Cambodian problem:

No acceptable solution can be achieved by force of arms. An enduring peace can only be achieved through a

comprehensive political settlement, including the verifiedwithdrawal of foreign forces, a ceasefire and the cessationof outside military assistance.— The goal should be self-determination for theCambodian people through free, fair and democratic elec-tions.— All accept an enhanced UN role in the resolution ofthe Cambodian problem.— There is an urgent need to speed up diplomatic effortsto achieve a settlement.— The complete withdrawal of foreign forces must beverified by the UN.— The Five would welcome an early resumption of a con-structive dialogue among the Cambodian factions whichis essential to facilitating the transition process, whichshould not be dominated by any one of them.— An effective UN presence will be required during thetransition period in order to assure internal security.


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— A Special Representative of the UN Secretary Generalis needed in Cambodia to supervise the UN activities dur-ing a transition period culminating in the inauguration ofa democratically elected government.— The scale of the UN operation should be consistentwith the successful implementation of a Cambodian set-tlement and its planning and execution should takeaccount of the heavy financial burden that may be placedon member States. — Free and fair elections must be conducted under directUN administration.— The elections must be conducted in a neutral politicalenvironment in which no party would be advantaged.— The Five Permanent Members commit themselves tohonoring the results of free and fair elections.— All Cambodians should enjoy the same rights, free-doms and opportunities to participate in the electionprocess.— A Supreme National Council might be the repositoryof Cambodian sovereignty during the transition process.— Questions involving Cambodian sovereignty should beresolved with the agreement of the Cambodian parties.

Summary of Conclusions of the Meeting of the Five PermanentMembers of the Security Council on the Cambodian Problem,January 15–16, 1990, pp. 1–2, available at www.state.gov/s/l.

Following a second session in February, the Five met in Parisfor a third session on March 12 and 13, 1990. The March con-sultations focussed on three areas, set forth below:

Organisation of Elections

The United Nations should be responsible for theorganisation and conduct of free and fair elections on thebasis of genuine and verified voter registration lists ofCambodian citizens. Eligibility to vote, including provi-sions regarding the conditions of residence in Cambodia,will be established in the electoral law. Special electoralarrangements would be agreed to guarantee the right tovote of Cambodian refugees and displaced persons.


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The electoral process should therefore be guided bythe following principles:— the system and procedures adopted should be, and beseen to be, absolutely impartial while the arrangementsshould be administratively simple and efficient as possi-ble;— all Cambodian participants in the elections should havethe same rights, freedoms and opportunities to take partin the election process; and— all parties should commit themselves to honouring theresults.

The duration of the electoral process should be con-sistent with the above and as short as possible. It shouldlead to a single election of a constituent assembly whichshould approve a Constitution and transform itself into alegislative assembly.

Supreme National Council

Bearing in mind the principle according to which theCambodian parties should be consulted on questions relat-ing to Cambodian sovereignty, the Five invited the fourCambodian parties to agree that a Supreme NationalCouncil should be established as the unique legitimatebody and source of authority in which, throughout theperiod of transition, national sovereignty and unity shouldbe enshrined.

Its composition should be decided by the Cambodianparties themselves and could include representatives of allshades of opinion among the people of Cambodia. Fromits creation, it will delegate to a United NationsTransitional Authority in Cambodia (UNTAC) all nec-essary powers including those to conduct fair and freeelections. It will interface with the United NationsTransitional Authority and be consulted on, and giveadvice relevant to, the functions of civil administrationand electoral organization.

As the enshrinement of Cambodian sovereignty, theSupreme National Council would occupy the seat of


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Cambodia at the United Nations and its specialised agen-cies, and at other international bodies and conferences.

Creation of a United Nations Transitional Authority inCambodia (UNTAC)

Given the need for a neutral administration inCambodia during the transitional period and the need tocreate a neutral environment in which free and fair elec-tions could take place, the creation of a United NationsTransitional Authority in Cambodia is necessary.

The United Nations Transitional Authority will beestablished by the UN Security Council under the directresponsibility of the United Nations Secretary-Generalwho may appoint a Special Representative. It should exer-cise all powers necessary over Cambodian territory in itsentirety in order to:— assure the Cambodian people of freedom from intim-idation and the threat of force and corruption;— provide them with protection from economic and socialdiscrimination; and— guarantee human and civil rights for all.

Summary of Discussions, March 13, 1990, available at www.state.gov/s/l.

On July 20, 1990, Assistant Secretary of State for East Asianand Pacific Affairs Richard H. Solomon testified before the EastAsian and Pacific Affairs Subcommittee of the Senate ForeignRelations Committee about U.S. policy on Cambodia and progressmade on a political settlement to the Cambodian conflict. Mr.Solomon began by reviewing U.S. goals in Cambodia:

We seek to do all that we can to ensure that the Cambodianpeople have the right of self-determination through freeand fair elections, are at last freed from the burden of for-eign invasion and civil warfare, and especially that theynever again fall subject to rule by the murderous KhmerRouge. U.S. national interests in Cambodia focus on ourmoral concerns. Beyond our commitment to the security


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of our allies and friends in ASEAN, we seek only anopportunity for the Cambodian people to choose theirown government through free and fair elections, and tohave a future of security and national independent. Ourefforts over the past year have been shaped by the judg-ment that the best way to achieve our objectives is througha negotiated, comprehensive settlement which would bringto bear the concern and commitment of the internationalcommunity through the United Nations. To that end, wehave been working to achieve:

the verified withdrawal of all foreign forces; the cre-ation of a neutral political process culminating in freeand fair elections centered around a role for the UnitedNations; the preservation of a viable non-Communistalternative for the Cambodian people which can be pres-ent at the negotiating table and at the polls; and, aboveall, a settlement that has reliable guarantees that theKhmer Rouge will not again impose its violent rule onthe Cambodian people.

Cambodian Peace Negotiations: Prospects for a Settlement:Hearings Before the Subcomm. On East Asian and Pacific Affairsof the Senate Foreign Relations Committee, 101st Cong. 36–79(1990) (testimony of Richard H. Solomon, Assistant Secretary ofState for East Asian and Pacific Affairs, Dept. of State).

Mr. Solomon then reviewed the results of the meeting of July16 and 17, 1990, of the Permanent Five in Paris:

[T]he Permanent Five representatives were able to make .. . significant progress on two of the most difficult ele-ments of a political settlement process: transitionalarrangements regarding the administration of Cambodiaduring the pre-election period; and military arrangementsafter an agreement, and a cease-fire, go into effect. All fiverepresentatives were able to agree on the need for estab-lishment of a United Nations Transitional Authority inCambodia (UNTAC) with a military as well as civiliancomponent. We agreed upon a role for UNTAC in verify-ing the withdrawal of all foreign forces from Cambodia,


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the regrouping of all Cambodian forces with weaponsstored under UN supervision, and a phased program ofarms reduction. UNTAC will also have as its missionensuring the cessation of all outside military assistance toCambodia. . . .

The negotiation also achieved significant progress onthe political structure that would exist in the period lead-ing up to free elections. A Supreme National Council(SNC) should be established and composed of individu-als representing “all shades of opinion among the peopleof Cambodia.” The Perm Five approach envisages animportant role for UNTAC on the civil side, and will pro-vide for UN supervision or control of existing adminis-trative structures in order to ensure a neutral politicalenvironment conducive to free and fair general elections.

Id. at 42. Next, Mr. Solomon described the U.S. position on assistance

to Cambodia:

Let me stress our conviction that the United States has animportant and continuing role to play in this diplomaticeffort. And our ability to do so—to be a credible player,and to provide the Cambodian people the alternative ofan election with other than Communist options—is criti-cally dependent on our continuing to provide non-lethalassistance to the non-Communist groups. These peoplehave, against great odds, struggled to maintain a non-Communist alternative for the Cambodian people. Wewould totally undercut their position, and our own cred-ibility, were we to cut off aid abruptly to the only groupsin Cambodia with which we share important basic values.It would be especially self-defeating now that the diplo-matic process is gaining momentum. Let me speak directlyto the question that has been on the minds of many regard-ing our assistance. . . . We continuously review this situ-ation and find no evidence that a diversion of our materialassistance has occurred or that there is systematic battle-field cooperation such that our assistance enhances thecombat capacity of the Khmer Rouge. . . . I want to assure


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you that the Administration will immediately cease itsmaterial support for any non-communist resistance organ-ization if reliable intelligence demonstrates that the lawhas been broken.

Id. Mr. Solomon then addressed the revisions in U.S. policy onCambodia:

We have attained our strategic objective in the withdrawalfrom Cambodia of the bulk of Vietnamese military forces.. . . We now need to convince Hanoi and Phnom Penh thatparticipation in a comprehensive political settlement holdsthe key to the future. We want to encourage both Vietnamand China to use their considerable influence with theirclients to accept the procedures that are being developedby the Perm Five.

We thus decided upon a number of new steps, includ-ing an enhancement of our dialogue with Hanoi aboutCambodia. This will complement efforts underway withthe Vietnamese on POW/MIA and other humanitarianissues. We are also considering contacts with the PhnomPenh regime, although we would do so only if it wouldadvance our goal of free and fair elections. We will alsobe looking carefully at additional humanitarian programsfor Vietnam and Cambodia that would both help thesesuffering people as well as express our openness to a newrelationship once the Cambodia is resolved. And we willimplement a new program designed to aid Cambodianchildren—both those within the country as well as in campsalong the Thai-Cambodian border.

We will no longer support the CDGK coalition as theholder of Cambodia’s U.N. seat. We want the seat to beoccupied by a freely elected government—and, pendingthat development, by Cambodians firmly committed tothe holding of free and fair elections. This latter adjust-ment is designed to make it crystal clear that we will donothing, even indirectly, which seems to give legitimacyto the Khmer Rouge as an organization.


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Id. at 43.On August 27 and 28, 1990, the Permanent Five representa-

tives met in New York for a sixth series of consultations on polit-ical settlement of the Cambodian conflict. At the end of thismeeting the Five adopted a framework document setting forth therequirements for political settlement. U.N.Doc. A/45/472, U.N.Doc. S/21689, (1990).

The framework agreement was endorsed on September 20,1990, by the UN Security Council in Resolution 668 and by accla-mation of the General Assembly on October 15, 1990. In addi-tion, Resolution 668 welcomed “the agreement reached by allCambodian parties . . . to form a Supreme National Council asthe unique legitimate body and source of authority in which,through the transitional period, the independence, national sov-ereignty and unity of Cambodia is embodied;” and noted “thatthe Supreme National Council will therefore represent Cambodiaexternally and it is to designate its representatives to occupy theseat of Cambodia at the United Nations.” U.N. Security CouncilResolution 668 (1990).

On November 23 through 26, 1990, the Five met in Paris towork with the co-chairmen of the Paris Conference on Cambodia(“PCC”) on developing a comprehensive political settlement inthat country. At this meeting the two co-chairmen and the Fivereached consensus on a draft comprehensive political settlementdeveloped from the August framework agreement. As summa-rized in the communique, the draft comprehensive political set-tlement included:

[A] draft agreement covering the major aspects of the set-tlement with annexes dealing respectively with: the pro-posed mandate for UNTAC; withdrawal, cease-fire andrelated measures; elections; repatriation of Cambodianrefugees and displaced persons; and principles for a newconstitution for Cambodia. A draft agreement concerningthe sovereignty, independence, territorial integrity and invi-olability, neutrality and national unity of Cambodia anda draft declaration on rehabilitation and reconstructionof Cambodia were also elaborated.


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Communique, November 26, 1990, p.1, available at www.state.gov/s/l.

The communique then noted that in agreeing on the draft set-tlement, the parties had fulfilled the first necessary condition forthe successful reconvening of the PCC. In addition, the commu-nique stated:

4. In the light of the positive results achieved at thepresent meeting, it is now urgent that the Cambodiansthemselves make their contribution to this process throughthe [Supreme Natural Council (“SNC”)]. The Co-Chairmen and the Five strongly urge the Cambodians toensure that the SNC is fully functioning so that theConference can be reconvened.

* * * *

6. The two Co-Chairmen and the Five believe that it isnow urgent to resolve the problem of the leadership of theSNC. The Five reaffirmed their view that shouold PrinceShianouk be elected Chairman, they would welcome thisdecision. They consider that related questions including thepossible expansion of the SNC and the vice-chairmanshipshould be decided by the Cambodians themselves throughconsultations, flexibly and in a spirit of national reconcili-ation. They would expect that should Prince Sihanouk beelected Chairman, he and other members of the SNC wouldapproach these matters in such a spirit.

Id. at 2.On December 21 to 23, 1990, the co-chairmen of the Paris

Conference on Cambodia met in Paris with the 12 members ofthe SNC and formally presented the draft agreements on com-prehensive political settlement to them. Following the meeting,these draft agreements and the meeting’s final statement were cir-culated as UN documents. In particular, the final statement notedthat “the members of the SNC reiterated their acceptance of theFramework document formulated by the five permanent mem-bers of the Security Council in its entirety as the basis for settlingthe Cambodian conflict. As regards the draft agreements of 26


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November, there was concurrence on most of the fundamentalpoints.” U.N. Doc. A/46/61, S/22059, January 11, 1990, p. 2(Annex 1, Final statement). The draft agreements, including theagreements on a comprehensive political settlement of theCambodian conflict, and concerning the sovereignty, independ-ence, territorial integrity and inviolability, neutrality and nationalunity of Cambodia, may be found at U.N. Doc. A/46/61, S/22059,January 11, 1991. This document also includes, at Annex 3, aninformal explanatory note describing the role of the UnitedNations, especially UNTAC, in the draft agreement.

B. UNITED STATES-CHILE: INVOCATION OF DISPUTES TREATY

On January 12, 1989, the United States invoked the 1914 Treatyfor the Peaceful Settlement of Disputes that May Occur Betweenthe United States and Chile in order to resolve differences withChile related to responsibility for the 1976 deaths of formerChilean Ambassador to the United States Orlando Letelier andan American, Ronni K. Moffitt. Treaty for the Settlement ofDisputes that May Occur Between the United States of Americaand Chile, July 24, 1914, 39 Stat. 1645, T.S. No. 621. The twowere killed, and Michael Moffitt, Ronni Moffitt’s husband, wasinjured when a bomb attached to Mr. Letleier’s car exploded inWashington, D.C., on September 21, 1976. A Federal grand juryin the District of Columbia had indicted three ex-officials of theChilean Directorate of National Intelligence in 1978, but Chilehad refused to extradite them to the United States. The back-ground of this case and measures taken by the United States inresponse to the failure of Chile to extradite, prosecute, or seri-ously investigate the three are set forth in Digest 1978 at 851–55;Digest 1979 at 50–52, 51457–58; and Digest 1980 at 33–35. Seealso 83 Am. J. Intl. L. 352 (1989).

The United States invoked the treaty after receiving a nega-tive response to its 1988 note informing the government of Chilethat the United States had espoused claims of its citizens anddemanding compensation for losses of the U.S. Government. Indoing so, it requested that a standing international commission,constituted in accordance with the treaty, investigate and reportupon the deaths in question, including the involvement in those


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deaths of Chilean government officials, as well as upon subse-quent investigations into the matter by that government. The com-mission consisted of one U.S. citizen, one noncitizen appointedby the United States, one Chilean citizen, one noncitizen appointedby Chile, and a fifth, neutral member chosen by agreementbetween the two governments to serve as president. (If the par-ties were unable to agree on the fifth member, that member wasto be appointed by the president of the Swiss Confederation.)Dept. of State daily press briefing, DPC No. 14, January 14, 1989,pp. 9–11.

On June 11, 1990, the United States and Chile signed an agree-ment regarding the settlement of the Letelier dispute by the inter-national commission established under the 1914 Treaty. Theagreement provided that the commission would only consider thequestion of the amount of compensation to be paid by Chile to thefamilies of the victims as an ex gratia payment. Although it wouldnot consider the issue of liability, compensation would be calcu-lated as if liability had been established. The agreement follows:

1. The Governments of the United States of America andthe Republic of Chile agree that a dispute existsbetween their States concerning responsibility for thedeaths of Orlando Letelier and Ronni Moffitt inWashington, D.C. on September 21, 1976.

2. On January 12, 1989 the United States invoked theTreaty for the Settlement of Disputes that May OccurBetween the United States and Chile, which enteredinto force on January 19, 1916, to investigate andreport upon the facts surrounding the deaths ofOrlando Letelier and Ronni Moffitt in Washington,D.C. on September 21, 1976.

3. The United States has sought compensation from Chileon behalf of the families of Letelier and Moffitt, onthe ground that the United States considers the Stateof Chile is legally responsible under international lawfor the deaths of Orlando Letelier and Ronni Moffittand the personal injuries to Michael Moffitt. Withoutadmitting liability, the Government of Chile, in orderto facilitate the normalization of relations, is willing


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to make an ex gratia payment, subject to the provi-sions of Paragraph 5, to the Government of the UnitedStates of America, to be received on behalf of the fam-ilies of the victims.

4. The Governments of the United States and Chile agreethat the amount of the ex gratia payment should beequal to that which would be due if liability wereestablished, and should be determined by theCommission established by the 1914 Treaty, in accor-dance with the Compromis which constitutes theannex to this Agreement. The Governments agree that,notwithstanding the invocation of the 1914 Treaty bythe United States on January 12, 1989, in light of theunderstandings set forth herein, the amount of thecompensation to be paid shall be the sole question tobe determined by the Commission.

5. The Government of Chile agrees to pay to theGovernment of the United States, as its ex gratia pay-ment in this matter, the amount of compensation asdetermined by the Commission. The Government ofChile undertakes to make the aforesaid payment assoon as possible and after the necessary legal require-ments have been fulfilled following the determinationby the Commission.

6. Upon receipt of the ex gratia payment referred to inParagraph 5 above, the Government of the UnitedStates will regard as satisfied the claim espoused in itsDiplomatic Note to the Government of Chile of April18, 1988, and any other possible civil claim of theUnited States Government in this matter.

7. This Agreement shall enter into force upon notifica-tion to the Government of the United States by theGovernment of Chile that it has completed the pro-ceedings necessary under Chilean law to bring thisagreement into force.

The agreement and attached compromis establishing theCommission are available at www.state.gov/s/l.


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On November 30, 1990, Secretary of State James A. Baker IIIsigned a certification to Congress lifting prohibitions on securityassistance and arms sales to Chile under the Kennedy-Harkinamendment (section 726(b) of the International Security andDevelopment Cooperation Act of 1981). 56 Fed. Reg. 4,886 (Feb.6, 1991). These prohibitions had barred furnishing most formsof security assistance, U.S. Government sales of defense articlesor services, and licensing of commercial exports of defense arti-cles or services to Chile unless the President certified:

(A) that the Government of Chile has made significantprogress in complying with internationally recognizedprinciples of human rights;

(B) that the provision of such assistance, articles or serv-ices is in the national interest of the United States; and

(C) that the Government of Chile is not aiding or abettinginternational terrorism and has taken appropriate stepsto cooperate to bring to justice by all legal means avail-able in the United States or Chile those indicted by aUnited States grand jury in connection with the mur-ders of Orlando Letelier and Ronni Moffitt.

Section 726(c), International Security and DevelopmentCooperation Act of 1981, 22 U.S.C. § 2370 note. The authorityto make the certification had been delegated to the Secretary ofState in Executive Order 12163 of September 12, 1979, asamended, section 201(a)(20).

The justification for the certification transmitted to Congressmade the following comments about the Letelier case:

With respect to the Letelier case, the Government of Chilehas taken appropriate steps to cooperate to bring to jus-tice by all legal means available in the United States orChile those indicted by a United States grand jury in con-nection with the murder of Orlando Letelier and RonniMoffitt. Since taking office, the Aylwin Government hascommitted itself to a strategy to pursue criminal pro-ceedings against those Chileans alleged to have partici-pated in the 1976 car bomb assassination. Under this plan,the Government of Chile introduced a package of judicial


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reform laws that would, inter alia,” transfer jurisdictionof the Letelier/Moffitt case from military to civilian courts.That portion of the law was approved by the Chamber ofDeputies on September 28 and by the Senate on November15. . . .

The Government of Chile has also committed itself torequest the Supreme Court’s appointment of a specialinvestigating judge (“ministro an visita”) to try the caseas soon as President Aylwin signs the bill allowing trans-fer of jurisdiction over the case. Under Chile’s civil lawsystem, the judge will have broad powers to gather evi-dence and question those with relevant information.

In addition, the Ministry of Foreign Affairs has takenother action related to the Letelier case by conducting anadministrative investigation into the matter of issuance offalsified passports during the previous government. Theresults have already been turned over to a civilian courtfor further investigation.

Although Section 726(b) solely addresses the criminalaspect of the Letelier/Moffitt case, the Government ofChile has also agreed to consider the question of civil com-pensation for the families of the victims. In June 1990, theUnited States Government and the Government of Chilesigned an agreement to create an international commis-sion that would determine the amount of compensationthe Government of Chile would award the families on anex gratia basis.

The Justification is available at www.state.gov/s/l. The BryanCommission convened in January 1992. The Chilean governmentagreed to pay the families $2.6 million.

C. ECONOMIC ASSISTANCE TO EASTERN EUROPE

1. Support for East European Democracy Act

On November 28, 1989, Congress enacted the Support for EastEuropean Democracy (“SEED”) Act of 1989, Pub. L. No. 101-179, 103 Stat. 1298, 22 U.S.C. § 5401–5495, establishing a SEED


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Program “comprised of diverse undertakings designed to providecost-effective assistance to those countries of Eastern Europe thathave taken substantive steps toward institutionalizing politicaldemocracy and economic pluralism.” Section 2(a). In signing thelegislation, President Bush noted that “[w]e are nearing the endof a year that future generations will remember as a watershed,a year when the human spirit was lifted and spurred on by thebold and courageous actions of two great peoples—the people ofPoland and Hungary.” He explained that “[t]o help further thecause of political and economic freedom in Poland and Hungary,”the legislation “authorizes various programs to help promotereform in these countries, including economic stabilization, tradeliberalization, Enterprise Funds to nurture private sector devel-opment, labor market reforms, and enhanced environmental pro-tection.” 25 WEEKLY COMP. PRES. DOC. 1893 (Nov. 28, 1989).

Section 2(b) of the Act sets forth the objectives of the assis-tance to be provided:

(1) to contribute to the development of democratic insti-tutions and political pluralism characterized by—

(A) the establishment of fully democratic and repre-sentative political systems based on free and fairelections,

(B) effective recognition of fundamental liberties andindividual freedoms, including freedom of speech,religion and association,

(C) termination of all laws and regulations whichimpede the operation of a free press and the for-mation of political parties,

(D) creation of an independent judiciary, and(E) establishment of non-partisan military, security,

and police forces;(2) to promote the development of a free market economicsystem characterized by—

(A) privatization of economic entities,(B) establishment of full rights to acquire and hold pri-

vate property, including land and the benefits ofcontractual relations,


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(C) simplification of regulatory control regarding theestablishment and operation of businesses,

(D) dismantlement of all wage and price controls,(E) removal of trade restrictions, including on both

imports and exports,(F) liberalization of investment and capital, including

the repatriation of profits by foreign investors;(G) tax policies which provide incentives for economic

activity and investment,(H)establishment of rights to own and operate private

banks and other financial service firms, as well asunrestricted access to private sources of credit, and

(I) access to a market for stocks, bonds, and otherinstruments through which individuals may investin the private sector; and

(3) not to contribute any substantial benefit—(A) to Communist or other political parties or organ-

izations which are not committed to respect forthe democratic process, or

(B) to the defense or security forces of any membercountry of the Warsaw Pact.

Section 2(c) of the Act lists examples of assistance and other activ-ities contemplated under the SEED Program, including initiativesrelating to assistance from multilateral development banks, theInternational Monetary Fund and other multilateral programs,debt reduction and rescheduling, promotion of trade and invest-ment, scholarships and educational and cultural exchanges, PeaceCorps, environmental, medical and agricultural assistance, amongothers.

Although Hungary and Poland are the only countries namedin the Act, section 3(a) authorizes the President to conduct activ-ities for other Eastern European countries “that are similar to anyactivity authorized by this Act to be conducted in Poland andHungary [with certain exceptions] if such similar activities wouldeffectively promote a transition to market-oriented democracy.”

Section 801 then provides that the President should suspendall assistance to an Eastern European country if he determinesand reports to Congress that:


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(1) that country is engaged in international activitiesdirectly and fundamentally contrary to United Statesnational security interests; (2) the president or any othergovernment official of that country initiates martial lawor a state of emergency for reasons other than to respondto a natural disaster or a foreign invasion; or (3) any mem-ber who was elected to that country’s parliament has beenremoved from that office or arrested through extracon-stitutional processes.

Congress appropriated $369,675,000 for SEED activities inEastern Europe for Fiscal Year 1991. Foreign Operations, ExportFinancing and Related Programs Appropriations Act, Fiscal Year1991, Pub. L. No. 101-513, 104 Stat. 1979 (1990). See also,Executive Order 12,703 of February 20, 1990, 26 WEEKLYCOMP. PRES. DOC. 280 (Feb. 26, 1990), delegating certain func-tions conferred on the President by the Act to the SEED ProgramCoordinator, the United States Agency for InternationalDevelopment, the Department of Commerce and the Departmentof the Treasury.

2. U.S. Assistance Policy

On September 21, 1990, Kenneth I. Juster, the Senior Adviser tothe Deputy Secretary of State, spoke on U.S. assistance policy toEastern Europe before a conference on supporting East Europeandemocracy and free markets. His remarks included the followingsummary of U.S. interests and policy:

A successful transition to democracy and free markets inEastern Europe would serve U.S. national interests inimportant ways: It would mean that the turn away fromcommunism has become irreversible, and it would helpensure that the region will attain some stability and notonce again become a power vacuum or an unstable the-ater of tension and rivalries. We, therefore, have everyincentive to assist the Central and East European nationsin their time of need—and we are doing just that.

U.S. assistance policy in Central and Eastern Europeis based on the concept of a “new democratic differenti-


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ation.” This term was chosen to contrast with our long-standing policy of expanding contact with communist gov-ernments in Eastern Europe to the extent that their foreignpolicies differed from that of the Soviet Union. We nowhave adopted a new policy standard—that is, the UnitedStates will tailor its assistance to the specific needs of eachEast European country as it moves positively toward fourobjectives:

First, progress toward political pluralism, based onfree and fair elections and an end to the monopoly of thecommunist party;

Second, progress toward economic reform, based onthe emergence of a market-oriented economy with a sub-stantial private sector;

Third, enhanced respect for internationally recognizedhuman rights, including the right to emigrate, and to speakand travel freely; and

Fourth, a willingness on the part of each of these coun-tries to build a friendly relationship with the United States.

One of our priorities is to assist in developing demo-cratic institutions and the rule of law. Our initiatives inthis area are concentrated in four areas.

Rule of Law and Human Rights. The United Stateswill assist democratic governments of Central and EasternEurope to establish laws and legal systems based on therule of the majority and protection of the rights of indi-viduals and minorities.

Political Process. The United States will help new leg-islatures, political parties, and civic organizations developinto effective, stable democratic institutions.

Social Process and Cultural Pluralism. Through,among other things, support for educational curriculumreform, training of teachers, and support for trade unionsand other non-governmental organizations, the UnitedStates will assist in strengthening the principles and prac-tices of democratic pluralism within the societies of Centraland Eastern Europe.

Support for Independent Media. The United States willassist in establishing independent radio and television sta-tions, publishing independent newspapers, and training


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journalists. Indeed, we have already launched anIndependent Media Fund designed to advance these pro-grams on a regional basis.

Focus on Central and Eastern Europe, No. 26 at 1–2 (Oct. 19,1990).

3. U.S.-Poland Joint Commission on Humanitarian Assistance

The American Aid to Poland Act of 1988, Pub. L. No. 100-418,§§ 2221–2227, 102 Stat. 1107, 7 U.S.C. § 1431 note, providedfor U.S. donations of surplus agricultural commodities to Polandfor sale by the Polish government and makes available noncon-vertible excess Polish currency. These funds were then to be usedfor the purpose of certain activities “that would improve the qual-ity of life of the Polish people and would strengthen and supportthe activities of governmental or private, nongovernmental inde-pendent institutions in Poland.” Section 416(b)(7)(D)(ii) of theAgricultural Act of 1949, 7 U.S.C. § 1431, as amended by § 4(a)of Pub. L. No. 100-277, 102 Stat. 67. Under the Agricultural Act,eligible activities were to be chosen by a joint commission, to beestablished by agreement between the United States and Poland,and nongovernmental agencies operating in Poland, and to becomposed of representatives of each of those entities. Section416(b)(7)(D)(ii), 7 U.S.C. § 1431, and section 2226 of theAmerican Aid to Poland Act. Pub. L. No. 100-418, 102 Stat.1107. In July 1989, the United States and Poland signed theAgreement to Establish a Joint Commission on HumanitarianAssistance to carry out the purposes of the Act, available atwww.state.gov/s/l.

The Commission was required to be composed of three rep-resentatives from each government, and one representative fromany non-governmental agencies, such as non-profit voluntaryagencies, cooperatives, intergovernmental agencies and other mul-tilateral organizations, that agree to participate in the Commissionand be bound by its applicable terms and conditions. The respon-sibilities of the Commission included identification, review, andapproval of projects to fund with proceeds of the sale of donatedcommodities and the nonconvertible excess Polish currency.


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The Agreement provided that the Commission was to moni-tor all projects, including the preparation of an evaluation uponeach project’s completion, and that it had the authority to changeor terminate funding at any time. Finally, the Commission wasrequired to file with the Agency for International Developmentperiodic reports on its activities and the projects that it funded.

Cross references

Issues Relating to Namibian Independence, Chapter 7.A.Status of Jerusalem, Chapter 9.A.4.Removal of restrictions on U.S. foreign assistance, Chapter 16.B.


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CHAPTER 18

Use of Force and Arms Control

A. USE OF FORCE

1. U.S.-USSR Agreement on Prevention of Dangerous Military Activities

On June 12, 1989, representatives of the United States and theSoviet Union signed an agreement at Moscow, intended to reducethe risk of accidental conflict when personnel and equipment ofthe armed forces of the parties are operating in proximity to oneanother during peacetime. Agreement on the Prevention ofDangerous Military Activities, 28 I.L.M 877 (1989).

In the agreement, signed by Admiral William J. Crowe, Jr.,Chairman of the Joint Chiefs of Staff of the United States, andby General Mikhail Moiseyev, Chief of the General Staff of theArmed Forces of the USSR, the two governments recognized thenecessity to prevent certain dangerous military activities, and theycommitted themselves to resolve “expeditiously and peacefully”any incident between their armed forces that may arise as a resultof such activities.

The provisions of the agreement apply to all personnel andequipment of the armed forces of the parties, including ships,ground equipment, and aircraft. Article II(l) obligates each partyto take necessary measures toward preventing its personnel andequipment from engaging in four specific types of military activ-ities while they are in proximity to personnel and equipment ofthe other party. These four types of military activities, knowncollectively as dangerous military activities, are: (1) entries intothe territory of a party owing to circumstances brought about by

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force majeure or as a result of unintentional actions; (2) use of alaser in a manner that could cause harm; (3) hampering the activ-ities of the armed forces of a party in a mutually designated SpecialCaution Area; and (4) interference with the command and con-trol networks in a manner which could cause harm to the armedforces of the other party.

In resolving incidents arising out of these activities, Article II(2) requires that the parties not resort to the threat or use of force.Paragraph 3 states that additional provisions concerning preven-tion of dangerous military activities and resolution of the inci-dents arising therefrom are contained in the following four articlesand in the annexes.

Article III(l) obligates the armed forces of a party to exercisecaution and prudence while operating near the national territoryof the other party. Article III(2) states that if an entry occurs owingto circumstances brought about by force majeure or as a resultof unintentional actions, the parties shall adhere to the proce-dures in the annexes, including the early establishment of com-munications to determine the reasons for the entry.

Article IV addresses the use of lasers by armed forces of theparties. Under Article IV(l), where the armed forces of a partyintend to use a laser in proximity to armed forces of the otherparty, the armed forces intending to use the laser shall notify therelevant armed forces of the other party. In addition, parties usinglasers shall follow appropriate safety standards. Article IV(2) pro-vides that where armed forces of a party believe the other armedforces are using a laser in a harmful manner, they shall immedi-ately attempt to establish communications and seek terminationof that use. Upon notification, if the armed forces are in fact usinga laser, they shall investigate the circumstances, and if the usecould harm the armed forces of the other party, they shall termi-nate it.

Article V relates to activities in a Special Caution Area. Thisarea is defined in Article I as a mutually designated region wherethe armed forces of the two parties are present and, due to the cir-cumstances in the region, special procedural measures are under-taken. Article V(l) states that each party may propose a region tobe a Special Caution Area. The other party has the right to accept


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or decline that proposal, and either party may request a meetingof the joint military commission, which is described in Article IX,to discuss the proposal. If a Special Caution Area is designated, thearmed forces of the parties are to establish communications andagree on additional procedures designed to prevent dangerous mil-itary activities there. The arrangement may be terminated on timelynotice by either party, pursuant to Article IX(3).

Article VI provides that if a party’s armed forces detect inter-ference with the command and control network that could harmtheir personnel or equipment, they may inform the relevant per-sonnel of the other party’s armed forces if they believe these per-sonnel are the source of the interference. Should the notifiedpersonnel be the cause, they are to take expeditious measures toterminate the interference.

Article VII(l) obligates the parties to establish and maintaincommunications, in accordance with procedures set out in annex1, in order to prevent dangerous military activities and to resolveincidents arising out of such activities. Article VII(2) requires theparties to exchange information regarding the occurrence of suchactivities and any incidents arising from them.

Article VIII establishes that the agreement does not affect therights and obligations of the parties under other internationalagreements in force between the parties. It also states that theagreement does not affect the rights of individual or collectiveself-defense or of navigation and overflight. An agreed statementconfirms that the agreement does not affect the parties’ naviga-tional rights under international law, including the rights of theirwarships to exercise innocent passage. Finally, Article VIII alsomakes explicit that where an incident encompassed by the agree-ment occurs in the territory of an ally, that ally may be consultedas to appropriate measures to be taken.

A joint military commission, established under Article IX, is toconsider compliance questions, ways of ensuring a higher level ofsafety, and other measures necessary to improve the viability andeffectiveness of the agreement. See also 83 Am. J. Int’l L. 917(1989).

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2. Panama

a. Deployment of U.S. forces to Panama

On December 20, 1989, President George H. W. Bush announcedthat he had ordered U.S. military forces to Panama during thenight. 25 WEEKLY COMP. PRES. DOC. 1974–75 (Dec. 25,1989). The President stated that for nearly two years the UnitedStates and nations of Latin America and the Caribbean hadworked together to resolve the crisis in Panama. The goals of theUnited States had been to safeguard the lives of Americans, todefend democracy in Panama, to combat drug trafficking, and toprotect the integrity of the Panama Canal Treaty. Many attemptshad been made to resolve the crisis through diplomacy and nego-tiations, and all had been rejected by General Manuel Noriega,an indicted drug trafficker. Two United States grand juries inFlorida had indicted Noriega on February 4, 1988, on charges ofcocaine and marijuana trafficking. United States v. Noriega, No.88-0079 CR (S.D. Fla. Filed Feb. 4, 1988); United States v.Noriega, No. 88-28 CR-T (M.D. Fla. Filed Feb. 4, 1988).

On December 15, Noriega had declared his military dicta-torship to be in a state of war with the United States, and hadpublicly threatened the lives of Americans in Panama. The nextday, President Bush continued, forces under Noriega’s command(the Panama Defense Forces) shot and killed an unarmedAmerican serviceman and wounded another, arrested and bru-tally beat a third American serviceman, and then “brutally” inter-rogated the serviceman’s wife, threatening her with sexual abuse.The President declared:

General Noriega’s reckless threats and attacks uponAmericans in Panama created an imminent danger to the35,000 American citizens in Panama. As President, I haveno higher obligation than to safeguard the lives ofAmerican citizens. And that is why I directed our ArmedForces to protect the lives of American citizens in Panamaand to bring General Noriega to justice in the UnitedStates. I contacted the bipartisan leadership of Congresslast night and informed them of this decision, and after


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taking this action, I also talked with leaders in LatinAmerica, the Caribbean, and those of other U.S. allies.

I have today directed the Secretary of the Treasury andthe Secretary of State to lift the economic sanctions withrespect to the democratically elected government ofPanama and, in cooperation with that government, to takesteps to effect an orderly unblocking of PanamanianGovernment assets in the United States. I’m fully com-mitted to implement the Panama Canal treaties and turnover the Canal to Panama in the year 2000. The actionswe have taken and the cooperation of a new, democraticgovernment in Panama will permit us to honor these com-mitments. As soon as the new government recommends aqualified candidate, Panamanian, to be Administrator ofthe Canal, as called for in the treaties, I will submit thisnominee to the Senate for expedited consideration.

25 WEEKLY COMP. PRES. DOC. 1974–75. See also Id. at 1977.See Cumulative Digest 1981–1988 at 316–322, 2985–2991, fora discussion of the background and economic sanctions imposed.

On December 20 President Bush also issued a memorandumfor the Secretary of Defense, directing and authorizing the unitsand members of the United States armed forces to apprehendGeneral Manuel Noriega and any other persons in Panama cur-rently under indictment in the United States for drug-relatedoffenses. The memorandum directed that any persons so appre-hended were to be turned over to civil law enforcement officialsof the United States as soon as practicable. 25 WEEKLY COMP.PRES. DOC. 1984 at 1976. On January 3, 1990, Noriega turnedhimself in to U.S. authorities in Panama with the full knowledgeof the Panamanian government, and was flown to Howard AirForce Base in Panama, where U.S. Drug Enforcement Adminis-tration officials arrested him. He was arraigned on January 4,1990, in the U.S. district court in Miami on charges stemmingfrom his earlier indictment for drug trafficking and was convictedin 1992.

On December 21, 1989, the President provided Congress witha report regarding the deployment of U.S. armed forces toPanama. 25 WEEKLY COMP. PRES. DOC. 1984, 1985 (Dec. 25,


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1989). The President stated that he was doing so because of hisdesire to keep Congress fully informed, consistent with the WarPowers Resolution. The President stated that the legal authorityfor the deployment included the Constitution of the United States,Article 51 of the United Nations Charter, as well as the PanamaCanal Treaty.

The international legal justification for the use of armed forcein Panama was addressed in full in a telegram sent to all overseasposts in January 1990. The telegram provided as follows, in per-tinent part:

On December 20, 1989 military operations were initiatedby the United States against the armed forces of ManuelAntonio Noriega in Panama. These actions were in accor-dance with international law, including the Charters of theUnited Nations and the Organization of American States.They did not constitute intervention in the internal affairsof Panama, nor were they directed against the territorialintegrity or political independence of Panama. On the con-trary, they were welcomed by the legitimate democraticallyelected government of Panama led by President Endara andundertaken with his support and cooperation. They werea lawful exercise of the right of self-defense by the UnitedStates of its armed forces and nationals, and of the rightand responsibility of the United States under the PanamaCanal Treaty to protect and defend the operation of thePanama Canal.

The United States believes, and the practice of nationsreflects, that the legality of any use of force must be eval-uated by taking into account all the relevant facts and cir-cumstances surrounding the event, including the effect ofthe action on the objectives sought to be served by theapplicable international rules. In this case, an evaluationof the legality of U.S. actions in Panama must include acareful consideration of: the behavior of Manual Noriega,including his declaration of a state of war with the U.S.,his attacks upon U.S. personnel lawfully engaged in theprotection and defense of the Panama Canal, and contin-uing use of force to usurp the powers of legitimate gov-


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ernmental authorities in Panama; the provisions of the UNand OAS Charters, and the Panama Canal Treaties; andthe support and cooperation extended to the U.S. byPresident Endara. These factors, taken together, establishthe propriety of the necessary but exceptional measuresto which the U.S. was compelled to resort.

A. U.S. actions were a legitimate exercise of the right of self-defense.

Noriega’s hostility toward the U.S. is of legal relevancebecause of the extreme forms it had taken prior to the U.S.actions, and because of the likelihood of even more dam-aging actions in the immediate future. For a number ofmonths prior to December 1989, the Noriega regime hasengaged in a calculated and escalating program of forcibleactions against U.S. armed forces and U.S. nationals whowere lawfully present in Panama pursuant to the PanamaCanal Treaty. This included armed penetrations of U.S.bases, hostile acts against U.S. forces, and violent harass-ment of U.S. personnel. The substantive and proceduralrights of U.S. military forces were violated in literally hun-dreds of incidents. Efforts to bring about a cessation of suchattacks on U.S. facilities and personnel through peaceful pro-cedures were unavailing.

On 15 December the Noriega regime declared that astate of war existed between the United States andPanama, and Manuel Noriega gave a highly inflammatoryaddress which openly suggested the use of force againstAmericans. Although the U.S. made immediate efforts todownplay these provocative statements, and thus to reducethe potential for violence, a series of brutal acts by forcesunder Noriega’s control against U.S. personnel anddependents occurred during the next few days. Specifically,on 16 December a U.S. Marine officer was killed withoutjustification by Panama Defense Forces (PDF) personnel.Other PDF elements severely beat a U.S. naval officer andunlawfully detained, physically abused and threatened hiswife. These were clearly not isolated incidents, but part


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of a deliberate and escalating pattern of forcible actionsagainst U.S. personnel which were likely to recur andbecome more serious if not dealt with immediately.

Accordingly, the United States was entitled to exerciseits inherent right of self-defense recognized by Article 51of the UN Charter and Article 21 of the OAS Charter. Thisright encompasses measures taken to deal with the threator use of force against the territory of a state, its armedforces, or its nationals. The measures taken by such a statemust be necessary and proportionate to the threat.

The U.S. operations in Panama which began on 20December were a legitimate exercise of this right of self-defense. For many months the United States had attemptedto deal with this situation through peaceful means. TheUnited States had made repeated protests of actions bythe Noriega regime, had engaged in bilateral negotiationwith Noriega, had encouraged and supported efforts bythe OAS to deal with the situation, and had taken peace-ful measures involving economic and political sanctions.The decision to deploy U.S. forces was taken only afterthe exhaustion of all peaceful avenues. Under these cir-cumstances, the United States clearly had the right to useforce in self-defense to protect its forces and the 35,000U.S. nationals in Panama from further attack.

The actions taken by the United States on and after20 December were limited to what was necessary and pro-portionate, and were specifically designed to minimize (tothe extent possible) injury and loss to civilians and civil-ian property. U.S. forces were instructed to conduct theiroperations in accordance with the laws of armed conflict,and the U.S. chose to provide all captured PDF memberswith the protections given to prisoners of war. U.S. actionswere directed only against PDF elements and Noriega’sparamilitary “dignity battalions,” which posed a directand immediate threat to U.S. nationals and personnel.

B. U.S. Actions were an Exercise of Rights Granted underthe Panama Canal Treaty.

The strategic and economic interests of the UnitedStates are not merely substantial, they are incorporated


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into the Canal Treaty. The United States, in exchange forthe rights we had under previous treaties, including theright to exercise sovereign powers in the former canal zonein perpetuity, and to take military action elsewhere inPanama as necessary to defend the canal, received con-tinuous treaty rights to operate, maintain, protect anddefend the canal, including extraordinary rights to con-duct military activities in Panama. These rights were seri-ously jeopardized by Noriega’s hostility toward and attackson canal personnel and interests. Under these unique treatyprovisions, the United States had the right to take neces-sary measures to prevent compromise of its ability effi-ciently to operate and protect the canal from furtheraggressive actions.

Specifically, the United States has not only the rightbut the obligation, under the 1977 Panama Canal Treaty,to protect the operation of the canal. To this end, theTreaty grants the United States the right to station armedforces in Panama, together with rights of free and unim-peded movement, exercises, maintenance of various instal-lations, and defense of the canal (and personnel andfacilities vital to its operation) against threats from anysource.

Article I of the treaty provides that Panama grants tothe United States: “. . . the rights necessary to regulate thetransit of ships through the Panama Canal, and to man-age, operate, maintain, improve, protect and defend thecanal. . . . In view of the special relationship establishedby this treaty, the United States of America and theRepublic of Panama shall cooperate to assure the unin-terrupted and efficient operation of the Panama Canal.”

Article III grants to the United States “the rights tomanage, operate, and maintain the Panama Canal” andcomplementary installations, including the maintenanceof the work force necessary to continue canal operationson an efficient basis. Article IV(2) of the treaty providesthat: “. . . the United States of America shall have primaryresponsibility to protect and defend the canal. The rightof the United States of America to station, train, and movemilitary forces within the Republic of Panama are described


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in the agreement in implementation of this article. . . . The agreement in implementation of Article IV grants

various rights to the U.S. In this connection, Article XV(l)provides that vessels, aircraft, vehicles and equipment ofU.S. forces “may move freely” through Panamanian ter-ritory, air space and waters when in performance of offi-cial duties, without charge or “any other impediment.”

During the months preceding the current U.S. militaryoperations, both members of U.S. forces and members ofthe canal workforce came under increasing pressure andintimidation from the Noriega regime. As indicated above,in the days immediately preceding 20 December, U.S. ser-vicemen were unlawfully detained, brutally mistreated and(in one instance) killed without justification. Noriega delib-erately raised the level of animosity against the U.S. pres-ence and effectively invited violence against U.S. nationalsand those cooperating with them. These threats were obvi-ously escalating and were making the efficient operationand defense of the canal increasingly difficult. As Secretaryof State Baker has noted, intelligence reports indicated thatacts of sabotage against the canal were contemplated. Underthese circumstances, the United States had the right to takeproportionate measures to ensure the continued safe andefficient operation of the canal.

Such measures do not constitute a violation of the pro-hibition, contained in Article V of the treaty and Article11 of the agreement in implementation of Article IV,against intervention in the internal affairs of Panama. Thiswas made clear in a U.S. reservation to which Panamaagreed at the time of ratification, which states that “anyaction taken by the United States of America in the exer-cise of its rights to assure that the Panama Canal shallremain open, neutral, secure, and accessible . . . shall nothave as its purpose or be interpreted as a right of inter-vention in the internal affairs of the Republic of Panamaor interference with its political independence or sover-eign integrity.” In any event, under international law, nei-ther the exercise of the right of self-defense in accordancewith the UN and OAS Charters, nor action taken with theconsent of the legitimate government of Panama, nor the


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exercise of treaty rights freely granted by the governmentof Panama, could constitute unlawful intervention intoPanamanian internal affairs.

C. U.S. Actions were taken with the Support andCooperation of the Legitimate Government of Panama.

Another unique and important fact given substantialweight by the United States was the position of PresidentEndara. According to all international observers—as wellas the Panamanian electoral tribunal, all members of whichwere appointed by Noriega—Endara won the nationalelections held in May 1989 by a substantial margin.Manuel Noriega, an unelected official, purported to annulthe election results, including by physically threateningthe members of the tribunal, and “appointed” his own“government”—through which he intended to continueto rule Panama. Noriega’s “dignity battalions”—a privatearmy created apart from the military institution ofPanama—viciously and publicly assaulted Endara andother opposition candidates, and violently suppressed alldissent. During the months that followed, Noriega ignoredthe attempts of the OAS and many western hemispheregovernments to encourage the restoration of democraticgovernment and civil liberties to Panama. For its part, theUnited States consistently had refused to accept theNoriega regime as the legitimate government of Panama,and kept in constant contact and cooperation withPresident Endara and his subordinates with respect to U.S.obligations toward Panama.

The U.S. charge in Panama advised President Endaraof impending U.S. plans for military action. Endara andhis two vice presidents welcomed these plans, and imme-diately began to cooperate fully in their implementation.On 20 December, Endara was sworn into the office towhich he was legally elected, and began exercising all thefunctions of office and appointing officials to assume direc-tion over the components of the Panamanian government.Since 20 December, his government has progressivelyreasserted its lawful control over the entirety of Panamanian


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territory in close cooperation with U.S. authorities. Underthe circumstances, it is clear that U.S. military operationsin Panama have been undertaken with the complete sup-port and cooperation of the legitimate government ofPanama.

The fact that Endara had been unable to exercise thepowers of his office prior to the U.S. action is relevant,but it does not deprive his support and cooperation withU.S. actions of legal weight. He was chosen as presidentby the people of Panama, and his prompt and widespreadacceptance by them after the U.S. action and the officialproclamation of the electoral results by the electoral tri-bunal (once freed of Noriega’s intimidation) reflected hiscontinuing legitimacy. To have obtained his approval atan earlier point, or with greater formality, would haveexposed him to unjustifiable risk under the circumstances.

Article 2(4) of the United Nations Charter providesthat “all members shall refrain in their international rela-tions from the threat or use of force against the territorialintegrity or political independence of any state, or in anyother manner inconsistent with purposes of the UnitedNations.” The U.S. military operations since 20 Decemberdid not violate this basic principle. On the contrary, asindicated above, the United States acted with the full sup-port and cooperation of the legitimate government ofPanama. Such operations, with the support and coopera-tion of the legitimate government of the country in whichthe operations occur, do not violate the principle statedin Article 2(4) of the UN Charter. The United States hasnever sought to compromise the territorial integrity orpolitical independence of Panama; its actions have in noway resulted in the detachment of Panamanian territoryor the usurpation of Panamanian sovereignty. Rather, itsactions are directed at supporting the government chosenby the Panamanian people. Current U.S. military opera-tions will terminate as soon as the legitimate Panamanianauthorities are ready to assume responsibility for security inPanama, and the United States fully intends to carry out itsobligations under the Panama Canal Treaty. Accordingly,


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U.S. actions are not in violation of Article 2(4) of the UNCharter, but rather are strongly supportive of the politicalindependence and territorial integrity of Panama.

Finally, the U.S. action is consistent with the purposesof the UN and the OAS Charters. The Panamanian peo-ple’s rights to self-determination, civil liberty, and humanrights have been advanced. The end of Noriega’s unlaw-ful and forcible usurpation of authority reduced Panama’sinvolvement in drug trafficking, moreover, and has alsoended whatever plans he may have had with respect to themassive private arsenal he had accumulated. Panama’ssovereignty is intact; U.S. forces have begun withdrawing,and their activities are restricted to functions requested bythe Panamanian Government. The Panama Canal Treaties,on the verge of being undermined by Noriega’s conduct,have been saved. Presidents Reagan and Bush acted withgreat restraint during months of frustration and dangerand military action was undertaken only after: Noriega’sillegitimacy had become established for all to see by hisrefusal to abide by the will of the Panamanian people andthe OAS, and by his violation of international narcoticsconventions; his regime’s hostility toward the U.S. crossedthe line from harassment to homicide, and reached thepoint of a declaration of war; U.S. treaty rights were onthe verge of being lost; and all measures short of the useof force had been invoked without success. The dulyelected president of Panama supported and cooperatedwith the U.S. action. In pursuing this action, moreover,the U.S. sought to achieve the objectives with as few casu-alties as possible.

Telegram from the Dept. of State to all diplomatic and consularposts, January 30, 1990. See also 84 Am. J. Int’l Law 545 (1990).

b. Prisoners of war

On January 31, 1990, the Legal Adviser of the State Department,Abraham D. Sofaer, responded to an inquiry from AttorneyGeneral Richard L. Thornburgh regarding the applicability of the


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Geneva Convention Relative to the Protection of Prisoners ofWar (Geneva Convention III) (Aug. 12, 1949, 6 U.S.T. 3316,T.I.A.S. No. 3364) to members of the Panama Defense Forces(PDF) who fell into U.S. hands during the hostilities. The letternoted that the general counsel of the Department of Defenseconcurred with the State Department’s views. The Legal Adviser’sletter stated the following:

On December 20, 1989, the Department of State and theDepartment of Defense, including the Joint Chiefs of Staff,agreed that all individuals captured during the hostilitieswould be provided the protections normally accorded toprisoners of war until their precise status could be deter-mined. The same Departments subsequently decided thatthese protections should be provided to any members ofthe PDF who fell into U.S. hands until their final releaseand repatriation even if they might not be entitled to theseprotections under the terms of Article 4 of GenevaConvention III.

It should be emphasized that the decision to extendbasic prisoner of war protections to such persons wasbased on strong policy considerations, and was not nec-essarily based on any conclusion that the United Stateswas obligated to do so as a matter of law. Historically,many countries have sought to avoid applying provisionsof the Geneva Convention of 1949 and their predecessorsbased on various grounds, including spurious claims thatthe protections of the Conventions were not applicable.For example, members of the U.S. Armed Forces have suf-fered brutal treatment while in the hands of belligerentsthat have refused to extend them prisoner of war statusbased on fabricated allegations that they were guilty ofwar crimes.

As a nation, we have a strong desire to promote respectfor the laws of armed conflict and to secure maximumlegal protection for captured members of the U.S. ArmedForces. Consequently, the United States has a policy ofapplying the Geneva Conventions of 1949 wheneverarmed hostilities occur with regular foreign armed forces,even if arguments could be made that the threshold stan-


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dards for the applicability of the Conventions containedin common Article 2 are not met. In this respect, we sharethe views of the International Committee of the Red Crossthat Article 2 of the Conventions should be construed lib-erally. See III International Committee of the Red Cross,Commentary on the Geneva Convention Relative to theTreatment of Prisoners of War 22 (Pictet ed. 1960).

It bears emphasis that, although the Geneva Conven-tions of 1949 have been deemed not to be self-executing incertain contexts, it is the responsibility of the ExecutiveBranch, in fulfillment of the nation’s international obliga-tions, to ensure that the Conventions are respected. Anyalleged violations of Geneva Convention III could be thesubject of formal complaints by a prisoner of war’s State ora neutral country or organization, such as the InternationalCommittee of the Red Cross, which in many circumstancesacts as a Protecting Power under the Convention.

Against this background, we would like to explainsome of the key aspects of Geneva Convention III.

Prisoner of war status is generally sought by captureindividuals because persons entitled to such status maynot be prosecuted for legitimate acts of war. Thus, underinternational law, prisoners of war may not be prosecutedfor the lawful killing of enemy combatants on the field ofbattle. However, neither the laws of war nor GenevaConvention III were ever intended to provide any kind ofimmunity for common crimes committed against theDetaining Power outside of military hostilities. GenevaConvention III is unambiguous in this regard. Articles 84and 99, among other provisions, clearly recognize thatprisoners of war may be tried for pre-capture offenses incivilian courts if members of the armed forces of theDetaining Power can be tried for similar offenses in thosecourts. (U.S. military personnel can, of course, be tried foroffenses against U.S. law in federal district courts.) Asstated in the authoritative commentary to GenevaConvention II prepared by the International Committeeof the Red Cross, this includes prosecution for acts com-mitted before the initiation of hostilities. See Pictet, supra,at 417–418.**


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Moreover, Article 119 of Geneva Convention III rec-ognizes that prisoners of war against whom criminal pro-ceedings for an indictable offense are pending may bedetained until the end of the proceedings and, if necessary,until the completion of any sentence levied upon them.

Last, nothing in Geneva Convention III requires thatall PDF members being treated as prisoners of war bedetained in Panama. The provisions of Geneva ConventionIII relating to internment prohibit a Detaining Power fromplacing members of the armed forces of one Nation withmembers of the armed forces of another Nation, or seg-regating prisoners of war of any one Nation according toimpermissible criteria, such as religion or ethnicity. Thereis no requirement in Geneva Convention III, however, thata Detaining Power intern prisoners of war in the countrywhere they were captured, or house members of the armedforces of one Nation in a single prisoner of war facility.Such a rule would be wholly impractical, and the practiceof States has been to have as many prisoner of war campsas may be deemed appropriate.

In sum, consistent with Geneva Convention III, anyPDF members charged with violations of U.S. law (whetherprior to the conflict or not) may be held and tried for suchoffenses in federal district courts in the United States.

** This view is also supported by the consistent prac-tice of Nations. For example, an official Department ofState publication on international law refers to the con-viction by a civilian court of a German naval officer, whilebeing held as a prisoner of war, for an offense committedbefore the commencement of the war. 6 G. Hackworth,Digest of International Law 288 (1943) (citing a relevantDec. 13, 1918 opinion in the Digest of Opinions of theJudge Advocate General of the Department of the Army,1912–1940, at 16 (1942)). See also H. Fooks, Prisonersof War 196 (1924) (describing the prosecution of prison-ers of war for acts “committed before the war”).

Letter from Legal Adviser Abraham D. Sofaer to Attorney GeneralRichard L. Thornburgh, January 31, 1990.


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3. Measures of Self-Defense

On November 2, 1989, the Office of the Judge Advocate Generalof the Department of the Army issued a memorandum of law onExecutive Order 12333 and assassination. Paragraph 2.11 ofExecutive Order 12333, 46 Fed Reg. 59,941, Dec. 8, 1981, pro-vides that “no person employed by or acting on behalf of theUnited States Government shall engage in, or conspire to engagein assassination.” The executive order was promulgated onDecember 4, 1981, and replaced a series of earlier executive ordersrenouncing assassination, beginning on February 18, 1976. Thememorandum stated that its purpose was “to explore ‘assassina-tion’ in the context of national and international law to provideguidance in the revision of U.S. Army Field Manual 27–10, TheLaw of Land Warfare, consistent with Executive Order 12333.”The memorandum is provided in Cumulative Digest 1981–1988at 3411–3421.

B. ARMS CONTROL

1. U.S.-USSR Agreement on Principles of Implementing Trial Verification and Stability Measures

On September 23, 1989, at Jackson Hole, Wyoming, the UnitedStates and the Soviet Union signed the Agreement on Principlesof Implementing Trial Verification and Stability Measures thatwould be carried out pending the conclusion of the U.S.-SovietTreaty on the Reduction and Limitation of Strategic OffensiveArms (the START treaty). The agreement may be found at 89Dep’t St. Bull. Nov. 1989 at 18.

The agreement was concluded in order to expedite effective ver-ification procedures for the START treaty, and to ensure that thesemeasures will be both practical and sufficient for effective verifi-cation. Accordingly, paragraph I of the agreement provides that theparties will “develop verification and stability measures to be imple-mented pending the conclusion of the [START Treaty].” Paragraph2 provides that the trial verification and stability measures willinvolve agreed kinds of strategic offensive arms, and, pursuant toparagraph 3, will be selected to examine, refine and try out agreed


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on-site inspection and continuous monitoring procedures. The agree-ment entered into force upon signature.

Pursuant to this agreement, during 1989 and 1990 the UnitedStates and the Soviet Union conducted trials of reentry vehicleon-site inspection procedures, early exhibitions of heavy bombers,and demonstrations of proposed tagging techniques.

2. U.S.–USSR Agreement on Reciprocal Advance Notification of Major Strategic Exercises

On September 23, 1989, at Jackson Hole, Wyoming, the U.S. andthe Soviet Union entered into the Agreement on ReciprocalAdvance Notification of Major Strategic Exercises. See 89 Dep’tSt. Bull. Nov.1989 at 20. It provides that each party will give theother advance notification of one major strategic forces exercisethat includes the participation of heavy bomber aircraft to be heldduring each calendar year. The agreement entered into force onJanuary 1, 1990, and is of unlimited duration.

Under Article III of the agreement, the parties agree to holdconsultations to consider questions relating to the implementa-tion of the agreement’s provisions, and to discuss possible amend-ments aimed at furthering the implementation of the agreement’sobjectives. Consultations on major strategic exercises were heldduring the Strategic Arms Reduction Talks (START). The result-ing Treaty on the Reduction and Limitation of Strategic OffensiveArms, signed in July 1991, included a provision (Article XIII(2))setting forth a variety of conditions that apply to exercises noti-fied pursuant to the 1989 agreement.

3. Soviet Compliance with Arms Control Agreements

a. U.S. report for 1989

On February 23, 1990, President George H. W. Bush submittedto Congress the fifth Report on Soviet Noncompliance with ArmsControl Agreements to Congress, pursuant to section 1002 ofPub. L. No. 99-145, 99 Stat. 705, 22 U.S.C. 2592a (repealed Dec.17, 1993, Pub. L. No. 103-199, 107 Stat. 2325). This law requiresthe President to submit an annual report “with respect to the com-


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pliance of the Soviet Union with its arms control commitments,the findings of the President and any additional information nec-essary to keep Congress currently informed.”

The unclassified version of the report addressed issues of Sovietfailure to comply with existing arms control agreements during1989, including the 1987 Intermediate Range Nuclear ForcesTreaty (INF), the 1972 Anti-Ballistic Missile Treaty (ABM), the1974 Threshold Test Ban Treaty (TTBT), the 1963 Limited TestBan Treaty (LTBT), the Biological and Toxin Weapons Convention(BWC) and the Geneva Protocol on Chemical Weapons.

At the outset, the United States stated its views on compli-ance and arms control:

Without exception, the United States expects meticulousfulfillment of all existing and future arms control agree-ments and all obligations that they entail. Otherwise, thearms control process cannot benefit U.S. national secu-rity, nor can treaties be ratified. I am committed to ensur-ing that there is scrupulous compliance with all armscontrol agreements and related undertakings. We cannotand will not accept any lesser standard. Put simply, armscontrol commitments must be precisely defined andscrupulously observed. Nothing less will do.

Soviet Noncompliance with Arms Control Agreements, p. 1

(1) ABM Treaty

Since the fall of 1983, the United States had raised the issue of aSoviet radar at Krasnoyarsk with the Soviet government. TheABM Treaty limited deployment of radars for early warning ofballistic missile attack to locations along the periphery of thenational territory of each party and required that the radars beoriented outward. The Treaty permitted deployment of largephased-array radars (“LPARs”) for the purpose of tracking objectsin outer space or for use as national technical means of verifica-tion of compliance of arms-control agreements. Because of itslocation and direction, the United States had determined that theKrasnoyarsk radar was designed for ballistic missile detection and


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tracking, in violation of the ABM Treaty, and demanded itsremoval. In 1989 the Soviet Union agreed to eliminate the radar,and admitted that it violated the ABM Treaty, as described in thereport as follows:

At the U.S.–Soviet Ministerial meeting, held at JacksonHole, Wyoming on 22–23 September . . . the Soviets statedthat they would eliminate the Krasnoyarsk radar, withoutpreconditions. Although the Soviets have not yet begundismantlement of this radar, preparations for a disman-tlement may have begun. And on October 23, 1989, in aspeech to a plenary session of the USSR Supreme Soviet,Soviet Foreign Minister Shevardnadze acknowledged thatthe radar was a violation of the ABM Treaty.

The U.S. believes that a satisfactory solution to theKrasnoyarsk radar violation must reestablish the lead timeacceptable to the United States that was the purpose ofthe LPAR provisions of the ABM Treaty; must verifiablyremove all treaty- prohibited radar capability; should addno new obligations, requirements, or definitions to theABM Treaty such as on-site inspections; and should notprejudice the sides’ positions in the Defense and Spacenegotiations.

Id. at 13.The report also noted other areas of concern about Soviet

ABM and ABM-related activities, as follows:

The construction of new LPARs on the periphery of theSoviet Union and the upgrade of the Moscow ABM sys-tem, the only deployed system for the defense againststrategic ballistic missiles in the world, appear to be con-sistent with the ABM Treaty. LPARs, however, have alwaysbeen considered to be the long lead-time element of a pos-sible territorial defense. Krasnoyarsk is only one of a net-work of nine such radars. Because they have an inherentcapability to track large numbers of objects accurately,these radars, depending on location and orientation, havethe inherent technical potential to contribute to ABM bat-tle management.


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The report addressed several other U.S. concerns, including:

The development and testing of components required fora mobile ABM system;The concurrent operation of air defense components andABM components;The development of modern air defense systems that mayhave some ABM capabilities;The totality of Soviet ABM and ABM-related activitieswhich suggest that the USSR may be preparing a defenseof its national territory.

Id. at 5. The specific concerns listed are treated in further detailin the findings section of the report, id. at 13–18.

(2) INF Treaty

One issue arose for which the United States had made a non-compliance finding in the implementation of the 1987Intermediate Range Nuclear Forces Treaty [INF Treaty]:

Transit of Missiles on Launchers at Lebedin. Beginning inDecember 1988, Soviet SS-20 missiles on launchers tran-sited between Lebedin missile operating base and Lebedinmissile/ launcher repair facility, in violation of paragraph8 of Article VIII of the INF Treaty. The Soviets notifiedthe U.S. of the transits in accordance with the Treaty, andstated in the notification that the route was entirely withinthe boundary of the deployment area. After a U.S.demarche, the Soviets admitted that there had been a tech-nical error in determining the actual boundaries of thedeployment area by local officials, and that the error hadbeen corrected. Since then, no further instances of missileson launchers outside of the deployment areas and missilesupport facilities have been noted.

Questions about compliance also arose, but did notresult in conclusions of noncompliance. These include theSS-20 launch canister near Moscow and the welded SS-23 transporter-erector-launchers (TELs). The above


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noncompliance finding and compliance-related questionsare addressed in greater detail in the findings below.

A generic cause for concern is the implementation ofthe “lookalike/count-alike” principle. On two occasionsthe Soviets restored to original outward configurationsequipment eliminated either under terms of the EliminationProtocol or prior to Treaty entry into force. Whether ornot restoration permits use of the items for purposes incon-sistent with the Treaty, such activity complicates nationaltechnical means (NTM) monitoring of Treaty limitationson the items. These two incidents involved an SS-20 launchcanister near Moscow, and SS-23 launchers at Stan’kovo.In both cases the Soviets responded to U.S. concerns bydisplaying to U.S. NTM or inspectors the equipment in aconfiguration that removed questions about the status ofthese items.

Id. at 4. These concerns are treated in further detail in the find-ings section of the report, id., at 9–12.

(3) Chemical, Biological, and Toxic Weapons Convention

The report provided the following information regarding Sovietcompliance with agreements in these areas:

The U.S. judges that the Soviets continue to be in viola-tion of the 1972 Biological and Toxic Weapons Conven-tion. As documented in previous Reports, the U.S. foundthat the Soviets had violated the 1925 Geneva Protocoland related rules of customary international law; we foundno basis for amending the previous conclusion that theSoviet Union had been involved in the production, trans-fer, and use of trichothecene mycotoxins for hostile pur-poses in Laos, Cambodia, and Afghanistan in violation ofits legal obligation under international law as codified inthe Geneva Protocol of 1925 and the Biological WeaponsConvention of 1972. These violations, together with ongo-ing Soviet activities in these areas, remain a cause for seri-ous concern. Since the January 1984 Report, we have hadno confirmed evidence of use of lethal agents.


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The U.S. has determined that contrary to Soviet claims,the Soviet Union has maintained an active offensive bio-logical warfare (BW) program and capability in violationof the 1972 Biological and Toxin Weapons Convention.We judge that Soviet capability may include advance bio-logical and toxin agents of which we have little or noknowledge, and against which the U.S. has no defense.

As a result of the 1986 BWC Conference, States partyto the Convention agreed to exchange information onfacilities built for high-risk (high-containment) biologicalexperiments and facilities engaged in other activities relat-ing to the Convention. While the Soviet submissions ofdate have been welcomed, the U.S. believes that activitiescontinue at facilities which we believe to be associatedwith the offensive Soviet program, not all of which werecontained in the Soviet declaration.

On September 23, 1989, the U.S. and Soviet Unionsigned a Memorandum of Understanding (MOU) regardinga bilateral verification experiment and data exchange onchemical weapons. . . . On December 29, 1989, the Sovietsprovided data pursuant to this agreement. These data arepresently being studied; preliminary indications are thatthese data differ in a number of respects from our under-standing.

Id. at 5–6. There were no new findings of noncompliance with the

Limited Test Ban Treaty or the Threshold Test Ban Treaty. Generaldiscussion of these treaties may be found in the report id., at 7–8.

b. U.S. report for 1990

On February 15, 1991, President Bush submitted the sixth Reporton Soviet Noncompliance with Arms Control Agreements. Thisreport was the first to fall under an amendment to section 1002set forth in section 905(a) of the National Defense AuthorizationAct, Fiscal Year 1989, Pub. L. No. 100-456, 102 Stat. 1918, 2032.Pursuant to this legislation, the report was required to include,inter alia, a summary of the current status of arms control


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agreements in effect between the U.S. and the USSR, and anassessment of all Soviet violations of these agreements. Section1002(b)(1) and (b)(3).

(1) ABM Treaty

The report noted that the USSR had begun to dismantle theKrasnoyarsk radar, “a significant admitted violation of the ABMTreaty,” but pointed out that “the Soviet Union, thus far, has notdismantled the radar as rapidly as they had promised. The UnitedStates will continue to monitor the Soviet Union’s progress ineliminating the radar and will press the Soviet Union to fulfill itscommitment to dismantle it completely by the end of 1991.”Soviet Noncompliance with Arms Control Agreements, p. 4

The 1990 report then repeated the same concerns about SovietABM activity stated in the 1989 report, which are discussed above.These concerns are treated in further detail in the findings sec-tion of the report, id. at 16–22.

(2) INF Treaty

The 1990 report discussed a number of new issues that arose dur-ing 1990 concerning the 1987 Intermediate Range Nuclear ForcesTreaty (“INF Treaty”) as follows:

The most serious concern related to implementation ofthe INF Treaty is the presence of SS-23 missiles andlaunchers in Bulgaria, Czechoslovakia, and Germany.

In early 1990, the United States became aware for thefirst time of the existence of SS-23 missiles in three EasternEuropean countries. The Soviet Union has stated theytransferred SS-23s to the GDR, Czechoslovakia, andBulgaria, prior to entry into force of the INF Treaty. Noneof these three countries are parties to the INF Treaty. Inaddition, a Soviet document provided to the UnitedNations, cited a number of SS-23 missiles produced inexcess of those declared by the Soviet Union in the INFTreaty or claimed by any of the Eastern European coun-tries. Questions addressed are:


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(1) were the SS-23 missiles Soviet “possessed” at any timesince November 1, 1987;

(2) are there other SS-23 missiles beyond those the UnitedStates now knows to exist;

(3) did Soviet failure to inform the United States of theexistence of these missiles constitute fraud, misrepre-sentation, or error?

From March 1 to March 10, 1990, the Soviet Unionrefused to permit the United States to use the newly oper-ational Cargoscan nondamaging image producing equip-ment to image three Soviet missile canisters exitingVotkinsk. The fact that since late March the United Stateshas been permitted to exercise this right does not excusethe Soviet refusal, on three occasions, to permit the UnitedStates to exercise its rights under the INF Treaty.

To enhance observation by national technical meansof verification, the INF Treaty provides the United Statesthe right to request the implementation of cooperativemeasures at certain ground launched ballistic missiledeployment bases which are not former SS-20 bases.Paragraph 3(a) of Article XII requires that all missiles onlaunchers be removed completely from their fixed struc-tures and displayed in the open “without using conceal-ment measures.” The United States has examined thequestion of whether certain Soviet practices during thesecooperative measures violate this provision.

During 1990 the United States became aware of sev-eral SS-4 launch stands and missile transporter vehicles(MTVs) located at facilities not declared under the INFTreaty. The United States raised the issue of these unde-clared items with the Soviet Union and sought specificactions to resolve the issue. Some, but not all, of the nec-essary steps towards resolution have been taken. TheReport addresses the issue of whether these undeclareditems constitute a violation of the INF Treaty.

The United States also became aware of several SS-5missile transporter vehicles (MTVs) at facilities notdeclared in the INF Treaty. The SS-5 missile is a type lim-ited by the INF Treaty. The Soviet Union clearly stated in


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the negotiations that no SS-5 support equipment existed.Some of these transporter vehicles have now been destroyed.The Report addresses the issue of whether undeclared SS-5 MTVs which were located at nondeclared INF locationswere Treaty-limited items (TLI) under the Treaty, and, if so,whether the Soviet Union’s failure to declare this equipmentand failure to provide notification of elimination of theMTVs constitutes a violation of the INF Treaty.

Id. at 3–4. These concerns are treated in further detail in pages11–16 of the report.

(3) Chemical, biological, and toxic weapons

The 1990 report repeated the concerns expressed in the 1989report, supra.

(4) Limited Test Ban Treaty

The 1990 report provided the following discussion regardingSoviet compliance with this agreement:

The Soviet Union conducted only one underground nucleartest in 1990. The test was conducted on October 24, 1990,at the Soviet test site at Novaya Zemlya. Following this test,nuclear debris was detected outside the Soviet Union, butthe United States has not completed its analysis of this test.

Since the Limited Test Ban Treaty (LTBT) came into forceover 20 years ago, the Soviet Union has conducted its nuclearweapons test program in a manner incompatible with theterms of the Treaty. Since publication of the December 1988Report, that conduct has continued and still results in therelease of nuclear debris into the atmosphere beyond the bor-ders of the USSR. Even though the material from these Soviettests does not pose calculable health, safety or environmen-tal risks, and the infractions have no apparent military sig-nificance, in response to our repeated attempts to discussthese occurrences with Soviet authorities, they have onlydenied that these events have occurred.

Id. at 5–6.


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(5) Ballistic Missile Launch Notification Agreement

This agreement, which entered into force on May 31, 1988, requiredthe Unite States and the USSR to provide 24-hour advance notifi-cation of the planned date, launch area, and area of impact for anylaunch of an intercontinental ballistic missile (ICBM) or subma-rine-launched ballistic missile (SLBM). The 1990 Report stated thatthe USSR had not provided the proper notification of ICBMlaunches and that the United States had raised the issue with theUSSR, requesting information to explain why these launches hadnot been notified under the agreement. A Soviet response had notbeen received by the date of the report. Id. at 7–8.

(6) Assessment of national security risks of Soviet violations

As required by the 1989 National Defense Authorization Act, thefinal part of the 1990 Report assessed the military risks associ-ated with the Soviet treaty violations and compliance concernsraised in the report as “minor to none,” with one exception—theSoviet chemical, biological and toxin research and production—which the report stated “may provide the Soviet Union a mili-tarily significant advantage.” Id. at 8 and 9.

The conclusion of this section of the 1990 report stated:

Military risk is only part of national security considera-tions and it is judged that the political significance of theoverall Soviet behavior outweighs the existing militaryrisks and thus gives rise to concerns.

In one sense all Soviet violations are equally important.As violations of legal obligations or political commitments,they cause concern regarding Soviet commitment to armscontrol. In another sense all Soviet violations are not ofequal importance. While some individual violations areof little apparent military significance in their own right,such violations can acquire importance if left unaddressedand are permitted to become precedents for future morethreatening violations. Moreover, some issues that indi-vidually have little military significance could conceivablybecome significant when taken in their aggregate.


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In this context, the United States views the violations,the instances of bad faith, the inattention to scrupulous com-pliance, and the less than forthcoming responses to U.S. con-cerns described in this report to be matters of seriousconcern. These potentially undermine U.S. confidence inSoviet compliance with existing agreements and threaten thefuture viability of the arms control process, a process whichrelies on the willingness of treaty partners to comply.

Id. at 9.

4. Conference on Prohibition of Chemical Weapons

On January 7–11, 1989, the Conference on the Prohibition ofChemical Weapons was held in Paris, attended by the represen-tatives of 145 nations. In an address to the conference on January7, Secretary of State George Shultz outlined steps to be taken toeradicate the threat of chemical weapons, as follows:

— Every nation must undertake the political commitment tocomply with the international norms relating to chemicalweapons use.— Nations which have not done so should accede to the1925 Geneva protocol.— The UN Secretary General’s ability to investigatepromptly allegations of illegal use of chemical weaponsin armed conflict should be reinforced and enhanced.

We should consider procedures for humanitarian assis-tance to victims of chemical weapons attack. We need tobolster support for the measures embodied in the UNCharter should there be any future illegal use of chemicalweapons—and here I have Chapter 7 sanctions expresslyin mind.

There is an urgent need for steps to achieve greaterinternational restraint in the export of chemical weapons-related technologies, chemicals, and weaponry. Since 1985the United States has cooperated with 18 other nations to


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coordinate efforts to control international trade in chem-ical weapons-related commerce. We should explore pos-sibilities for more effective means to control the transferof chemical weapons precursors, technology, and weaponswithout impeding legitimate commerce and peaceful pur-suits that will benefit mankind.

Finally, I also urge you to join me in committing ourgovernments not only to prevent the use of chemicalweapons in armed conflict but also to prevent the spreadof chemical weapons to terrorist groups.

The problem of chemical weapons proliferation is as dif-ficult as it is dangerous. The challenge it poses to world secu-rity is so urgent that international efforts in this area shouldnot be made contingent on other difficult arms control issues,such as nuclear proliferation. And if we are to deal with thechemical weapons threat effectively in all its respects, wemust see the problem for what it is.

Chemical weapons proliferation is not an issue betweenthe developed and the developing world. It is not a mat-ter of some nations trying to maintain a monopoly onchemical weapons by making it impossible for othernations to obtain them. All countries have everything togain by keeping their focus on the real issue: preventingthese weapons from spreading and being used, even as wedevote ourselves to ridding the world of those whichalready exist.

For our part, the United States has participated activelyin negotiations at the Conference on Disarmament since1971. We are committed to success in these negotiations,and we will stay at the table for however long it takes. Wewill abide by the 1925 Geneva protocol and all other pro-visions of international law related to use of chemicalweapons, including the 1949 Geneva conventions. We urgeevery country here—indeed, every country in the world—to make a similar pledge.

89 Dep’t St. Bull., Mar. 1989 at 6. On January 11 the conference issued a final declaration. On

the same day, Ambassador William F. Burns, head of the U.S. del-egation and Director of the Arms Control and Disarmament


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Agency, made a statement commenting on the final declarationas follows:

We are pleased that the final declaration includes thefollowing important elements.— The conference condemned the use of chemicalweapons in violation of international law and existingnorms.— All participants stressed the importance and continu-ing validity of the Geneva protocol of 1925. States partyto the protocol reaffirmed their commitments. This fullypreserves the terms on which each party has ratified theprotocol, including their reservations.— Ten states heeded the conference’s call to become par-ties to the protocol.— Participants expressed grave concern over the spreadof chemical weapons and called on all to exercise restraintand act responsibly. For our part, we will continue to exer-cise export controls and urge others to do the same.— The conference reinforced the role of the SecretaryGeneral in investigating reports of chemical weapons useand expressed support for appropriate and effective actionsunder the UN Charter. This includes consideration of inter-national sanctions under Chapter VII of the UN Charter.

Id. at. 10.

5. Treaty on Conventional Armed Forces in Europe

On November 19, 1990, in Paris, the United States and twenty-one other states signed the Treaty on Conventional Armed Forcesin Europe (CFE). 1990 U.S.T. Lexis 227, S. Treaty Doc. No. 102-8 (1990) . The geographic area to which the treaty applies is theentire land territory of the states parties in Europe, from theAtlantic Ocean to the Ural Mountains (ATTU), including allEuropean island territories of the states parties and specified por-tions of the Soviet Union and Turkey.

Within this area of application, the treaty establishes numer-ical limits on five categories of conventional armaments and equip-


1998_book 5/31/03 10:43 PM Page 578

ment: battle tanks, armored combat vehicles, artillery, combataircraft, and attack helicopters. It requires the states parties toreduce their holdings of these materials to the extent necessaryto meet those limits. There are related geographical limits on bat-tle tanks, armored combat vehicles and artillery. The treaty alsoestablishes a wide-ranging verification system, including on-siteinspections, to confirm mutual compliance.

For a discussion of the treaty, see Cumulative Digest1981–1988 at 3587–3594. See also 85 Am. J. Int’l L. 548 (1991).

Cross references

Sanctions related to arms control and non-proliferation, Chapter16.A.

German unification treaty, Chapter 4.A.2.


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1998_book 5/31/03 10:43 PM Page 580

Table of Cases

AAdams v. Baker (1989), 22, 23–26Adams v. Vance (1977),

251–253, 258, 262Agee v. Baker (1990), 15, 16Ahmad v. Wigen (1989), 82,

86, 88Allende v. Shultz (1985), 21–22Amanullah v. Nelson (1987), 24American Baptist Churches v.

Thornburgh (1991), 40–41American Bell International Inc.

v. Islamic Republic of Iran(1979), 216

Aoun v. Baker (1990), 243, 246,251, 252, 258, 264

Argentine Republic v. AmeradaHess Shipping Corp. (1989),281, 283–285, 312, 313, 314

Arlington, United States v.(1982), 301, 384

Arlington, United States v.(1983), 384

Arnsbjornsdottir-Mendler v.United States (1983), 86

Atwood Turnkey Drilling, Inc. v.Petroleo Brasileiro (1989), 301

Ayuda, Inc. v. Thornburgh, 28, 30

BBailey v. Varian Associates

(1990), 217

Baker v. Aoun, 256–260Baker v. Carr, 212, 214Banco Nacional de Cuba v.

Sabbatino (1964), 244, 247, 263*Beilos Case (1989), 148–149Belmont, United States v. (1937),

245, 247Benz v. Compania Naviera

Hidalgo, S.A. (1957), 447–448Berenguer v. Vance (1979), 78Bowers v. Transportes Navieros

Ecuadorianpa (1989), 302Burrafato v. Dept. of State (1975),

23Burton v. Baker (1989), 158

CCanadian Transport Co. v.

United States (1985), 311–314Carl Marks & Co. v. U.S.S.R.

(1988), 301Chicago & Southern Airlines v.

Waterman Steamship Corp.(1948), 159

Chindawongse, U.S. v. (1985),346, 348, 350–351

Chong Boon Kim v. Yim YoungShik (1963), 321

Chuidian v. Philippine NationalBank (1990), 302–311

Cole, United States v. (1989),339–352

581

* An asterisk denotes cases in courts and for a, including the International Courtof Justice, other than U.S. federal and state courts.

1998_book 5/31/03 10:43 PM Page 581

Colonial Bank v. CompagnieGenerale Maritime (1986), 285

Coplon, United States v. (1949),351

DDames & Moore v. Regan

(1981), 215De Sanchez v. Banco Central de

Nicaragua, 310Demjanjuk v. Petrovsk (1985), 81Dorr v. United States (1904), 102Dreyfus v. Von Finck (1976), 347

E*Elettronica Sicula S.p.A (1989),

418Espinoza v. Reagan (1983), 213Estate of Domingo v. Republic of

Philippines (1988), 321–323Estate of Silme G. Domingo v.

Marcos (1982), 315–316, 321Et Ve Balik Kurumu v. B.N.S.

International Sales Corp.(1960), 318

Extradition of Atta, In re(1988), 79

FFactor v. Laubenheimer (1933), 81Falcoal, Inc. v. Turkiye Komur

Isletmeleri Kurumu (1987),286

Fernandez v. Phillips (1925), 84Ferrostaal Metals Corp. v. S.S.

Lash Pacifico (1987), 301First National City Bank v.

Banco Para El ComercioExterior de Cuba (1983),306–307

Foley Bros. v. Filardo (1949), 448Foster v. Neilson (1829), 347Frelinghuysen v. Key (1884),

214Frolova v. USSR (1985), 283, 285

GGadsby & Hann v. Socialist

Republic of Romania (1988),301

Galllina v. Fraser (1960), 81,84–85

Gerritsen v. De La Madrid(1986), 315

Gerritsen v. Escobar y Cordova(1988), 349–350

Gill v. Imundi (1990), 88, 91Glen Cove, U.S. v. (1971), 384Glucksman v. Henkel (1911), 81Goldwater v. Carter (1979), 245Gregoire v. Biddle (1949), 319Gregorian v. Izvestia (1989), 301Guaranty Trust Co. v. U.S.

(1938), 245, 247, 255

HHaig v. Agee (1981), 14, 16, 213,

261Haitian Refugee Center v. Gracey

(1987), 51Hamid v. INS (1976), 24, 26Harisiades v. Shaughnessy

(1952), 213Harris Corporation v. National

Iranian Radio and Television(1982), 216

Head Money Cases (1884), 347Hercaire International, Inc. v.

Argentina (1987), 301Hilton v. Guyot (1895), 322Holmes v. Laird (1972), 81

IIndiana v. Strom, 351INS v. Hibi (1973), 13INS v. Pangilinan (1988), 13Insular cases, 102, 103International Union, UAW v.

Johnson Controls (1989), 171*Interpretation of the American

Declaration of the Rights and


1998_book 5/31/03 10:43 PM Page 582

Duties of Man within theframework of AmericanConvention on Human Rights,166

Ipitrade Int’l v. Federal Republicof Nigeria (1978), 286

JJackson v. People’s Republic of

China (1986), 300Jhirad v. Ferrandina (1976), 81,

83, 84, 87Johnson v. Eisentrager (1950),

103, 106Jones v. United States (1890),

245Joseph v. Office of Consulate

General of Nigeria (1987),285, 286

*Judgments of the AdministrativeTribunal of the ILO uponComplaints Made againstUnesco, 359

KKasravi v. I.N.S., 26Kent v. Dulles (1958), 16Kleindienst v. Mandel (1972),

21, 23Kline v. Cordero De La Madrid

(1989), 315Kline v. Kaneko (1988), 315Koohi v. U.S. (1990), 217

L*L. v. The Crown (1977), 350Langhammer v. Hamilton (1961),

24Latvian State Cargo Lines &

Passenger S.S. Line v. McGrath(1951), 246

Lee, United States v. (1882), 316,317

Lehigh Valley Ry. Co. v. State ofRussia (1927), 256

Letelier v. Republic of Chile(1984), 301

Liberian Eastern Timber v.Government of the Republic ofLiberia (1987), 301

Libra Bank v. Banco Nacional deCosta Rica (1982), 301

Loza-Bedoya v. M (1969), 23Lujan v. Gengler (1975), 347

MMaritime Int’l Nominees

Establishment, 286Maritime Ventures Int’l v.

Caribbean Trading & Fidelity(1988), 286

Marlowe v. Argentina NavalCommission (1985), 287

Mathews v. Eldridge (1976), 16Matter of Del Conte (1964), 72Matter of Extradition of Atta,

(1989), 79–80Matter of Imelda Marcos, In re

(1989), 62Matter of Naturalization of 68

Filipino War Vets (1975), 13McCulloch v. Sociedad Nacional

de Marineros de Honduras(1963), 447

McDonnell Douglas Corporationv. Islamic Republic of Iran(1984), 216

McMullen v. INS (1986), 24, 26

Meadows v. Dominican Republic(1986), 283

Mendoza, United States v.(1984), 13

Mitchell v. Laird (1973), 253MOL. Inc. v. People’s Republic of

Bangladesh (1984), 283Mumtaz v. Ershad (1989),

314–319Myers v. United States (1963),

309

Table of Cases 583

1998_book 5/31/03 10:43 PM Page 583

NNational Transportation Safety

Board v. Carnival Cruise Lines,Inc. (1989), 447

National Union Fire Ins. Co. v.The Republic of China (1958),255

Neely v. Henkel (1901), 82Nejad v. United States (1989),

212, 217New York & Cuba Mail S.S. Co.

v. Republic of Korea (1955),318, 319

Noriega, United States v. (1988),552

*Nottebohm case (1955), 214

OO’Connell Machinery Co. v.

M.V. Americana (1984), 301Oetgen v. Central Leather Co.

(1918), 245Ohntrup v. Firearms Center Inc.

(1981), 286OPM v. Government Employees

(1985), 262

PPaquete Habana, 92Peru, Ex Parte (1943), 313, 315,

316, 318Pink, United States v. (1937),

245, 247Practical Concepts, Inc. v.

Republic of Bolivia (1987),281–282

Psinakis v. Marcos (1975), 316

RReid v. Covert (1957), 104–105,

184Republic of Mexico v. Hoffman

(1945), 315Republic of Panama v. Citizens

& Southern International Bank(1988), 245

Republic of Vietnam v. Pfizer(1977), 247

*Reservations to the Conventionon the Prevention andPunishment of the Crime ofGenocide (1951), 147, 355

Rivera de Gomez v. Kissinger(1976), 23, 25

Rockwell International Systems,Inc. v. Citibank, N.A. (1983),216

Rosado v. Civiletti (1980), 84Ryan, In re (1973), 81

SSaltany v. Reagan (1988),

311–314, 315Sampson v. Murray (1974), 262Sanchez-Espinoza v. Reagan

(1985), 312Sindona v. Grant (1980), 83, 85Societe Nationale Industrielle

Aerospatiale v. United States-District Court (1987), 320, 322

Spacil v. Crowe (1974), 315, 316Spaniol, U.S. v. (1992), 352S&S Machinery Co. v.

Masinexportimport (1983), 301

State of Florida v. Van Den Borre(1989), 339

State of Yucatan v. Argumendo(1915), 255, 256

TTel-Oren v. Libyan Arab

Republic (1984), 347The Maret (1944), 245–246,

263The Republic of the Philippines v.

Westinghouse Electric Corp.(1990), 320–321

The Rogdai (1920), 255The Sapphire (1870), 255The Schooner Exchange v.

M’Faddon (1812), 314, 321


1998_book 5/31/03 10:43 PM Page 584

Transamerica Steamship Corp. v.Somali Democratic Republic(1983), 287

Transportes Aereos de Angola v.Ronair, Inc. (1982), 247

UUnderhill v. Hernandez (1897),

255United States of America, In re

(1989), 86United States of Mexico v.

Schmuck (1944), 318, 319United States v. Arlington (1982),

301, 384United States v. Arlington (1983),

384United States v. Belmont (1937),

245, 247United States v. Cole (1989),

339–352United States v. Coplon (1949),

351United States v. Glen Cove

(1971), 384United States v. Lee (1882), 316,

317United States v. Mendoza (1984),

13United States v. Noriega (1988),

552United States v. Pink (1937), 245,

247United States v. Verdugo-

Urquidez (1988), 101United States v. Verdugo-

Urquidez (1990), 100–107U.S. v. Chindawongse (1985),

346, 348, 350–351

U.S. v. Spaniol (1992), 352U.S. v. Verdugo-Urquidez (1987),

101

VVan Den Borre v. State (1992),

339Ventura-Escamill v. INS, 23Verdugo-Urquidez, United States

v. (1988), 101Verdugo-Urquidez, United States

v. (1990), 100–107Verdugo-Urquidez, U.S. v.

(1987), 101Verlinden B. V. v. Central Bank

of Nigeria (1980), 286Verlinden B. V. v. Central Bank

of Nigeria (1983), 313Voevodine v. Government of

Commander in Chief (1931),256

Von Dardel v. Union of SocialistSoviet Republics (1985), 278

Von Dardel v. U.S.S.R. (1990),291, 301

WWan Shih Hsie v. I.N.S. (1978),

25Wan Shih Hsie v. Kiley (1978),

25Wolchok v. Statni Bank

Cesoslovenska (1961), 318

ZZardui-Quintan v. Richard

(1985), 263Zernicek v. Brown & Root, Inc.

(1987), 286

Table of Cases 585

1998_book 5/31/03 10:43 PM Page 585

1998_book 5/31/03 10:43 PM Page 586

Index

AAdministrative Procedure Act, 15Adoption, international

consular functions in adoptionof foreign child by U.S. cit-izen, 66–72

Convention on the Rights ofthe Child, 175

immigration law and, 67–68,69–72

Afghanistan, U.S. diplomaticrelations with, 241–242

Agreement Between theGovernment of the People’sRepublic of Angola andthe Republic of Cuba forthe Termination of theInternational Mission ofthe Cuban MilitaryContingent (1988),202–203

Agreement between theGovernment of the UnitedStates of America and theGovernment of the Unionof Soviet SocialistRepublics ConcerningCooperation in CombatingPollution in the Bering andChukchi Seas inEmergency Situations,489–490

Agreement between the UnitedStates of America and the

Union of Soviet SocialistRepublics on the MaritimeBoundary (1990), 434–437

Agreement on Maritime Searchand Rescue (Mexico-U.S.),480

Agreement on Principles ofImplementing TrialVerification and StabilityMeasures, 565–566

Agreement on ReciprocalAdvance Notification ofMajor Strategic Exercises(U.S.-USSR), 566

Agreement on the Developmentand Facilitation of Tourism(1989) (U.S.-Hungary), 499

Agreement on the Prevention ofDangerous MilitaryActivities (1989) (U.S.-USSR), 549–551

Agreement Relating to Establish-ment of a Cooperative Pro-gram of Interdiction andSelective Return of PersonsComing from Haiti, 48

Agreement to Establish a JointCommission onHumanitarian Assistance(1989) (U.S.-Poland),546–547

Agricultural Act (1949), 546AIDS/HIV, exclusion of aliens

with, 18–20

587

1998_book 5/31/03 10:43 PM Page 587

Air transportconsular functions in aviation

disaster response, 64–66Convention for the Suppression

of Unlawful Acts Againstthe Safety of Civil Aviation(1971), 34, 110

prohibition on transport of former president Marcos toPhilippines, 57–59

Protocol for the Suppression ofUnlawful Acts of Violenceat Airports ServingInternational Aviation(1988), 34, 110–111

safety of air navigation, 211termination of landing rights of

carriers violating biological/chemical weapons executive order, 516

transition agreement for Berlinair service, 395–396

See also AircraftAircraft

advance notice requirementsfor overflight, 440–441

claims related to downing ofIran Air Flight 655,211–217

Convention for the Suppressionof Unlawful Seizure ofAircraft (1970), 34

See also Air transportAlbania

advance notice requirementsfor innocent passagethrough territorial waters,444–445

diplomatic relations with U.S.,241

territorial sea baselines, 461totalitarian party and admissi-

bility of aliens from, 38–39Algiers Accords, 220, 224, 228,

229, 231, 236

Alien Tort Claims Act (Alien TortStatute), 281, 312

Aliensaccess by Vietnamese nationals

to U.S. courts, 242–243Constitutional rights in search

and seizure outside the U.S.,100–107

contagious disease infection asbasis for exclusion of, 18–20

departure control orders, 60–62employment of dependents of

diplomatic personnel,385–387

exclusion of members of totalitarian party, 37–39

exclusion on foreign policygrounds, 35, 36–37

Immigration Act provisions forexclusion of, 32–39

temporary protected status, 32,39–40, 41

use of appropriated funds foremployment of foreignnationals by U.S. government, 151–153

American Aid to Poland Act(1988), 546

American Convention on HumanRights, 165–168

American Declaration of theRights and Duties of Man,165–168

Angola, 199, 201–203diplomatic relations with U.S.,

241Anti-Ballistic Missile Treaty

(1972) (U.S.-USSR),567–569, 572

Anti-Terrorism and Arms ExportAmendments Act (1989),108–109

ArbitrationConvention on the Recognition

and Enforcement of


1998_book 5/31/03 10:43 PM Page 588

Foreign Arbitral Awards,501, 502

implied waiver of immunity inagreements to, 286

Inter-American convention,501–502

Argentina, 95Arms control

anti-terrorism legislation,108–109

Arms Export Control Act, 108,109, 503, 513, 515

biological and chemicalweapons control

Executive Order for, 512–516U.S. policy on chemical

weapons, 576–578vetoed legislation, 508–512

International Traffic in ArmsRegulations, 109

Missile Technology ControlRegime, 563–568

Treaty on Conventional ArmedForces in Europe, 578–579

trial verification and stabilitymeasures, 565–566

USSR compliance with armscontrol agreements, 566–576

Arms Export Control Act, 108,503, 513, 515

Arms tradeArms Export Control Act, 108,

503, 513, 515U.S.-Chile relations, 540

Assassination, Executive Orderprohibiting, 565

Asylumapplicant’s return to country of

claimed persecution, 47confidentiality in application

process, 46–47discrimination against

applicants, 40–42employment authorization for

applicants, 47

evidentiary materials, 44–46frivolous applications, 47persecution as basis for request

for, 45–46procedures for determination

of, 42–47role of Asylum Officers, 43–45Salvadorans and Guatemalans,

40–42withholding of deportation, 46

Australia, South Pacific regionalenvironmental convention,491

Austria, reciprocity in consularrelations, 345–346

Aviation Security ImprovementAct (1990), 65–66

BBaltic states, self-determination

of, 271–275Bangladesh, head of state immu-

nity in divorce action,314–319

Basic Authorities Act, 64, 66Belgium, waiver of diplomatic

immunity, 338–339Berne Copyright Convention for

the Protection of Literaryand Artistic Works, 417

Bhutan, diplomatic relations withU.S., 241

Biological and chemical weaponsChemical and Biological

Weapons Control andWarfare Elimination Act, 512

Executive Order on, 509–510,512–516

Geneva Protocol on ChemicalWeapons, 567, 576, 577,578

presidential veto of U.S. legisla-tion to control, 508–512

U.S. policy on chemicalweapons, 576–578

Index 589

1998_book 5/31/03 10:43 PM Page 589

Biological and chemical weaponsChemical and Biological

(continued)USSR compliance with

agreements on, 567,570–571, 574

Biological and Toxin WeaponsConvention, 570–571, 574

Border issuesarchipelagic waters, 451,

460–461, 472–476exclusive economic zone, 451,

463–465scientific research in,

478–479surrounding Northern

Mariana Islands, 162–164patrimonial sea concept, 451radio and television broadcasts

across, 397–398territorial sea limits, 445, 450,

451contiguous zone authority,

465–470drawing of baselines,

459–462U.S. claims to sunken ship in

territorial waters of France,429–434

U.S.-USSR maritime boundarytreaty, 434–437

Brazil, order of departure forU.S. warship, 476–477

Bulgarialocation of diplomatic offices,

376Soviet missiles in, 572

CCambodia

conflict resolution in, 527–537arms control, 533–534Paris Conference, 526,

535–537role of “Permanent Five,”

528–531, 532–533, 535

U.S. policy, 527, 531–532,533–534

U.S.-Vietnam relations and,526, 527


prosecution of Khmer Rouge,119–128

Canadafisheries enforcement agree-

ment, 488–489request for expansion of

extradition, 78–79Space Station

IntergovernmentalAgreement, 482

Cape Verdeclaims for archipelagic waters,

475–476proposed sale of property in

U.S., 377–379Capital punishment

Convention against Tortureand Other Cruel, Inhumanor Degrading Treatment orPunishment (1987),178–179, 189

customary international law,178–179

Central American BipartisanAccord, 156–160

Chemical and BiologicalWeapons Control andWarfare Elimination Act(1991), 512

Chemical weapons. SeeBiological and chemicalweapons

Childrencitizenship

blood tests to establish citizenship claims, 1–2

children born of surrogateparentage, 13

Convention on the Rights ofthe Child, 171–176


1998_book 5/31/03 10:43 PM Page 590

of diplomatic personnel, 386international adoptions, 66–72

Chile, 97–98claims related to murder of

former Chilean ambassadorin U.S., 537–541

China, People’s Republic of, 54–57deferred deportation of nation-

als, 54–57outer space commercial launch

service agreement, 481prohibition on foreign control

of U.S. company, 418–424totalitarian government and

admissibility of aliensfrom, 38–39

Citizenshipapplicant’s awareness of

possible claims to, 7“immediate relatives” status, 10,

11–12loss of, 4–6parentage blood testing to

establish filiation claims,1–3

Philippine veterans of WorldWar II, 12–13

requirements for retention of,6–9

standards for determiningexpatriation, 4–6

status of Northern MarianaIslands residents, 9–12

surrogate parentage, 13See also Nationality

ClaimsGerman Democratic Republic,

238Honduras, 219–220Iran Air Flight 655, 211–217Iran-U.S. Claims Tribunal,

220–237Iraq: USS Stark, 217–219Nicaragua, 237–238

Colombia, interpretation ofAmerican Declaration of

the Rights and Duties ofMan, 165–168

Comityextradition and, 81, 95immunity of foreign officials

from depositions, 322treatment of foreign diplomats

and representatives, 30See also Reciprocity

Common law, immunity of foreign officials, 303, 304,305

Compact of Free Association(1982), 268–271

Comprehensive Anti-ApartheidAct (1986), 522

Conference on Prohibition ofChemical Weapons,576–578

Conflict resolutionagreement on prevention of

accidental conflict, 549–551

Cambodian conflict, 527–537U.S.-Chile dispute resolution

related to murder of formerChilean ambassador inU.S., 537–541

Constitution, U.S.Article II, 212–213, 244–245,

246, 258, 260, 370–371Article III, 29–30Article VI, 384Convention on the Elimination

of All Forms ofDiscrimination AgainstWomen and, 169

Eighth Amendment, 179, 182,187

Fifth Amendment, 16, 17, 102,103–104, 179, 182, 187

First Amendment, 25foreign affairs authority,

158–160Fourteenth Amendment, 179,

182, 187

Index 591

1998_book 5/31/03 10:43 PM Page 591

Constitution (continued)Fourth Amendment, 100,

101–102, 103, 104, 105–107habeas corpus review in extra-

dition request, 82–84rights of aliens in search and

seizure abroad, 100–107Sixth Amendment, 102, 104U.S. reservations to Genocide

Convention and, 144U.S. reservations to Torture

Convention and, 179, 182,183–184, 185, 187

Consular functionsdisaster assistance, 64–66immunity for, 348–350in international adoption,

66–72non-reviewability of visa

determinations, 22–23, 25review of employment

contracts of domestic servants of diplomatic personnel, 389–390

role of consular agents andagencies, 63–64

scope of, 348–350travel risk warnings, 64–65See also Diplomatic missions

and personnelConsular offices and personnel

applicability of labor law,388–390

applicability of workers com-pensation plans, 390–393

consular agents, 63–64employment contracts for

workers in U.S. consularoffices, 390

immunity of personnelin criminal cases, 339–352most-favored nation

treatment, 339, 340–348reciprocity, 340–342,

344–346

waiver of, 338–339Control and seizure of assets

Convention Against IllicitTraffic in Narcotic Drugsand PsychotropicSubstances, 129

disposition of blockedVietnamese assets,525–526

international agreement toprosecute narcotrafficking,129

sovereign immunity of propertyof foreign state, 296–302

unblocking of Panamanianassets, 553

See also Expropriation; Iran-United States ClaimsTribunal

Convention Against Illicit Trafficin Narcotic Drugs andPsychotropic Substances(1989), 128–133, 450, 455

Convention Against the Takingof Hostages (1979), 34

Convention against Torture andOther Cruel, Inhuman orDegrading Treatment orPunishment (1987),176–190, 191–192

competence of CommitteeAgainst Torture under,186–187, 190

cruel, inhuman or degradingpunishment provisions,182–183, 187

death penalty provisions,178–179, 189

definition of torture, 179–181,188–189

jurisdiction of InternationalCourt of Justice, U.S. reservation to, 183

lawful sanctions exceptions,181–182


1998_book 5/31/03 10:43 PM Page 592

private right of action under, 189U.S. ratification, 176–178,

187–190U.S. sovereignty reservation,

183–186, 190Convention between the

Government of the UnitedStates of America and theGovernment of theRepublic of India for theAvoidance of DoubleTaxation and thePrevention of FiscalEvasion with Respect toTaxes on Income, 411–414

Convention Ceding Alaska(1867), 435

Convention Defining the Rights,Immunities and Privilegesof Consular Offices (1881)(U.S.-Serbia), 339–340,342, 346, 347–348

Convention for the Avoidance ofDouble Taxation and thePrevention of FiscalEvasion with Respect toTaxes on Income betweenthe United States andFinland, 415

Convention for the Avoidance ofDouble Taxation and thePrevention of FiscalEvasion with Respect toTaxes on Income betweenthe United States andIndonesia, 472, 474–475

Convention for the Avoidance ofDouble Taxation and thePrevention of FiscalEvasion with Respect toTaxes on Income betweenthe United States andSpain, 415

Convention for the Avoidance ofDouble Taxation and the

Prevention of FiscalEvasion with Respect toTaxes on Income betweenthe United States andTunisia, 415

Convention for the Prohibition ofFishing with Long Driftnetsin the South Pacific Region(1991), 137–138

Convention for the Protection ofthe Natural Resources andEnvironment of the SouthPacific Region, 491–497

Convention for the Suppressionof Unlawful Acts Againstthe Safety of Civil Aviation(1971), 34, 110–111

Convention for the Suppressionof Unlawful Acts Againstthe Safety of MaritimeNavigation (1988), 34,110, 111–114

Convention for the UnlawfulSeizure of Aircraft (1970),34

Convention on MutualAdministrative Assistancein Tax Matters (1988)(Council of Europe-OECD),410–411

Convention on Relations betweenthe Three Powers and theFederal Republic ofGermany, 140

Convention on the Elimination ofAll Forms ofDiscrimination AgainstWomen (1980), 168–171

Convention on the High Seas(1958), 48, 292, 455

Convention on the Law of theSea (1982)

advance notice requirementsfor passage through territo-rial waters, 440–447

Index 593

1998_book 5/31/03 10:43 PM Page 593

Convention on the Law of theSea (continued)

anti-piracy, 112archipelagic state, 451, 472customary international law

and, 48, 164, 292, 427,439, 440, 442, 444, 445,455, 457, 459, 463, 465,466, 467, 469, 470, 472,473, 475, 476

exclusive economic zone, 64,445, 451, 463–465,478–479

flag state responsibility for safetyof vessels, 456–458, 459

funding of PreparatoryCommission, 426

Haitian Migration InterdictionProgram and, 47–48

high seas, 451, 455interdiction on, 48, 448–450,

452–456, 468–470innocent passage, 437–440,

442, 444–447, 468, 471provisions for archipelagic

waters, 472–473, 474regulation of sea lanes, 444resource conservation

provisions, 487sea-bed mining provisions, U.S.

objections to, 425–427sovereign immunity of govern-

ment vessels, 292–294,476–477

territorial sea limits, 445, 459, 460, 461, 462,463–465

contiguous zone authority,466–470

Convention on the Preventionand Punishment of CrimesAgainst InternationallyProtected Persons IncludingDiplomatic Agents (1973),34, 291

Convention on the Preventionand Punishment of theCrime of Genocide (1989),119–124, 125–126

advisory opinion on reserva-tions to (ICJ), 355–356,360–361

definition of genocide,119–120

jurisdiction of InternationalCourt of Justice, 121–123,144

U.S. reservations, 143–150, 184Convention on the Prevention of

Marine Pollution ByDumping of Wastes andOther Matter (1972), 492,495, 496

Convention on the Privileges andImmunities of the UnitedNations (GeneralConvention), 353, 354

applicability to state’s ownnationals, 363–366, 368

claim of immunity for SpecialRapporteur, 353–370

dispute resolution mechanisms,355–357, 358–359,360–361

experts on UN missions,361–363, 368–370

Convention on the Protection ofthe Rights of All MigrantWorkers and Members ofTheir Families (1990),194–195

Convention on the Recognitionand Enforcement ofForeign Arbitral Awards,501, 502

Convention on the Rights of theChild

abuse and neglect provisions,175

on adoption, 175


1998_book 5/31/03 10:43 PM Page 594

disabled, 176family reunification provisions,

175financing implementation of, 174protection of unborn, 172–173right to freedom of religion and

thought, 172–173Convention on the

Transboundary Movementof Hazardous Wastes (BaselConvention), 445

Convention on the Transfer ofSentenced Persons (Councilof Europe,1983), 72

Convention Relating to theStatus of Refugees (1951),49–51, 49n

Copyright lawBerne Copyright Convention

for the Protection ofLiterary and ArtisticWorks, 417

international registration ofaudio-visual works and,416–417

taxation of royalties, 412Costa Rica, territorial sea

baselines, 461–462Council of Europe Convention

on the Transfer ofSentenced Persons, 72

Council of Europe-OECDConvention on MutualAdministrative Assistancein Tax Matters (1988),410–411

Covenant to Establish aCommonwealth of theNorthern Mariana Islandsin Political Union with theUnited States of America,9–12, 162–164

Crimes against humanity, prose-cution of Khmer Rouge for,119–128

Cuba, 197, 199, 202–203diplomatic relations with U.S.,

241exclusion of aliens from,

38–39maritime traffic separation and

ship reporting system,470–471

U.S. broadcasts to, 396–399Cuban objections to, 399–409

in U.S. interdiction ofPanamanian-flagged ship ininternational waters,452–456

Customary international lawchemical and biological

weapons, 510Convention on the High Seas

and, 48, 292, 455Convention on the Law of the

Sea and, 48, 164, 292,427, 439, 440, 442, 444,445, 455, 457, 459, 463,465, 466, 467, 469, 470,472, 473, 475, 476

death penalty in, 178–179diplomatic and consular issues,

269, 277exclusive economic zone,

463–465existence of norm, 53flag state responsibility for

safety of vessels, 454, 455,457

head of state immunity,314–315, 317

immunity of government officials, 325

immunity of government ships,496

innocent passage rightsthrough territorial waters,441, 443, 445, 446–447,468, 471

marine scientific research, 478

Index 595

1998_book 5/31/03 10:43 PM Page 595

Cuba (continued)notice of suit against foreign

government, 295patrimonial sea concept, 451refugees, 47–48, 49n

temporary refuge, 53regulation of sea lanes, 444sovereign rights of coastal

states, 164, 451territorial sea limits, 444, 445,

459, 462, 470contiguous zone authority,

466–467, 468–469transit through archipelagic

waters, 472–473treaties

full powers, 142–143objections to reservations, 145Vienna Convention on the

Law of Treaties and, 122,145

violation of, as purported basisof suit against US officials,312

Czechoslovakialifting of sanctions against,

520–521Soviet missiles to, 572

DDeclaration of the Government

of the Democratic andPopular Republic ofAlgeria Concerning theSettlement of Claims by theGovernment of the UnitedStates and the Governmentof the Islamic Republicanof Iran, 231, 236. See alsoAlgiers Accords

Defense Production Act, 418–424

Department of StateAppropriations Act (1989),264

Deportationof A/G visa holders, 28for criminal acts, 31grounds for withholding of,

45–46Diplomatic missions and

personnelaccreditation in U.S. of foreign

representatives, 248,323–324, 326, 375–376

applicability of U.S. labor laws,388–390

applicability of worker com-pensation plans, 390–393

authorities and responsibilitiesof U.S. chiefs of mission,153–155

compensation for victims ofcrime committed by diplomatic personnel inU.S., 332–337

Convention on the Preventionand Punishment of CrimesAgainst InternationallyProtected Persons IncludingDiplomatic Agents, 34, 291

criminal activity involving,339–352

abuse of diplomatic immunity, 324–331

waiver of immunity, 338–339diplomatic and consular pouch,

inviolability of, 330employment of dependents of


employment of household servants by diplomatic personnel in U.S., 389–390

employment of U.S. citizens byforeign missions in U.S.,388–389

financial obligations of,330–331


1998_book 5/31/03 10:43 PM Page 596

immunityabuses of, 324–331identification of diplomatic

personnel, 323–324members of family of


location oflimitations on personnel in

U.S., 374–376zoning issues, 377–381

request for U.S. protection ofembassy in U.S.

request from Lebanon,243–264

request from Panama,370–374

revocation or denial of visa ofdiplomatic personnel,328–329, 331

tax exemptionsgasoline tax, 381–383utility tax, 383–385

U.S. facilities in Israel,Jerusalem, West Bank,264–268

U.S. request for extradition ofNicaraguan diplomat fromJapan, 77–78

See also Consular functions;Consular offices and per-sonnel; Vienna Conventionon Diplomatic Relations

Diplomatic relationscurrent status with U.S.,

241–242Marshall Islands-U.S.,

268–271Micronesia-U.S., 268–271non-recognition of Soviet

annexation of Baltic states,271–275

recognition of foreign government

access to U.S. courts, 247

diplomatic recognition asnonjusticiable, 244–247

of Lebanon by U.S. and protection of its embassy inU.S., 243–264

See also Foreign affairs; ViennaConvention on DiplomaticRelations

Diplomatic Relations Act (1978),334

Diplomatic Security Act, 264–265Dire Emergency Supplemental

Appropriations andTransfers, UrgentSupplementals, andCorrecting EnrollmentErrors Act (1989), 201, 202

Discovery process, head of stateinviolability, 320–323

Divorce action, head of stateimmunity from, 314–319

Djiboutiadvance notice requirements

for passage through territorial waters, 440–442

exclusive economic zone limits,463–464

territorial sea baselines,459–460

Drug tradeadmissibility of evidence

obtained abroad in caseconcerning, 100–107

attempted interdiction ofPanamanian-flagged ship ininternational waters,452–456

Convention Against IllicitTraffic in Narcotic Drugsand PsychotropicSubstances, 128–133, 450,455

deportation of aliens based on,31

Index 597

1998_book 5/31/03 10:43 PM Page 597

Drug trade (continued)maritime interdiction in inter-

national waters to prevent,449, 450

self-defense by country against,95–96

U.S. military action in Panamaand, 552, 553

Due processin passport revocation, 16–17relevance to extradition request

of possible violation of,80–88

EEconomic assistance

donation to Poland of U.S.agricultural commoditiesand funds, 546–547

to former Communist bloccountries

Support for East EuropeanDemocracy Act, 541–544

U.S. goals, 544–546lifting of sanctions against

former Communist bloccountries, 517–522

Egypt, Protocol between Egyptand Israel, 206–207

El Salvador, 40sanctuary movement to protect

asylum seekers from, 40–42Electoral process, political transi-

tion in Cambodia,529–530, 531–532, 533

Environment protectionagreement on pollution in

Bering and Chukchi Seas,489–490

Bering Sea fisheries conserva-tion agreement, 487–488

Convention on the Preventionof Marine Pollution ByDumping of Wastes andOther Matter, 492, 495, 496

Convention on the

Transboundary Movementof Hazardous Wastes, 445

dolphin conservation agreement, 485–486

maritime transport of hazardousmaterials, 445–446,492–493, 494, 495–496

salvage at sea and, 427–428South Pacific regional environ-

mental convention, 491–497

Espousal of claims, 214–215U.S. claims against German

Democratic Republic,238–240

Esquipulas Accords, 156–160Estonia, diplomatic relations

with U.S., 242non-recognition of incorpora-

tion by USSR, 272, 274European Court of Human

Rights, on reservations totreaties, 148–149

European Space Agency, 482Evidence

admissibility of evidenceobtained abroad, 100–107

for asylum determination,44–45

basis for visa determinations,23–24, 25–26

head of state immunity fromdepositions, 320–323

Ex gratia payment, 333, 335,538–539, 541

Executive branchactions inconsistent with inter-

national law, 92authority to exclude aliens on

foreign policy grounds, 35Central American Bipartisan

Accord, 156–160foreign affairs authority,

158–160, 244–247, 255,258, 260, 262–263,316–319, 370–371


1998_book 5/31/03 10:43 PM Page 598

claims related to downing ofIran Air Flight 655 as non-justiciable, 212–215

request to vacate restrainingorder based on, 251–264

immunity determinations, 315,316–319

veto of biological and chemicalweapons control legisla-tion, 508–512

Executive Orderbiological and chemical

weapons control (12735),509–510, 512–516

revocation and amendment(12938; 13094), 516

blocking of Panamanian prop-erty in U.S. (12635), 372

certification of eligibility forarms sales (12163), 540

Commission on AviationSecurity and Terrorism(12686), 65

deferred forced departure ofChinese nationals (12711),55–57

delegation of sanctions author-ity (12163), 517

export controls (12730), 513labor practices of U.S. firms in

South Africa (12532), 523

on national security implica-tions of foreign ownershipof U.S. firms (12661), 422

prohibition on assassination(12333), 565

Expatriation, determination ofintent, 4–6

Export Administration Act(1979), 108, 503, 511

Expropriationexception to immunity under

FSIA, 308–309settlement of claims against

Honduras, 219–220

ExtraditionConvention Against Illicit

Traffic in Narcotic Drugsand PsychotropicSubstances, 130

under Convention for theSuppression of UnlawfulActs Against the Safety ofMaritime Navigation,113–114

for crime of genocide, 123Department of State procedures,

88–91political offense exception,

79–80rule of non-inquiry, 79–88U.S. dispute with Chile related

to murder of formerChilean ambassador inU.S., 537


waiver of rule of specialty,78–79

FFederal Tort Claims Act, 309Federalism, 169–170Fiji, South Pacific regional

environmental convention,491

Financial transactions, interna-tional

case against Italy for interfer-ence with foreign invest-ment, 418

Convention Against IllicitTraffic in Narcotic Drugsand PsychotropicSubstances, 129, 131

Inter-American convention oncommercial arbitration,501–502

prohibition on foreign controlof U.S. company, 418–424

Index 599

1998_book 5/31/03 10:43 PM Page 599

Finlandadvance notice requirements

for passage through territorial waters, 442–444

objections to U.S. reservationsto Genocide Convention,144

tax agreement with U.S., 415warnings of hazardous

navigation by vessels registered in, 458–459

Fisheries managementBering Sea agreement, 487–488conservation zones, 162–163Convention for the Prohibition

of Fishing with LongDriftnets in the SouthPacific Region, 137

Convention for the Protectionof the Natural Resourcesand Environment of theSouth Pacific Region,491–497

dolphin conservation agreement, 485–486

Inter-American Tropical TunaCommission, 485, 486

limitations on rights ofCommonwealth ofNorthern Mariana Islands,161–164

migratory species, 164South Pacific driftnet conven-

tion, 137–138U.S.-Canada fisheries enforce-

ment agreement, 488–489

U.S.-USSR maritime boundaryagreement, 434, 435

Force majeure, 549–550Foreign affairs

ambassadorial functions,153–155

anti-terrorism legislation,108–109

applicability of U.S.Constitution to U.S. actionabroad, 106–107

claims related to downing ofIran Air Flight 655 as nonjusticiable, 212–215

disposition of blockedVietnamese assets,525–526

exceptions to use of appropri-ated funds for employmentof foreign nationals by U.S.government, 151–153

exclusion of aliens on foreignpolicy grounds, 34–37

executive branch authority,156–160, 244–247, 258,260, 262–263, 316–319,370–371

request to vacate restrainingorder based on, 251–264

immunity determinations,316–319

limitations on rights of com-monwealths and territories,162–164

prohibition on departure ofwife of former presidentMarcos from U.S., 60–62

prohibition on transport of former president Marcos toPhilippines, 57–59

service of process in suitsinvolving foreign officials,295

status of “State of Palestine,”203–205

U.S. civil cause of actionagainst foreign states forterrorist acts, 115, 119

U.S. interests in immunityclaims of USSR inWallenberg case, 281,288–291


1998_book 5/31/03 10:43 PM Page 600

U.S. policy on status ofJerusalem, 264–268

See also Diplomatic relations;National security

Foreign Assistance Act (1961),108, 515

lifting of sanctions againstformer Communistcountries, 517–522

Foreign Claims SettlementCommission, 236

Foreign Missions Act, 324, 371,372–373

jurisdiction over location andconstruction of diplomaticmissions, 377–381

Foreign Operations, ExportFinancing and RelatedPrograms AppropriationsAct (1990), 205, 219

Foreign Operations, ExportFinancing and RelatedPrograms AppropriationsAct (1991), 544

Foreign Relations AuthorizationAct, 35, 64, 205, 209, 236,331, 332

Foreign Sovereign ImmunitiesAct, 115–116, 118, 313

applicability to individualssued in their official capacity, 302–311

commercial claims exemptionto immunity, 297–298, 391

execution against property offoreign state, 296–300

immunity claims of USSR inWallenberg case, 279, 280,281–286, 288

immunity of foreign government-owned vessels, 293, 294

non-commercial tort exception,288, 309–310, 333

takings exceptions, 308–309terrorist acts and, 115–118

tort claim exceptions, 309–310France

nonimmigrant visa waiver pilotprogram, 27

South Pacific regional environ-mental convention, 491

U.S. and French claims tosunken ship in territorialwaters of, 429–434

GGeneral Convention. See

Convention on thePrivileges and Immunitiesof the United Nations

Genetic testing, to establishparentage in citizenshipand visa claims, 1–3

Geneva Convention on the HighSeas (1958), 48, 112, 292,455, 456

Geneva Convention on theTerritorial Sea and theContiguous Zone, 292, 466

Geneva Convention Relative tothe Protection of Prisonersof War (1949), 561–564

Geneva Protocol on ChemicalWeapons, 567, 576, 577,578

GenocideConvention on the Prevention

and Punishment of theCrime of Genocide,119–128, 143–150, 184,355–356, 360–361

Khmer Rougedetermination as to actions

of, 119–128possible prosecution of mem-

bers of, 121–128prosecution in U.S. for acts

committed by foreignnationals in foreign coun-tries, 125–126

Index 601

1998_book 5/31/03 10:43 PM Page 601

GermanyDemocratic Republic of

lifting of sanctions againstDemocratic Republic, 521

property claims againstGerman DemocraticRepublic, 238–240

Soviet missiles in, 572U.S. treaty on World War II

final settlement, 138–142,274, 395

Federal Republic ofConvention on Relations

between the Three Powersand the Federal Republicof Germany, 140

interpretation of U.S. reservations to GenocideConvention, 144–145

nonimmigrant visa waiverpilot program, 27

transition agreement forBerlin air service, 395–396

U.S. treaty on World War IIfinal settlement, 138–142,274, 395

warnings of hazardous navigation by vessels registered in, 459

Governing International FisheriesAgreements, 488–489

Greece, 1–2objections to U.S. reservations

to Genocide Convention,144

Guatemala, sanctuary movementto protect asylum seekersfrom, 40–42

HHague Convention for the

Unlawful Seizure ofAircraft (1970), 34

Haitiassertion of contiguous zone

authority, 467

prohibitions on passagethrough territorial waters,445–446, 465

refugees, 47–54Head of state immunity

from discovery process, 320–323in divorce action, 314–319executive branch authority to

determine, 316–319liability after change in status,

319suit by Libya against U.S. and

United Kingdom, 311–314Helsinki Conference Final Acts,

271, 273–274, 397HIV/AIDS, 18–20Honduras, settlement of

expropriation claimsagainst, 219–220

Human rightsabuse of alien domestic

workers employed bydiplomatic missions, 389

American Convention onHuman Rights, 165–168

American Declaration of theRights and Duties of Man,165–168

asylum and, 43Convention on the Elimination

of All Forms ofDiscrimination AgainstWomen, 168–171

Convention on the Rights ofthe Child, 171–176

European Human Rights con-vention, 148–149

extradition and, 81, 87freedom to exchange informa-

tion and ideas, 397immunity of UN special

rapporteur on, 353–370International Covenant on Civil

and Political Rights, 397investigations of violations in

Cambodia, 124–125


1998_book 5/31/03 10:43 PM Page 602

of migrant workers, 194–195in Panama, 561Torture Convention, 176–191Universal Declaration on

Human Rights, 174, 191,397, 400

U.S. foreign assistance and,157, 540, 545

Hungary, 277–278economic assistance programs,

542–543lifting of sanctions against,

517–518tourism agreement, 499

IImmigration Act (1990)

exclusion of aliens under, 32anti-terrorism provisions,

33–34foreign policy grounds, 34–37health-related grounds, 20membership in totalitarian

party, 37–39requirements to review

exclusion lists, 39technology transfer provi-

sions, 33naturalization of Philippine

veterans, 12–13Presidential signing statement,

30–32temporary protected status

under, 32, 39–40, 41Immigration and Nationality Act,

4, 331as amended by Immigration

Act (1990), 30–40on citizenship claims of “imme-

diate relatives,” 10, 11–12

exclusion of aliens with conta-gious diseases, 18, 20

international adoption, visasfor, 69–70

requirements for retention ofcitizenship, 6

visa denial for terrorist activity,21

visa waiver pilot program,26–27

Immigration and visasadoption of foreign child by

U.S. citizen, visa for,67–68, 69–70

Convention on the Protectionof the Rights of All MigrantWorkers and Members ofTheir Families, 194–195

deferred enforced departure ofChinese nationals, 54–57

economic needs of U.S., 30–31evidentiary standards in visa

determinations, 23–24,25–26

exclusion of aliens with conta-gious diseases, 18

AIDS/HIV, 18–20family reunification visas, 30Immigration Reform and

Control Act, 26–27,28–30, 31, 385

non-reviewability of consulardeterminations, 22–23, 25

nonimmigrant visa waiver pilotprogram, 26–27

parentage blood testing toestablish entitlement to sta-tus, 2–3

revocation of visa of diplomaticand consular personnel,328–329, 331

right to free association and,21, 25

rights of migrant workers,194–195

status of A/G visa holders,28–30

temporary protected status, 32,39–40, 41

Index 603

1998_book 5/31/03 10:43 PM Page 603

Immigration and visas (continued)visa denial for terrorist activity,

21–26, 33–34visa lottery, 40See also Immigration Act

(1990); Immigration andNationality Act

Immigration Reform and ControlAct, 26–27, 31, 385

A/G visa holders, 28–30,385–387

Immunityadministrative and technical

staff, 323–324, 338–339consular

for consular functions,348–352

immunity in criminal case,339–352

inviolability and, 351reciprocity between nations,

340–342diplomatic

abuses of, 324–331compensation for victims of

crime committed by diplo-matic personnel, 332–337

identification of diplomaticpersonnel, 323–324, 326

members of family of diplo-matic personnel, 329–330

U.S. request for extraditionof Nicaraguan diplomatfrom Japan, 77–78

waiver in criminal case,338–339

under Geneva ConventionRelative to the Protectionof Prisoners of War, 563

head of statedivorce action, 314–319effects of change in status,

319executive branch authority to

determine, 316–319

suit by Libya, 311–314sovereign

accession to internationalagreements as waiver of,311–312

civil cause of action for terrorist acts committedabroad, 115–117, 118–119

claims related to downing ofIran Air Flight 655, 212,215–216

claims related to employmentin diplomatic missions, 391

commercial claims exception,291–294, 295–296, 389, 391

in execution against propertyof foreign state, 296–302

of governments, 291–294, 496of individuals sued in their

official capacity, 302–311international agreements as

waiver of, 283–286International Convention for

the Unification of CertainRules Regarding theImmunity of State OwnedVessels, 292

non-appearance in court aswaiver of, 281–283

non-commercial tort excep-tion, 309–310

separateness of state instru-mentalities, 306–308

service of process in suitsinvolving, 295

takings exception, 308-310U.S. policy on litigation

arising against it abroad,294–295

USSR claims of, inWallenberg case, 277–291

See also Foreign SovereignImmunities Act

for United Nations SpecialRapporteur, 353–370


1998_book 5/31/03 10:43 PM Page 604

Indiaagreement with U.S. for

avoidance of double taxation, 411–414

U.S. defense relationship, 151,153

Indonesia, claims for archipelagicwaters, 472–475

Intellectual propertyregistration of audio-visual

works, 415–418See also Copyright law; Patent

lawInter-American Commission on

Human Rights, 167Inter-American Convention on

International CommercialArbitration (1990),501–502

Inter-American Court of HumanRights, interpretation ofAmerican Declaration ofthe Rights and Duties ofMan, 165–168

Inter-American Tropical TunaCommission, 485, 486

Intermediate Range NuclearForces Treaty (1987) (U.S.-USSR), 567,569–570, 572–574

International Civil AviationOrganization, 111,211–212, 214

International Claims SettlementAct, 238, 525

International Convention for theUnification of CertainRules Regarding theImmunity of State OwnedVessels (1926), 292

International Convention for theUnification of CertainRules with Respect toAssistance and Salvage atSea (1910), 427

International Convention onSalvage (1989), 427–429

International Court of Justicecase by U.S. against Italy for

interference with foreigninvestment, 418

claim of immunity for UnitedNations SpecialRapporteur, 353–370

claims against U.S. related todowning of Iran Air Flight655, 212, 214–215

initiative by U.S. for greateruse of, 207–209

jurisdiction, 114, 207–209,354–361

to provide advisory opinion,147–148

U.S. reservations to GenocideConvention and, 143–144

U.S. reservations to TortureConvention and, 183

over violations of Conventionon the Prevention andPunishment of the Crime ofGenocide, 121, 122–123

request regarding propertyrights in U.S., 243,250–251, 254, 264

International Covenant on Civiland Political Rights, 397

International Criminal Court,127–128, 133–136

International criminal tribunals,127

International EmergencyEconomic Powers Act, 372,419, 422, 512

International FinancialInstitutions Act, 515–516

International FrequencyRegistration Board

Cuba objection to U.S. broad-casts, 400–409

Index 605

1998_book 5/31/03 10:43 PM Page 605

International FrequencyRegistration Board (continued)

scope of essential duties,403–404, 405–406, 407–408

International LaborOrganization, 194–195

International Law Commission,127–128, 133–136

on reservations to treaties andobjections to reservations,147, 148

International MaritimeOrganization, 427

traffic separation scheme,470–471

International Monetary FundCzechoslovakia and, 520Poland and, 518–519

International organizationsemployment of dependents of

personnel of, 385–387reservations to treaties creating,

149sovereignty of state over own

nationals employed by,363–364

See also specific organizationInternational Security and

Development CooperationAct (1981), 540

InternationalTelecommunicationsConvention, 398–399, 401,403–404

InternationalTelecommunicationsUnion, 399–409

International Traffic in ArmsRegulations, 109

Inviolability of consular personnel, 351

Iranclaims related to downing of

Iran Air Flight 655, 211–217


Iran-United States ClaimsTribunal

government-to-governmentclaims, 222–223

Foreign Military Sales claim,223–228, 236

valuation of Iranian properties in U.S.,224–226, 227–228

Security Account claims,228–229

small claims settlement,230–237

status of claims, 220–223U.S. view of Iranian claims,

229–230Iraq, claims related to attack on

U.S.S. Stark, 217–219Ireland



Israel, 95extradition request to U.S.

exception for politicalcrimes, 79–80

rule of non-inquiry in,80–88

Treaty and Protocol withEgypt, 206–207


U.S. policy on status ofJerusalem, 264–268

Italyexecution against property of

foreign state, 296–302International Court of Justice

case against, for interfer-ence with foreign invest-ment, 418


1998_book 5/31/03 10:43 PM Page 606



request for transfer of terroristprisoner, 72–76

JJapan


Space StationIntergovernmentalAgreement, 482

U.S. request for extradition ofNicaraguan diplomat from,77–78

Jerusalem, status of, 264–268Judicial assistance, U.S.-USSR

memorandum of under-standing on Nazi war criminals, 99–100

Judicial procedureaccess of foreign nationals to

U.S. courts, 242–243,247–248

execution against property offoreign state, 298

rule of non-inquiry in extradi-tion request, 80–88

See also EvidenceJurisdiction

Alien Tort Claims Act, 281of Brazilian courts over U.S.

warship in territorialwaters of Brazil, 476–477

claims related to employmentby diplomatic missions, 389

Convention on the Preventionand Punishment of theCrime of Genocide (1989),125–126

in exclusive economic zone,463–464

scientific research rules,478–480

failure to contest in court aswaiver of immunity, 281–283

Inter-American Court ofHuman Rights, 165–168

International Court of Justice,114, 122–123, 143–144,147–148, 183, 207–209,243, 250–251, 354–361

International FrequencyRegistration Board,403–404, 405–406

interpretation of AmericanDeclaration of the Rightsand Duties of Man,165–168

investigation of maritime accidents in internationalwaters, 447–448

location and construction ofdiplomatic missions inU.S., 377–381

maritime interdiction in inter-national waters, 448–449

over flagged vessels, 454–455prisoners of war charged with

violation of U.S. law, 564right of private action in U.S.

courts for acts of torture inforeign countries, 191–194

U.S.-USSR maritime boundaryagreement, 434, 435–436

See also Foreign SovereignImmunities Act

KKenya, U.S. defense relationship,

151

LLabor issues

abuse of alien domestic work-ers employed by diplomaticmissions, 389

Index 607

1998_book 5/31/03 10:43 PM Page 607

Labor issues (continued)applicability of U.S. labor laws

to foreign missions in U.S.,388–390

applicability of worker com-pensation plans to employ-ees of consulates, 390–393

under Comprehensive Anti-Apartheid Act, 523

discrimination against womenof childbearing years, 171

employment of dependents ofdiplomatic personnel,385–387

employment of foreign nation-als by U.S. diplomatic mis-sions, 390

employment of U.S. citizens byforeign diplomatic mis-sions, 388–389

household servants of foreigndiplomats in U.S., 389–390

protection of migrant workers,194–195

Latviadiplomatic relations with U.S.,

242non-recognition of incorpora-

tion by USSR, 272, 274Law enforcement

applicability of U.S. law toactions taken abroad,100–107, 109

Convention Against IllicitTraffic in Narcotic Drugsand PsychotropicSubstances, 128–133

Convention on MutualAdministrative Assistancein Tax Matters, 410–411

extraterritorial arrests, 91–98immunity of diplomatic

personnel, 326–327maritime interdiction rules,

448–456

in territorial sea contiguouszone, 465–466

U.S.-Canada fisheries enforce-ment agreement, 488–489

use of torture and, 181–182Lebanon, request for U.S. protec-

tion of Lebanese embassyin U.S., 243–264

Liberia, jurisdiction over investi-gation of maritime acci-dents in internationalwaters, 447–448

Libyaclaims against U.S. and United

Kingdom officials forairstrikes against, 311–314


U.S. response to terrorist attackby, 95

Limited Test Ban Treaty (1963)(U.S.-USSR), 567, 571, 574

Lithuaniadiplomatic relations with U.S.,

242non-recognition of incorpora-

tion by USSR, 271–275

MMagnuson Fisheries

Conservation andManagement Act (1976),161–163, 488, 489

Maldives, U.S. diplomatic relations with, 241

MAMCO Manufacturing case,418–424

Maritime operationsadvance notice of passage,

440–447contiguous zone, 465–470Convention for the Suppression

of Unlawful Acts Against


1998_book 5/31/03 10:43 PM Page 608

the Safety of MaritimeNavigation, 34, 110, 111–114

Cuban traffic separation andship reporting system,470–471

exclusive economic zone, 451,463–465, 478–479

flag state responsibility forsafety of vessels, 456–459

high seas, 451, 452–459,468–469, 492

interdiction on, 448–450,452–456, 468–470

investigation of maritime accidents in internationalwaters, 447–448

order of departure for U.S.warship in Brazilian terri-torial waters, 476–477

patrimonial sea concept, 451pollution, 489–490, 491–496rights of innocent passage,

437–440, 442, 444–447,468, 471

in archipelagic waters, 472–476U.S.-USSR agreement on,

437–440salvage at sea, 427–429

U.S. claims to sunken ship interritorial waters of France,429–434

search and rescue operations,480

South Pacific regional environmental convention,491–497

territorial sea limits, 444, 445,450, 451

drawing of baselines,459–462

scientific research in territo-rial seas, 477–480

transport of hazardous materi-als, 445–446, 492–493,494, 495–496

U.S.-USSR agreement on pollu-tion in Bering and ChukchiSeas, 489–490

U.S.-USSR maritime boundaryagreement, 434–437

See also Convention on theLaw of the Seas (1982);Fisheries management

Marshall Islands, 161diplomatic relations with U.S.,

268–271South Pacific regional environ-

mental convention, 491Mauritania, territorial sea

baselines, 461Memorandum of Agreement

Regarding InternationalTrade in CommercialLaunch Services (1989)(U.S.-China), 481

Mexicoadmissibility of evidence

obtained in, in U.S. court,100–107

Agreement on Maritime Searchand Rescue, 480


Micronesia, 161diplomatic relations with U.S.,

268–271South Pacific regional environ-

mental convention, 491Military issues

accidental conflict, U.S.-USSRagreement on preventionof, 549–551

assassination and, 565downing of Iran Air Flight 655,

212–217immunity of heads of state,

311–314innocent passage of warships,

439–440, 444–445

Index 609

1998_book 5/31/03 10:43 PM Page 609

Military issues (continued)interdiction of ships on high

seas, 451–452, 468–469missile attack on USS Stark,

217–219order of departure for U.S.

warship in Brazil, 476–477U.S. action in Panama, 552–565U.S.-USSR agreement on

advance notification ofstrategic exercises, 566

use of lasers, 550Military personnel

discrimination against women,170

in Multinational Force andObservers, 206–207

Military property, immunity fromattachment or execution, 299

Missile Technology ControlRegime, 503–508

Montreal Convention. SeeConvention for theSuppression of UnlawfulActs Against the Safety ofCivil Aviation (1971)

Most-favored-nation clause inconsular convention, 339,340–348

Mutual legal assistancebank secrecy and, 131Convention Against Illicit

Traffic in Narcotic Drugsand PsychotropicSubstances, 129, 130–131

as potential threat to ongoinginvestigation, 132

in tax matters, 410–411U.S.-USSR memorandum of

understanding on Nazi warcriminals, 99–100

NNamibia

control over exclusive economic zone, 470

lifting of sanctions, 522–524U.N. impartiality package,

200–201U.N. plan for independence for,

197–200U.S. support of U.N. peace-

keeping action, 201–203National Defense Authorization

Act (1989), 571, 575National Defense Authorization

Act (1990), 503National Emergencies Act, 512National Historic Preservation

Act, 377–379National security

exclusion of aliens for dangerto national security, 33, 40,46, 52

executive order on biochemicalweapons, 512–513

nonjudiciable mattersclaims related to downing of

Iran Air Flight 655, 213prohibition on foreign control

of U.S. company, 418–424prohibitions on use of appro-

priated funds for employ-ment of foreign nationalsby U.S. government,151–153

revocation of passport for reasons of, 13–17

Soviet violations of arms control agreements,575–576

territorial sea limits, 465–470Nationality

access by Vietnamese nationalto U.S. courts, 242–243

dual, 6loss of U.S., 406See also Citizenship

Naturalization. See CitizenshipNetherlands



1998_book 5/31/03 10:43 PM Page 610


warnings of hazardous naviga-tion by Dutch registeredvessels, 456–458

New Zealanddriftnet convention, 137–138South Pacific regional environ-

mental convention, 491Nicaragua

claims of property loss against,237–238

humanitarian assistance com-mitments, 156–160


North American RegionalBroadcasting Agreement, 400

North Koreadiplomatic relations with U.S.,

241territorial sea limits, 469

baselines, 462U.S. refusal to recognize, 462,

469Northern Mariana Islands

citizenship status of residents,9–12

political status, 161–164Norway, objections to U.S.

reservations to GenocideConvention, 144

OOman, contiguous zone author-

ity, 468–469Omnibus Diplomatic Security

and AntiTerrorism Act(1986), 93

Omnibus Export AmendmentsAct (1990), 508–512

Omnibus Trade andCompetitiveness Act(1988), 419

Organisation for Economic Co-operation andDevelopment

agreement on mutual assistancein tax matters, 410–411

Organization of American StatesAmerican Declaration of the

Rights and Duties of Man,165–168

Inter-American Convention onInternational CommercialArbitration, 501–502

U.S. military action in Panamaand, 554, 555, 556

Outer space lawcommercial launch service

agreement, U.S.-China, 481

U.S. patent law and, 481–483Outer Space Treaty and

Registration Convention,482–483

PPalestine, 203–205Panama

interdiction of Panamanian-flagged ship in interna-tional waters, 452–456

request for U.S. protection ofPanamanian embassy inU.S., 370–374

U.S. military action inauthorization, 552–554,

556–559cooperation of Panamanian

government in, 559–561justification, 552,

554–556status of prisoners of war,

561–564Panama Canal Treaty, 553, 554,

556–559Papua New Guinea, South Pacific

regional environmentalconvention, 491

Index 611

1998_book 5/31/03 10:43 PM Page 611

Passportsissued for purpose of compli-

ance with citizenship retention requirements, 8–9

reinstatement of passportrevoked for national security concerns, 13–17

Patent law, applicability to outerspace activities, 481–483

Persecutiondeferred forced departure of

Chinese nationals based onpossibility of, 54–57

participation in, as basis fordenial of asylum, 46

as requirement for asylum,41–42, 45–46

Philippine PresidentialCommission on GoodGovernment, 302, 305

Philippineshead of state immunity from

depositions, 320–323immunity of officials of, under

FSIA, 302–311naturalization of World War II

veterans, 12–13prohibition on departure of

wife of former presidentMarcos from U.S. to, 60–62

prohibition on transport offormer president Marcosto, 57–59

reciprocity in consular rela-tions, 344


Piracy, 112Polanddonation of U.S. agricultural

commodities and funds,546–547

economic assistance programs,542–543

lifting of sanctions against,518–519

Political crimes, refusal of extradition for, 79–80

Prisoner transferConvention on the Transfer of

Sentenced Persons, 72request for transfer of terrorist,

72–76Prisoners of war taken in U.S.

military action in Panama,Geneva Convention and,561–564

Privacy rightsconfidentiality in asylum

application process, 46–47international agreement to

prosecute narcotraffickingand, 131–132

Private international law, Inter-American arbitrationconvention, 501

Property rightsbelligerent occupation, 267–268immunity of state-owned

property, 296–302of state vs. government,

255–257See also Intellectual property

Protocol and Treaty betweenEgypt and Israel (1981),206–207

Protocol for the Suppression ofUnlawful Acts Against theSafety of Fixed PlatformsLocated on the ContinentalShelf (1988), 110,111–114

Protocol for the Suppression ofUnlawful Acts of Violenceat Airports ServingInternational Aviation(1988), 34, 110–111

Protocol of Geneva (1988), 197,199–200


1998_book 5/31/03 10:43 PM Page 612

Protocol Relating to the Status ofRefuges (1967), 47, 49n

Public healthexclusion of aliens with

HIV/AIDS, 18–20workplace discrimination and,

171Public Vessels Act, 215–217

RRacketeer Influenced and Corrupt

Organization Act, 73Radio Broadcasting to Cuba Act

(1983), 396Radio Regulations of the

InternationalTelecommunicationsUnion, 398–399, 400, 401,402–403, 408–409

Reciprocityaccess to courts by foreign

national, 215–216consular and diplomatic

relations, 340immunity of foreign govern-

ment-owned property, 296,299–300, 302

implications of unconsentedextraterritorial arrest and,98

implications of U.S. civil causeof action against foreignstates for terrorist acts, 116

most-favored-nation treatment,340, 341, 342, 343–346

protection of diplomatic mis-sions, 249, 250, 254

tax exemption for diplomaticand consular personnel, 383

treaty reservation and, 185visa waiver pilot program, 27See also Comity

Recognition of foreign govern-ment by President,244–246

effect of non-recognition,247–248

not judicially reviewable, 264Refugee Act (1980), 42–43Refugees

Convention and ProtocolRelating to the Status ofRefugees, 49–51, 49n

customary international law,47–48, 49n

Haitian, 47–54non-refoulement, 49–53temporary refuge for, 53See also Asylum

Region 2 MF BroadcastingAgreement, 400

Religious freedom, Conventionon the Rights of the Childon, 173–174

Remediescivil judgments in terrorism

cases, 115claims related to attack on

U.S.S. Stark, 217–219compensation for victims of

crime committed by diplo-matic personnel, 332–337

injuries to members ofMultinational Force andObservers, 206–207

U.S. dispute with Chile relatedto murder of Chileanambassador in U.S.,537–539, 541

Romaniaadvance approval requirements

for innocent passage throughterritorial waters, 445

exclusive economic zone rights,464–465

immunity for United NationsSpecial Rapporteur,353–370

Rules of Civil Procedure andEvidence, 25–26

Index 613

1998_book 5/31/03 10:43 PM Page 613

SSanctions

biological and chemicalweapons control, 514–515

xecutive order for, 509–510,512–516

veto of legislation, 508–509for frivolous filings against

foreign government,313–314

lifting offrom former Communist bloc

countries, 517–522Namibia, 522–524from Panama, 553

in U.S. Missile TechnologyControl Regime, 503–508

Service of process for suitsinvolving diplomatic missions, 295

Solomon Islands, South Pacificregional environmentalconvention, 491

South Africa, 197, 198, 199Comprehensive Anti-Apartheid

Act, 522–523Sovereignty

Commonwealth of NorthernMariana Islands, 162

exclusive economic zone rights,463–464

international broadcast rightsand, 407

during political transition inCambodia, 529, 530–531,535

property rights of state vs.government, 255–257

of state over own nationalsemployed by internationalorganizations, 363–364

territorial integrity and, 93–95U.S. military action in Panama

and, 560, 561U.S. reservation to Genocide

Convention, 184

U.S. reservation to TortureConvention, 183–186

Space Station IntergovernmentalAgreement, 482

Spainconsular agent, 63–64tax agreement with U.S., 415

State Department BasicAuthorities Act, 64, 66

States of U.S., legal authorityclaims related to employment

by diplomatic missions,389, 390–393

compensation for victims ofcrime committed by diplomatic personnel,332–338

national treaty obligations and,169–170

tax exemptions for diplomaticmissions and personnel, 384

Sudanadvance permission require-

ments for innocent passagethrough territorial waters,442

territorial sea baselines, 460–461territorial sea contiguous zone,

465–466Supplemental Appropriations Act

(1987), 18, 219Support for East European

Democracy Act (1989),541–544

Surrogate parentage, citizenshipclaims and, 13

Swedennonimmigrant visa waiver pilot

program, 27objections to U.S. reservations

to Genocide Convention,144

proposed purchase of propertyin U.S., 377–379

reciprocity in consular rela-tions, 346


1998_book 5/31/03 10:43 PM Page 614

warnings of hazardous naviga-tion by vessels registeredin, 458–459

Switzerlandmost-favored-nation status,

341–342nonimmigrant visa waiver pilot

program, 27Syria

contiguous zone authority, 467reservations to Vienna

Convention on the Law ofTreaties, 149

TTakings exception to sovereign

immunity, 308–310Tax exemptions for diplomatic

and consular personnelemployment taxes, 388–389,

391–392gasoline tax, 381–383reciprocity in, 345, 346utility tax, 383–385

Taxationagreements for the avoidance

of double taxation,411–415

Convention on MutualAdministrative Assistancein Tax Matters, 410–411

mutual assistance treaty,410–411

royalties income, 412–413treaty shopping, 414

Technology transferbiological and chemical

weapons controls, 513–514Immigration Act (1990) provi-

sions, 33U.S. Missile Technology

Control Regime, 507Telecommunications

broadcast interference,398–399, 400–401,402–403, 405, 406–407

satellite launch service agree-ment, 481

U.S. broadcasts to Cuba,396–399, 409

Cuban objections to,399–409

Television Broadcasting to CubaAct (1990), 396–399

TerrorismAnti-Terrorism and Arms

Export Amendments Act(1989), 108–109

Convention Against the Takingof Hostages, 34

Convention for the Suppressionof Unlawful Acts Againstthe Safety of CivilAviation, 34

Convention for the Suppressionof Unlawful Acts Againstthe Safety of MaritimeNavigation and RelatedProtocol, 34, 111–114

Convention for the UnlawfulSeizure of Aircraft, 34

Convention on the Preventionand Punishment of CrimesAgainst InternationallyProtected Persons IncludingDiplomatic Agents, 34

definitions, 33–34, 113, 117dissemination of government

warnings to all Americans,64–65

exclusion of aliens underImmigration Act, 33–34

list of countries supporting terrorism, 108

prospects for international con-vention on civil redress for,117–118

Protocol for the Suppression ofUnlawful Acts of Violenceat Airports ServingInternational Aviation, 34,110–111

Index 615

1998_book 5/31/03 10:43 PM Page 615

Terrorism (continued)request for transfer of terrorist

prisoner, 72–76right of self-defense against,

94, 95–96state-sponsored, 113U.S. civil cause of action for

terrorist acts committedabroad, 114–119

visa denial for terrorist activity,21–26

Thailand, reciprocity in consularrelations, 346

Threshold Test Ban Treaty (1974)(U.S.-USSR), 567, 571

Tort law, exceptions to sovereignimmunity, 309–310, 333

Torturedefinition, 179–181, 188lawful sanctions, 181–182, 188right of private action for acts

in foreign countries, 191–194Torture Victim Protection Act

(1989), 190–194See also Convention against

Torture and Other Cruel,Inhuman or DegradingTreatment or Punishment(1987)

Torture Victim Protection Act(1989), 190–194

Tourism agreement, U.S.-Hungary,499

Tradeagreement on mutual assistance

in tax matters, 410–411anti-terrorism legislation, 108most-favored-nation treatment,

340–341requirements on commercial

carriers in ConventionAgainst Illicit Traffic inNarcotic Drugs andPsychotropic Substances,129–130

sanction provisions of U.S.Missile Technology ControlRegime, 503–508

tourism agreement, 499See also Arms trade

Trade Act (1988), 423Travel restrictions, on U.N.

Special Rapporteur byRomanian government,366–367

Treasury, Postal Service, andGeneral Government Appro-priations Act (1989), 151

Treatiesexceptions to use of appropri-

ated funds for employmentof foreign nationals by U.S.government and, 151–153

obligations of individual U.S.states, 169–170

practice regarding full powers,142–143

private rights and, 347–348reservations practice, 143–150retroactive application,

presumption against, 122role of commonwealths and

territories, 163waiver of sovereign immunity

under FSIA and, 283–286,311–312

See also Vienna Convention onthe Law of Treaties; spe-cific treaty

Treaty for the Peaceful Settlementof Disputes that MayOccur Between the UnitedStates and Chile (1914),537–541

Treaty of Friendship, Commerce,and Navigation (1965)(Italy-U.S.), 418

Treaty on Conventional ArmedForces in Europe (1990),578–579


1998_book 5/31/03 10:43 PM Page 616

Treaty on the Final Settlementwith Respect to Germany,138–142, 274, 395

Treaty on the InternationalRegistration of AudiovisualWorks (1990), 415–418

Treaty on the Law ofInternational CommercialNavigation, 292

Treaty on the Reduction andLimitation of StrategicOffensive Weapons (1989)(U.S.-USSR), 565, 566

Trust Territory of the PacificIslands, 9, 161

Tunisiareservations to Vienna

Convention on the Law ofTreaties, 150

tax agreement with U.S., 415Turkey, zoning restriction on U.S.

chancery, 379–381

UUniform Interpretation of the

Rules for InternationalLaw Governing InnocentPassage (1989) (U.S.-USSR), 437–440, 446

Union of Soviet SocialistRepublics, 247

agreement on advance notifica-tion of strategic exercises,566

agreement on pollution inBering and Chukchi Seas,489–490

agreement on prevention ofaccidental conflict,549–551

agreement on trial verificationand stability measures,565–566

Bering Sea fisheries conserva-tion agreement, 487–488

compliance with arms controlagreements, 566–576

maritime boundary agreement,434–437

memorandum of understandingon Nazi war criminals withU.S., 99–100

sovereign immunity claims inWallenberg case, 277–291

status before 1933, 247status of Baltic states,

272–273, 274, 275U.S.-USSR agreement on rights

of innocent passage,437–440, 446

United Kingdomnonimmigrant visa waiver pilot

program, 27objections to U.S. reservations

to Genocide Convention,145–150

suit by Libya against U.S. and,311–314

United NationsCharter, 354, 355, 356, 357,

358, 360–361, 407, 576,578

justification for U.S. militaryaction in Panama under,554, 560–561

Commission on Human Rights,124–125

conflict resolution and transition management inCambodia, 528–531,532–533, 535–537

Declaration on TerritorialAsylum, 52

experts on missions, 366, 367,368–370

General Assembly Resolutions:89, 354, 356

34/180, 168–16939/46, 176–17744/25, 176

Index 617

1998_book 5/31/03 10:43 PM Page 617

United Nations (continued)44/26, 425–42745/158, 194High Commissioner for

Refugees, 46–47immunity

for employees, 351for Special Rapporteur,

353–370peacekeeping actions, 201–203Plan for Namibian

Independence, 197–201request for advisory opinion

from International Courtof Justice

by ECOSOC, 353–370by General Assembly, 354–355

Security Council Resolutions:435, 197, 198, 200, 632,198, 200–201, 668, 535,683, 161

status of Palestine LiberationOrganization, 203–205

Transitional Authority inCambodia, 530, 531,532–533

Universal Declaration on HumanRights, 174

on free flow of informationand ideas, 397, 400

Uruguay, immunity of naval vessel involved in commer-cial activity, 291–294

U.S.-Canada Treaty onExtradition, 78

U.S.-Israel Extradition Treaty, 79U.S.-Japan Extradition Treaty, 78

VVenezuela, territorial sea contigu-

ous zone, 466–467Victim assistance, compensation

for victims of crime com-mitted by diplomatic per-sonnel, 332–337

Victims of Crime Act (1984), 334Vienna Convention on Consular

Relations, 169Article 5, 348, 349Article 41, 351–352Article 43, 348Article 49, 384, 385Article 55, 391Article 72, 340, 382bilateral MFN clause and, 344,

346concept of “grave crime” in,

339, 351–352immunity provisions, 339,

348–349, 350–352reciprocity, 340tax exemption provisions,

382–383, 384–385Vienna Convention on Diplomatic

Relations, 77, 324Article 10, 248Article 21, 269Article 22, 249–250Article 27, 269Article 31, 338Article 33, 388Article 34, 382, 384, 385, 388Article 37, 338, 388Article 41, 391Article 47, 340, 383immunity under FSIA and,

283–284, 287inviolability of diplomatic

premises, 248-249Marshall Islands-U.S. agree-

ment, 268–271Micronesia-U.S. agreement,

268–271on protection of diplomatic

missions, 249–250, 254,264

reciprocity provisions, 340recognition of foreign govern-

ment representatives,248–249


1998_book 5/31/03 10:43 PM Page 618

tax exemption provisions,382–383, 384, 385, 388

Vienna Convention on the Lawof Treaties, 122

Article 19, 148–149Article 20, 149Article 28, 122“full powers” provisions, 142on reservations to treaties and

objections to reservations,145, 147, 148–149

Vietnamaccess by Vietnamese national

to U.S. courts, 242–243Cambodia issues, 526, 527,

534diplomatic relations with U.S.,

241disposition of blocked assets,

525–526normalization of relations with

U.S., 526, 527

WWar crimes

international criminal tribunalfor, 119–128

U.S.-USSR memorandum ofunderstanding on Nazi warcriminals, 99–100

Warrant, Constitutional require-ment for, in search for evi-dence abroad, 100–107

Weapons of mass destructionU.S. Missile Technology

Control Regime, 503–508See also Biochemical weapons

Western Samoa, South Pacificregional environmentalconvention, 491

Women’s rightsanti-discrimination convention,

168–171Convention on the Elimination

of All Forms ofDiscrimination AgainstWomen, 168–171

in employment, 170–171military policies and, 170

World BankCzechoslovakia and, 520Poland and, 518–519

World Health Organization, sta-tus of Palestine LiberationOrganization, 203, 204

World Intellectual PropertyOrganization, 416

World War IIU.S.-German treaty on final

settlement, 138–142Wallenberg case, 277–291

World War II Nazi war criminals,99–100

World War II veterans ofPhilippines, 12–13

YYugoslavia

advance notice requirementsfor passage through territo-rial waters, 446–447

immunity of consular personnelfrom criminal prosecution,339–352

Index 619

1998_book 5/31/03 10:43 PM Page 619