* The author is also Lecturer in Law, George “Washington University Law School.

The views expressed in this article are solely the writer’s and do not necessarily reflect those of the Office of the Legal Adviser or the Department of State. In particular, the Office is in no way bound by the writer’s interpretations or opinions of its attitudes and policre.

1 Very little has been written concerning the Office. A brief recent discussion appears in Gross, , “Operation of the Legal Adviser’s Office,” 43 A.J.I.L. 122 (1949)Google Scholar. See also Stowell, The Legal Adviser of the Department of State (Digest Press, 1936) (monograph); Woolsey, , “ The Legal Adviser of the Department of State,” 26 A.J.I.L. 124 (1932)Google Scholar; Hackworth, “The Legal Adviser of the Department of State,” Address delivered before Georgetown University Law School, Dept. of State Press Release, May 14, 1932.

2 This special responsibility of the Department was established by one of our earliest statutes, Act of July 27, 1789, 1 Stat. 28, from which the present statute, E. 8. 202 (5 U.S.C. 156), is derived. It has since become recognized as an established part of American government tradition. For a recent discussion of the Department’s organization and functions, see Price (ed.), The Secretary of State (American Assembly and Columbia University, 1960).

3 The position of Counselor still exists. The Counselor, ranking equally with Assistant Secretaries of State, serves as Senior Adviser and Consultant to the Secretary and Under Secretary and other senior officials on diplomatic and foreign affairs problems, and assists in the handling of complex international negotiations and consultations. He serves also as Chairman of the Policy Planning Council. He does not now, however, have any formal responsibilities in the legal field.

4 Sec. 7 of the Act of Feb. 23, 1931, 46 Stat. 1214, as amended by Sec. 6(d) of the Act of Oct. 15, 1949, 63 Stat. 881 (5 TX.S.C. 152a); and see 5 U.S.C. 151b(a).

5 Green H. Hackworth (1931–1946); Charles Fahy (1946–1947); Ernest Gross (1947–1949); Adrian Fisher (1949–1953); Herman Phleger (1953–1957); Loftus Becker (1957–1959); Eric Hager (1959–1961); Abram Chayes (1961– ).

6 An important exception is the various attorneys of the Passport Office of the Bureau of Security and Consular Affairs. The Chief Counsel of that Office, the attorneys of its Legal and Foreign Divisions, and the administrative Board of Review on Loss of Nationality of the United States still operate in practice relatively independently of the Office, though they are, by the provisions of the Immigration and Nationality Act, “under the general direction of the Legal Adviser.” The functions of these attorneys include the administration of the passport laws and regulations and also various matters related to those provisions of the nationality laws which charge the Secretary of State with determination of the nationality status of persons abroad. In matters involving important policy considerations in this area, however, such as the recent issuance of passport regulations implementing the provisions of the Internal Security Act of 1950 with respect to issuance of passports to Communist party members, the Office of the Legal Adviser is generally consulted.

The Visa Office of the Bureau of Security and Consular Affairs also employs a number of lawyers, particularly in its Advisory Opinions branch, though these are for the most part classified as “adjudicators.” However, the General Counsel of the Visa Office, which is a statutory position created by the Immigration and Nationality Act, is now within the Office of the Legal Adviser. It may also be noted that some Foreign Service Officers are lawyers by training and may, on occasion, in the course of their duties perform essentially legal functions.

As used throughout this article, the term Department of State does not include the Agency for International Development or the Peace Corps. While these agencies are technically within the Department and under the direction of the Secretary of State, their operations are for the most part conducted independently and they maintain separate legal staffs.

7 See Report of the Secretary of State’s Public Commission on Personnel (June, 1954) (“The Wriston Report”). The report recommended measures to terminate a pre-existing situation under which the Department was primarily staffed by Departmental Civil Service specialists not assigned overseas, and the embassies and consulates were staffed by Foreign Service Officers rarely assigned back to Washington. As a result of “Wristonization,” most officers of the Department were “integrated” into the Foreign Service, and there is now a regular rotation of duties for all Foreign Service Officers between the Department and the field.

The basis for the Legal Adviser’s decision to oppose “Wristonization” of the Office of the Legal Adviser was reportedly the failure to get guarantees from the Foreign Service that the “Wristonized” attorneys would be used solely in legal capacities, would remain under the supervision of the Legal Adviser, and would retain promotion opportunities equal to those of the non-specialized Foreign Service personnel. The decision not to integrate was thus important in retaining the Office’s status and independence. However, because of certain pay and other advantages conferred by the Foreign Service Act as contrasted with Civil Service legislation, Department attorneys are in a somewhat disadvantageous position as compared with Foreign Service personnel of corresponding rank and responsibilities. Moreover, Office attorneys are not, as are Foreign Service Officers, regularly assigned to embassies overseas.

8 The regional branches provide general legal advice to their respective regional bureau clients, particularly as regards protection problems arising in their areas. Some other major categories of problems of each regional branch are as follows: Inter - American Aft airs.—All extradition matters wherever arising; OAS; U. S.-Mexican border problems. European Affairs (includes Canada and the U.S.S.R.).—Berlin; St. Lawrence Seaway; Austrian State Treaty; German war claims; EURATOM; OECD. Far Eastern Affairs.—SEATO; problems concerning Laos, Vietnam, Taiwan, and Okinawa; West New Guinea dispute; Philippine Military Base Agreement; Bonin Island claims. Near East and South Asian Affairs.—Baghdad Pact; Suez Canal; Goa; Arab-Israeli dispute; separation of Syria from the U.A.R. African Affairs.— Congo problems; Ghana Volta River dam project; problems relating to Portuguese Angola and Southwest Africa.

The principal responsibilities of the functional desks are as follows: Economic Affairs. —Attorney for Bureau of Economic Affairs; foreign aid and economic development; trade agreements (including GATT); commercial policy and tariffs; commodity problems and P. L. 480; monetary and financial matters (including IBED, IMF, etc.); antitrust and restrictive trade practices; literary and industrial property; trade controls; FCN treaties; labor; shipping; aviation; telecommunications. Treaty Affairs.— All aspects of international agreements, particularly technical and procedural; choice of treaty or executive agreement; internal Department procedures under Circular 175; preparation and submission of treaty instruments; treaty publication and registration; maintenance of treaty records; performance of U. S. depositary functions. United Nations Affairs.—Attorney for Bureau of International Organizations; all matters concerning the U. N., its Specialized Agencies, and the International Court; “Connally Amendment”; space law; U. S. trust territories; nuclear weapons test discontinuance conferences. International Claims.—All aspects of international claims by U. S. against foreign governments and vice versa, including claims for nationalization, confiscation, breach of contract, war damage, wrongful death, expulsion, and imprisonment (such as Cuban takings; Polish and Rumanian claims settlement agreements; Iraqi indemnity for Americans killed by Baghdad mob in 1958). Special Functional Problems.—Legal adviser on selected group of important problems, particularly involving military and related matters; military base and status of forces agreements (e.g., British “ Polaris” submarine base and Girard ease); laws of war and Geneva Conventions of 1949; law of the sea (including Law of Sea Conventions and Santa Maria Case); sovereign immunity; general atomic energy matters; immigration, nationality and passports. Cultural Relations and Public Affairs.—Attorney for Bureau of Educational and Cultural Affairs and Bureau of Public Affairs; various international exchange acts and programs, such as U. S.-U.S.S.B. Cultural Exchange Agreement; U. S. educational foundations abroad; information and public relations problems. Administration and Foreign Service.—Attorney to Under Secretary of State for Administration and to Administrator of Bureau of Security and Consular Affairs (except Passport and Visa Offices); personnel matters; Foreign Service Act; loyalty-security program; consular matters and conventions; judicial assistance; procurement; Department appropriations; executive privilege; diplomatic privileges and immunities (including Vienna Convention).

9 A particular Legal Adviser may by virtue of special abilities, judgment, or close relationship with high-ranking policy officers become deeply involved in, and exert a strong influence on, matters almost wholly without the legal field. The major role the Office played in the handling of the later stages of the Suez crisis was perhaps not unrelated to the close working relationship between Secretary Dulles and Mr. Phleger.

10 See 5 U.S.C. 49, 306, 310, and 316, and 28 U.S.C. 507; and see Hart, and Wechsler, , “Note on Control of Government Litigation,” The Federal Courts and Federal System 1136 (1953)Google Scholar.

When any case arises in which the Department is plaintiff or defendant or otherwise has an interest (such as filing a suggestion of immunity with respect to a foreign sovereign, or intervening to uphold the validity of an international agreement), it will normally request the Department of Justice to take any necessary action. The Office staff will, however, usually consult with the Department of Justice with respect to the case, and will on occasion help in the preparation of briefs or other papers. The Department may also be called upon to furnish the Department of Justice information, documents, names of witnesses, etc., in connection with suits against other government agencies in the Court of Claims (see 5 U.S.C. 91).

Cases arising abroad involving the Department or the U. S. Government are ordinarily handled by the Department of Justice’s Foreign Litigation Division, which will normally retain local counsel. See Leonard, “ The U. S. as a Litigant in Foreign Courts,” 1958 Proceedings, American Society of Int. Law 95; Doub, , “Experiences of the United States in Foreign Courts,” 48 A.B.A.J. 63 (Jan., 1962)Google Scholar. By statute (22 U.S.C. 810), the Secretary of State may authorize a principal officer at foreign service posts to procure legal services for the protection of Government interests or to enable the post to carry out its responsibilities.

Most litigation directly involving the Department concerns suits to determine citizenship, fraudulent visa applications, suits to compel issuance of passports, and suits by former employees for reinstatement, damages, or other relief.

11 The Office’s functions as “judge” and “international law expert” are discussed in more detail below, in the sections dealing with the Office’s relations with courts and with private practitioners. And see generally, regarding interpretation of international agreements in the United States, Am. Law Inst., Restatement, Foreign Relations Law (Proposed Official Draft, May 3, 1962) (hereafter cited as A.L.I. Restatement), Sees. 152–155.

12 The preparation, presentation, and passage of such major Executive branch bills of concern to the Department as the Foreign Assistance Act of 1961 (22 U.S.C. 2151 et seq.) or the new trade agreements legislation require a major effort in organization, and involves months of hard and painstaking work by scores of Department and other Executive branch personnel from the lowest to the highest level. The Office will typically participate in all phases of this process. General policies must be determined as to all the many substantive and administrative matters covered by the bill; drafts reflecting these positions must be prepared and cleared with the White House and all interested agencies and offices; voluminous written materials and oral testimony must be prepared for committee hearings; and proposed objections or amendments must be analyzed and either accepted, countered, or compromised. In particular, since even the most detailed bill cannot cover all questions with which the Department may be confronted after enactment in implementing it, great care must be taken that the “legislative history” of the Act provides an adequate basis for subsequent necessary action.

13 Some idea of the potential range of these problems may be seen from the examples of the branches’ responsibilities set out in note 8 above. It may also be inferred from the fact that the United States presently conducts diplomatic relations with over 100 foreign countries; that the Department currently (as of April, 1962) operates some 97 embassies, 4 legations, 6 missions, 68 consulates general, 93 consulates, and 18 consular agencies in other countries; and that official representatives of the United States attend some 400 international conferences each year. It may also be noted that some 675 thousand Americans live abroad more or less permanently, and about 2 million more travel abroad (exclusive of Mexico and Canada) each year; and that some 3 million aliens live in this country more or less permanently, and about 1.5 million more travel to this country each year. For examples of Office opinions, see Maurer, “Legal Problems Regarding Formosa and the Offshore Islands,” 39 Dept. of State Bulletin 1005 (1958), and various unclassified opinions set forth in the “Contemporary Practice” section of recent issues of this Journal.

14 As to the sugar problem, see P. L. 86–592, 74 Stat. 330 (July 6, 1960), and P. L. 87–15, 75 Stat. 40 (March 31, 1961), amending Sec. 408 of the Sugar Act of 1948 as amended (7 U.S.C. 1158 b). As to amendment of Transportation Order T-l, see 26 Fed. Reg. 2711 (March 31, 1961), 32A C.F.B. (1962 Supp. 130), and Dept. of State Press Release No. 174 of March 30, 1961.

The “cold war “ has given rise to many new and difficult legal problems for the Office under domestic as well as international law. In many cases, legislation has failed to keep up with these new problems, and adequate solutions to urgent problems are sometimes found, if at all, only through tortuous routes and complex statutory interpretations. Thus, the Mutual Defense Assistance Control Act of 1951 (“Battle Act”) (22 U.S.C. 1611 et seq.), which prevents the granting of U. S. financial, economic, or military assistance to foreign nations shipping strategic materials to Sovietbloc countries, has created constant problems for the Department as regards the achievement of flexible foreign policy objectives regarding such Eastern European countries as Poland. Similarly, broad import or transactions-control authority has typically been available only through utilization of the provisions of Sec. 5 (b) of the Trading with the Enemy Act of 1917, as amended (50 App. U.S.C. 5 (b)), which (leaving aside the diplomatic problems raised by any use of an act so entitled) requires for its exercise a Presidential declaration of national emergency. See, however, with respect to Cuba, Sec. 620(a) of the Foreign Assistance Act (22 U.S.C. 2370(a)) and Proclamation 3447 of Feb. 3, 1962, 27 Fed Reg. 1085.

Some overhaul of this “cold war “ legal authority so as to provide a more flexible range of tools for the implementation of policy seems long overdue. One interesting question which arises in this area is the extent of Constitutional power and existing legal authority to control Americans either at home or abroad whose actions may interfere with foreign policy, and the desirability or undesirability of the assertion of such power. See for some existing peace-time powers, Ch. 45 (Foreign Relations) of the U. S. Criminal Code (18 U.S.C. 951–969), which prohibits, inter alia, enlistment in foreign military service, expeditions against friendly foreign nations, and conspiracy to injure property of a foreign government; 22 U.S.C. 252–254, prohibiting suits against ministers and their domestics; 18 U.S.C. 112, concerning assaults on public ministers; Sec. 5 of the U.N. Participation Act of 1945, as amended (22 U.S.C. 287c), vesting in the President broad powers to enforce economic sanctions imposed by the Security Council under Art. 41 of the U.N. Charter; Sec. 3(a) of the Export Control Act of 1949, as amended (50 App. U.S.C. 2023(a); various legislation dealing with passports (22 U.S.C. 211a, 213, 217a; 50 U.S.C. 785; 8 U.S.C. 1185; and see 22 C.F.E. 51.135–136); Sec. 5(b) of the Trading with the Enemy Act of 1917, as amended (50 App. U.S.C. 5(b)), conferring broad emergency power in the President to control transactions with foreign countries and their nationals; and the Foreign Agents Registration Act of 1938, as amended (22 U.S.C. 611 et seq.). And see U. S. v. Peace Information Center, 97 F. Supp. 255 (D.D.C., 1951); and note the possibility of official misuse inherent in the vague provisions of the Logan Act” (18 U.S.C. 953), under which no person has ever been prosecuted.

15 The Office is, however, while the most important, not the only government legal office concerned with international law questions. The Department of Justice and the legal offices of such agencies as A.I.D., the Peace Corps, U.S.I.A., the Atomic Energy Commission, and the Departments of Defense, Commerce, Labor, Interior, and Treasury also frequently become involved in problems in this field. See “How Many International Legal Questions in the Operation of the United States Government?”, Report of the Committee on International Law of the Association of American Law Schools.

16 These include extremely interesting questions concerning the President’s special Constitutional authority in the conduct of foreign relations and the permissible scope of delegation of authority from Congress to the President in the area of foreign affairs. See generally, Corwin, The President: Office and Powers, Ch. V (4th ed., 1957). And see The Aurora, 11 U. S. (7 Cranch) 382 (1812); U. S. v. Curtiss-Wright Export Corp., 299 U. S. 304 (1936); U. S. v. Pink, 315 U. S. 203 (1942); Field v. Clark, 143 U. S. 649 (1892); Hampton & Co. v. U. S., 276 U. S. 394 (1928); Star-Kist Foods Inc. v. U. S., 275 F. 2d 472 (C.C.P.A., 1959); of. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 634 (1952) (Jackson J., concurring).

The Department also plays a major part in the administration and implementation of such legislation as the Foreign Assistance Act, U. S. Information and Educational Exchange Act, Mutual Educational and Cultural Exchange Act of 1961, Agricultural Trade Development and Assistance Act (P.L. 480), Foreign Service Act, International Organization Immunities Act, Reciprocal Trade Agreements Act, Immigration and Nationality Act, and the passport laws. See, generally, Title 22 of the U. S. Code, “Foreign Relations.” It is also closely concerned with certain aspects of other legislation such as the Export Control Act, Mutual Defense Assistance Control Act (“Battle Act “ ) , Trading With the Enemy Act, Shipping Acts, Federal Aviation Act, Atomic Energy Act, and the customs and antitrust laws.

17 The negotiation of a treaty of friendship, commerce and navigation (commercial or “ FCN “ treaty) may require a detailed examination of laws of both the United States and its treaty partner in such varied fields as religious freedom, corporate establishment, eminent domain, entry into professions, workman’s compensation, inheritance and access to courts. The arrest of an American abroad may require study of the criminal laws and procedures of the foreign country. A foreign embassy may request information in such fields as corporate, securities, small loan, or antitrust law (or, in one case, “quit-rents”) as an aid in preparing its own legislation. Or an American consulate may request information or guidance on such matters as the recognition by American State courts of foreign divorces as an aid in rendering advice to Americans overseas.

18 Inter-agency relationships constitute one of the most demanding and fascinating aspects of the government attorney’s practice, and an insight into the governmental process and skill in working in this bureaucratic context is one of his most valuable assets. It is, of course, well known that different agencies tend to reflect different group interests and pressures, and that it is through the process of inter-agency compromise that the Executive branch as a whole resolves and adjusts these interests. In a few extreme cases, inter-agency dealings may almost partake of the character of international dealings, with agency “alliances,” use of “power politics,” and negotiation by instructed delegates. However, unlike the international arena, the interagency arena has arbitral machinery in the Bureau of the Budget, a legal court of appeal in the Attorney General, and a court of last resort in the President.

19 The Attorney General has the final say within the Executive branch as regards questions of domestic law, and also plays a very substantial rôle as regards questions of international law, though he will in the latter case normally accord great weight to the Department of State’s views. See Deener, The United States Attorneys General and International Law (1957); and see, generally, 5 U.S.C. 303–306; Hart, and Wechsler, , “Note on the Opinions of the Attorney General,” The Federal Courts and Federal System 82 (1953)Google Scholar; and Nealon, , “The Opinion Function of the Federal Attorney General,” 25 N.T.U. Law Rev. 825 (1950)Google Scholar. The U. S. Attorney General may also resolve conflicts between agencies as to the government position in litigation by the exercise of his general supervisory power over such litigation, 28 U.S.C. 507(b). The U. S. Solicitor General may similarly resolve such conflicts under the authority which he shares with the Attorney General to control litigation in the Supreme Court, 5 U.S.C. 309.

20 Concerning the Bureau of the Budget, see Merriam, , “The Bureau of the Budget as Part of the President’s Staff,” Annals, Am. Acad. Pol. and Soc. Sci. (Sept. 1956) 16 Google Scholar. Concerning the General Accounting Office, see Hauser, , “The Investigatory Powers of the Comptroller General of the United States,” 59 Mich. Law Rev. 1191 (1961)Google Scholar; Note, , “The Control Powers of the Comptroller General,” 56 Columbia Law Rev. 1199 (1956)Google Scholar.

21 See Surrey, “ The Legislative Process and International Law,” 1958 Proceedings, American Society of Int. Law 11.

22 Thus, the Department is frequently in the position of opposing legislative proposals which, if enacted, would violate U. S. international obligations or restrict the Executive’s or the Department’s traditional authority regarding the negotiation of international agreements. Since many of the most important legislative proposals originate within the Executive branch, the Department is usually in a position to make any comments it has on such proposals either directly to the proposing agency or through the regular Bureau of the Budget clearance procedure. As regards legislation of concern to the Department not originating within the Executive branch, the Department is frequently asked for its comments by the Congressional committee assigned the proposal, or it may itself take the initiative in making its views known to that committee. The Department has a final opportunity to register its opposition to particular legislation when the enrolled bill is sent to the President for signature, at which time the Bureau of the Budget usually circulates the bill to interested agencies for comments, which may include a recommendation for veto.

23 In connection with the “Bricker Amendment” hearings, Secretary of State Dulles, in testimony before the Senate Committee on the Judiciary on April 6, 1953, stated: “The Constitution provides that the President shall have power to make treaties by and with the advice and consent of the Senate. This administration recognizes the significance of the word ‘advice.’ It will be our effort to see that the Senate gets its opportunity to ‘advise and consent’ in time so that it does not have to choose between adopting treaties it does not like, or embarrassing our international position by rejecting what has already been negotiated out with foreign governments.” “Treaties and Executive Agreements,” Hearings Before a Subcommittee of the Senate Committee on the Judiciary on S.J. Res. 1 and S.J. Res. 43 (83d Cong., 1st Sess.), p. 825.

24 Department awareness of the importance of Congressional relations is reflected in a number of ways, ranging from the broad clearance authority of the Department’s Congressional Relations Staff and special handling given Congressional correspondence, to the practice of advance consultation with various committees or committee chairmen regarding important prospective negotiations or other Department action. The Department’s Congressional relations task is not made easier by the inherent difficulty in bringing home to the American people and Congress the importance of what are frequently complex and seemingly remote foreign policy problems. Nor is it made easier by the fact that the Department, almost alone among government agencies, has no organized interest group of “constituents” to plead its cause.

25 See generally the January, 1959, issue of the Federal Bar Journal, which is devoted entirely to the subject of “Executive Privilege” (Vol. 19, No. 1); Twenty- Fifth Report by the House Committee on Government Operations on “ Executive Branch Practices in Withholding Information from Congressional Committees” (H.E. No. 2207, 86th Cong., 2d Sess. Aug. 30, 1960); Statement by Attorney General Rogers before a Subcommittee on Constitutional Eights of the Senate Judiciary Committee, March 8, 1958, reprinted in Rogers, , “ The Papers of the Executive Branch,” 44 A.B.A.J. 941 (1958)Google Scholar.

26 See, for instance, Sec. 634(c) of the Foreign Assistance Act of 1961 (22 U.S.C. 2394(c)), which provides in general that funds made available under the Act cannot be used in any country or for any project or activity with respect to which the General Accounting Office or a Congressional committee has requested information, unless the information is furnished or the President certifies that he has forbidden the information to be furnished and gives his reason for doing so.

27 While the State Department jealously guards the principle of its traditional prerogative as regards the negotiation and conclusion of international agreements and maintains some control over all such negotiations, there are certain specialized fields in which, as a practical matter, the burden of preparation, and occasionally negotiation, are assumed by other agencies. Thus, the Atomic Energy Commission normally prepares and negotiates agreements for co-operation in the peaceful uses of atomic energy; the Agency for International Development prepares and negotiates aid bilaterals; the National Aeronautics and Space Agency prepares and negotiates agreements for cooperation in the space field; the Foreign Tax Division of the Internal Eevenue Service prepares and negotiates treaties for the avoidance of double taxation; the Civil Aeronautics Board plays an important role in the negotiation of air transport agreements; and the Department of Agriculture participates heavily in the preparation of agreements for the sale of surplus agricultural commodities. By special legislative authorization (5 U.S.C. 372), the Post Office Department possesses the unique power in our Government of negotiating, concluding, and even interpreting international agreements on postal matters without reference to the State Department. Agencies other than the State Department also may negotiate and sign, without reference to the State Department, so-called “ agency -level” agreements, which are not considered to be international agreements binding on states, but are typically in the nature of contracts between government agencies of different governments covering such matters as leases, purchases and sales, and personnel exchanges, or arrangements to implement a previously concluded international agreement.

28 See, for example, Metzger, , “ A Contract Approach to International Law,” 16 Louisiana Law Rev. 725, 727 (1956)Google Scholar, where he states: “ . . . it is fair to say that contract rules—or treaty law as it is sometimes called—have far overshadowed customary international law rules, from the viewpoint of coping with the main problems of modern international relations. . . . This shift in emphasis has had many and varied effects. So far as lawyers in a country’s foreign office are concerned . . . it has made the burden of their work counselling.”

29 The Department has, for instance, opposed granting priority in the work of the Legal Committee of the International Civil Aviation Organization to continued study of the proposed Draft Convention on Aerial Collisions on the grounds that provision of limitation of liability concerning collisions in international air transportation is unnecessary in terms of the lack of frequency of such collisions and the lack of substantial importance of the international legal problems they raise.

30 Major multilateral conferences, such as the Conference on the Law of the Sea, on Antarctica, and on Diplomatic Privileges and Immunities, are frequently preceded by years of preparation by special working groups, committees of experts, or commissions.

31 In the field of protection of private investment, for instance, the Department has generally preferred to negotiate substantive provisions for such protection on a bilateral basis in the context of its commercial treaty and investment guaranty programs, rather than in a multilateral context, where it has had doubts about the possibility of reaching meaningful agreement between capital-exporting and receiving countries as to applicable principles. See Metzger, , “Multilateral Conventions for the Protection of Private Foreign Investment,” 9 Journal of Public Law 133 (1960)Google Scholar. And see, generally, references cited in note 60 below.

32 As to the Constitutional scope of the international agreement power, see the discussion and quotations of statements by Secretaries Hughes and Dulles set forth in Power Authority of New York v. Federal Power Comm., 247 P. 2d 538, 542–543, 548- 549 (C.A.D.C., 1957); see also Henkin, , “The Treaty Makers and the Law Makers: The Law of the Land and Foreign Relations,” 107 U. Pa. Law Rev. 903 (1959)CrossRefGoogle Scholar, and A.L.I. Restatement, Sees. 120–124.

An example of Department policy with respect to overriding State laws is the U. S. failure to sign the U.N. Convention on the Recognition and Enforcement of Foreign Arbitral Awards on the grounds, among others, that it might override State arbitration statutes. See Czyzak, and Sullivan, , “American Arbitration Law and the United Nations Convention,” 13 Arbitration Journal 197 (1958)Google Scholar, where the authors remark: “ It has become axiomatic that countries normally avoid treaty commitments going measurably beyond national laws” (at p. 201). Cf. Quigley, , “Accession by the United States to the United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards,” 70 Yale Law J. 1049 (1961)Google Scholar; and Sultan, , “The United Nations Arbitration Convention and United States Policy,” 53 A.J.I.L. 807 (1959)Google Scholar.

The Department has also in its recent treaties, as a result of expressions of Senate sentiment, omitted provisions on national treatment with respect to the practice of professions, which were argued to conflict with State prerogatives. See Note, , “Reservations to Commercial Treaties dealing with the Alien’s Right to Engage in the Professions,” 52 Mich. Law Rev. 1184 (1954)Google Scholar.

Another interesting aspect of this problem is illustrated by material contained in the Report of the Senate Committee on Foreign Relations on Ratification of the Convention establishing the Organization for Economic Cooperation and Development (87th Cong., 1st Sess., Exec. Rep. 1, March 8, 1961). As there indicated, in connection with those hearings, the Legal Adviser, at the request of the Committee, was required to submit a statement to the effect that: “ . . . nothing in the Convention . . . confers any power on the Executive to bind the United States on substantive matters beyond what the Executive now has, or on the Congress to take action in fields previously beyond the power of Congress. Conversely, nothing in the Convention diminishes the power of the Executive or Congress in these respects.” Letter of March 6, 1961, p. 20 of the Report; and see “Contemporary Practice” section, 55 A.J.I.L. 697 (1961).

Certain International Labor Organization conventions have also raised difficult problems for the Office, insofar as they have been directed at the establishment of standards relating to domestic labor conditions.

33 Many of the international agreements currently entered into by the United States are of standardized types, and are often “boiler-plate.” This is the ease, for instance, with commercial (FCN) treaties, tax treaties, and aid, aviation and “ P . L. 480” agreements.

34 The full text of Department of State Circular No. 175 of Dec. 13, 1955, is set forth in 50 A.J.I.L. 784 (1956). The issuance of Circular 175 was closely related to the “Bricker Amendment problem” and Department efforts opposing passage of such an amendment restricting the Executive’s power to enter into international agreements. See, among the many articles on this subject, Whitton, and Fowler, , “Bricker Amendment—Fallacies and Dangers,” 48 A.J.I.L. 23 (1954)Google Scholar, and Finch, “The Need to Restrain the Treaty-Making Power of the United States within Constitutional Limits,” ibid. 57. The “specter” of Brickerism is never quite dead, and forms an ever-present factor in Department treaty policy.

35 See text of Circular 175, 50 A.J.I.L. 784, 785 (1956). In many cases the Department may utilize either the treaty or executive agreement procedure. See, generally, Byrd, Treaties and Executive Agreements in the United States (1960); McDougal, and Lans, , “Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy,” 54 Tale Law J. 181 and 534 (1945)Google Scholar; Mathews, , “The Constitutional Power of the President to Conclude International Agreements,” 64 Yale Law J. 345 (1955)Google Scholar; and A.L.I. Restatement, Sees. 120–124.

Circular 175 does not spell out the considerations which enter into a decision to use treaty rather than executive agreement procedures in a given case, but they may include the following: traditional handling of the subject matter by treaty; absence of either clear legislative delegation of authority to the Executive or Constitutional authority in the President for entry into executive agreement; intent that the agreement be self-executing as a matter of internal law; fact that the agreement will create important national commitments; and desirability of a high degree of formality in the agreement. The difficulty in precisely defining the legal and practical borderline between the use of one or the other form was indicated by Secretary Dulles in his testimony before the Senate Committee on the Judiciary on April 6, 1953, concerning the Bricker Amendment. See Senate Hearings on S. J . Res. 1 and S. J . Res. 43, op. cit. 828 (1953).

36 More specifically, an internal legal office memorandum prescribes that the legal memorandum accompanying the “Circular 175 request” must show, in the case of a proposed treaty: (1) whether or not the subject matter is within traditional limits; (2) whether or not the treaty will be self-executing; (3) if it is not self-executing, the part or parts which may require legislation and the plans contemplated with respect to the formulation and presentation of such proposed legislation; (4) the extent, if any, to which the treaty is intended to prevail over existing Federal or State laws; and (5) information as to groups in opposition or in support of the contemplated change. In the case of a proposed executive agreement, the legal memorandum must contain: (1) a citation to the pertinent legislative or treaty provisions, if any, constituting authority for the making of an executive agreement on the subject; (2) if no antecedent legislative or treaty authority exists, a statement as to whether or not the agreement is to be made subject to legislation by the Congress; or (3) the Constitutional powers of the President relied on.

37 The U. S. delegations to important international conferences of a “regulatory” type will frequently include Congressional advisers and advisers from the private industries or professions potentially affected. Thus, at the 1961 Borne Conference on the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (“Neighboring Bights”), the U. S. Delegation was accompanied by a member of the House of Representatives and by advisers representing the basic copyright interests, the performers, the phonograph companies, the film companies, and the major broadcasters. At times, the interests of such advisers conflict, with resultant difficulties for the delegation itself.

38 States frequently are represented at multilateral international conferences and participate in the discussion and drafting of international instruments produced by such conferences even when there is considerable doubt as to whether they will become parties to the instruments; for the rules established by such agreements may affect them or their citizens indirectly, if not directly, even if they are not parties. In a few cases participation in such conferences may raise questions of “good faith.” Thus, in the case of the Guadalajara Aviation Conference, 1961, which drew up the so-called “Hire, Charter and Interchange Convention,” the U. S. Delegation was instructed to bring to the early attention of the conference the fact that the U. S. Government was at that time engaged in a re-examination of its position on the Warsaw Convention and Hague Protocol (to which the proposed convention would be supplementary), and would not therefore be in a position to sign any agreed instrument until that study was completed.

39 For example, at the U. N. Sugar Conference, 1961, which prepared but did not finally agree to a Protocol to amend the International Sugar Agreement of 1958 (which was to expire in 1963, but whose quota provisions were to lapse and require renegotiation in 1961), questions arose, inter alia: as to whether acceptance of the proposed protocol by only a majority, but not all the parties, to the 1958 Agreement would have the effect of terminating the Agreement in its unamended form, or whether, alternatively, both the old Agreement and the Agreement as amended would remain in force, with slightly different membership and resultant complications; as to the rights and obligations attached to “provisional” membership in the Agreement by States undertaking to seek ratification, acceptance or accession in accordance with their constitutional procedures, but which had not yet actually secured such action by their legislatures; and as to the effect on the 5-year term Agreement of the lapse of the 3-year term quota provisions (which were its central feature), when the conference failed to reach agreement on new quotas.

40 ”Final Clauses” frequently raise not only complex and interesting legal and legal policy questions, but also political questions of great importance, particularly in the context of “cold war.” Thus, the clauses in multilateral agreements relating to signature and accession—that is, which countries can become members—raise serious problems as regards regimes unrecognized by the United States, such as East Germany, Communist China, North Korea, and North Viet-Nam.

41 In occasional cases, the Office may by accident or design never have an opportunity to pass on what may be essentially a legal question. Thus, a policy officer may not be aware that a legal question is involved, or he may know that the Office will oppose the proposed course of action and consequently attempt to by-pass this obstacle by omission of the Office from the clearance process on this matter. When Office prestige is high, such instances will, of course, be rare.

42 See Metzger, , “A Contract Approach to International Law,” 16 Louisiana Law Rev. 725, 728 (1956)Google Scholar, where he notes: “ . . . ‘policy’ and ‘law’ in foreign relations, as in domestic law, are simply aspects of problems, and it is necessary for the lawyer to become aware of, and, at the very least, knowledgeable concerning all aspects of a problem if he is to be effective in his own job.” Because of the special responsibilities of the government attorney, the conflict between his role as advocate for his client and his rôle as judge as to the legality of his client’s proposed actions is typically more acute than is this conflict for the private practitioner. Thus, he is frequently faced with difficult questions as to whether he should permit policy considerations to influence his legal opinions on particular questions.

43 Despite some feeling that Office attorneys “should keep their noses out of policy,” most policy clients in practice expect their lawyers to contribute ideas, or at least help the client think through his own. Experienced Foreign Service officers make good use of their attorney’s sensitivity to facts, habit of thinking in terms of contingencies, and ability to anticipate consequences. Nevertheless, as has frequently been pointed out, there is perhaps an innate difference in approach as between the lawyer and the operating officer, which may occasionally lead to differing views as to policy. Whereas the lawyer tends to think in terms of precedent, observance of general principles, and precise expression of obligations, the operating officer often thinks in terms of the single situation before him, ad hoc decisions, and the retention of maximum flexibility and freedom of maneuver in future situations.

44 See also former Ambassador Kennan’s observations questioning the realism and effectiveness of what he describes as the “legalistic-moralistic” approach to American foreign policy in American Diplomacy (1900–1950) 93 et seq. (Mentor ed., 1952). And note the questioning of certain traditional international law doctrines by various Communist states and some of the newly emerging nations, who argue that these doctrines reflect only “colonial interests” in maintenance of the status quo, and are therefore not to be regarded as generally binding upon nations.

45 Some of these practical considerations are mentioned on page 679 below. And see President Eisenhower’s statement in his address at New Delhi University, India, on Dec. 11, 1959, that: “ It is better to lose a point now and then in an international tribunal and gain a world in which everyone lives at peace under the rule of law.” New York Times, Dec. 11, 1959, p. 15, col. 4.

46 See the statement by the present Legal Adviser, Mr. Chayes, quoted in note 108 below; and see citations to some of the many public statements concerning the U. S. commitment to the principle of respect for international law quoted in Jessup, The Use of International Law 4–8 (1959), and Bishop, , “The International Rule of Law,” 59 Mich. Law Rev. 553, 554–555 (1961)Google Scholar.

47 The last few years have seen a new realization of the importance of international transactions in the private practitioner’s work and a growth of interest in legal doctrine and government institutions affecting this area. See Bishop, , “International Law and the American Lawyer,” 28 Mich. State Bar J. 42 (1949)Google Scholar; Rhyne, , “International Law: A Field American Lawyers Should Know Better,” 36 A.B.A.J. 376 (1950)Google Scholar; Cowles, , “The Need of Understanding International Law,” 7 Journal of Legal Education 179 (1954)Google Scholar; Dean, , “The Role of International Law in a Metropolitan Practice,” 103 U. of Pa. Law Rev. 886 (1955)CrossRefGoogle Scholar; and Ball, , “The Lawyers’ Role in International Transactions,” 11 Record of the Assoc, of the Bar of the City of N. Y. 61 (1956)Google Scholar.

See also Surrey (Reporter), Law Governing International Transactions (Joint Committee on Continuing Legal Education of the American Law Institute and the American Bar Association, 1962); Katz and Brewster, The Law of International Transactions and Relations (1960) ; and such excellent compilations of articles as the Spring, 1959, issue of the Univ. of Illinois Law Forum on “Legal Problems of International Trade”; the October, 1959, issue of the Federal Bar Journal on “Private Foreign Investment”; and the March, 1961, issue of the Columbia Law Review on “Legal-Economic Problems of International Trade”; and see Stein and Nicholson (eds.), American Enterprise in the European Common Market: A Legal Profile (2 vols., 1960–1961).

48 Treaties and other international agreements effected subsequent to Dec. 31, 1949, are published in annual volumes of United States Treaties and Other International Agreements (cited as U. S. Treaties). Prior to that date they were published in U. S. Statutes at Large (indexed up to 64 Stat, in 64 Stat. B 1107). Since 1945, such treaties and agreements have also been published by the Department in separately numbered pamphlet prints of the Treaties and Other International Acts Series (T.I.A.S.). Prior to 1945, they were issued in separately numbered prints of the Treaty Series (T.S.) and Executive Agreements Series (B.A.S.). The texts of earlier treaties and agreements may also be found in the four-volume publication entitled Treaties, Conventions, International Acts, Protocols and Agreements between the United States of America and other Powers, 1776–1937 (Washington, Govt. Printing Office, 1910, 1923, 1938), and in Miller’s, Treaties and Other International Acts of the United States of America (Washington, Govt. Printing Office, 1931–1948) (8 volumes to date covering period 1776–1863). The project for an English edition of treaties from 1776 to 1949, estimated to fill 16 volumes, is still in abeyance due to a lack of funds. The Department also publishes annually Treaties in Force, which lists all bilateral and multilateral treaties and other international agreements in force for the United States as of January 1 of the year of publication. Information concerning the current status of any treaty or international agreement to which the U. S. is a party may also be obtained by communicating directly with the Assistant Legal Adviser for Treaty Affairs. For an excellent discussion of treaty materials, see Hynning, , “Treaty Law for the Private Practitioner,” 23 U. of Chicago Law Rev. 36, 67–70 (1955)Google Scholar, in which, among other things, he criticizes the lack of accessibility of such materials and the time lags in making them available. The Department presently is publishing agreements four to six weeks after entry into force.

As to international law generally, and particularly Departmental precedents, see Moore’s Digest of International Law (1906) and Hackworth’s Digest of International Law (1940–1944). As noted, a new digest covering the years following 1940 is currently in preparation in the Office. See also the three volumes of Hyde, International Law (2d ed., 1945).

Statutes primarily concerning foreign relations appear in Title 22 of the U. S. Code. Departmental regulations of general interest are published in Title 22 of the Code of Federal Regulations. Detailed regulations for the internal use of the Department and Foreign Service are contained in the Foreign Affairs Manual (F.A.M.), which is not published.

The Department of State Bulletin, published weekly, contains extremely useful material in the international field, including speeches, policy statements, articles, press releases, notations of treaty actions and publications, and references to Congressional and U.N. documents of particular interest.

49 The Department’s law library does not contain any extensive collection on foreign law. However, major foreign law collections are accessible at the Law Library of the Library of Congress, the Los Angeles County Law Library, the Law Library of the Association of the Bar of New York, and the law libraries of the principal law schools. The Bureau of Foreign Commerce of the Department of Commerce may also in some cases have material bearing on certain aspects of foreign law.

Regulations concerning access to, and use of records are set out in 5 F.A.M. 1850–1855. In particular, 5 F.A.M. 1855 requires that no Department records be produced or testimony concerning them be given to a Congressional committee, court, or quasi-judicial tribunal without the specific authorization of specified high-ranking Department officers. As to the particular problem of requests for or discovery of Departmental documents for use in judicial proceedings, see, generally, Carrow, , “Government Nondisclosure in Judicial Proceedings,” 107 U. of Pa. Law Rev. 166 (1958)Google Scholar. As to access to documents for study and research, see 22 C.F.E. Part 133. Security and classification questions are governed by Exec. Order 10501 (18 Fed. Beg. 7049), as amended by Exec. Order 10964 (26 Fed. Beg. 8932). Concerning questions of Executive privilege, see note 25 above.

50 See, generally, on judicial assistance, Longley, “ Serving Process, Subpoenas, and Other Documents in Foreign Territory,” 1959 Proceedings, ABA Section of Int. and Comp. Law 34; Doyle, “Taking Evidence by Deposition and Letters Rogatory and Obtaining Documents in Foreign Territory,” ibid. 37; Jones, , “International Judicial Assistance: Procedural Chaos and a Program for Reform,” 62 Yale Law J. 515 (1953)Google Scholar; McCusker, , “Some United States Practices in International Judicial Assistance,” 37 Dept. of State Bulletin 808 (1957)Google Scholar; Surrey, Law Governing International Transactions, op. cit. 334–350; and see 28 U.S.C. 1781, 1782, and 1783, and Fed. Rules of Civ. Procedure 28(b) and 29. Problems of international judicial assistance are currently under study by the Presidential Commission on International Rules of Judicial Procedure. See Finch, 53 A.J.I.L. 432 (1959).

51 For material on the international legal problems mentioned in this and the next paragraph, see, generally A.L.I. Restatement, Pt. IV, “ Responsibility of States for Injuries to Aliens”; and Sohn, and Baxter, , “Responsibility of States for Injuries to the Economic Interests of Aliens,” 55 A.J.I.L. 545 (1961)Google Scholar. See also Wetter, , “Diplomatic Assistance to Private Investment,” 29 U. of Chicago Law Rev. 275 (1962)Google Scholar.

52 Many attorneys are not aware of the many international agreements, to which the United States is a party, which provide benefits or protection for American citizens in their international dealings, and for foreign citizens in their dealings in this country. Thus, our network of friendship, commerce and navigation treaties (“commercial treaties “ ) , in force with some 39 countries, confers rights and privileges with respect to such varied matters as freedom of religion; rights of entry for commercial purposes; establishment of businesses; conduct of commercial activities; ownership and protection of property; social security and workman’s compensation; taxation; inheritance; trade; shipping; and other activities. See Wilson, United States Commercial Treaties and International Law (1960); Metzger, , “Commercial Treaties of the United States and Private Foreign Investment,” 19 Fed. Bar J. 367 (1959)Google Scholar; Meekison, , “Treaty Provisions for the Inheritance of Personal Property,” 44 A.J.I.L. 313 (1950)Google Scholar; and various articles by Walker, Herman, including his “Modern Treaties of Friendship, Commerce and Navigation,” 42 Minn. Law Rev. 805 (1958)Google Scholar. The Universal Copyright Convention, Industrial Property Convention, Double Taxation Conventions, and the trade rules contained in the General Agreement on Tariffs and Trade (GATT) are sources of numerous other rights. See, e.g., Sargoy, , “UCC Protection in the United States,” 33 N.Y.U. Law Rev. 811 (1958)Google Scholar.

Generally speaking, such agreements are aimed at preventing discrimination on the basis of nationality as between citizens of the parties or of third states in “like situations,” and are most usually cast in terms of such standards as “national treatment,” “most-favored-nation treatment,” “reciprocity,” or, occasionally, “ fair and equitable treatment,” Interesting problems arise as to deciding what standard should be provided as the measure of obligation in a given situation in drafting an agreement, as to defining the “like situations” which are often the test of the standard, and also as to the applicable standard when a state in fact discriminates as between its own citizens (i.e., Is the alien entitled to “most-favored-national treatment”? See, on a related point, Bacardi Corp. of America v. Domeneeh, 311 XJ. S. 150, 164–165 (1940)).

Congress has directed the President to accelerate the program of negotiating commercial and tax treaties and also to seek, consistent with the national interest, compliance by foreign governments with such treaties (22 U.S.C. 2351(b) (2)and (3)).

53 The attorney who believes he has a valid complaint of this nature should usually first communicate with the Office of the Legal Adviser, setting forth a full statement of the facts and circumstances concerning the problem, as well as the alleged international law or other basis for Department action. In the particular case of claims for the taking of property, he should communicate with the Claims branch of the Office setting forth the complete facts, including the nationality of the owner and nature of his interest; the nature of the property taken; when and how it was acquired; where located; circumstances of the taking, including any asserted basis in foreign law; measures taken to date by the owner to secure recovery; and proof of value at time of taking. See “General Instructions for Claimants and Suggestions for Preparing Claims” (For Personal Injury or Loss of Life, July 1, 1955; For Loss of or Damage to Property, March 1, 1961), available for distribution from the Department of State, and Note on “Practical Suggestions on International Claims,” in Bishop, Cases and Materials on International Law 738–743 (2nd ed., 1962). See also Lillich and Christenson, International Claims: Their Preparation and Presentation (Syracuse U. Press, scheduled publication, Pall, 1962), and Christenson, , “International Claims Procedure before the Department of State, “ 13 Syracuse Law Rev. 527 (1962)Google Scholar.

The Office is concerned with a great number of such claims each year. For instance, in connection with the recent Polish claims settlement negotiations, over 15,000 claims were registered with the Foreign Claims Settlement Commission. It is estimated that there are in existence over 40,000 war-damage claims against Germany on the part of U. S. citizens.

In the case of wrongful imprisonment of an American citizen by a foreign government, the President has specific statutory responsibility to attempt to secure his release (22 U.S.C. 1732).

54 A state which espouses a claim of one of its nationals has traditionally been deemed to be asserting its own claim. Mavrommatis Palestine Concessions, P.C.I.J., Ser. A, No. 2, p. 12 (1924); 1 Hudson, World Court Reports 293. Professor Bishop points out, however, that “the practice of international tribunals comes closer and closer to dealing with these cases as if it were the individual alien who has the right.” Bishop, Cases and Materials, op. cit. 737 (2nd ed., 1962).

Satisfactory resolutions of such questions are in fact frequently reached by diplomatic means, except in cases such as Cuba and various Sino-Soviet-bloc countries where political difficulties may at least for the time being diminish the practical efficacy of diplomatic measures. As to Cuban claims, see State Dept. Memo., reprinted in “Contemporary Practice” section, 56 A.J.I.L. 166–167 (1962). In the cases of Yugoslavia, Rumania and Poland, the Department has reached so-called “lump-sum” claims settlement agreements. See, generally, the International Claims Settlement Act of 1949, as amended (22 U.S.C. 1621 et seq.); A.L.I. Restatement, Reporter’s Note on “Claims Settlement Agreements of the United States and the Work of the Foreign Claims Settlement Commission,” Sec. 219, pp. 731–732; Rode, , “The International Claims Commission of the United States,” 47 A.J.I.L. 615 (1953)Google Scholar; Re, “The Foreign Claims Settlement Commission,” p. 728, below; Christenson, , “The United States-Rumanian Claims Settlement Agreement of March 30, 1960,” 55 A.J.I.L. 617 (1961)Google Scholar; Lillich, International Claims: Their Adjudication by National Commissions (1962); and see, generally, among the many works on nationalization questions, Domke, , “Foreign Nationalizations,” 55 A.J.I.L. 585 (1961)Google Scholar.

55 Under the doctrine of exhaustion of remedies, a state is not required to consider a claim presented on behalf of an alien injured by conduct attributable to the state and wrongful under international law, if the alien has not exhausted domestic remedies made available by the state, unless it is either shown that there are in fact no local remedies to exhaust or that such exhaustion would in practice be futile. Interhandel Case, [1959] I.C.J. Rep. 27; 5 Hackworth, Digest of International Law 501–526 (1943); A.L.I. Restatement, Sees. 211–215; cf. Panevezys-Saldutiskis Railway Case, P.C.I.J., Ser. A/B, No. 76 (1939); and see State Dept. Memo., reprinted in “Contemporary Practice” section, 56 A.J.I.L. 166–167 (1962).

56 On occasion, the Department may be faced with extremely strong domestic pressures from private interests in this respect. It is interesting to note that Sec. 620(c) of the Foreign Assistance Act of 1961 (22 U.S.C. 2370(c)) provides that: “No assistance shall be provided under this Act to the government of any country which is indebted to any United States citizen for goods and services furnished, where such citizen has exhausted legal remedies and the debt is not denied or contested by such government.”

57 The Department has, however, sponsored and worked closely with the Foreign Bondholder’s Protective Council, Inc., which is primarily concerned with seeking to arrange settlements on defaulted foreign-currency bonds.

58 Aliens are, of course, protected in this country under the provisions of international law and specific agreements, such as commercial and consular treaties, and have frequently invoked the aid of U. S. courts in securing such rights. See, e.g., Todok v. Union State Bank, 281 U.S. 449 (1930); Nielsen v. Johnson, 279 U.S. 47 (1929); Santovincenzo v. Egan, 284 U.S. 30 (1931); and Clark v. Allen, 331 U.S. 503 (1947). Aliens are in general also within the protection of the Fifth and Sixth Amendments of the U. S. Constitution, Wong Wing v. U.S., 163 U.S. 228 (1896), and also the Fourteenth Amendment, Yick Wo v. Hopkins, 118 U.S. 356 (1886); and see 42 U.S.C. 1981. See, generally, Konvitz, The Alien and the Asiatic in American Law (1946); Note, “Validity of State Restraints on Alien Ownership of Land,” 51 Mich. Law Rev. 1053 (1953); Note, “Constitutionality of Restrictions on the Alien’s Eight to Work,” 57 Columbia Law Rev. 1012 (1957); Comment, “The Alien and the Constitution,” 20 U. of Chicago Law Rev. 547 (1953); and see Vagts, “ The Corporate Alien: Definitional Questions in Federal Restraint on Foreign Enterprise,” 74 Harvard Law Rev. 1489 (1961).

59 The provisions of commercial treaties frequently apply to State as well as Federal Government action. Generally speaking, aliens aggrieved by alleged local or State infringements of treaty rights should first exhaust judicial remedies before seeking State Department assistance. See Aerovias Interamericanas de Panama, S. A. v. Bd. of County Commrs., 197 F . Supp. 230 (D.C.S.D. Fla., 1961) at 249–250, citing references.

60 As to this last problem, see Bound Table on “ Proposed Convention to Protect Private Foreign Investment,” 9 Journal of Public Law 115 (1960); Miller, , “Protection of Private Investment by Multilateral Convention,” 53 A.J.I.L. 371 (1959)Google Scholar; and Lauterpacht, , “The Drafting of Treaties for the Protection of Investment,” Int. and Comp. Law Q., Supp., Pub. No. 3 (1962) at p. 18 Google Scholar; and see IBRD Staff Eeport on “Multilateral Investment Insurance” (March, 1962).

61 The Office’s own consideration of such requests can be greatly speeded by detailed and carefully documented memoranda setting forth the facts and background, the exact nature of the request, and legal grounds or policy reasons supporting it. Areas of the Department typically concerned in such matters may include not only the Office but also the appropriate “country desk” and such functional divisions as those concerned with Aviation, Shipping, Commercial Treaties, and International Business Practices (which handles such matters as copyrights, patents, trademarks, and restrictive business practices).

62 This general problem is discussed in Eicholz and Konz, International Problems of Financial Protection Against Nuclear Risk- (Atomic Industrial Forum, 1959). For other aspects of this problem, see Hardy, “ International Protection Against Nuclear Risks,” 10 Int. and Comp. Law Q. 739 (1961); and Berman and Hydeman, “International Control of the Safety of Nuclear-Powered Merchant Ships,” 59 Mich. Law Rev. 233 (1960).

63 See pp. 675–678 below.

64 Administrative Procedure Act of 1946 (60 Stat. 237, as amended; 5 U.S.C. 1001 et seq.).

65 The Senate and House Reports on the Administrative Procedure Act state: “The phrase ‘foreign affairs functions,’ used here and in some other provisions of the bill, is not to be loosely interpreted to mean any function extending beyond the borders of the United States but only those ‘affairs’ which so affect relations with other governments that, for example, public rule making provisions would clearly provoke definitely undesirable international consequences.” Sen. Rep., p. 13, H.R. Rep., p. 23 (Sen. Doc, pp. 199, 257). See also Representative Walter’s statement on the floor of the House, 92 Cong. Rec. 5650 (Sen. Doc, p. 358). The Attorney General’s Manual on the Administrative Procedure Act (1947) comments that: “ It is equally clear that the exemption is not limited to strictly diplomatic functions, because the phrase ‘diplomatic function’ was employed in the January 6, 1945 draft of S. 7 (Sen. Comp. Print of June, 1945, p. 6; Sen. Doc, p. 157) and was discarded in favor of the broader and more generic phrase ‘foreign affairs functions.’ In the light of this legislative history, it would seem clear that the exception must be construed as applicable to most functions of the State Department and to the foreign affairs functions of any other agency.” (pp. 26–27.)

66 The procedures relating to the denial of passports are set out in 22 C.F.R. Pts. 51 and 53, and particularly 51.137–170. For judicial review, see, e.g., Worthy v. Herter, 270 F. 2d 905 (D.C. Cir., 1959). The procedures relating to loss of nationality are set out in 22 C.F.E. Pt. 50. For judicial review, see, e.g., Rusk v. Cort, 369 U. S. 367 (1962). Sec. 10 of the Administrative Procedure Act probably applies in both cases.

67 The regulations relating to visas are set out in 22 C.F.R. Pts. 40–44, and see particularly 42.130 and 42.134. As to aliens departing from the U. S., see 22 C.F.R. 46.4 and 46.5.

68 See Distribution of the Alsop Award, Op. of J. Reuben Clark, Solicitor of the Department of State, 7 A.J.I.L. 382 (1913); A.L.I. Restatement, Sec. 217; and as to the Foreign Claims Settlement Commission, see De Vegvar v. Gillilland, 228 F. 2d 640 (D. C. Cir., 1956), cert, den., 350 U. S. 994 (1956); and Coerper, , “The Foreign Claims Settlement Commission and Judicial Review,” 50 A.J.I.L. 868 (1956)Google Scholar.

69 See Cardozo, , “ Attempts to Transmute Indemnity into Discharge of Claims in Executive Agreements,” 49 A.J.I.L. 560 (1955)Google Scholar; Oliver, “Executive Agreements and Emanations from the Fifth Amendment,” ibid. 362; and Williams v. Heard, 140 U. S. 529 (1891); and see generally, A.L.I. Restatement, Sec. 218. In the Rumanian Claims Settlement Agreement of 1960, the United States agreed not to espouse certain categories of claims not satisfied by that agreement.

70 It may be noted that under See. 4 of the Trade Agreements Act of 1934, as amended (19 U.S.C. 1354), “Before any foreign trade agreement is concluded with any foreign government . . . , reasonable public notice of the intention to negotiate an agreement with such government . . . shall be given in order that any interested person may have the opportunity to present his views to the President, or to such agency as the President may designate, under such rules and regulations as the President may prescribe; . . . “ These hearings are held by the Inter-Departmental Committee on Recriprocity Information. See also 19 U.S.O. 1351 (f). The Department has also sought public views in other instances, such as in the ease of the current reconsideration of the U. S. position as to the Warsaw Convention and Hague Protocol. See FAA Notice in 26 F.B. 9684, Oct. 13, 1961, and Dept. of State Press Release of the same date. For an example of useful public discussion which can be stimulated by such disclosure, see panel discussion on “International Aviation Policy: The Warsaw Convention, The Hague Protocol, and International Limitation of Liability,” 1962 Proceedings, American Society of Int. Law (in course of publication).

This problem is particularly acute in the area of sovereign immunity, where a case may well be won or lost in the Department rather than in the courtroom. See Jessup, “Has the Supreme Court Abdicated One of its Functions?”, 40 A.J.I.L. 168 (1946); Cardozo, “Sovereign Immunity: The Plaintiff Deserves a Day in Court,” 67 Harvard Law Rev. 608 (1954), where the author suggests that the Department should afford the plaintiff a hearing before making its decision as to whether or not to make such a suggestion; and Jessup, The Use of International Law 83–84 (1959), where he says: “The State Department is totally unequipped to handle such [sovereign immunity] questions.” See also Note, “The Sovereign’s Immunity and Private Property: A Due Process Problem,” 50 Georgetown Law J. 284 (1961). In practice, the plaintiff is notified by the Office and is given an opportunity to be heard before a decision is made by the Office whether to file a suggestion of immunity.

71 See, generally, Jessup, The Use of International Law, Chs. III and IV (1959).

72 For instance, to date (April, 1962) there have been 48 cases on the General List of the International Court. 12 of these cases involved a request for an Advisory Opinion (1 such request is presently pending). 36 of these cases involved contentious proceedings (3 such cases are presently pending). Of the 33 contentious cases disposed of: 10 were removed from the Court’s list due to total absence of acceptance of compulsory jurisdiction; 2 were removed from the Court’s list because of failure of acceptance of compulsory jurisdiction to cover the particular case; 6 were voluntarily withdrawn; 1 was disposed of on the grounds of non-admissibility of the application; and only 14 cases were disposed of on the merits. See “General List of the Court,” [1960–1961] I.C.J. Yearbook 43.

73 The great importance of foreign office practice as compared with national and international adjudication in the practical operation and development of international law has not been generally reflected in the traditional teaching of international law. As a consequence, traditional courses centering on adjudicative materials tend to have only a limited relevance to the practical international law problems with which government legal offices and private practitioners are confronted, and in some cases the academic attitudes engendered may in fact constitute a disadvantage in finding solutions to such matters. A useful and realistic approach (which is being employed in a few law schools) might include, insofar as materials are available, more emphasis on foreign office practice. This could perhaps be done through the medium of a “problem” system of presentation, permitting the student to see how international law problems arise and are handled at various levels of controversy, including that of the private practitioner and the foreign office as well as that of courts. See, generally, Carlston, , “The Teaching of International Law in Law Schools,” 48 Col. Law Rev. 516 (1948)Google Scholar; Bishop, , “International Law in American Law Schools Today,” 47 A.J.I.L. 686 (1953)Google Scholar; and Sohn, , “ The Present Importance of Teaching International Law and Organization,” 7 Journal of Legal Education 199 (1954)Google Scholar.

74 The United States has been a party to 10 out of the 36 contentious cases brought before the International Court of Justice. In 3 of these cases, contentious proceedings were brought against the United States: Case Concerning Eights of Nationals of the U. S. A. in Morocco (France v. U. S. A.) ; Case of the Monetary Gold Removed From Borne in 1943 (Italy v. France, U.K., and U. S. A.); and Interhandel Case (Switzerland v. U. S. A.). An adjudication on the merits was rendered in the Bights of Nationals Case ([1952] I.C.J. Rep. 176) and the Monetary Gold Case ([1954] ibid. 19). The Interhandel Case was disposed of on the ground of non-admissibility of the application pending disposition of the case in the U. S. courts ([1959] ibid. 6). In 7 of these cases, all of which concerned various aerial incidents involving loss of aircraft in Soviet-bloc countries, the U. S. instituted contentious proceedings: Treatment in Hungary of Aircraft and Crew of U. S. A. (U. S. A. v. Hungary, [1954] I.C.J. Rep. 99, and U. S. A. v. U.S.S.E., ibid. 103); Aerial Incident of March 10, 1953 (U. S. A. v. Czechoslovakia, [1956] ibid. 6); Aerial Incident of October 7, 1952 (U. S. A. v. U.S.S.E., ibid. 9); Aerial Incident of July 27, 1955 (U. S. A. v. Bulgaria, [1960] ibid. 146); Aerial Incident of September 4, 1954 (U. S. A. v. U.S.S.E., [1958] ibid. 158); Aerial Incident of November 7, 1954 (U. S. A. v. U.S.S.R., [1959] ibid. 276). All of these cases in which the U. 8. instituted contentious proceedings were removed from the Court’s list due to total absence of acceptance of compulsory jurisdiction, except for the Aerial Incident of July 27, 1955, which was voluntarily withdrawn. The United States has also filed a statement in each of the 12 cases in which the International Court granted a request for an Advisory Opinion, and in several of these cases entered an appearance.

75 Congress has also declared it to be “the policy of the United States to adjust and settle its international disputes through mediation or arbitration, to the end that war may be honorably avoided . . . “ (22 U.S.C. 261). Obligations regarding the peaceful settlement of disputes are also contained in Arts. 2(3) and 33 of the U.N. Charter. A full listing of “ Texts Governing the Jurisdiction of the I C J “ is contained in Ch. X, [1960–1961] I.C.J. Yearbook 189–347.

76 For recent discussions on the role of international adjudication and the International Court, see, generally, e.g., Lauterpaeht, The Development of International Law by the International Court (1958); Sohn, , “The Role of International Institutions as Conflict- Adjusting Agencies,” 28 Chicago Law Rev. 205 (1961)Google Scholar; Gross, , “Some Observations on the International Court of Justice,” 56 A.J.I.L. 33 (1962)Google Scholar; Bloomfield, “Law, Politics and International Disputes,” International Conciliation, No. 516 (1958); and Stone, , “The International Court and World Crisis,” International Conciliation, No. 536 (1962)Google Scholar. And see, on the question of enforcement, Schachter, , “The Enforcement of International Judicial and Arbitral Decisions,” 54 A.J.I.L. 1 (1960)Google Scholar.

77 By the Connally Reservation to its acceptance of the so-called “compulsory jurisdiction” of the I.C.J, pursuant to Art. 36(2) of the Statute of the Court (the “optional clause”), the United States reserved the right to decide unilaterally whether a dispute concerning it was within its own domestic jurisdiction and thus beyond the jurisdiction of the Court. See Declaration by the President of the United States of America, August 14, 1946, Respecting Recognition by the United States of America of the Compulsory Jurisdiction of the I.C.J., par. 2(b) (61 Stat. 1218; T.I.A.S., No. 1598); and see, generally, “Symposium on the Connally Amendment” in the January, 1961, issue of the American Bar Association Journal (47 A.B.A.J. 57 et seq.); “Compulsory Jurisdiction, International Court of Justice,” Hearings before the Committee on Foreign Relations, U. S. Senate, 86th Cong., 2d Sess., pp. 10–23 (Herter) and pp. 24- 38 (Rogers); Briggs, , “ The United States and the International Court of Justice: A Re-examination,” 53 A.J.I.L. 301 (1959)Google Scholar. Both the present and the previous Administrations have urged withdrawal of the Connally Reservation. See President Eisenhower’s “State of the Union” Message, Jan. 7, 1960, 42 Dept. of State Bulletin 111, 117–118 (1960); Hearings, above; and 1960 Democratic Party Platform. The American Bar Association has similarly consistently supported withdrawal of this reservation.

It may be noted that the Department was subjected to heavy criticism as a consequence of its refusal first to arbitrate the Interhandel case with the Swiss Government under an existing Arbitration Treaty with Switzerland, and again when it invoked the “Connally Reservation” with respect to the limited issue of its right to sell or otherwise dispose of General Aniline and Film Co. shares after Switzerland had taken that case to the I.C.J. See Briggs, , “Towards the Rule of Law?”, 51 A.J.I.L. 517 (1957)Google Scholar; Jacoby, , “Towards the Rule of Law?”, 52 ibid. 107 (1958)Google Scholar; Mason, “The General Aniline and Film Company case,” 1958 Proceedings, American Society of Int. Law 114; and Becker, “Some Political Problems of the Legal Adviser,” ibid. 267, 38 Dept. of State Bulletin 832 (1958). As to the disposition of this case, see Judgment of March 21, 1959 (Preliminary Objections), [1959] I.C.J. Rep. 6; Briggs, , “Interhandel: The Court’s Judgment of March 21, 1959, on the Preliminary Objections of the United States,” 53 A.J.I.L. 547 (1959)Google Scholar; and Simmonds, , “ The Interhandel Case,” 10 Int. and Comp. Law Q. 495 (1961)Google Scholar.

78 The situation may, of course, be different where a party either considers that it has an “airtight “ case, or is virtually certain the other party will not accept jurisdiction and thus hopes to gain a propaganda advantage by offering to submit the dispute without expecting to actually have the case adjudicated.

79 It has long been established that U. 8. courts will directly apply both treaties and customary international law in their decisions of eases. See, e.g., The Paqueta Habana, 175 U. S. 677, 700 (1900); Aerovias Interamericanas de Panama, S. A. v. Bd. of County Comm’rs., 197 F . Supp. 230 (D.C.S.D. Fla., 1961); and Dickinson, , “The Law of Nations as Part of the National Law of the United States,” 101 U. Pa. Law Rev. 26, 792 (1952–1953)Google Scholar.

80 The judicial power of the United States extends to cases at law and equity arising under treaties made under the authority of the United States Constitution, Art. III, Sec. 2, par. 1. The Judicial Code contains a number of provisions conferring jurisdiction on Federal courts with respect to treaty and other international matters. As to the Supreme Court, see 28 U.S.C. 1251, 1254, and 1257. As to the District Courts, see generally, 28 U.S.C. 1331, 1332, 1350, 1351, and 1441. With respect to suits against the U. S., see 28 U.S.C. 1346, 1491, 1502, and 2502. And see Morse, , “ The Jurisdiction of the Court of Claims and Claims of International Import,” 1957 Wisconsin Law Rev. 222 (1957)Google Scholar; and Domke, “Access to American Courts by Foreigners,” 1957 Proceedings, ABA Section on Int. and Comp. Law 23.

81 The Department is from time to time placed in a difficult position by the failure of some foreign governments to understand the American Constitutional doctrines of separation and division of powers, and the legal inability of the U. S. Government to compel particular action by the courts. Thus, some foreign governments tend to view American court action as if it were executive action. Problems of this nature arose, for instance, when American courts refused to enjoin picketing of the Egyptian flag vessel Cleopatra, which picketing caused repercussions throughout the Middle East, see Khedivial Line, S.A.E. v. S.I.U. 278 F. 2d 49 (C.A. 2, 1960); and when American State courts attached aircraft of Cubana Airlines and other Cuban assets in proceedings by private claimants, see, for instance, Harris & Co. Advertising v. Republic of Cuba, 127 So. 2d 687 (Fla., 1961); Rich v. Naviera Vacuba, S. A., 197 P. Supp. 710 (E.D. Va., 1961), aff’d., 295 P. 2d 24 (C.A. 4, 1961); and “Contemporary Practice” section, 56 A.J.I.L. 526–529 (1962).

82 See A.L.I. Restatement, Foreign Relations Law, Sec. 152.

83 An interesting discussion of this general question appears in the Proceedings of the Third Summer Conference on International Law held at Cornell Law School (1960), on the topic of International Law in the National Courts. See Note, “Judicial Deference to the State Department on International Legal Issues,” 97 U. of Pa. Law Rev. 79 (1948).

84 See, generally, Hart, and Wechsler, , “ Note on Political Questions,” The Federal Courts and Federal System 192 (1953)Google Scholar; Dickinson, , “The Law of Nations as National Law: ‘Political Questions,’ “ 104 U. of Pa. Law Rev. 451 (1956)CrossRefGoogle Scholar; and Franck, , “The Courts, the State Department, and National Policy: A Criterion for Judicial Abdication,” 44 Minn. Law Rev. 1101 (1960)Google Scholar; and cases enumerated in Judge Bazelon’s dissent in Briehl v. Dulles, 248 F. 2d 561, 589–590 (C.A.D.C, 1957).

85 In U. S. v. Curtiss-Wright Export Corp., 299 U. S. 304, 319–322 (1936), the Court discussed some of these considerations and referred to “the very delicate, plenary, and exclusive power of the President as the sole organ of the Federal Government in the field of international relations. . . . “ And the Supreme Court has stated in a number of cases that American courts “should not act so as to embarrass the executive arm in its conduct of foreign affairs.” E.g., Republic of Mexico v. Hoffman, 324 U. S. 30, 35 (1945); Ex parte Peru, 318 U. S. 578, 588 (1943); and see U. S. v. Lee, 106 U. S. 196, 209 (1882); Terlinden v. Ames, 184 U. S. 270, 288–290 (1902); Jones v. U. S., 137 U. S. 202, 212 (1890); Oetjen v. Central Leather Company, 246 U. S. 297, 302 (1918); and U. S. v. Belmont, 301 U. S. 324, 330 (1937). See also C & S Airlines v. Waterman Corporation, 333 U. S. 103, 111 (1948).

86 See Sullivan v. Kidd, 254 U. S. 433, 442 (1920); Charlton v. Kelly, 299 U. S. 447, 468 (1913); Argento v. Horn, 241 F. 2d 258, 262–263 (C.A.6., 1957), cert, den., 355 U. S. 818 (1957); and BOAC Service to Tokyo Case, CAB Order E-13629, March 18, 1959. See also A.L.I. Restatement, Sec. 155, where the Reporter states concerning the “great weight” doctrine: “Its significance, in essence, is that under it the courts will require themselves to proceed with caution in interpreting international agreements, to make sure that they have as complete a picture as possible of the implications of their decisions, internationally as well as nationally.”

For cases in which the Department’s views were not followed, see Vermilya-Brown Co. v. Connell, 335 U. S. 377 (1948) (narrowly construing the Department’s views), further discussed in Foley Bros. Inc. v. Filardo, 336 U. S. 281, 293–294 (1949); U. S. v. Louisiana, 363 U. S. 1, 62–64 (1960); Application of Quantas Empire Airway Ltd. (CAB Docket 11826, Hearing Exam. Op., 1961).

87 See Skidmore v. Swift & Company, 323 U. S. 134, 139–140 (1944) for a general discussion in another context of such considerations of “agency expertise.”

88 The courts have generally followed the Department’s views on sovereign immunity questions. As a result, the Department’s decision to file a suggestion of sovereign immunity usually disposes of a plaintiff’s case. Compare National City Bank of New York v. Republic of China, 348 U. S. 356 (1955); Ex Parte Peru, 318 U. S. 578 (1943); Republic of Mexico v. Hoffman, 324 U. S. 30 (1945); and Berizzi Bros. v. S. S. Pesaro, 271 U. S. 562 (1926); and note particularly the Hoffman opinion’s criticism of the Pesaro decision for not following the Department of State’s views as to immunity. But see Stephen v. Zivnostenska Banka, Nat’l. Corp., 23 Misc. 2d 855, 199 N.Y.S. 2d 797 (Sup. Ct., 1960); 213 N. Y. S. 2d (Sup. Ct., 1961), aff’d., 222 N.Y.S. 2d 128 (App. Div., 1961). See, generally, A.L.I. Restatement, Sees. 68–75; various papers on “Current Developments in the Law of Sovereign Immunity,” 1961 Proceedings, American Society of Int. Law 89 et seq.; Note, “Procedural Aspects of a Claim of Sovereign Immunity by a Foreign State , “ 20 U. of Pittsburgh Law Rev. 126 (1958); Timberg, , “ Sovereign Immunity, State Trading, Socialism, and Self-Deception,” 56 Northwestern U. Law Rev. 109 (1961)Google Scholar; and Note, , “Jurisdictional Immunity of Foreign Sovereigns,” 63 Yale Law J. 1148 (1954)Google Scholar. As to the State Department’s position, see statement of Mr. Yingling, Assistant Legal Adviser for Special Functional Problems, Proceedings, Third Cornell Law School Summer Conference on International Law 4. Concerning the tendency to limit the application of the doctrine with respect to state-controlled business enterprises, see the “ Tate Letter” cited in note 93 below; Sucharitkul, State Immunities and Trading Activities in International Law (1959) ; and Setser, “Immunity Waiver for State-Controlled Business Enterprises in United States Commercial Treaties,” 1961 Proceedings, American Society of Int. Law 89.

89 Under this doctrine the courts have generally refused to review the validity under our public policy of foreign acts of state, subject to the exception that the Department of State can relieve them of this restraint in a particular case. Compare Bernstein v. Van Heyghen Freres, S.A., 163 F . 2d 246 (C.A. 2, 1947), cert, den., 332 U. S. 772 (1947), with Bernstein v, N. V. Nederlandsche-Amerikaansche, etc., 210 F . 2d 375 (C.A. 2, 1954). And see, generally, on the “ Act of State “doctrine, A.L.I. Restatement, Sees. 41–46; Zander, “ The Act of State Doctrine,” 53 A.J.I.L. 826 (1959); Hyde “ The Act of State Doctrine and the Rule of Law,” ibid. 635; Reeves, , “Act of State Doctrine and the Rule of Law: A Reply,” 54 ibid. 141 (1960)Google Scholar; and Comment, 58 Mich. Law Rev. 100 (1959). For recent eases involving the act of state doctrine in relation to the Cuban expropriations, see Banco National v. Sabbatino, 193 F. Supp. 375 (S.D.N. Y., 1961) and Pons v. Republic of Cuba, 294 F. 2d 925 (D.C. Cir., 1961).

90 See Stephen v. Zivnostenska Banka, Nat’l. Corp., cited in note 88 above. The “passport cases” are interesting examples of the courts’ conflict between a desire to accommodate the Executive in its foreign policy objectives and a desire to protect private rights. See, for example, Schactman v. Dulles, 225 F. 2d 938 (D.C. Cir., 1955); Bauer v. Acheson, 106 F. Supp. 445 (D.C, 1952); Briehl v. Dulles, 248 F. 2d 561 (D.C. Cir., 1957); Kent v. Dulles, 357 U. S. 116 (1958); Dayton v. Dulles, 357 U. S. 144 (1958); Worthy v. Herter, 270 F. 2d 905 (D.C. Cir., 1960); and Note, “Beliefs, Associations and Passports,” 27 Geo. Wash. Law Rev. 77 (1958).

91 A foreign government may properly communicate with a court either directly or through its counsel and may participate in a suit as party or as amicus curiae. See, for instance, as to assertions of a claim of sovereign immunity, U. S. v. Deutches Kalisyndikat Gesellschaft, 31 F. 2d 199, 200 (S.D.N.Y., 1929), where the French Ambassador wrote directly to the court. And see Lauritzen v. Larsen, 345 U. S. 571 (1953), for an example of intervention as amicus by the Danish Government, and Romero v. International Terminal Operating Co., 358 U. S. 354 (1959), for intervention as amid by the Danish and United Kingdom Governments.

92 See West India Fruit and Steamship Company, 130 N.L.R. B. No. 46 (1961). See also the statement by Foreign Secretary Eden transmitted through the Department to the Grand Jury investigating the alleged cartel of the major international oil companies, In re Investigation of World Arrangements with Relation to the Production, etc. of Petroleum, 13 F.R.D. 280, 289 (D.D.C., 1952). Such transmittals have the defect of leaving the court guessing as to the Department’s position. In some cases, the Department’s refusal to take a positive position on the matter may be subject to the danger of being interpreted by the court as in effect a denial of the claim made in the communication.

93 This letter was written to the Acting U. S. Attorney General. 26 Dept. of State Bulletin 984 (1952). And see National City Bank of New York v. Republic of China, 348 U. S. 356 (1955).

94 This letter was written to plaintiff’s attorney. See Dept. of State Press, Release, No. 296 of April 27, 1949, on “Jurisdiction of U. S. Courts Re Suits for Identifiable Property Involved in Nazi Forced Transfers,” and Bernstein v. N. V. Nederlandsche-Amerikaansche, etc., 210 F. 2d 375 (C.A. 2, 1954). And see for other examples, Kennett v. Chambers, 55 U. S. (14 How.) 38 (1852); Bank of China v. “Wells Fargo Bank and Union Trust Company, 92 F. Supp. 920 (N.D. Cal., 1950), app. dismissed, 190 F. 2d 1010 (C.A. 9, 1951); The Maret, 145 F. 2d 431 (C.A. 3, 1944); Latvian State SS Line v. McGrath, 188 F. 2d 1000 (C.A.D.C., 1951), cert, denied, 342 U. S. 816 (1951); and Banco National v. Sabbatino, 193 F. Supp. 375 (S.D.N.Y., 1961) (app. docketed C.A. 2).

95 See 31 U.S.C. 123 and 31 C.F.B. 211; and see, generally, e.g., Arenson, “International Procedural Problems in the Administration of Estates and Trusts,” 1959 Proceedings, ABA Section of Int. and Comp. Law 60; Berman, “Soviet Heirs in American Courts,” 62 Col. Law Rev. 257 (1962)Google Scholar; and In re Offinger’s Estate (Application of Popovic), 215 N.Y.S. 2d 642 (N. Y. Surr. Ct., Nassau Cty., 1961).

96 See In re Stoich’s Estate, 220 Ore. 448, 349 Pac. 2d 255 (1960), rev’d. sub nom. Kolovrat v. Oregon, 366 U. S. 187 (1961).

97 Karadzole v. Artukovic, 355 U. S. 393 (1958) (Per Curiam Opinion does not mention State Dept. Memo.). For course of this interesting extradition case, see Artukovic v. Boyle, 107 F. Supp. 11 (S.D. Calif., 1952), rev’d., Ivancevic v. Artukovic, 211 F. 2d 565 (C.A. 9, 1954), cert, denied, 348 U. S. 818 (1954); Karadzole v. Boyle, 247 F. 2d 198 (C.A. 9, 1957), rev’d., 355 U. S. 393 (1958). An example of a court specifically requesting the Department’s views as to a question of sovereign immunity is found in Sullivan v. State of Sao Paulo, 122 F. 2d 355 (2d Cir., 1941).

98 Testimony of Michael Cardozo, Assistant Legal Adviser for Economic Affairs, in IBRD v. All American Cable and Radio et al., FCC Docket No. 9362, Nov. 20, 1951.

99 See, generally, Note, “ Federal Intervention in Private Actions Involving the Public Interest,” 65 Harvard Law Rev. 319 (1961).

100 West India Fruit and Steamship Company, 130 N.L.E.B. No. 46 (1961). Brief for the United States filed November, 1960.

101 Pierre v. Eastern Airlines Inc., 152 F. Supp. 486 (D.N.J., 1957).

102 Ivancevic v. Artukovic, 211 F. 2d 565 (C.A. 9, 1954), cert, denied, 348 U. S. 818 (1954).

103 Loop Labor Coop. v. McDonald, etc., No. 2204, U.S.D.C., N.D. Texas, June 8, 1957.

104 Clark v. Allen, 331 U. S. 503 (1947). For other instances, see Rogers v. Cheng Fu Sheng, 177 F. Supp. 281 (D.D.C., 1959), rev’d., 280 F. 2d 663 (C.A.D.C, 1960), cert, denied, 364 U. S. 891 (1960); Vermilya-Brown Co. v. Connell, and Foley Bros. v. Filardo, note 86 above. See also Haas v. Humphrey, 246 F. 2d 682 (C.A.D.C, 1957), cert, denied sub nom. Haas v, Anderson, 355 U. S. 854 (1957), for an example of a party’s attempt to use a Department statement in later litigation. See Anderson v. N. V. Transandine Handelmaatschappij, 289 N. Y. 9, 43 N.E. 2d 502 (1942), for an illustration of a detailed Department attempt to influence the court.

105 Some of these problems are illustrated by the interesting recent case of Application of Qantas Empire Airways Ltd. (CAB Docket 11826), now before the Civil Aeronautics Board. Qantas’ claim to fly to the United States on a certain route was in part dependent upon the interpretation of certain words in the U. S.-Australian Air Transport Agreement. The Hearing Examiner asked the Department for such an interpretation. The Department’s opinion supported the right of the Australian carrier to fly the particular route under the agreement. However, the Hearing Examiner, on the basis of oral testimony and legal arguments elicited after the Department’s opinion had been rendered, rejected the Department’s view and denied the application. Without regard to the merits, it is interesting to note that procedures of this nature put the Department in the position of having publicly expressed itself on the issue, and that the rejection of the application can be argued by Australia to constitute a breach of international obligation already conceded by the Department. Moreover, although the Department studied material furnished by the litigants before rendering its opinion, the Department was not at that time exposed to the new testimony and legal arguments later developed. Finally, since its further views were not requested by the Hea’ring Examiner, the Department is placed in a position where it must take a positive initiative and affirmatively inject itself into the dispute, if it wishes either to revise or to defend its opinion, or else act at the level of Presidential approval if the Board rejects its views. An awareness of these types of procedural difficulties plays a part in the Department’s reluctance to become involved in such cases at the initial stage of the proceedings. However, it may be suggested that as a general rule it seems only fair to litigants that any opinion the Department may render in such a case set forth its arguments for its legal conclusions, even though this may open its opinion to attack.

106 See Jessup, “The Reality of International Law,” 18 Foreign Affairs 244 (1940). The fact that international law does not presently solve all world problems does not mean that it does not perform a most important, if often undramatic, function. Thus, at the height of the Berlin crisis, the U. S. mail, pursuant to international agreement, got through to Moscow.

107 Some idea of the extent of this web of obligations can be gleaned from scanning the eight volumes of Hackworth’s Digest of International Law, which cover only the years 1920 to 1940, or the 12 volumes (some 30 books) of United States Treaties and Other International Agreements, which cover only the years since 1950. United States treaties and international agreements with other countries range from the United Nations Charter and NATO Treaty to the Shrimp Fishing Convention with Mexico and the Agreement with Chile on Third Party Radio Broadcasting by Amateurs.

108 The present Legal Adviser, the Honorable Abram Chayes, stated in a speech on

April 29, 1961, before the American Society of International Law: “For us and our

associates . . . whether we will profess to live by the law is not an issue of policy

on which we have alternatives. The answer is inherent in our national tradition, in

our culture, and it is implicit in our avowal at birth of ‘ a decent respect for the

opinion of mankind.’ ” 1961 Proceedings, American Society of Int. Law 202, 205.

109 This is perhaps illustrated by the Office’s somewhat skeptical attitude toward the establishment of definite limits to “airspace” and “outer space.” See Becker, , “United States Foreign Policy and the Development of Law for Outer Space,” Navy JAG Journal (Feb., 1959), p. 4.Google Scholar

110 The importance of such practical limitations is reflected in such writings as Clarence Morris, “Peace through Law: The Bole and Limits of Adjudication,” 1960 Proceedings, American Society of Int. Law 15; 109 U. Pa. Law Rev. 218 (1960); De Visscher, Theory and Reality in International Law (trans. Corbett, 1957); Corbett, Law and Society in the Relations of States (1951); and Stone, Quest for Survival: The Bole of Law and Foreign Policy (1961).

111 The Antarctic Treaty is a good example of an undertaking, in which the Office played a major part, which many people said could not be successful. See Hayton, , “The Antarctic Settlement of 1959,” 54 A.J.I.L. 349 (1960)Google Scholar; Taubenfeld, , “ A Treaty for Antarctica,” International Conciliation, No. 531 (1961)Google Scholar. See also U. S. Proposal on International Co-operation in Peaceful Uses of Outer Space, adopted unanimously by the U. S. General Assembly, Dec. 20, 1961, 46 Dept. of State Bulletin 185 (Jan. 29, 1962); reprinted below, p. 946.

112 See, generally, references cited in note 76 above.

113 See Lon L. Fuller, “Adjudication and the Rule of Law,” 1960 Proceedings, American Society of Int. Law 1.

114 Contrast, for instance, the Soviet Union’s intransigent position in the lend-lease negotiations with its willingness to compromise and accommodate to U. S. needs during negotiation of the U. S.-Soviet aviation bilateral agreement, which was initialed by the parties but, as a result of political factors, has not yet been signed.

115 And see De Visscher, , “ Reflections on the Present Prospects of International Adjudication,” 50 A.J.I.L. 467, 474 (1956)CrossRefGoogle Scholar, where he comments: “ . . . all things considered, the present slowing down of judicial activities must be attributed much less to a deterioration in their spirit or to the imperfections of their method than to external failures of a strictly political nature which paralyze the role of all international law in international relations. Extreme political tensions today weigh heavily upon the attitude of governments, which are already little inclined to divest themselves of the settlement of their disputes in favor of international tribunals. They fear both the effect of the process and the repercussions, however distant, of the judgment. It is better to recognize this reality clearly than to wander afield in the search for procedural reforms which remedy nothing.”

116 Professor Bishop has pointed out that “ In our enthusiasm as lawyers for the use of the judicial process, we must not forget the need for orderly change in legal rights through negotiation assisted by political processes.” Bishop, , “The International Rule of Law,” 59 Mich. Law Rev. 553, 574 (1961)Google Scholar.

And see Metzger, , “Settlement of International Disputes by Non-Judicial Methods,” 48 A.J.I.L. 408 (1954)Google Scholar; and Sohn, , “The Bole of International Institutions as Conflict Adjusting Agencies,” 28 Chicago Law Rev. 205 (1961)Google Scholar. Perhaps the most important rôle for the International Court of Justice in the near future will be not in the area of resolution of disputes between states, but rather through the use of its advisory opinion function to strengthen the rôle and powers of international organizations such as the United Nations. The potential importance of this function is already obvious from the recent General Assembly request for the Court’s advisory opinion concerning the binding character of the Assembly’s assessments for United Nations peace-keeping operations, such as in the Congo, and the United Nations Emergency Force in the Near East (Financial Obligations of Members of the United Nations, I.C.J. Folio 49).

117 These cases of conflicting or concurrent jurisdiction, where one state may potentially require conduct another forbids, constitute one of the most interesting and difficult situations calling for practical accommodation. See, generally, A.L.I. Restatement, Ch. 3, Sees. 37–65.

An excellent case study in this area involves the application of various types of American laws, such as the National Labor Relations Act, to certain foreign-flag ships. See Lauritzen v. Larsen, 345 U. S. 571 (1953); Benz v. Compania Naviera Hidalgo, 353 U. S. 138 (1957); Navios Corp. v. NMW, 402 Pa. 325, 166 A.2d 625 (1960), cert, denied, 366 U. S. 905 (1961); Incres Steamship Company v. IMWU, 10 N.Y. 2d 218, 176 N.E. 2d 719 (1961), cert, granted, 368 U. S. 924 (1961); West India Fruit & Steamship Co., 130 N.L.E.B. No. 46 (1961), and the series of subsequent N.L.R.B. cases applying the Labor Act to “flag-of-convenience” ships; and see Sociedad Naeional de Marineros de Honduras v. McCulloch, 201 F. Supp. 82 (D.C., 1962), and Empresa Hondurena de Vapores S.A. v. McLeod, 300 F. 2d 222 (C.A. 2, 1962), enjoining an election ordered in United Fruit Co., 134 N.L.R.B. No. 25 (Petition for cert, filed by the Board in both cases, Oct. term, 1961). See, generally, on the “flag of convenience” problem, McDougal, , Burke, and Vlasie, , “The Maintenance of Public Order at Sea and the Nationality of Ships,” 54 A.J.I.L. 25 (1960)Google Scholar; Comment, : “The Effect of United States Labor Legislation on the Flag of Convenience Fleet,” 69 Vale Law J. 498 (1960)Google Scholar; and Note, , “Panlibhon Registration of American Owned Merchant Ships,” 60 Columbia Law Rev. 711 (1960)Google Scholar. The Supreme Court may clarify this issue in its review of the Incres case, cited above.

Another type of situation is presented by the application of American antitrust laws to foreign subsidiaries of U. S. firms, or to wholly foreign concerns. See, e.g., U. S. v. Imperial Chemical Industries, Ltd., 105 F. Supp. 215 (S.D. N.Y., 1952), and British Nylon Spinners Ltd. v. Imperial Chemical Industries, Ltd., [1952] 2 All E.R. 780 (C.A.), [1954] 3 All E.R. 88 (Ch.); U. S. v. Holophane Company, 119 F. Supp. 114 (D.C. S.D. Ohio), aff’d, 352 U. S. 903 (1956); Note, , “Extraterritorial Application of the Anti-trust Laws,” 69 Harvard Law Rev. 1452 (1956)Google Scholar; and Fugate, , “Antitrust Law and International Trade,” 1959 U. of Illinois Law Forum 387 (1959)Google Scholar; Becker, , “The Antitrust Laws and Relations with Foreign Nations,” 40 Dept. of State Bulletin 272 (1959)Google Scholar; Note, , “Extraterritorial Application of the Antitrust Laws: A Conflict of Laws Approach,” 70 Yale Law J. 259 (1960)Google Scholar.

A third type of situation involves demands by U. S. courts or regulatory agencies for documents in the hands of foreign concerns. See, e.g., Socifite’ Internationale v. Rogers, 357 U. S. 197 (1958); Montship Lines Ltd. v. Federal Maritime Board, 295 F. 2d 147 (D.C. Cir., 1961); Application of Chase Manhattan Bank, 192 F. Supp. 817 (S.D. N.Y., 1961); and in re Grand Jury Subpoena Duces Tecum, 72 F. Supp. 1013 (S.D. N.Y., 1947).

A fourth type of situation involving potential conflicts of criminal jurisdiction arising out of the stationing of United States military forces abroad has been in some cases handled by “status of forces” agreements. See, e.g., Note, , “Criminal Jurisdiction over American Armed Forces Abroad,” 70 Harvard Law Rev. 1043 (1957)Google Scholar; Baxter, “Jurisdiction over Visiting Forces and the Development of International Law,” 1958 Proceedings, American Society of Int. Law 174, and comments following.

118 A former Legal Adviser pointed out: “We are under obligation to continue dealing with foreign governments, whether or not we agree rationally or legally with the arguments presented by their representatives. And there are definite limits to the extent to which we can impose our will upon them. The practice of diplomacy is more often accommodation than decision.” Becker, “The Antitrust Laws and Relations with Foreign Nations,” loc. cit. 273. On the concept of “comity,” see Hilton v. Guyot, 159 U. S. 113 (1895), and R.S.F.S.R. v. Cibrario, 235 N.T. 255, 139 N.E. 259 (1923).

119 The Office has not been active in fostering such relationships, although the recently established regular section of the A.J.I.L. dealing with “U. S. Contemporary Practice Relating to International Law,” which is presently prepared by a group of Office attorneys, represents a good beginning in this respect. Moreover, with the exception of occasional law review or journal articles, the influence of the professional societies and law schools on the Office has not been substantial. In part, the burden of Office work makes it difficult for its attorneys to keep abreast of outside thinking, even though they are in a sense the “addressees” of many of the reports and articles. In part, such outside thinking is often somewhat unrealistic in terms of the practical problems faced by the Office, and occasionally represents the lobbying of special interests rather than impartial scholarship and thought. An exception, which has had a stimulating influence on the Office, is the work of the American Law Institute in its “Restatement of the Foreign Relations Law of the United States.”