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United States Practice
Eleanor C. McDowell
Office of the Legal Adviser
Department of State
For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, D.C. 20402
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In this fourth annual Digest of United States Practice in International Law, the Department of State continues its published contemporary record of significant developments in U.S. practice in international law.
The year 1976 saw a number of important executive initiatives, legislative enactments, and judicial decisions bearing on international law.
On October 21, 1976, the Foreign Sovereign Immunities Act was approved by the President, to take effect on January 19, 1977. Sponsored by the Departments of State and Justice, the statute codifies the restrictive theory of sovereign immunity under international law, which the United States has consistently adhered to since the Tate Letter of 1952. In addition, the Act transfers sovereign immunity decisions exclusively to the courts; it prescribes a set of methods for commencing suit against a foreign state or its entities by service of process; it provides for execution against commercial and commercially related property in limited circumstances; and it seeks to eliminate jurisdictional attachments of foreign government property.
The Supreme Court turned its attention to the act of state doctrine in the case of Alfred Dunhill of London, Inc. v. Republic of Cuba. In its 5-4 decision of May 24, 1976, the Court held that the burden of proof in establishing an act of state defense had not been met. Four of the Justices stated that an act arising out of purely commercial operations by a foreign state did not constitute an act of state. The Department had submitted its views on the case in a letter to the Court, in which it expressed the view that the act of state doctrine should not be extended to include commercial acts. Although the Court had requested briefs and oral argument on the question of whether its decision in Banco Nacional de Cuba v. Sabbatino should be reconsidered, it did not reach this issue. In its letter for the Court, however, the Department indicated that there would be no embarrassment to the conduct of foreign policy if the Court adjudicated the act at issue in Dunhill in accordance with international law standards and that, as a general matter, the "Department's experience provides little support for a presumption that adjudication of acts of foreign states in accordance with relevant principles of international law would embarrass the conduct of foreign policy."
Both the Foreign Sovereign Immunities Act of 1976 and the Department's letter for the Court in Dunhill embody the Department's view that generally accepted international legal standards ought to be consistently applied, and that consistent application of these standards by the courts would further the development of a stable world order.
The United States extended its fishery conservation jurisdiction to 200 miles off its coasts, effective March 1, 1977, by enactment of the Fishery Conservation and Management Act of 1976. The Act called for renegotiation of any existing fishery agreements inconsistent with its purposes. Following its passage, the United States concluded during 1976 governing international fishery agreements with six countries, setting terms under which those countries acknowledging U.S. jurisdiction in the 200-mile zone might apply for their fishing vessels to enter specified fisheries where surpluses had been determined. Maritime boundaries between the United States and Canada were set by unilateral notices, without prejudice to the negotiation of any maritime boundary agreement between the two countries. An interim agreement was reached with Mexico on maritime boundaries in the Pacific Ocean and the Gulf of Mexico, pending negotiation of a maritime boundary treaty, and a fisheries agreement was simultaneously concluded. Effective the last day of the year, the United States withdrew from the International Convention for the Northwest Atlantic Fisheries.
In the ongoing negotiations for a treaty on Law of the Sea, Secretary of State Henry A. Kissinger put forward at the spring session of the Law of the Sea Conference a series of proposals on deep sea mining, including a temporary limit on production of seabed minerals. At the resumed session of the Conference in August and September, he indicated U.S. readiness to agree to a financing arrangement for the proposed Enterprise, the independent operating arm of an International Seabed Authority, designed to enable it to begin mining operations within a reasonable timespan. He also proposed a review, possibly in 25 years, to determine if the provisions of the treaty regarding the system of seabed exploitation were working adequately. The Secretary warned the Conference, however, that there were "limits beyond which no American leader can go."
There were important developments in the field of judicial assistance. The U.S.-Switzerland Treaty of Mutual Assistance in Criminal Matters was brought into force, with an effective date of January 23, 1977. It is the first major treaty of the United States aimed at obtaining information and evidence needed for criminal investigations and prosecutions. A series of bilateral agreements were concluded on the Lockheed matter, the first with Japan on
March 23, 1976. The agreements enable law enforcement agencies of the United States and its bilateral partners to exchange information under conditions intended to protect the integrity of continuing U.S. investigations and the rights of the individuals involved. For the guidance of foreign tribunals seeking international judicial assistance, the Department of State made available to all foreign embassies in Washington a summary of the types of judicial assistance provided by the United States, subject to the condition of reciprocity and the limitations enforced by U.S. law.
Corrupt practices and illicit payments in international commercial transactions were of continuing concern in other spheres as well. The United States took the initiative at the U.N. Commission on Transnational Corporations at Lima in March in proposing the negotiation of a multilateral agreement dealing with corrupt practices by transnational and other corporations. In August, a resolution of the U.N. Economic and Social Council established an ad hoc intergovernmental working group to prepare an international agreement to prevent bribery and corrupt practices in international commercial transactions. The Tax Reform Act of 1976 contains provisions which deny tax benefits on international boycott income and bribe-produced income. Under a provision of the Arms Export Control Act of 1976, the Department of State now requires by regulation adequate and timely reporting on political contributions and fees in connection with military sales.
The United States also strongly supported the Declaration on International Investment and Multinational Enterprises, together with Guidelines for Multinational Enterprises, adopted by the Organization for Economic Cooperation and Development at Paris in June. It commended the Guidelines to chief executives of major U.S. corporations.
A Treaty with Mexico on the Execution of Penal Sanctions, signed on November 25, 1976, was the first U.S. agreement of this type. Under the treaty, U.S. nationals sentenced in Mexico, and Mexican nationals sentenced in the United States might elect to serve their sentences in their own countries, with the concurrence of the two governments' authorities. The treaty was ratified by Mexico and is subject to ratification and the passage of enabling legislation in the United States.
In international monetary matters, a major revision of the Articles of Agreement of the International Monetary Fund was negotiated, and U.S. enabling legislation was enacted. Increased participation by the United States in the Inter-American Development Bank was made possible, and authorizing legislation for the United States to participate in the African Development Bank was passed. In both cases, the legislation called for the United States to vote against loans