Dept. of State File Nos. P80 0055-1794 and 0055-1798.

Following remand to the United States District Court for the Northern District of Illinois, Associate Attorney General Shenefield made a formal statement of interest by the United States in Westinghouse Electric Corporation v. Rio Algom, Ltd., et al., No. 76 C 3830 (N.D. Ill.), by a letter dated May 6, 1980, to U.S. District Judge Prentice H. Marshall.

Referring to conflicts between discovery orders of United States courts (directed toward activities of foreign persons outside the territory of the United States) and foreign criminal laws, the letter suggested to the court that views and representations advanced by foreign governments “are entitled to appropriate deference and weight in resolving legal questions that turn, at least in part, on considerations of international comity," and none the less so for having been presented directly to the court rather than through the Department of State. The text of the letter follows in part:

This letter constitutes a formal statement of interest by the United States in the above-captioned litigation. The case implicates foreign policy concerns of both the United States and foreign governments. Australia, Canada, France, South Africa, and the United Kingdom have all expressed serious concern at what they see as the exercise of the United States' jurisdiction over activities of foreign persons outside the territory of the United States challenging their authority to establish national policies for corporate activity in their countries. The recent adoption of administrative and legislative measures by some foreign governments in response to the initiation of this lawsuit testifies to the intensity and authenticity of their respective interests. The views and representations advanced by these foreign governments are entitled to appropriate deference and weight in resolving legal questions that turn, at least in part, on considerations of international comity. See, e.g., Société Internationale v. Rogers, 357 U.S. 197 (1958); Timberlane Lumber Co. v. Bank of America, 549 F.2d 597 (9th Cir. 1976); Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287 (3rd Cir. 1979); Section 40 of the Restatement (Second) of the Foreign Relations Law of the United States.

Foreign governments may perceive particular federal litigation to which they are not parties as threatening to their sovereign interests. At one time, it was customary for foreign governments to communicate such concerns through diplomatic notes, delivered to the federal courts by the Department of State. In 1978, however, the Clerk of the United States Supreme Court notified the Solicitor General that a foreign government that desired to present its views to the federal courts on a pending case should do so by way of a brief amicus curiae. Accordingly, since that time, both the Department of State and the Department of Justice have consistently encouraged interested foreign governments to submit their positions directly to the courts as amici. It would be improper, therefore, to discount the importance of international comity in a particular case simply because foreign governments have expressed their

views to the court without the intercession of the Department of State.

Dept. of State File No. P80 0108-2005.

See, further, the 1978 Digest, pp. 560-563.

After the Dept. of State had issued a circular note to the Chiefs of Mission in Washington in 1978, informing them that it would no longer transmit diplomatic notes to the U.S. Supreme Court or to the U.S. Courts of Appeal, a private practitioner asked the Legal Adviser for a definitive statement of the Department's policy regarding transmittal of diplomatic notes to other courts. Deputy Legal Adviser Lee R. Marks had replied on June 15, 1979, that the Department did not, in general, expect to transmit diplomatic notes from foreign governments to Federal trial courts and State courts, but had not foreclosed the possibility of so doing, in the absence of indications to the contrary from the courts. Transmittal requests would be reviewed, however, on a case-by-case basis, to determine the appropriateness of a transmittal from the Department. Dept. of State File No. P79 0117-0441.

In 1977 Acting Legal Adviser Mark B. Feldman had confirmed that the Department's decision not to transmit a diplomatic note from a foreign embassy regarding certain litigation was "not to be construed as a negative judgment on the merits of any issues raised." Ibid., No. P84 0005-1656.

Protection of Diplomats

Complicity in Violence by Host State (United States of America v. Iran (I.C.J. 1980))

On December 15, 1979, the International Court of Justice issued its order indicating provisional measures, in the first phase of the proceedings initiated by the United States on November 29, 1979, against Iran, following seizure of the American Embassy at Tehran by Iranian revolutionaries on November 4 and their continuing detention of United States nationals as hostages. The United States had requested the Court to indicate provisional (or interim) measures in an effort to prevent the occurrence "in the volatile circumstances existing in Tehran" of a "tragedy of an irreparable kind" affecting the very lives of the hostages, whom the United States had described in its Application to the Court as being "to an anguishing degree, in continuing jeopardy."

The provisional measures indicated, inter alia, that the Government of the Islamic Republic of Iran should "ensure the immediate release, without any exception, of all persons of United States nationality... held in the Embassy of the United States of America or in the Ministry of Foreign Affairs in Tehran or . . . elsewhere, and afford full protection to all such persons, in accordance with the treaties in force between the two States and with general international law. . . [and] afford to all the diplomatic and consular personnel of the United States the full protection, privileges and immunities to which they are entitled under the treaties in force between [the United States and Iran], and under general

international law, including immunity from any form of criminal jurisdiction and freedom and facilities to leave the territory of Iran."

Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Order, Dec. 15, 1979, I.C.J. Reports (1979), pp. 16-17.

The second phase of the Case Concerning United States Diplomatic and Consular Staff in Tehran involved the merits of the United States claim against the Islamic Republic of Iran. In its Memorial filed on January 15, 1980, the United States requested the Court to adjudge and declare:

(a) that the Government of the Islamic Republic of Iran, in permitting, tolerating, encouraging, adopting, and endeavoring to exploit, as well as in failing to prevent and punish, the conduct described in the Statement of the Facts, violated its international legal obligations to the United States as provided by:

-Articles 22, 24, 25, 26, 27, 29, 31, 37, 44 and 47 of the Vienna Convention on Diplomatic Relations;

-Articles 5, 27, 28, 31, 33, 34, 35, 36, 40 and 72 of the Vienna Convention on Consular Relations;

-Article[s]II(4), XIII, XVIII and XIX of the Treaty of Amity, Economic Relations, and Consular Rights between the United States of America and Iran; and

-Articles 2, 4 and 7 of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents;

(b) that, pursuant to the foregoing international legal obligations:

(i) the Government of the Islamic Republic of Iran shall immediately ensure that the premises of the United States Embassy, Chancery and Consulates are restored to the possession of the United States authorities under their exclusive control, and shall ensure their inviolability and effective protection as provided for by the treaties in force between the two States, and by general international law;

(ii) the Government of the Islamic Republic of Iran shall ensure the immediate release, without any exception, of all persons of United States nationality who are or have been held in the Embassy of the United States of America or in the Ministry of Foreign Affairs in Tehran, or who are or have been held as hostages elsewhere, and afford full protection to all such persons, in accordance with the treaties in force between the two States, and with general international law;

(iii) the Government of the Islamic Republic of Iran shall, as from that moment, afford to all the diplomatic and consular personnel of the United States the protection, privileges and immunities to which they are entitled under the treaties in force between the two States, and under general international law, including immunity from any form of criminal jurisdiction and freedom and facilities to leave the territory of Iran;

(iv) the Government of the Islamic Republic of Iran shall, in affording the diplomatic and consular personnel of the United States the protection, privileges and immunities to which they are entitled, including immunity from any form of criminal jurisdiction, ensure that no such personnel shall be obliged to appear on trial or as a witness, deponent, source of information, or in any other role, at any proceedings, whether formal or informal, initiated by or with the acquiescence of the Iranian Government, whether such proceedings be denominated a "trial", "grand jury", "international commission" or otherwise; (v) that the Government of the Islamic Republic of Iran shall submit to its competent authorities for the purpose of prosecution, or extradite to the United States, those persons responsible for the crimes committed against the personnel and premises of the United States Embassy and Consulates in Iran; (c) that the United States of America is entitled to the payment to it, in its own right and in the exercise of its right of diplomatic protection of its nationals held hostage, of reparation by the Islamic Republic of Iran for the violations of the above international legal obligations which it owes to the United States, in a sum to be determined by the Court at a subsequent stage of the proceedings.

Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Pleadings, Oral Arguments, and Documents (I.C.J. 1980), pp. 190-191.

In the Introduction (Part I) to its Memorial, the United States summarized the progress of the case since the filing of its Application on November 29, 1979. It pointed out that the Government of Iran had officially rejected and failed to comply with the provisional measures indicated by the Court in its order of December 15, 1979, ante, and that the American hostages and the Embassy in Tehran continued to be held captive in violation thereof and in violation of Iran's international obligations.

A Statement of the Facts (Part II) followed, describing in detail the attack itself and then the role of the Iranian authorities. The Statement declared in regard to the latter:

The "student" statements of 5 November indicate that a large number of persons were involved in the advance planning and execution of the 4 November attack-so large as to make it questionable whether the Iranian Government did not know of the plans in advance .

Whether or not the Iranian authorities' responsibility for the attack was initially limited to incitement and specific failure to deter, prevent and terminate the action, it became evident within hours after the attack that the Government was giving the action its endorsement, cooperation and full support; at least from that

point on, the Government was an accomplice and participant in the continuing holding of the Embassy and the hostages.

This support and participation by the Iranian authorities has been a critical factor in the continued holding of the Embassy and of the hostages. [Footnote omitted.] . . .

The Statement next described the status of the hostages:

At least sixty-two Americans and a number of non-American hostages were seized when the Embassy was invaded. Thereafter an American businessman was added to the group being held at the Embassy. It appears that all of the non-American hostages have subsequently been released. Thirteen of the American hostages were released by 20 November pursuant to the order of Ayatollah Khomeini, who also ordered the continued detention of the remainder . . .

did thes

The available evidence makes clear that those who have been held by Iran under this form of "arrest" have been subjected to a harrowing ordeal. [Footnote: The facts set forth in the ensuing paragraph were derived from reports received through the press and from persons who have been in the Embassy compound since its seizure.] At the outset some were paraded blindfolded, hands bound behind their backs, before hostile and chanting crowds. At least during a substantial period of their captivity, it appears that the hostages were kept bound, hand and foot, and frequently blindfolded; forced to remain silent for extended periods of time; denied mail; denied the right to communicate with each other, with their captors (except as to basic requests), and with their own government; subjected to interrogation, some apparently intensively and repeatedly; threatened with criminal trials; threatened with death in the event of a United States rescue attempt [footnote omitted]; and some directly threatened with weapons.

mages

The Statement continued with an account of violations of the Embassy's archives and documents, and then discussed the lack of access to the hostages. It noted that the United States Chargé d'Affaires, Bruce Laingen, and two Embassy colleagues had been confined at the Iranian Foreign Ministry since the day of the attack, and that, although the United States had not characterized them as hostages, "the restrictions on their freedom . . . [made] clear that they are hostages as well, although confined in less inhumane conditions than their colleagues at the Embassy."

The Statement set out a number of Iranian pronouncements, interviews, etc., purporting to justify in legal terms the seizure and ransacking of the United States Embassy, the holding of the hostages, and the threats to try them. It outlined United States attempts through various intermediaries, including former Attorney General