This volume is dedicated to the memory of

Marjorie M. Whiteman (1898-1986),

scholar, mentor, and friend.

M.N.L.

INTRODUCTION

The eighth volume of the annual Digest of United States Practice in International Law covers the year 1980 and the final 3 weeks of President Carter's administration through January 19, 1981. This discussion of some of the principal international law issues that the United States Government was required to resolve during that period is thus undertaken from the vantage point of half a decade's retrospective.

This volume includes, among other sources, the work products of the Office of the Legal Adviser of the Department of State, as well as of attorney colleagues in other Executive Departments, principally the Department of Justice and the Department of the Treasury. It also summarizes pertinent domestic and international case law, and statutory and treaty developments. Even so, the Digest is not all-encompassing.

A considerable part of the 1980 Digest is devoted to the legal and diplomatic responses by the United States to the Iranian Government's continued retention of 52 of the Americans taken hostage at the American Embassy in Tehran on November 4, 1979. The volume includes a detailed exposition of the questions which United States Government officials addressed in evaluating the consistency of a hostage release agreement with United States constitutional and statutory law. The United States Supreme Court ultimately upheld the agreement in Dames & Moore v. Regan, 453 U.S. 654 (1981).

The Digest also recounts the conclusion of the United States case involving the hostages before the International Court of Justice on May 24, 1980. The Court ordered the release of the hostages and the transfer of United States diplomatic and consular properties to the protecting Power (Switzerland). In addition, a majority of the Court held that Iran had an obligation to make reparation to the United States for the injury caused by the events of November 4, 1979, and that, failing agreement between the parties, the Court itself would determine the form and amount of such reparation. Case Concerning United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, pp. 3, 45-46.

The previous month, as all efforts to obtain the hostages' release through diplomatic channels came to naught, President Carter broke off diplomatic relations with Iran and instituted certain trade,

financial, and other measures against Iran and its nationals. Later in the same month (April 1980), the President authorized an unsuccessful military rescue attempt to free the hostages. When positioning was already under way, operating difficulties developed with three of the eight helicopters engaged, so that the successive stages of the rescue mission could not proceed as planned, and the President cancelled the mission, ordering the immediate return of the rescue forces from Iran.

Nevertheless, the fact that President Carter undertook the rescue effort reaffirmed long-standing United States policy. This was that the United States, in the legitimate exercise of its right of selfdefense under international law, would use force if necessary to protect the lives of its nationals in danger in foreign countries, and, further, would independently and unilaterally carry out its right to do so. The decision itself followed the then most recent example of this policy, President Ford's rescue of the Mayaguez crew in 1975, and would have precedental applicability to future events in the 1980's. The legality of the President's decision is discussed, also, from the standpoint of United States law. In particular, President Carter considered that consultation with Congress about the rescue mission was not "possible" under the War Powers Resolution because of the sensitivity of the mission.

The hostage crisis also generated a flood of litigation against the Government of Iran and its instrumentalities and entities which is recounted in the Digest. United States courts were called upon to address issues of sovereign immunity, treaty interpretation, the extent of Presidential authority under the International Emergency Economic Powers Act, and, in general, the scope of Presidential power in foreign affairs. The United States Government participated in many of these proceedings and was generally successful in forestalling actions by courts that might jeopardize the Government's attempts to obtain the release of the hostages.

The United States was confronted in 1980 with foreign Government-sanctioned terrorism by other States. The 1980 Digest describes measures undertaken by the United States to curb illegal activities of the Socialist People's Libyan Arab Jamahiriya in the United States. These included the attempted murder in Colorado of an opponent of the Qadhafi regime, leading to the Department of State's closure of its so-called People's Bureau (diplomatic establishment) in Washington on May 6, 1981.

The Digest also surveys the wide range of domestic litigation involving international law, apart from Iran-related cases, in which the United States Government appeared.

Libyan American Oil Company [LIAMCO] v. Socialist People's Libyan Arab Jamahirya [Jamahiriya], 482 F. Supp. 1175 (D.D.C.

1980), vacated, 684 F.2d 1032 (D.C. Cir 1981), was an action brought pursuant to the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (TIAS 6997; 21 UST 2517; entered into force for the United States, December 2, 1970) to confirm and enforce a 1977 arbitral award obtained by LIAMCO in an arbitral proceeding at Geneva. The United States, long an advocate of settling investment disputes through arbitration, appeared amicus curiae on appeal: (1) to support the district court's ruling that an agreement by Libya to arbitrate disputes under a concession contract constituted an implicit waiver of its sovereign immunity for purposes of the Foreign Sovereign Immunities Act; and (2) to argue, contrary to the district court's ruling, that the act of state doctrine did not require United States courts to abstain from exercising jurisdiction-the doctrine did not apply to actions under the Convention to enforce arbitral awards against foreign states.

Shortly after the United States filed its brief amicus, the Swiss Federal Supreme Court rendered judgment in favor of Libya in its appeal on constitutional grounds under Swiss law against an attachment order. LIAMCO had obtained the order in summary proceedings in Switzerland to enforce the arbitral award (rendered in Geneva). Libya thereupon contended in the United States Court of Appeals for the District of Columbia that the Swiss judgment had set aside the arbitral award. In a supplemental memorandum amicus the United States presented the argument that the Swiss judgment was directed only to the immunity of Libyan assets from execution in Switzerland, and not to the validity of the underlying arbitral award. Following argument, the parties then settled the suit by agreeing on compensation in accordance with Libyan nationalization laws.

After LIAMCO, the question arose whether an agreement to submit to arbitration before the International Centre for the Settlement of Investment Disputes (ICSID) constituted a waiver of immunity for purposes of the Foreign Sovereign Immunities Act. In In the Matter of the Arbitration between Maritime International Nominees Establishment (MINE) v. (sic) the Republic of Guinea, 505 F. Supp. 141 (D.D.C. 1981), a United States district court, accepting MINE's assertion that Guinea had refused to sign an ICSID-requested joint submission to arbitrate, ordered compulsory arbitration before the American Arbitration Association. Guinea appeared for the first time in the subsequent suit to confirm the arbitral award to challenge the district court's jurisdiction. The United States intervened on the appeal of the court's confirmation of the award to defend the constitutionality of the Foreign Sovereign Immunities Act and to present its view that arbitration agreements under the 1965 Convention establishing ICSID (TIAS 6090; 17 UST 1270; entered into