the implementation of foreign policy inevitably means that you are going to have intelligence gathering as well as operational activities by your intelligence organization.

Interview with President Ford by Walter Cronkite, Eric Sevareid, and Bob Schieffer. Dept. of State Bulletin, Vol. LXXII, No. 1872, May 12, 1975, p. 603.

Monroe Leigh, Legal Adviser of the Department of State, on May 29, 1975, sent a memorandum to John D. Morrison, Jr., Deputy General Counsel of the Central Intelligence Agency (CIA), concerning the legal justification for the use of classical espionage, electronic surveillance, and covert action. Mr. Leigh noted several major points of difference between the views of the Department of State and those which had been stated in a CIA study of February 1975 on the subject. His memorandum stated those differences as follows:

1. In the CIA study, it is stated that "the right of selfpreservation of the state is an absolute right in international law and that all other rules contained in treaties are inherently subordinate to that right." This is far too broad. The linkage, developed in your office's study, between the traditional doctrines of necessity and self-preservation with that of the modern doctrine of self-defense obscures the distinction between them with respect to scope, as the former are conceptually broader than the latter. Furthermore, this linkage renders the doctrine of self-defense vague and over-extensive, and does not adequately assess the context of the considerable development of international law regarding intervention, use of force, and collective security in which the right of self-defense has evolved.

While we have consistently tried to justify actions taken in self-defense by reference to a prior armed attack, we would not wish to foreclose the possibility of construing the inherent right of self-defense as broader than the right recognized by Article 51 of the U.N. Charter. At a minimum, however, we believe the exercise of the inherent right of self-defense depends upon a prior delict, an illegal act that presents an immediate, overwhelming danger to an actual and essential right of the state. When these conditions are present, the means used must then be proportionate to the gravity of the threat or danger.

2. The study advances the proposition that all espionage is justifiable on the grounds of self-defense or what is often termed in the study, self-preservation, because of the allegedly absolute character of that right. Self-preservation is akin to the doctrine of self-help, neither of which in the view of this office, can today be regarded as absolute. The International Court of Justice rejected the United Kingdom's plea of self-help in the Corfu Channel Case [I.CJ. Reports 1949], explaining by way of dictum: "Between independent states, respect for territorial sovereignty is an essential foundation of international relations."

3. It is stated in the study that isolated examples of intervention when they continue to be practiced become custom, and that custom becomes part of the law. There is, of course, a fundamental difference between actions which create customary law and actions that merely represent illegality, even if fairly widespread. The attitudes of states toward such actions are most important. For example, United States interventions in Latin America during the 1920's for the collection of debts never became a part of customary international law, and would now be regarded as illegal interventions.

4. This office does not accept the view. . . that the development of the law concerning intervention must be regarded as modified by the overriding right of self-preservation.

5. While it is undoubtedly necessary . . . that the United States be able to penetrate the state secrets of other powers in order to ascertain the existence and scope of any threat to the national interest, this office cannot accept . . . that this end justifies every type of espionage activity as a matter of law. The means and methods of espionage used must meet the fundamental tests of international law, i.e., respect for the political independence and territorial integrity of states, in order to be defended as legal.

6. This office considers justification of the President's authorization of classical espionage, electronic surveillance, and covert action under the United States Constitution a different question than whether such espionage is legal under international law. More specifically, we do not agree. . . that, for the purposes of United States law, the emphasis must be placed on the formative effect of Presidential action on international law, rather than the other way around. There exists a substantial body of Federal case law recognizing that international law is part of our law, and must be ascertained and administered by the court when questions depending on it arise. Thus, if the President authorizes an act of espionage which violates a treaty or international law and the issue, i.e., a claim for damages arising out of the espionage act, before a United States court depends on international law, the United States court must recognize and apply the rule of international law.

Dept. of State File No. P75 0090-2160.

On February 24, 1975, the Department of State released the text of a letter from Secretary of State Kissinger to William A. Eteki Mboumoua, Secretary General of the Organization for African Unity, protesting interference by the Organization in a matter of internal domestic concern in the United States. At a meeting the previous week the Council of Ministers of the Organization had adopted and released to the press a consensus resolution commenting adversely on the nomination of Ambassador Nathaniel Davis as Assistant Secretary of State for African Affairs. The following is an excerpt from the Secretary's letter:

The selection of senior officials for posts in the United States Government is a function of American sovereignty. Unlike the established procedures for accrediting Ambassadors for whom agreement is sought, the selection of Assistant Secretaries of State remains a purely internal, domestic concern. The United States Government would never comment publicly upon the choices of other sovereign governments in filling any of their public offices. Under commonly accepted principles of international decency it has the right to expect the same of other governments, particularly of those whom it has regarded as friends. You will understand . . . the depth of my dismay in learning from the press of this unprecedented and harmful act of the Council.

Dept. of State Bulletin, Vol. LXXII, No. 1865, Mar. 24, 1975, pp. 376–377. The Senate confirmed Ambassador Davis' nomination as Assistant Secretary of State for African Affairs on Mar. 11, 1975. He was sworn in on Apr. 2, 1975.

The Protocol of Amendment to the Inter-American Treaty of Reciprocal Assistance (Rio Treaty) signed at San Jose July 26, 1975 (S. Ex. J, 94th Cong., 1st Sess.), added a new Article 12, which provides:

Nothing stipulated in this Treaty shall be interpreted as limiting or impairing in any way the principle of nonintervention and the right of all states to choose freely their political, economic and social organization.

For additional information concerning the Protocol, see post, Ch. 14, § 1, p. 791.

A solemn reaffirmation of the principle of nonintervention was set forth in the resolution of July 29, 1975, of the Sixteenth Meeting of Consultation of Ministers of Foreign Affairs, acting as Organ of Consultation in application of the Inter-American Treaty

of Reciprocal Assistance (the Rio Treaty) (TIAS 1838; 62 Stat. 1681; entered into force for the United States December 3, 1948). The resolution effectively ended the diplomatic and economic sanctions of the Organization of American States imposed against Cuba in 1964. The United States voted in favor of the resolution of July 29, 1975, the first operative paragraph of which resolved:

To reaffirm solemnly the principle of nonintervention and to urge states parties to ensure that it is observed throughout the continent, in accordance with the Charter of the Organization, to which end they once more proclaim their solidarity and reiterate their will to cooperate constantly with a view to fulfilling the purposes of a policy of peace.

OAS Doc. OEA/Ser.F/II.16, Doc. 9/75 rev. 2, July 29, 1975; U.N. Doc. S/11786, Aug. 1, 1975. For discussions of the OAS resolution as regards its removal of diplomatic and economic sanctions, see post, Ch. 2, § 3, p. 25, and Ch. 10, § 11, p. 691.

When Angola was given its independence from Portugal on November 10, 1975, the territory was caught up in a civil war among its three liberation movements. At a press conference that day Secretary of State Kissinger was asked about the nature and involvement of the Soviet Union and Cuba in Angola, and what the United States was doing there. He replied, in part:

... the Soviet Union earlier this year introduced a substantial amount of military equipment into Angola-substantial in relation to the balance of forces that then existed;

has also participated in the form of advisers and of military equipment. We consider both of these steps by extra-continental powers a serious matter and really, as far as the Soviet Union is concerned, not compatible with the spirit of relaxation of tensions.

Our interest in Angola, which is related to the fact that access to the sea of surrounding countries goes through Angola, was basically generated by the intervention of other countries. The United States has no other interest except the territorial integrity and independence of Angola. We strongly support the call of the Organization of African Unity for a cease-fire and for negotiation among the three factions that are involved there to form a coalition government, and we have no United States interest to pursue in Angola.

Dept. of State Bulletin, Vol. LXXIII, No. 1901, Dec. 1, 1975, pp. 777-778. Secretary Kissinger reiterated United States concern with outside intervention in Angola in an address at Detroit on November 24, 1975. The following is an excerpt:

We cannot ignore . . the substantial Soviet buildup of weapons in Angola which has introduced great power rivalry into Africa for the first time in fifteen years. This Soviet involvement is resented by African nations most of all. But the United States cannot be indifferent while an outside power embarks upon an interventionist policy-so distant from its homeland and so removed from traditional Russian interests. The Soviet Union still has an opportunity for a policy of restraint which permits Angolans to resolve their own differences without outside interventions. We would be glad to cooperate in such a course. But time is running out; continuation of an interventionist policy must inevitably threaten other relationships.

Nor can we ignore the thousands of Cubans sent into an African conflict. In recent months, the United States has demonstrated, by deed as well as word, its readiness to improve relations with Cuba ... a policy of conciliation will not survive Cuban meddling in Puerto Rico, or Cuban armed intervention in the affairs of other nations struggling to decide their own fate.

Dept. of State Bulletin, Vol. LXXIII, No. 1903, Dec. 15, 1975, pp. 843-844. For congressional action concerning U.S. air in Angola, see post, Ch. 14, § 9,

Self-Determination

p. 887.

On June 3, 1975, Ambassador John Scali, U.S. Representative to the United Nations, made a statement before the United Nations Security Council concerning the situation in Namibia and the role of the United Nations in the matter of self-determination for Namibia. The Council was meeting in pursuance of Resolution 366 (1974) which had condemned "the continued illegal occupation" of Namibia by South Africa and had called on South Africa to take the necessary steps to effect its withdrawal. See the 1974 Digest, Ch. 2, § 1, pp. 9-11. The following are excerpts from Ambassador Scali's statement:

As the Security Council is considering what constructive steps it can take for the future of Namibia, there are four fundamental questions, as we see it: whether there is a commitment on the part of South Africa to a course of self-determination for all the people of Namibia and to respect for their rights; the timing of steps towards self-determination once that principle is accepted by South Africa; the question of whether all Namibians, of whatever color, political affiliation or social origin, would have their voices heard in determining the future of the territory; and, finally, the United Nations role in the process of selfdetermination for all the people of Namibia.