In any given case, some criteria might point to a treaty while others indicate an executive agreement. There are no precise weights to be given to the criteria. There is in our system a constitutional presumption that agreements of exceptional national importance will be treaties, but there have been many agreements of enormous significance that were not treaties.

The case under consideration will illustrate the point. There is a clear need for a prompt conclusion of the agreement with Iran. That consideration is of great importance in this instance and tends to outweigh, as a political matter, certain of the other criteria. This is not at all unusual in U.S. practice. Cease-fire and other military agreements which must be timed precisely are concluded as executive agreements rather than treaties. A recent example is the 1973 Agreement on Ending the War and Restoring Peace in Vietnam (TIAS 7542; 24 U.S.T. 1). Agreements dealing with the military conduct of a war may be of crucial importance to the nation as a whole, and yet such agreements are always concluded as executive agreements.

In sum, the Circular 175 criteria are not legally binding, do not lend themselves to the formulation of rules of law with respect to submission of agreements as treaties, and were not violated in any event. Some of the variables point to a treaty, others do not. The overriding consideration in this case is prompt conclusion of the agreement.

The question of treaty or executive agreement is not the kind of question that will be reviewed by U.S. courts. In Greater Tampa Chamber of Commerce, et al. v. Adams, et al., Civil Action No. 78-0517 (Nov. 30, 1978) [see, post], the U.S. District Court for the District of Columbia said in response to a plea that an air services agreement should have been submitted as a treaty:

no court has ever ordered such extraordinary relief. It would undoubtedly constitute an unprecedented encroachment upon the discretion traditionally vested in the executive branch to determine the form international agreements shall take. Although the State Department has promulgated guidelines to aid the President in making such a determination, these guidelines are not of such a legally binding nature as to merit the Court's inquiry into the exercise of that discretion. Therefore, the Court concludes that the President's decision to negotiate an international agreement as a treaty or executive agreement is not reviewable.

(At p. 4.)

Similarly, in Dole v. Carter, 569 F.2d 1109 (1977), a suit challenging the return by the United States to Hungary of the crown of St. Stephen by means of an executive agreement, the U.S. Court of Appeals for the Tenth Circuit said:

We are aware of no "judicially discoverable and manageable standards for resolving [the issue]." We have no way of ascertaining the interest of the United States, or of its people, in the controversy. The President has decided that our foreign relations are best served by the return of the crown. We decline to

enter into any controversy relating to distinctions which may be drawn between executive agreements and treaties. We say only that on the facts before us we find no justiciable controversy. (At p. 1110.)

Congressional experts have also recognized the wide discretion of the President in choosing among constitutionally authorized procedures. Under the chairmanship of Senator Sam Ervin, the Subcommittee on the Separation of Powers of the Senate Judiciary Committee, after lengthy hearings in 1972 on this subject, wrote the following:

American constitutional law recognizes, in the Constitution itself and in judicial opinion, three basic types of international agreements. First in order of importance is the treaty, an international bilateral or multilateral compact that requires consent by a two-thirds vote of the Senate prior to ratification. . . . Next is the congressional-executive agreement, entered into pursuant to statute or to a preexisting treaty. Finally, there is the 'pure' or 'true' executive agreement, negotiated by the Executive entirely on his authority as a constituent department of government.

It is the prerogative of the Executive to conduct international negotiations; within that power lies the lesser, albeit quite important, power to choose the instrument of international dialog.

(Congressional Oversight of Executive Agreements, Committee Print, 93d Cong., 1st Sess., p. 6.)

The President's decision to conclude the arbitration agreement with Iran in the form of an executive agreement falls within his discretion "to choose the instrument of international dialog" and was in any event within the non-binding guidelines set forth in the Department of State regulations.

II. Claims Against Iran

There is no doubt that the President has the legal power to conclude a "sole" executive agreement to arbitrate private and official U.S. claims against Iran. The arguments adduced above with respect to claims against the United States are applicable here as well, with the additional factor that as a matter of practice the President normally concludes agreements to arbitrate claims against foreign countries as executive agreements. My judgment is that the agreement with Iran to arbitrate claims against Iran was properly concluded as an executive agreement since (a) it is pursuant to Article XXI(2) of the 1955 United States-Iran Treaty of Amity, Economic Relations and Consular Rights; (b) such agreement is generally regarded as within the independent power of the President; and (c) Executive Branch criteria for deciding upon the form of an international agreement do not compel the treaty form in this case.

The only point that requires further discussion is (b). It should be noted in that context that there is general acceptance in the United States of the President's power to conclude an executive agreement to arbitrate claims against foreign governments, and that in practice the President has normally entered into such agreements

without Senate or Congressional approval.

Samuel Crandall, in his exhaustive review of U.S. treaty practice up to 1916, states:

The President, being entrusted with the right of conducting all negotiations with foreign governments, is the sole judge of the expediency of instituting, conducting or terminating them in respect of reclamations for injuries sustained by citizens abroad. Agreements for the adjustment or settlement of pecuniary claims of citizens against foreign governments, which meet with the approval of the claimants, and by which no obligation, except to relinquish the claim, is assumed on the part of the United States, are not usually submitted to the Senate.

(Treaties: Their Making and Enforcement, 1916, p. 108.) Crandall then lists a great many agreements for the submission to arbitration of such claims, all made by executive agreement (at pp. 109-111.)

Charles Cheney Hyde states:

In the conduct of the foreign relations of the nation, the President has frequently exercised the right to adjust international controversies by means of agreements not submitted to the Senate. These have oftentimes provided for recourse to arbitration. Such action has been based on the theory that if the executive possessed the right of adjustment, the mode of its exercise, as by arrangement contemplating a reasonable procedure, involved no implied abuse of power. Thus an agreement to invoke the judicial aid of a joint commission or of an arbitral tribunal, has merely indicated the choice by the President of a particular instrumentality incidental to his broad power to deal with the international controversies of the United States.

In the adjustment of pecuniary claims against foreign States the President has frequently acted alone, and his arrangements have often contemplated arbitration. [Examples follow.] (Hyde, op. cit., p. 1409.)

Similarly, the Solicitor for the Department of State, James Brown Scott, gave the following opinion in 1909:

The practice of the Department, especially in recent years, is in favor of concluding the protocol by the Department without the advice and consent of the Senate. Where the matter submitted to arbitration is a claim against a foreign government, in such a case the United States is a plaintiff and seeks a judgment against the foreign government. Whether the judgment be in favor of the plaintiff (the United States) or the defendant (the foreign government), it is evident that in such a case the agreement to arbitrate does not involve the United States to respond in damages. The United States is the beneficiary. It is not by virtue of the judgment obliged to take subsequent action requiring the Congress to appropriate sums of money in order to meet the judgment. The United States represents the individual claimant and ordinarily settles the claim by negotiation. It is not only the right of the Department of State to espouse in proper cases the claims of American citizens, but it is also its duty so to do.

Arbitration in such cases is merely an employment of a different agency in order to effect the settlement of the claim. There seems no more reason why the protocol in cases in which the United States appears for the claimant should be submitted to the Senate than the diplomatic note making the settlement should be submitted to the Senate for its advice and consent. The settlement might properly be submitted to the Senate for its information, especially when the Department desires reimbursement of the moneys expended in arbitration, but there seems to be no legal obligation to submit the protocol to the Senate for its advice and consent.

(Hackworth, op. cit., pp. 403-404.

Even the earliest practice of the nation indicates that agreements settling claims of U.S. citizens against foreign governments were concluded by the President acting alone. In 1799 President John Adams, acting without authority of statute or treaty, concluded an agreement with the Netherlands to settle private American claims against that country. The agreement was not submitted to the Senate. David Hunter Miller, one of America's leading scholars in this area, wrote as follows:

this agreement with the Netherlands (which would now be called an Executive agreement) is the first instance of a definitive settlement of a claim of an American citizen against a foreign government by diplomatic negotiation, fixing the amount; and it is the earliest precedent for the practice later settled and now undoubted, that submission of such agreements to the Senate is unnecessary.

(Miller, Treaties and Other International Agreements of the United States of America, 1936, p. 1079.)

It should also be noted that the negotiations for the settlement of these claims had actually begun during the administration of President Washington.

Throughout the nation's history, claims by U.S. citizens against foreign governments have often been referred to arbitration by means of executive agreements. The Congressional Record in 1935 lists some 40 agreements for arbitration of claims against foreign governments not submitted to the Senate for advice and consent. (See Volume 79, part 1, pp. 969-971 (1935).)

As Justice Frankfurter stated in his concurring opinion in United States v. Pink, 315 U.S. 203 (1942): "That the President's control of foreign relations includes the settlement of claims is indisputable.... The President's power to negotiate such a settlement is the same whether it is an isolated transaction between this country and a friendly nation, or is part of a complicated negotiation to restore normal relations, as was the case with Russia." (At p. 240.) Given the general practice of the President and the opinions of legal scholars, there is no doubt that this Presidential power includes the reference of claims against foreign governments to arbitration.

Dept. of State File No. P81 0009-1697.

The Treaty of Arbitration between the United States and Norway, signed at

Washington, Feb. 20, 1929, is at TS 788; 46 Stat. 2287; 10 Bevans, Treaties, etc. (1972) 498; entered into force, June 7, 1929.

The Treaty of Amity, Economic Relations, and Consular Rights, and protocol, between the United States and Oman, signed at Salalah, Dec. 20, 1958, is at TIAS 4530; 11 UST 1835; entered into force, June 11, 1960.

The Treaty on Mutual Assistance in Criminal Matters, with related notes, between the United States and Switzerland, signed at Bern, May 25, 1973, is at TIAS 8302; 27 UST 2019; entered into force, Jan. 23, 1977.

The Treaty of Amity and Economic Relations, with exchanges of notes, between the United States and Thailand, signed at Bangkok, May 29, 1966, is at TIAS 6540; 19 UST 5843; entered into force, June 8, 1968.

The Convention on International Trade in Endangered Species of Wild Fauna and Flora, with appendices, done at Washington, Mar. 3, 1973, may be found at TIAS 8249; 27 UST 1087; entered into force, July 1, 1975.

The Convention on the International Maritime Satellite Organization, with annex, done at London, Sept. 3, 1976, may be found at TIAS 9605; 31 UST 1; entered into force, July 16, 1979.

The Treaty of Friendship, Commerce and Navigation between the United States and the Republic of China, with accompanying protocol, signed at Nanking, Nov. 4, 1946, is at TIAS 1871; 63 Stat., Pt. 2, 1299; 6 Bevans, Treaties and Other International Agreements of the United States[,] 1776-1949 (1971) 761; entered into force, Nov. 30, 1948.

The Treaty of Friendship, Commerce and Navigation between the United States and the Federal Republic of Germany, with protocol and exchanges of notes, signed at Washington, Oct. 29, 1954, is at TIAS 3593; 7 UST 1839; entered into force, July 14, 1956.

The Treaty of Amity, Economic Relations, and Consular Rights between the United States and Iran, signed at Tehran, Aug. 15, 1955, is at TIAS 3853; 8 UST 899; entered into force, June 16, 1957.

The Protocol of an Agreement between the United States and Mexico for the Adjustment of Certain Contentions Arising Under What Is Known As "The Pious Fund of the Californias", signed at Washington, May 22, 1902, is at TS 408; 32 Stat. 1916; 9 Bevans, Treaties, etc. (1972) 912; entered into force, May 22, 1902.

For the exchange of notes regarding settlement of the case of the schooner "Wilmington Packet" between the United States and the Netherlands (Batavian Republic), at The Hague, Dec. 7 and 12, 1799, see Doc. 151, Miller, Treaties and Other International Acts of the United States of America, Vol. 5 (1937), p. 1075.

Greater Tampa Chamber of Commerce v. Adams, C.A. No. 78-0517 (D.D.C., Nov. 30, 1978), was vacated on appeal for the plaintiff appellants' lack of standing and remanded with instructions to dismiss the complaint. 627 F.2d 258 (D.C. Cir. 1980).

On January 19, 1981, the United States reached agreement with Iran through the Algerian Government as intermediary on the terms for release of the 52 American hostages seized at the American Embassy at Tehran in November 1979.

Under the Declaration of the Government of the Democratic and Popular Republic of Algeria, January 19, 1981, the United States agreed, inter alia, subject to carefully delineated conditions and procedures, to unblock Iranian assets (that had been blocked under Executive Order 12170), and again subject to carefully delineated conditions and procedures, to "terminate all legal proceedings in United States courts involving claims of United States persons and