sions of both the Supreme Court and Circuit Courts holding executive determinations dealing directly with foreign relations beyond judicial competence, we do not view this fact as disposing automatically of the plaintiffs' argument that the review provisions of the Act apply." The Court said that the applicability of the APA had never been considered in the context of sovereign immunity and the issue was sufficiently important to require analysis. Congress had not provided specifically, in the APA or elsewhere, for review of Department of State decisions to recognize and allow a claim of sovereign immunity, and the question was whether "the presumption of review accorded most agency action obtains." The Court concluded that it did not.

The Court said it was analyzing the proper allocation of functions of the branches of government and not the scope of sovereign immunity under international law. While the Court did not doubt the propriety of courts deciding questions of sovereign immunity, absent executive recognition and allowance of a claim, "different considerations come into play when the executive has made its determination clear." The Court stated:

When the executive branch has determined that the interests of the nation are best served by granting a foreign sovereign immunity from suit in our courts, there are compelling reasons to defer to that judgment without question. Separation-of-powers principles impel a reluctance in the judiciary to interfere with or embarrass the executive in its constitutional role as the nation's primary organ of international policy. United States v. Lee, 1882, 106 U.S. 196, 209, 1 S.Ct. 240, 27 L.Ed. 171. And the degree to which granting or denying a claim of immunity may be important to foreign policy is a question on which the judiciary is particularly ill-equipped to second-guess the executive. The executive's institutional resources and expertise in foreign affairs far outstrip those of the judiciary. See Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 1948, 333 U.S. 103, 111, 68 S.Ct. 431, 92 L.Ed. 568; United States v. Curtiss-Wright Export Corp., 1936, 299 U.S. 304, 320, 57 S.Ct. 216, 81 L.Ed. 255. Perhaps more importantly, in the chess game that is diplomacy only the executive has a view of the entire board and an understanding of the relationship between isolated moves. Will granting immunity serve as a bargaining counter in complex diplomatic negotiations? See Falk, The Role of Domestic Courts in the International Legal Order, 39 Indiana L.J. 429, 440 (1964). Will it prelude a significant diplomatic advance; perhaps a detente between this country and one with whom we are not on the best speaking terms? These are questions for the executive, not the judiciary.

Plaintiffs also argued that even if the decision to recognize and allow a claim of immunity is with the discretion of the Executive Branch, the Department of State must explicate the reasons behind its decision, for "only then can the judiciary properly be confident that

the executive has exercised its discretion within the bounds of reasonableness." In the case at bar, the Department provided neither the plaintiffs nor the Court with the basis for its decision. The Court said that "In the narrow band of government action where foreign policy interests are direct and substantial we must eschew even limited 'reasonableness' review. To require the executive to enlighten us with the foundation of its decision to recognize and allow a claim of sovereign immunity might itself create a serious risk of interference with foreign relations." In a footnote to its opinion, the Court stated:

We do not mean to imply that any agency action touching foreign relations, however tenuously, is entitled to a presumption against review. We agree with the District of Columbia Circuit that a government agency "cannot wrap its decision[s] in some mystique of foreign policy or purported expertise in international negotiation to achieve a nonreviewable status for the facts underlying its most important and sensitive decisions." Pillai v. CAB, D.C. Cir. 1973, 485 F.2d 1018 at 1023. On the other hand, even that Circuit apparently would agree with us that decisions bound up with substantial foreign policy questions are not reviewable. In Peoples v. United States Department of Agriculture, 1970, 138 U.S.App.D.C. 291, 427 F.2d 561, 567, the Court said: "The general rule, subject only to rare exceptions, [is] that the action of a government agency in the domestic sphere, as contrasted with actions in the spheres of foreign affairs or national security, is subject to judicial review for arbitrariness and abuse of discretion." (Emphasis supplied.) Compare Pillai v. CAB, supra; National Air Carrier Ass'n v. CAB, 1971, 143 U.S.App.D.C. 140, 442 F.2d 862; National Air Carriers Ass'n v. CAB, 1970, 141 U.S.App.D.C. 31, 436 F.2d 185 (CAB decisions approving international air line rates are reviewable) and Rusk v. Cort, 1962, 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809 (decisions by the State Department denying passport renewal are reviewable) with Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., supra, 333 U.S. 103 (orders of the CAB, approved by the President, to grant or deny applications to engage in overseas and foreign air transportation are not reviewable) and United States v. Pink, supra, 315 U.S. 203 (decisions by the State Department to grant or deny diplomatic recognition to foreign nations are not reviewable).

There is no question of the tight relationship between foreign policy and the State Department's decision to certify a suggestion of immunity to the courts. See Ex parte Peru, supra, 318 U.S. at 587. Indeed, the political aspects of such a decision are inescapable. The State Department has found that it cannot deny a claim of immunity without risking adverse effects on foreign relations. Thus the Administration has sought legislation transferring to the courts the responsibility for determining whether a claim of immunity should be honored. See H.R. 3493, 93d Cong., 1 Sess. (1973). The bill would take the State Department out of the business of suggesting immunity to the courts.

The Court concluded that "Only if we permit an executive suggestion of immunity to preempt completely judicial consideration of the question can we be certain that we are not encroaching upon the executive's prerogative in foreign affairs."

With respect to the standards set forth in the Tate letter (Department of State Bulletin, Vol. XXVI, No. 678, June 23, 1952, p. 984), plaintiffs argued that it was impossible to tell whether the Department of State applied such standards, and that, in fact, it appeared that the Department used some other standard. The defendant argued that the Tate letter is a guide to Department policy, and not an unalterable rule. The Court stated that "Because we hold that the executive's decision to recognize and allow a claim of sovereign immunity is unreviewable, we need not enter this debate."

The plaintiffs also contested the use of mandamus. They would have had the Courts use the traditional appellate procedure, which would have necessitated the M. N. Imias remaining at anchor in the Panama Canal until the appeal had been resolved. The Court cited Ex Parte Peru as precedent for the mandamus procedure and said that "We cannot ignore the possibility of a crisis in international relations stemming from any delay in implementing the State Department's suggestion of immunity." The Court said that while it was "aware of no 'crisis' in this instance, we may not demand that international relations create a cause celebre before we require the district courts to follow the time-honored practice of releasing a vessel upon the State Department's recognition and allowance of immunity and the filing of an appropriate suggestion with the court. The national interests that compel us to permit the executive unreviewable discretion to determine that sovereign immunity is necessary to foreign policy compel us to comply with that determination with great dispatch."

On March 20, 1974, the United States Court of Appeals for the First Circuit, in the case of Deep, Deep Ocean Products, Inc. v. Union of Soviet Socialist Republics, et al., 493 F.2d 1223 (1974), refused to review a Department of State determination of immunity. The suggestion had been made by the Department in the case of a vessel of the Soviet Union engaged in a program of scientific research at Woods Hole, Massachusetts. See the 1973 Digest, Ch. 6, § 7, pp. 224–225. Appellants maintained that the vessel in question, the Belogorsk, was neither owned nor controlled by the Soviet Union and that the suggestion of immunity was thus improper. The Court of Appeals said it "could accept this argument only by deviating from oft-affirmed unequivocal doctrine" and then cited the following language from Ex parte Republic of Peru, 318 U.S. 578, 589 (1943):

The certification and the request that the vessel be declared immune must be accepted by the courts as a conclusive determination by the political arm of the government that the continued retention of the vessel interferes with the proper conduct of our foreign relations. Upon the submission of this certification to the district court, it became the court's duty, in conformity to established principles, to release the vessel and to proceed no further in the cause.

The Court of Appeals cited Compañía Española de Navegación Maritima, S.A. v. The Novemar, Isbrandtsen Tankers, Inc. v. Presi dent of India, and Rich v. Naviera Vacuba, S.A., saying that "We decline to depart from these authorities." The Court also cited Spacil v. Crowe, supra.

In Renchard, et al. v. Humphreys & Harding, et al., 381 F. Supp. 382 (1974), the U.S. District Court for the District of Columbia held on September 10, 1974, that the Court should show the same deference to a Department of State recommendation whether it suggests or declines to suggest immunity for a foreign nation (Brazil in this case; see above, pp. 263–264). The Court agreed with past cases which had stated that courts are ill-equipped to determine whether the Department of State's determination not to suggest immunity is correct. The Court said: "That determination reflects the Department's conclusion that lack of immunity will not cause embarrassment to this country in the conduct of its foreign relations. Since the Department has concluded that the rationale permitting immunity does not exist in this case and since that determination is basically a foreign policy decision, this Court finds no persuasive reason for not considering that determination binding." The Court concluded that "when the State Department declines to suggest immunity, the purpose for that immunity vanishes and the courts should not grant it." (at p. 384.)

The defendant also in effect asked the Court to review the Department's decision in light of the standards enunciated in the Tate letter and to correct the Department if the Court finds that the Department applied those standards incorrectly. The Court said that it "declines the invitation" and stated further:

The proper interpretation of the principles in the Tate letter must be considered in light of the overall objective of the foreign sovereign immunity doctrine-whether the grant of immunity is necessary to avoid embarrassment to this country in the conduct of foreign relations. The principles in the Tate letter, contrary to the implications in defendant's memorandum, are not to be viewed as absolute or unyielding; rather, they are subject to interpretation and change and the Department of State is the proper organization to give such interpretation. The courts should only enter into such

interpretation when the Department has refused to indicate its views. Since the Department has stated its views clearly in this matter, this Court should not redetermine that decision since it would involve a policy decision of a type much more suited to the executive than to the judiciary. (at p. 385; footnote omitted.)

Since the Court concluded that the Department of State's suggestion not to grant immunity should be given conclusive effect, it was deemed by the Court "unnecessary and improper" to consider whether Brazil should be granted immunity under the circumstances of the

case.

Timing

The Department of State, on July 12, 1974, sent a note to the Embassy of the People's Republic of Bangladesh in Washington concerning a suit brought by the Sea Transport Corporation against several parties, including the Government of Bangladesh, in the United States District Court for the Southern District of New York (No. 74/Civil Action File No. 2096). The Embassy of Bangladesh, in a note to the Department of State dated June 7, 1974, had requested that the Department make a suggestion of immunity to the District Court.

The U.S. reply of July 12 noted the Department's understanding that the Government of Bangladesh was considering filing a motion to dimiss the complaint on the ground that the purported service of process on the Consulate General of Bangladesh in New York on May 17, 1974, was ineffective to bring the Government of Bangladesh within the jurisdiction of the Court. The Department said it "believes that it should not make a decision on the question of sovereign immunity at this time in that the Court could decide on the basis of such a motion to dismiss that under the rules of the forum there is no jurisdiction over the Government of Bangladesh. After the possibility of such a motion to dismiss or other procedural rule of the forum has been disposed of, the Department will entertain a further request from the Government of Bangladesh for a suggestion of sovereign immunity."

Dept. of State File No. P74 0075-0916. See also Ch. 4, § 1, supra, pp. 171–172.

Execution

On October 4, 1973, the Branch Manager of the Iraqi Commercial Bank informed the U.S. Interests Section of the Embassy of Belgium in Iraq that the Bank had received an order from the Supervisory Executory Body of Baghdad instructing the Bank to impound 4638.34