agrees to engage in the legal representation of a disclosed foreign principal before any court of law or any agency of the Government of the United States.... [and]

[a]ny person engaging or agreeing to engage only (1) in private and nonpolitical activities in furtherance of a bona fide trade or commerce of such foreign principal; or (2) in other activities not serving predominantly a foreign interest . . .

The Court then concluded that the Senate Foreign Relations Committee had not seriously considered the question of confidential client-attorney communications during hearings concerning the Act but that the phrase "books of accounts and other records” in the disclosure provision found in section 1615 of the Act did include records which would tend to reveal confidential communications between a foreign principal and its agent-attorney concerning legal matters.

The Court closed by rejecting the Department of Justice position that confidential records must per se be disclosed to its officials because such a ruling might well limit substantially the ability of an agent-attorney to give legal aid to his client and because in all or nearly all instances an impartial judicial officer would be able to disclose portions of a confidential document, or the substance of it, relevant to the Attorney General's needs under the Act without compromising the attorney-client relationship.

In Attorney General v. United States-Japan Trade Council et al., Civil Action No. 76-1290, a consent decree and final judgment of permanent injunction and other ancillary relief were filed in U.S. District Court for the District of Columbia on September 3, 1976. The final judgment by Judge John H. Pratt entered against the Council, its officers, agents and others actively participating with them, enjoined them from:

A. Violating section 2 of the Foreign Agents Registration Act of 1938, as amended (the Act) (22 U.S.C. 612) and rules thereunder (28 CFR 5.202 and 5.210) by acting as a foreign agent of the Government of Japan without filing with the Attorney General true and complete registration statements and supplements containing information and documents on the status and function of the Council, names of foreign principals, the nature of the business, all activities engaged in, copies of contractual arrangements and identities of real parties in interest, moneys received and their disposition, responsibilities of officers and key employees, and such other statements as necessary to make the information not misleading.

B. Violating section 4(b) of the Act (22 U.S.C. 614(b)) and rule 402 (28 CFR 5.402) by transmitting or causing to be transmitted in the U.S. mails or in interstate or foreign commerce any political propaganda unless conspicuously marked as registered under the Act by the Council as agent of the Government of Japan and including a statement that its registration statement is open for

inspection at the Department of Justice and that such registration does not include approval by the U.S. Government of the contents of the political propaganda. For a period of three years the statement must include a recital that the Council receives almost all its funding from the Japanese Government, which exercises general supervision and ultimate control over its activities; and that the Council has no membership other than subscribers to its literature, who have no voice in its operations.

C. Violating section 4(e) of the Act (22 U.S.C. 614(e)) by furnishing to any agency or official of the Government (including a member or committee of Congress) for or in the interest of the Government of Japan any political propaganda or by requesting from such agency or official information or advice pertaining to political or public interests or relations of a foreign country or political party or pertaining to U.S. foreign or domestic policies unless the propaganda or request is accompanied by a statement of foreign agent registration.

The final judgment also required the defendant Council and its representatives to file an amended registration statement disclosing, inter alia, the following information: that the true foreign principal of the Council was the Government of Japan; that the agreements involving the Japan Trade Promotion Office (JTPO) served solely to convey funds between the Government and the Council; the terms under which the Council performed as agent of the Government of Japan; that the Council received its principal funding from, and was under the ultimate control of, that Government; the details of the Council's lobbying activities; the areas of economic and political advice given to the Government of Japan; the names of persons in the news media who received information and the details of any use of such information; the degree of any speech writing assistance to Japanese officials; names of congressional staff members, government officials and those in the news media who traveled to Japan through Council arrangement at no expense to themselves; details of conveyance of funds to Donald Lerch, Jr., Co., Inc. (an agent of the Government of Japan); names of organizations used to exert political pressure and related information; and descriptions of the functions and duties of all officers, directors, and key employees of the Council and JTPO.

The Council was also ordered to publish or cause to be published newspaper advertisements in a national financial journal to notify the public of the action; offer to supply its amended registration statement to previous recipients of Council material; file copies of the advertisements with the Department of Justice; notify its mailing list and legislators, and governmental quasi-governmental organizations previously contacted of the action and offer its amended registration statement; and cease to act for, or in the interests of, the Government of Japan until complying with the above.

or

Finally, Judge Pratt ordered that the U.S. District Court for the District of Columbia retain jurisdiction of the matter for all purposes, and that any party could apply to the Court on notice to each of the other parties for an interpretation of the final judgment.

See XV International Legal Materials 1017-1028 for the text of the consent decree and judgment in Attorney General v. U.S.-Japan Trade Council, et al. In the final judgment entered in the case of the JTPO, that Office and its officials were enjoined from filing false and misleading registration documents with the Dept. of Justice and were required to reveal that JTPO had served no purpose other than to act as conveyor of monies between the Embassy of Japan and the Council to obscure the fact that the Council was an agent of the Japanese Government. The JTPO and three of its officials signed a stipulation and consent which was the same as that signed on behalf of the U.S.-Japan Trade Council et al.

For status of forces provisions with respect to criminal jurisdiction over U.S. personnel in Spain and claims for damages arising in connection with their presence in Spain, see post, Ch. 6, § 3, pp. 292-293.

86

International Conferences

Participation

The U.N. General Assembly, on December 9, 1976, adopted a Syrian-sponsored resolution (Res. 31/61), calling for early resumption of the Middle East Peace Conference at Geneva, with participation by the Palestine Liberation Organization (PLO). The vote was 91-11(U.S.)-29. Ambassador William W. Scranton, U.S. Representative to the United Nations, in explanation of vote stated, "the question of additional participants at the Geneva Conference is one which can only be addressed by the original participants themselves."

Tel. USUN 6022, Dec. 9, 1976.

Chapter 5

THE LAW OF TREATIES AND OTHER INTERNATIONAL AGREEMENTS

81

Conclusion and Entry into Force

Choice of Treaty Form

Secretary of State Kissinger, in his report to the President of February 6, 1976, concerning the 1976 U.S.-Spain Treaty of Friendship and Cooperation (TIAS 8360; 27 UST; entered into force September 21, 1976), stated, in part:

The new agreement is in the form of a treaty. This solemn form was deemed appropriate not only because of the wide scope and importance of the subject matter covered but also because both Spanish and United States authorities wanted to assume the soundest political basis for the new stage in United States-Spanish relations symbolized by the agreement.

The Senate Foreign Relations Committee, when it reported the treaty favorably on May 20, 1976, noted the use of the treaty form as follows:

Throughout 1975, the U.S. negotiating team, while by no means foreclosing the idea of a treaty (but not a security treaty), basically was dealing with the concept of another executive agreement. Praiseworthy efforts were made to keep appropriate members of Congress informed within limits with respect to either eventuality. Late in the year, however, the Secretary of State decided to accelerate the negotiating process, and also to submit the results as a treaty. Presumably because a number of contingent promises had already been made to the Spanish Government, the treaty articles were not framed in a customary way. Instead, cross references were made to Supplementary Agreements which contain financial provisions. Furthermore, not only the Treaty articles but the Supplementary Agreements and exchanges of notes were submitted as treaty text. Correctly or not in constitutional terms-as noted by Senator Javits-the executive branch takes the position that the package signed on January 24, 1976, cannot be separated

by the Senate in giving or withholding its advice and consent to ratification.

. . . [T]he Committee is encouraged by the character of changes in Spanish conditions over recent months. Even though there is a risk-as in many areas of the world—that the United States might become affiliated in the eyes of people abroad with an unpopular government, the odds seem to favor positive action. This is especially the case because the Committee has engaged in a long struggle to persuade successive administrations to employ the treaty route for obviously important issues, rather than continuing to rely on executive agreements.

See S. Ex. Rept. 94-25, 94th Cong., 2d Sess., pp. 2, 9.

Reservations and Senate Declarations

The U.S. Senate, on June 21, 1976, passed a resolution of advice and consent to ratification of the Treaty of Friendship and Cooperation between the United States and Spain, signed at Madrid on January 24, 1976 (TIAS 8360; 27 UST; entered into force September 21, 1976), together with seven supplementary agreements and eight related exchanges of notes. The resolution was subject to the declaration that:

(1) the United States, recognizing the aspiration of Spain to achieve full participation in the political and economic institutions of Western Europe, and recognizing further that the development of free institutions in Spain is a necessary aspect of Spain's full integration into European life, hopes and intends that this Treaty will serve to support and foster Spain's progress toward free institutions and toward Spain's participation in the institutions of Western Europe political and economic cooperation;

(2) the United States, while recognizing that this Treaty does not expand the existing United States defense commitment in the North Atlantic Treaty area or create a mutual defense commitment between the United States and Spain, looks forward to the development of such an expanded relationship between Western Europe and a democratic Spain as would be conducive to Spain's full cooperation with the North Atlantic Treaty Organization, its activities and mutual defense obligations;

(3) the United States, recognizing that this Treaty provides a framework for continued nuclear cooperation for peaceful purposes with Spain, looks forward to a continued relationship in this field commensurate with steps taken by Spain toward becoming a party to the Treaty on the Non-Proliferation of Nuclear Weapons or placing all of its nuclear facilities under safeguards administered by the International Atomic Energy Agency;

(4) Senate advice and consent to ratification shall be understood to apply only to the initial five-year period of the Treaty, so that any United States agreement to an extension of the Treaty shall require