It is my impression that if this unification should take place, it will make de jure what already exists de facto. I don't think it will change the real situation in Viet-Nam. I think it is a matter for the existing Vietnamese Governments to decide. It will not affect our attitude particularly. Dept. of State Bulletin, Vol. LXXIII, No. 1901, Dec. 1, 1975, p. 781. China At his press conference on November 10, 1975, Secretary Kissinger was asked with respect to President Ford's forthcoming visit to the People's Republic of China whether it would be possible under any circumstances to have diplomatic relations simultaneously with the Governments of Taipei and Peking. The Secretary replied, "No." Dept. of State Bulletin, Vol. LXXIII, No. 1901, Dec. 1, 1975, p. 781. Following President Ford's visit to Peking, Assistant Secretary of State Philip Habib made a statement on December 17, 1975, before the Special Subcommittee on Investigations of the House International Relations Committee concerning U.S. policy toward the People's Republic of China (P.R.C.). Excerpts from his statement follow: The normalization of U.S. relations with the People's Republic of China is a crucial element in preserving [global] equilibrium. . . * In essence there are three aspects of our relations with the P.R.C. The first is the geopolítical aspect, reflected in our common recognition that the overall security of the international order would be better maintained if the United States and China had a relationship of dialogue with each other than if they were in a position of permanent hostility. The second aspect concerns those factors affecting the full normalization of our relations, the most important of which is the question of Taiwan. The third concerns the mutually beneficial bilateral ties we have established in areas such as trade, and scientific and cultural exchanges. There are, of course, a number of unresolved bilateral issues, including the problem of Taiwan. . . . We have approached normalization of our bilateral relations with the P.R.C. in accordance with the position we stated in the Shanghai Communiqué [of 1972] that the ultimate resolution of the Taiwan question is for the Chinese themselves to decide and that the resolution should be by peaceful means. For our part, we have progressively reduced our forces in the Taiwan area as tensions in Asia have diminished. The President's visit confirmed that while U.S.-P.R.C. relations are not yet normalized, they are good and will be gradually improved.... President Ford reaffirmed the determination of the United States to complete the normalization of relations with the People's Republic of China on the basis of the Shanghai Communiqué, which P.R.C. Vice Premier Teng Hsiao-p'ing described as remaining "full of vitality today." . . . The United States is confident that we can continue to build a relationship with the People's Republic of China which advances the national interests of both countries. . ... Statement released by Dept. of State on Dec. 17, 1975. For the text of the Shanghai Communiqué, see Dept. of State Bulletin, Vol. LXVI, No. 1708, Mar. 20, 1972, pp. 435-438. Mozambique Secretary of State Kissinger met with Joachim Alberto Chissano, Foreign Minister of the People's Republic of Mozambique, in New York on September 23, 1975, and initialed a communiqué establishing diplomatic relations between the United States and Mozambique. The text of the communiqué follows: The Government of the United States of America and the Government of the People's Republic of Mozambique, desirous of strengthening the friendship existing between the peoples of the United States of America and of Mozambique based on the principles of mutual respect, sovereign equality and non-interference in the internal affairs of each other, have decided to establish diplomatic relations, at the ambassadorial level, between their respective countries with effect from the TwentyThird day of September Nineteen Hundred Seventy Five. Dept. of State Bulletin, Vol. LXXIII, No. 1894, Oct. 13, 1975, p. 570. Mozambique, which became independent on June 25, 1975, and was recognized that day by the United States, had requested a joint communiqué as prerequisite to establishment of diplomatic relations with any country. Korea In a press interview on October 14, 1975, Secretary of State Kissinger, in stating his support for an exchange of views between the concerned powers about the future of North and South Korea, said: We would be prepared to participate in any negotiations or in any conference whose composition was reasonably balanced that included South Korea. Similarly, if the Soviet Union or the People's Republic [of China] were prepared to recognize South Korea, we would be prepared to recognize North Korea. Dept. of State Bulletin, Vol. LXXIII, No. 1899, Nov. 17, 1975, p. 696. Effect of Nonrecognition On February 24, 1975, the United States District Court for the Eastern District of New York, in Federal Republic of Germany v. Elicofon (No. 69-C-93), granted a motion by Kunstsammlungen zu Weimar, an agency of the German Democratic Republic, to intervene in the pending action to recover paintings from a U.S. resident. The ruling granted relief from an order dated September 25, 1972, 358 F. Supp. 747 (1972), affirmed 478 F.2d 231 (1973), cert. denied, 415 U.S. 931 (1974), rehearing denied, 416 U.S. 952 (1974), that had denied Kunstsammlungen's intervention on the ground that the United States did not recognize East Germany. For details of the case, see discussion of the Kunstsammlungen zu Weimar case in the 1973 Digest, pp. 15–17, and in the 1974 Digest, pp. 12-13. U.S. District Judge Jacob Mishler noted in his new memorandum of decision and order that the Department of State, on August 8, 1974, had withdrawn its objection to the entertainment of Kunstsammlungen's claim and that the United States had extended formal recognition to the German Democratic Republic on September 4, 1974. He concluded that the lifting of the bar to prosecution of the claim justified relief from the order denying intervention. See 14 International Legal Materials 806. In a letter dated June 2, 1975, Thomas E. Kauper, Assistant Attorney General, Antitrust Division, Department of Justice, requested the advice of the Department of State regarding the position of the executive branch toward the Government of the Republic of Viet-Nam following the takeover of that country by the armed forces of the Provisional Revolutionary Government of South Viet-Nam. The request was prompted by an inquiry from the U.S. Court of Appeals for the Eighth Circuit in the case Pfizer, Inc., et al. v. Honorable Miles Lord, U.S. District Judge, and Republic of Viet-Nam, et al., No. 74-1680. The case was awaiting decision after argument before the Court of Appeals on petitions for extraordinary writs seeking review of a ruling by the U.S. District Court for the District of Minnesota that foreign states, including the Republic of Viet-Nam, have capacity to maintain an antitrust treble-damage action under section 4 of the Clayton Act, 15 U.S.C. 15. The United States was participating in the Court of Appeals as amicus curiae in support of the District Court's holding. Mr. Kauper's letter posed three questions: (1) Does the United States continue to recognize the Government of the Republic of Viet-Nam as of the current date? (2) If not, does the United States recognize any government, including the Provisional Revolutionary Government, as a representative of South Viet-Nam? (3) Are there any special considerations indicating that changed circumstances might occur so as to warrant suspension rather than dismissal of the action on behalf of South Viet-Nam? George H. Aldrich, Acting Legal Advisor of the Department of State, in a letter of June 9, 1975, replied as follows: We wish to advise you that the answer to all three of these questions is no. The Government of the Republic of Viet-Nam has ceased to exist, and therefore the United States no longer recognizes it as the sovereign authority in the territory of South Viet-Nam. The United States has not recognized any other government as constituting such authority. Whether, when, and to what extent future events will alter this situation is now impossible to say. The Department of State would not advise any request to the court to suspend, rather than dismiss, the proceedings. Dept. of State File No. P75 0142-511. On June 12, 1975, Mr. Kauper wrote a letter to the Clerk of the U.S. Court of Appeals for the Eighth Circuit, in which he set forth the position of the executive branch that the Republic of VietNam's action against the defendants in the Pfizer case should be deemed to have abated and that the proceedings should be dismissed. Excerpts from Mr. Kauper's letter follow: The Department of the Treasury, acting under authority of Section 5(b) of the Trading with the Enemy Act, 50 U.S.C. App. 5(b), added South Viet-Nam to the list of territories covered by the Foreign Assets Control Regulations, 31 C.F.R. 500, as of April 30, 1975. See 40 Fed. Reg. (No. 86) 19202, May 2, 1975. Section 500.201 of these regulations, as thus amended, prohibits any transaction not licensed by the Treasury Department involving property subject to the jurisdiction of the United States, in which South Viet-Nam or its nationals have an interest. The effect of the blocking regulations is to restrict South Vietnamese assets until there is ultimately a future debt settlement agreement between the United States and Viet-Nam, and a legislative decision as to the priorities to be accorded various classes of creditors claiming against the pool of blocked assets. The term "property" has been broadly defined to include intangible property. This necessarily embraces choses in action. 31 C.F.R. 500.311. Thus, attorneys who wish to continue to represent South Viet-Nam require a license from the Treasury Department. That agency's Office of Foreign Assets Control has advised us that it is its policy to license all litigation brought by blocked nationals against non-blocked nationals. Such licenses provide, however, that funds in satisfaction of any judgment must be deposited in a blocked account in a domestic bank in the name of the blocked national, or in the name of his attorneys. The Office has also advised us that any license it issues to attorneys for South Viet-Nam is permissive in nature, and does not represent a determination by the Treasury Department that the attorneys are otherwise properly authorized to continue representation of the former Republic of Viet-Nam. In any event, issuance of a permissive license by the Treasury does not establish the right of the Republic of Viet-Nam, to continue to litigate as a party in the courts of this country. That question depends upon the recognition policy of the United States as determined by the political authorities responsible for it. Our research indicates that foreign governments which are not recognized by the United States-as distinguished from those with which it has simply severed diplomatic relationsmay not maintain suits in State or Federal courts. Guaranty Trust Co. of New York v. United States, 304 U.S. 126, 136–141; Russian Socialist Federated Soviet Republic v. Cibrario, 235 N.Y. 255, 139 N.D. 259. See also Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 408-412; Federal Republic of Germany v. Elicofon, 358 F. Supp. 747 (E.D. N.Y.), affirmed sub nom. Kunstsammlungen zu Weimar v. Elicofon, 478 F.2d 231 (C.A.2), certiorari denied, 415 U.S. 931. The executive branch's action with respect to recognition is conclusive on domestic courts, although the legal consequences following therefrom are solely for the courts to determine. Guaranty Trust Co. of New York v. United States, supra; United States v. Pink, 315 U.S. 203; United States v. Belmont, 301 U.S. 324. The rights of sovereign states are vested in the nation, however, not in any particular government purporting to represent it. The Sapphire, 78 U.S. (11 Wall.) 164, 168. There is thus some precedent indicating that an action initiated by a foreign government which the United States subsequently ceases to recognize, may be suspended, rather than dismissed, if the United States currently recognizes no government for that state, but circumstances indicate that this condition may be of relatively short duration. Government of France v. IsbrandtsenMoller Co., 48 F. Supp. 631 (S.D. N.Y.); Bank of China v. Wells Fargo Bank and Union Trust Co., 92 F. Supp. 920 (N.D. Cal.), appeal dismissed without prejudice and case remanded for reconsideration in light of subsequent developments, 190 F.2d 1010 (C.A. 9). Cf. The Sapphire, supra; Republic of China v. Merchants Fire Insurance Co., 30 F.2d 278 (C.A. 9). Furthermore, it appears that American courts are open to diplomatic representatives of a state, if recognized, even though the government they represent no longer controls any specific territory. Guar |