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United States Practice
Eleanor C. McDowell
Office of the Legal Adviser
UNIVERSITY OF MICHIGAN
JAN 4 1977
DEPOSITED BY THE
1973 Digest of United States Practice
Stock No. 4400-01525
1974 Digest of United States Practice
in International Law Stock No. 044-000-01566 (2d printing) $11.00
DEPARTMENT OF STATE PUBLICATION 8865
For sale by the Superintendent of Documents, U.S. Government Printing Office
Stock Number 044-000-01605-2
The third annual Digest of United States Practice in International Law carries forward through 1975 a contemporary record of significant developments in U.S. practice in international law. In structure and approach it is modeled on the 1973 and 1974 volumes, which have been well received by the international legal community.
The year 1975 was eventful in many areas of international law. In April it saw the winding down of the war in Viet-Nam, including the evacuation of U.S. citizens and foreign nationals from areas of hostilities, accomplished pursuant to the President's constitutional authority. This was followed shortly by the U.S. response to the Cambodian seizure of the SS Mayaguez in international waters on May 12, 1975.
The 1975 Digest summarizes the important role of Secretary of State Henry A. Kissinger as mediator in the Middle East conflict, resulting in conclusion of the interim agreement between Egypt and Israel for disengagement in the Sinai. It reflects the ongoing U.S. support of U.N. peacekeeping activities and describes the related assignment accepted by the United States to maintain an early warning system to monitor observance of the Sinai disengagement agreement. In various fora the United States continued in 1975 to support the principle of peaceful settlement of disputes, recommending appropriate provisions on the subject for inclusion in treaties and other international documents, with referral of disputes, wherever practicable, to the International Court of Justice for settlement.
The United States lifted its ten-year arms embargo against India and Pakistan in early 1975, and after lengthy congressional consideration partially lifted an eight-month arms embargo against Turkey. It voted with the United Kingdom and France in the U.N. Security Council to block a mandatory arms embargo against South Africa under a draft resolution dealing with the situation in Namibia which would have declared that the Council, acting under Chapter VII of the U.N. Charter, determined that the illegal occupation of Namibia constituted a threat to international peace and security. The United States made clear, however, that its own twelve-year policy of banning all arms and military supplies to South Africa would continue.
In the Organization of American States the United States joined with fifteen other member states in effectively removing the requirement of diplomatic and economic sanctions against Cuba which the OAS had imposed in 1964. In keeping with the action, the United States promptly modified aspects of its Cuban denial policy which affected other countries.
Allegations of bribery and other corrupt practices involving U.S. firms abroad brought widespread interest in the development of an international code of conduct for transnational enterprises, and the United States participated in preliminary efforts toward establishing guidelines intended to recognize the rights and duties of both multinational corporations and host states. In the United States there were congressional hearings on the subject and investigations by the Securities and Exchange Commission of the allegations. In a case brought by the Securities and Exchange Commission against an aircraft corporation, the Government filed a suggestion of interest that resulted in issuance by the court of a protective order designed to safeguard the foreign policy interests of the United States against damage from premature disclosure to third parties of the names and nationalities of foreign persons, but without impeding access to the information by appropriate law enforcement bodies and without affecting public release of such information if required for law enforcement actions.
The 1975 Digest reflects the growing U.S. concern with foreign boycotts, and it reports on new Federal regulations responding to the discriminatory effect of such boycotts. With respect to foreign investment in the United States, it discusses the response of the executive branch to proposed legislation to regulate such investment, and it summarizes the Federal law and regulations presently applicable to foreign investment in the United States.
Developments in the energy field included agreement in principle in March 1975 by the 18-member International Energy Agency on a cooperative program to accelerate the development of new energy supplies, with a common minimum safeguard price for imported oil as a key element. Enactment of the Energy Policy and Conservation Act in December provided authority with respect to U.S. participation in the International Energy Program under the 1974 agreement and enabled the United States in early 1976 to notify its consent to be bound. The United States also signed in 1975 the Agreement Establishing a Financial Support Fund of the Organization for Economic Cooperation and Development, which would establish a $25 billion fund to provide financing to participating members faced with extraordinary financing needs.
U.S. proposals to the Seventh Special Session of the U.N. General Assembly for international actions to promote economic development, including a new development security facility in the International Monetary Fund to stabilize overall export earnings, are reported in the 1975 volume. Also included is the U.N. Resolution on Development and International Economic Cooperation adopted at the session, as well as the statement by which the United States maintains its position on certain provisions of the Charter of Economic Rights and Duties of States and makes clear its nonsupport for indexation of commodity prices, certain paragraphs on transfer of resources, and the linking of special drawing rights with development assistance.
The Digest also reports on significant developments and U.S. initiatives in various multilateral conferences-the 1975 Geneva session on the Law of the Sea, the second session of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, the Conference on Security and Cooperation in Europe, and the World Conference of the International Women's Year.
During 1975 there were legislative proposals to provide for congressional review of executive agreements and to subject such agreements to legislative veto by concurrent resolution. The Digest summarizes the opposition of the Departments of State and Justice to these proposals on both practical and constitutional grounds. The validity and legal sufficiency of certain agreements and assurances made by the United States in connection with the Egypt-Israel disengagement agreement of September 4, 1975, are discussed in a series of memoranda by the Office of Legislative Counsel of the U.S. Senate and the Legal Adviser's Office of the Department of State. Also set forth in this volume is a list of the criteria followed by the Department of State in determining what arrangements constitute "international agreements" for the purpose of implementing the law on publication of international agreements and the "Case Act" requiring transmittal of international agreements other than treaties to the Congress within 60 days of their entry into force.
Finally, the United States took important steps in 1975 on questions relating to the role of U.S. courts in litigation involving foreign states. First, in the case of Alfred Dunhill of London, Inc. v. Republic of Cuba, the Government submitted a brief amicus curiae which discusses the executive branch's view of certain limitations upon a domestic U.S. legal concept, the Act of State Doctrine. Since this litigation is currently pending before the Supreme Court, a decision in the case may provide further analy