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Chapter 1 INTERNATIONAL LAW IN GENERAL § 1 Nature, Basis, Purpose § 2

Sources
Relation to Municipal Law

Sovereign Immunity President Gerald R. Ford, upon signing the Foreign Sovereign Immunities Act of 1976 (Public Law 94-583; 90 Stat. 2891; 28 U.S.C. 1602 et. seq.) on October 21, 1976, noted that it carried forward an enlightened trend in international law. He stated:

This legislation, proposed by my Administration, continues the longstanding commitment of the United States to seek a stable international order under the law.

It has often been said that the development of an international legal order occurs only through small but carefully considered steps. The Foreign Sovereign Immunities Act of 1976, which I sign today, is such a step.

This legislation will enable American citizens and foreign governments alike to ascertain when a foreign state can be sued in our courts. In this modern world where private citizens increasingly come into contact with foreign government activities, it is important to know when the courts are available to redress legal grievances.

This statute will also make it easier for our citizens and foreign governments to turn to the_courts to resolve ordinary legal disputes. In this respect, the Foreign Sovereign Immunities Act carries forward a modern and enlightened trend in international law. And it makes this development in the law available to all American citizens. Dept. of State Bulletin, Vol. LXXV, No. 1952, Nov. 22, 1976, pp. 648-649.

The Foreign Sovereign Immunities Act contains the following findings and congressional declaration of purpose:

The Congress finds that the determination by United States courts of the claims of foreign states to immunity, from the jurisdiction of such courts would serve the interests of justice and would protect the rights of both foreign states and litigants in United States courts. Under international law, states are not immune from the jurisdiction of foreign courts insofar as their commercial activities are concerned, and their commercial property may be levied upon for the satisfaction of judgments rendered against them in connection with their commercial activities. Claims of foreign states to immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles set forth in this chapter.

For a discussion of the Foreign Sovereign Immunities Act, its purposes and effects, see post, Ch. 6, § 7, pp. 320-328.

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Julia Willis, attorney-adviser in the Office of the Legal Adviser, Department of State, wrote a memorandum dated February 20, 1976, on the principle of international law that no state may intervene in the affairs of another state. While noting that the general principle remains unimpaired and undisputed, she addressed the issue of the extent to which the principle has been refined through contemporary international law and practice, and how the principle as thus refined could be applied to a situation such as obtained in Angola where there was, at the time, a state but no established government.

With respect to Angola, Ms. Willis outlined the facts regarding foreign intervention and concluded:

In the situation in Angola, where there is total absence of an established government, and factions are striving for control of the people and territory as well as recognition of legitimacy from the outside world, foreign intervention in terms of troops, supply of arms, military equipment, and financing of the military action as assistance to any faction would appear to violate the heart of the legal rationale of the nonintervention principle-to prohibit interference that would prejudice the outcome of the internal struggle. If, however, the purpose of foreign intervention in such a situation is to counter the prior intervention of a foreign state by balancing the factional strengths, as the United States has done in Angola by supplying funds, then there is a measure of consonance with the legal rationale behind the principle of nonintervention.

While traditional and contemporary international law sanctions assistance by a foreign state to counter the aggression of another foreign state in the internal conflict of a third state where there is an established government to request such foreign assistance, neither traditional nor contemporary international law addresses the same situation where there is an absence of a government. Yet it is with respect to the former situation the independence and

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security of the state which international law sanctions defending. It is an anomaly that in the present state of its development, international law does not sanction the same defense of the independence and security of the state in the absence of an established government. United States counterassistance to a contending faction under the present circumstances in Angola, justifiable for reasons of foreign policy, exposes a lacuna in the law.

In a section of the memorandum on the development and refinement of contemporary international law regarding nonintervention, Ms. Willis discussed the elaboration of the nonintervention principle in the U.N. Charter (article 2, paragraphs 3 and 4), the Charter of the Organization of American States (article 18), the Friendly Relations Declaration of 1970, and the Report of the Secretary-General of the United Nations in 1952 on the Question of Defining Aggression (U.N. Doc. A/2211, October 3, 1952). Her conclusions on contemporary law on nonintervention and the U.S. position that emerges from U.S. participation in the development and refinement of the principle follow:

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From this review of contemporary international law on the subject of intervention in situations of civil strife, it is evident that short of specifying each and every interventionary action-a danger intentionally avoided in legal drafting-the broadest and most comprehensive prohibition of interventionary activity was formulated. The prohibitory language, based on a text that is treaty law in the Western Hemisphere including the United States, that covers interventionary acts other than armed intervention, is “all other forms of interference or attempted threats against the personality of the state or against its political, economic and cultural elements.” There is also a blanket prohibition with regard to civil strife: “No state shall . . . interfere in civil strife in another state." In both texts, the words "interference" and "interfere” are key to the application of the prohibition to given circumstances; yet they are not further defined. Arguably, the words "interference" and "interfere" render the text vague, although as a general prohibition, the text could probably not be stated more comprehensively. The comprehensive language, however, begs the basic questions that arise when the formulation is applied, i.e., is indirect financing by way of a government that is supplying arms to a faction involved in civil strife interference? Is the cut-off of a traditional supply of arms to a country interference?

In the context of the prohibition against the threat or use of force, however, the language is more specific. Interventionary activity, involving the threat or use of force, that is prohibited specifically is: "organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another state.” Specifically, with regard to the threat or use of force in a situation of civil strife, the prohibition extends to “organizing, instigating, assisting, or participating in acts of civil strife" as well as "acquiescing in organized activities within its territory directed toward the commission of such acts."

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