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have been afforded the plaintiff in connection with her Iranian conviction in such manner that the Secretary had substantial evidence before him to determine and decide to recognize and give validity to the Iranian judgment of conviction as a bar to plaintiff receiving the desired benefits. It further is apparent from said Treaty that the United States has recognized the Iranian Courts as courts of competent jurisdiction over citizens of the United States who violate Iranian criminal laws and that the course of judicial procedure in Iran is according to the course of a civilized jurisprudence likely to secure an impartial administration of justice. It follows that the Secretary was also legally correct in according recognition to plaintiff's Iranian judgment of conviction for the homicide of the insured individual.

Letters Rogatory

The Department of State informed the French Embassy at Washington in a note dated November 25, 1975, that the execution of a request for judicial assistance from the Procureur de la Republique for the Superior Court of Bourg-en-Bresse, which had been transmitted by the Embassy, was beyond the scope of authority granted by law to the executive and judicial branches in the United States. The Department's note stated, in part:

The Federal statute which authorizes the courts of this country to render assistance to their counterparts abroad specifies that the request for such assistance must emanate from a "foreign or international tribunal” (28 U.S.C. 1782). The present request is from a procureur rather than the court and is therefore not within the scope of the statute mentioned above.

In reaching this conclusion, the Department has taken into consideration the difference in function between the French procureur and the American district attorney. It is the Department's understanding that the procureur works more closely with the court than his American colleague. Nevertheless, the Department considers that the procureur is not so associated with the court as to permit a request from him to be treated as a request from the court ....

Dept. of State File No. P76 0013-0531.

§ 7 Sovereign Immunity Department of State Determinations

The Brazilian Ambassador in Washington, in a note dated April 4, 1975, renewed a request that, in the case of Renchard et al. v. Humphreys and Harding, Inc., et al., Civil Action No. 2128-72, the Department of State recognize and suggest to the U.S. District Court for the District of Columbia that the Government of Brazil is entitled to sovereign immunity from the jurisdiction of that Court. An action had been brought against the defendants, including the Government of Brazil, for alleged damage to the property of the plaintiffs as a result of the construction of the Brazilian Chancery on property adjoining that of the plaintiffs. The Department had earlier declined to make a suggestion of sovereign immunity and had so informed the Brazilian Ambassador in a note dated January 30, 1974. The U.S. District Court held on September 10, 1974, that the determination of the Department of State was binding on the Court, 381 F. Supp. 382 (1974). See the 1974 Digest, pp. 263–264, 272-273.

The renewal of the Brazilian request was based on an amended complaint filed by the plaintiffs which stated six separate causes of action and in which the plaintiffs sought punitive, as well as compensatory, damages. The Brazilian note stated the view that the plaintiffs would be precluded from suing the United States pursuant to their amended complaint because the Federal Tort Claims Act (28 U.S.C. 2674) expressly ruled out recovery of punitive damages from the United States.

The Department of State, in a reply note of July 8, 1975, to the Brazilian Ambassador in Washington, reiterated its view that the underlying action did not give rise to sovereign immunity, but agreed that immunity was appropriate insofar as plaintiffs were claiming punitive damages. The Department's note stated, in part:

In the note to you dated January 30, 1974, with respect to this matter, it was stated that the Department of State had come to the conclusion that the activities in question in this litigation are essentially of a private nature under the standards set forth in the Tate letter. For reasons stated in that note, the Department of State was obliged at that time to conclude that the case was not one where a suggestion of sovereign immunity should be made.

Since that time, however, plaintiffs in the litigation have filed an amended complaint. Whereas plaintiffs in their original complaint had sought only damages that were clearly compensatory in nature, plaintiffs in their amended complaint seek punitive as well as compensatory damages against all defendants including the Federative Republic of Brazil.

On the one hand, for reasons stated in our note of January 30, 1974, the Department of State continues to be obliged to conclude that the underlying action against the Federative Republic of Brazil does not give rise to sovereign immunity; although the alleged acts of Brazil involved an important governmental purpose relating to the construction and maintenance of an embassy building, these acts are essentially of a private nature under the standards set forth in the Tate letter, 26 Dept. of State Bulletin 984 (1952).

On the other hand, the amended complaint states six separate causes of action. A court may conclude that one or some of these causes of action encompass a claim for punitive damages. We note that under international law in its current state of develop ment, punitive damages are usually not assessed against foreign states. See 5 Hackworth, Digest of International Law, 723-26 (1943); Garcia Amador, State Responsibility, in 94 Hague Recueil des Cours 365, 476-81 (1958); cf. 28 U.S.C. 2674.

Upon a thorough consideration of this matter, the Department of State has decided to request the Attorney General to file an appropriate suggestion of immunity with the United States District Court for the District of Columbia, which suggestion shall be applicable not to the entire action against the Federative Republic of Brazil as stated in the amended complaint but only to the extent the court determines that any cause or causes of action encompass a claim for punitive damages.

Once again, the Department wishes to emphasize that its conclusions regarding the immunity issues in this case are in no way intended to reflect upon the views of the Government of the Federative Republic of Brazil on the merits of this case, or upon the applicability of any other defense asserted by the Federative Republic of Brazil or upon any other legal issues apart from the question of sovereign immunity. These questions are outside the domain of the Department of State in passing upon the question of sovereign immunity and are properly reserved for the courts.

Dept. of State File No. P75 0134–1949. Monroe Leigh, Legal Adviser of the Dept. of State, in a letter of July 7, 1975, to Attorney General Edward H. Levi, requested that a suggestion of immunity be filed with the U.S. District Court for the District of Columbia, "applicable . . . only to the extent the court determines that any cause or causes of action encompass a claim for punitive damages." Dept. of State File No. P75 0112-931.

On October 29, 1975, the Department of Justice filed a suggestion of immunity for Philippine President Ferdinand E. Marcos in a libel suit in the U.S. District Court for the Northern District of California, entitled Psinakis et al. v. Marcos et al., Civil Action No. C-75–1725-RHS. Monroe Leigh, Legal Adviser of the Department of State, had requested, in a letter of September 26, 1975, to the Attorney General, that the suggestion of immunity be filed. Mr. Leigh's letter stated, in part:

Taking note of international authority supporting an immunity from jurisdiction of persons who are serving as head of a

foreign state', and for foreign relations reasons, the Department recognizes and allows the immunity from the jurisdiction of United States courts of President Ferdinand E. Marcos of the Republic of the Philippines.

The immunity of President Marcos was recognized, and the action against him was dismissed.

1 See, Ex-King Farouk of Egypt v. Christian Dior S.A.R.L., [1957] Int'l. L. Rep. 228 (Cour d'Appel Paris, 1957); Sayce v. Ameer Ruler (1952) 2 Q.B. 390, (1952] Int'l. L. Rep. 212 (C.A.); Mighell v. Sultan of Johore, (1894) 1 Q.B. 149; Emperor ofAustria v. Lemaitre, Clunet, 1874, p. 32; 6 Whiteman, Digest of International Law 585-88. It may be that the basis for a Head of State immunity is similar to that of diplomatic immunity—that a Head of State performs important functions which should not be interfered with by the necessity of defending litigation in foreign countries.

In a letter to the Attorney General dated December 11, 1975, Stephen Schwebel, Deputy Legal Adviser of the Department of State, requested that a suggestion of immunity be filed on behalf of the Governments of France and the United Kingdom in the case of Leslie Logan and Dr. Stanley Logan v. Secretary of State, et al., Civil Action No. 75–1519, in the U.S. Court for the District of Columbia. The case involved, in part, access to certain gold held and controlled in the Federal Reserve Bank in New York and the Bank of England in London by the three Governments comprising the Tripartite Commission for the Restitution of Monetary Gold, i.e., the United States, the United Kingdom, and France. Plaintiffs were seeking to have their unsatisfied awards under the Czechoslovakian Claims Program satisfied from this gold and from certain frozen assets of Czechoslovakia in the United States. Mr. Schwebel's letter stated, in part:

The Department of State has been informed by the Embassies of the United Kingdom and France, on behalf of their Governments: that the gold involved in the action is held by the Governments of the United Kingdom, France and the United States in pursuance of their sovereign governmental functions and in implementation of an international obligation, in accounts in the Federal Reserve Bank of New York and the Bank of England, London, for the purposes of carrying out Part III of the Paris Reparation Agreement of January 14, 1946, and is controlled by the three Governments; and that the Government of the United Kingdom and the Government of France request that the gold be granted immunity from the jurisdiction of the U.S. courts.

The Department of State recognizes and allows the immunity of the gold from the jurisdiction of the U.S. courts for the purpose of attachment, suit or any other legal process in the action.

The Department of Justice on December 30, 1975, filed a motion to dismiss and a suggestion of immunity. It argued that (1) the suit was one against the United States to which it had not consented, since (A) the power to block or vest foreign-owned property is discretionary, (B) the courts may not direct the Secretary of State how to conduct foreign affairs, (C) the issues were nonjusticiable political questions, and (D) it was not a proper case for mandamus; (2) the Court was without jurisdiction to render relief affecting the gold; and (3) the Court lacked in rem jurisdiction over the gold in the Federal Reserve Bank of New York.

On Feb. 2, 1976, the Court in a brief order dismissed the complaint. On Feb. 3, plaintiff filed an appeal.

Legislative Regulation On October 31, 1975, the Department of State and the Department of Justice jointly submitted to the Congress a revised draft bill establishing statutory standards for resolving sovereign immunity issues before Federal and State courts in the United States. The bill was a revised version of one submitted by the two Departments in January 1973 and introduced as S. 566, S. 771, and H.R. 3493, 93rd Cong., 1st Sess.

The State-Justice letter submitting the revised bill stated, in part:

The broad purposes of this legislation to facilitate and depoliticize litigation against foreign states and to minimize irritations in foreign relations arising out of such litigation-remain the same. To this end the revised bill, like its predecessor, would entrust the resolution of questions of sovereign immunity to the judicial branch of government. The statute would codify and refine the "restrictive theory" of sovereign immunity which has guided United States practice with respect to jurisdiction originally set forth in the letter of May 19, 1952, from the Acting Legal Adviser, Jack B. Tate, to the Acting Attorney General, Philip B. Perlman. It would also replace the absolute immunity now accorded foreign states from execution of judgment with an immunity from execution conforming more closely

to the restrictive theory of immunity from jurisdiction. The measure also includes provisions for service of process, venue, and jurisdiction

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