It is quite clear from the above-mentioned decisions that the President and the Secretary of State have the responsibility to determine the means and the method under which the foreign relations objectives of the Government of the United States are conducted and settled. Such functions are discretionary in nature. In this connection any claims under the Act based on the exercise or performance, or the failure to exercise or perform, a discretionary function or duty on the part of a Federal agency or an employee of the Government, whether or not it is abused is excepted from coverage under the provisions of the Act. (28 U.S.C. 2680). The United States Court of Appeals for the Fifth Circuit stated as follows in the case of Four Star Aviation, Inc. v. United States of America:

Such decisions would have involved the exercise of judgment and discretion with respect to a matter involving our international relations and affecting our foreign policy and the Federal Tort Claims Act would not have applied thereto. (409 F.2d 292, 295 (1969)).

In the circumstances the claims for compensation under the Federal Tort Claims Act of the 28 persons listed in the annex to this letter are denied.

No provision for suit in the Federal courts is made under the Act for claims arising in connection with the overseas operation of the Department of State. (22 C.F.R. 31.18). Provision for suit in the Federal courts has been made for claims arising in connection with the domestic operation of the Department of State. Such a suit must be filed in an appropriate United States District Court no later than six months after the date of mailing of this determination.

Dept. of State File No. P76 0085-478.

Timeliness of Assertion

In Kabua Kabua, et al. v. United States, 212 Ct. Cl., December 15, 1976, plaintiffs brought action to recover for an alleged uncompensated taking of Roi-Namur Island, a Micronesian island, part of the Marshalls, a component of the Trust Territory of the Pacific Islands administered by the United States under its Trusteeship Agreement with the United Nations (TIAS 1665; 61 Stat. 3301; 12 Bevans 951; entered into force July 18, 1947). The plaintiffs claimed to be indigenous landowners of Roi-Namur Island. Since 1960, the United States had been using Roi-Namur with the permission of the Trust Territory Government, which consented to U.S. temporary occupancy in consideration of payment of $80,000. No Marshallese person was allowed to reside upon or use the island after 1960, when it became part of the Kwajalein Missile Range.

In 1962 and 1964 the Trust Territory Government published notice that Roi-Namur was considered public land owned by the Government, but invited the submission of any private claims. The plaintiffs filed claims in 1963 and 1964, and the Land Management Ad

ministrator determined that "Iroji" rights in the land were in the plaintiffs. There was no formal appeal of that determination, but the United States did not agree with it. After the determination the plaintiffs did not seek to eject the United States but only to obtain the compensation they contended was due them. They treated it entirely as a money claim and did not file suit in the U.S. Court of Claims until April 1975. The parties seemed to agree that the United States would pay something but were wide apart as to what payment would be fair and just.

The Court of Claims held that the suit was barred by the six-year statute of limitations, 28 U.S.C. 2501, which applies to all claims in that Court. It rejected plaintiffs' assertion that the Trusteeship Agreement supported their claim, noting that the agreement added nothing to the Court's jurisdiction, which does not include claims founded on treaties, 28 U.S.C. 1502. Even if it did, said the Court, the six-year period of limitations would still apply. The opinion stated, in part:

our jurisdiction is always strictly construed because it depends on the consent of the sovereign to be sued, and is not to be extended by implication. United States v. King, 395 U.S. 1 (1969); United States v. Testan, 424 U.S. 392 (1976). Here, as in the cases cited, our desire to be of service is countervailed by the limitations on our jurisdiction. It would appear, however, that the willingness of defendant to pay something here is possibly based as much on moral as on legal grounds. The former category does not weigh in this court, unless it is made a legal ground by statute. . . . In general, we think a tribunal like this is not likely to be able to come up with a morally satisfactory resolution of a native or tribal claim, unless it has the support of special jurisdictional legislation comparable in its thrust to the Indian Claims Commission Act of 1946, 25 U.S.C. 70 and ff., which allows enforcement of specified kinds of moral claims . . .

*

Political Questions

The U.S. District Court for the District of Columbia, on February 2, 1976, granted a motion by the Government to dismiss the case of Leslie Logan and Dr. Stanley Logan v. Secretary of State et al., Civil Action No. 75-1519. Plaintiffs in the case were seeking to have their unsatisfied awards under the Czechoslovakian Claims Program satisfied from gold held and controlled in the Federal Reserve Bank in New York and the Bank of England in London by the three Governments comprising the Tripartite Commission for the Restitution of Monetary Gold (the United States, the United Kingdom, and France).

The District Court dismissed the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted, together with an executive suggestion of immunity filed by the United States on behalf of the other two Governments. See the 1975 Digest, pp. 345-346. The Court agreed with the Government that plaintiffs' suit was an unconsented suit against the United States and, further, presented only nonjusticiable, political questions.

The U.S. Court of Appeals for the District of Columbia affirmed the decision in a per curiam opinion of December 3, 1976, C.A.D.C. No. 76, 1139. Appellants in a class action on behalf of 2,623 U.S. citizens and five corporations whose property in Czechoslovakia had been nationalized without compensation by the Czechoslovakian Government following World War II and whose awards had been certified by the Foreign Claims Settlement Commission, sought a declaratory judgment establishing their entitlement to certain assets in which Czechoslovakia had an interest. The Court of Appeals granted the Government's motion for expedition of the appeal, reciting diplomatic reasons.

The opinion of the Appeals Court stated, in part:

We are satisfied that the question presented by appellants is clearly one that must be addressed to the political branch of the government, and that is where relief must be sought. Questions in which foreign governments are interested are typically nonjusticiable in domestic courts of the United States unless first agreements have been reached or statutes passed, and second, these are of such a nature as to confer rights on private persons that are contemplated for judicial enforcement.

Plaintiff-appellants complain that unless the courts grant relief they are without remedy. Perhaps we can do no better than refer to some observations in Nielsen v. Secretary of Treasury, 137 U.S. App. D.C. 345, 424 F.2d 833 (1970). There we rejected a much stronger claim for relief, that pressed by Cuban refugees complaining that blocking regulations had the effect of depriving them of assets in the United States in which they had beneficial (derivative) rights. The Court recognized that men live in a shorter run than governments, and international arrangements are often agonizingly protracted. Yet they are part of the path of the law, and often its best hope.

In a footnote, the Court quoted the following observation from Nielsen, supra:

An important, if not the dominant, star for guiding national actions and reactions is the desire to build future areas of settlement and good will between nations to replace present areas of tension.

.. [The] prospect or at least possibility of international settlement and agreement cannot be dismissed by the courts as a nullity, or declared an inadmissible or unavailable aspect of America's foreign policy program.

We also are aware that men live in a shorter run than the government, and that what may be considered only a temporary freeze by a government may be a permanent denial to the individual whose life comes to an end while the government ponders its course.

While international affairs may move at a pace of bewildering rapidity, often negotiation is conducted with persistence and patience at snail's pace. Negotiation may be deferred while relationships are left to simmer without stirring, in order to strengthen any possible threads of international accord or reconciliation.

82

Substantive Bases for International
Claims

Nuclear Incidents

The United States and Spain exchanged notes on January 24, 1976, in connection with the signature that day of the U.S.-Spain Treaty of Friendship and Cooperation (TIAS 8360; 27 UST; entered into force September 21, 1976), which contained U.S. assurances to Spain on settlement of damage claims which might result from nuclear incidents involving a U.S. nuclear powered warship reactor. The assurances were based on Public Law 93-513 (88 Stat. 1610; 42 U.S.C. 2211), approved December 6, 1974. The U.S. note gave the following additional assurances:

While the foregoing law applies only to claims arising from nuclear incidents involving the nuclear reactor of a United States nuclear powered warship, the Government of the United States of America gives its further assurances that it will endeavor, should the need arise, to seek legislative authority to settle in a similar manner claims for bodily injury, death or damages to or loss of real or personal property proven to have resulted from a nuclear incident involving any other United States nuclear component giving rise to such claims within Spanish territory.

Additionally, I am pleased to note that in any situation described above, the Spanish Government could use the provisions of Article XXVII of the Agreement in Implementation and that the United States would be prepared to waive the provisions of Article XXV of that Agreement.

The exchange of notes on nuclear damage claims was among those included in the Senate resolution of advice and consent to the U.S.-Spain Treaty of Friendship and Cooperation and in the President's ratification thereof. The Agreement on Implementation referred to in the U.S. note quoted above was signed at Madrid on Jan. 31, 1976 (TIAS 8361; 27 UST; entered into force Sept. 21, 1976).

On June 1, 1976, President Ford issued Executive Order 11918, entitled "Compensation for Damages Involving Nuclear Reactors of United States Warships," for the purpose of providing for prompt, adequate, and effective compensation in certain nuclear incidents. The text of the Executive order follows:

By virtue of the authority vested in me by the joint resolution approved December 6, 1974 (Public Law 93-513, 88 Stat. 1610, 42

U.S.C. 2211), and by section 301 of Title 3 of the United States Code, and as President of the United States of America, in order that prompt, adequate and effective compensation will be provided in the unlikely event of injury or damage resulting from a nuclear incident involving the nuclear reactor of a United States warship, it is hereby ordered as follows:

Section 1. (a) With respect to the administrative settlement of claims or judgments for bodily injury, death, or damage to or loss of real or personal property proven to have resulted from a nuclear incident involving the nuclear reactor of a United States warship, the Secretary of Defense is designated and empowered to authorize, in accord with Public Law 93-513, the payment, under such terms and conditions as he may direct, of such claims and judgments from contingency funds available to the Department of Defense.

(b) The Secretary of Defense shall, when he considers such action appropriate, certify claims or judgments described in subsection (a) and transmit to the Director of the Office of Management and Budget his recommendation with respect to appropriation by the Congress of such additional sums as may be necessary.

Sec. 2. The provisions of section 1 shall not be deemed to replace, alter, or diminish, the statutory and other functions vested in the Attorney General, or the head of any other agency, with respect to litigation against the United States and judgments and compromise settlements arising therefrom.

Sec. 3. The functions herein delegated shall be exercised in consultation with the Secretary of State in the case of any incident giving rise to a claim of a foreign country or national thereof, and international negotiations relating to Public Law 93-513 shall be performed by or under the authority of the Secretary of State. Fed. Reg., Vol. 41, No. 108, June 3, 1976, p. 22329. For the text of P.L. 93-513, see also the 1974 Digest, p. 418.

Noncombat Activities of Armed Forces

Public Law 94-390 (90 Stat. 1191), approved August 19, 1976, amended 10 U.S.C. 2734a(a) and 2734b(a), to provide for settlement under international agreements of certain claims incident to the noncombat activities of the armed forces. The purpose of the legislation was to make the language of those sections consistent with the provisions of the NATO status of forces type agreements entered into by the United States with other countries to provide for reimbursement or payment for claims which are settled or adjudicated under those agreements.

Under the agreements, the receiving state investigates, settles, adjudicates, and makes final awards direct to third-party claimants in two categories of cases: where the claim arises out of (1) acts or omissions of members of a force or a civilian component of the sending state done in the performance of official duty; and (2) other acts, omissions, or occurrences for which a force or civilian component is