As we prepare to go to Peking, we recognize that progress may not be easy or immediately evident. But this Administration is committed to the process, and we are approaching the talks in Peking with that in mind.

Dept. of State Press Release No. 313 (June 29, 1977).

Vietnam

Secretary Vance indicated in his speech on June 29, 1977, before the Asia Society that the United States had begun the process of normalizing relations with the Socialist Republic of Vietnam. An extract of his summary of the progress during 1977 follows:

[W]e have begun the process of normalizing relations with the Socialist Republic of Vietnam.

Our old friends in Southeast Asia and the Pacific have been kept fully informed of our talks with the Vietnamese. They agree that the interests of all would be served by the establishment of normal relations between Vietnam and the United States.

The scars of war still exist on both sides. Both sides retain a residue of bitterness that must be overcome. But there is some progress:

-Together with the Vietnamese, we have devised a system for identifying and returning the remains of Americans missing in action in Vietnam. Soon the remains of twenty more American pilots will be returned from the land where they died-some as long as a decade ago to the land they served so honorably and so well.

-We have lifted restrictions on travel to Vietnam, and taken other positive steps to assist in the process of reconciliation.

-We have offered to lift the trade embargo as we establish diplomatic relations.

-And we will no longer oppose Vietnam's membership in the U.N. I expect to see its delegation seated there at the next General Assembly session.

Dept. of State Press Release No. 313 (June 29, 1977).

For further information concerning the admission of the Socialist Republic of Vietnam to membership in the United Nations, see post, Ch. 2, § 4C, pp. 37–38.

Effect of Nonrecognition

In Republic of Vietnam v. Pfizer, Inc., 556 F.2d 892 (1977), the U.S. Court of Appeals for the Eighth Circuit affirmed the dismissal with prejudice by the U.S. District Court for the District of Minnesota, District Judge Miles W. Lord, of a suit brought by the Republic of Vietnam. The Court of Appeals in a per curiam decision held that

the district court's dismissal of plaintiff's suit did not constitute an abuse of discretion since "the Republic of Vietnam, both as a state and as a government, had ceased to exist in law or fact and the United States had not recognized any government as the sovereign authority in the territory formerly known as South Vietnam. (Footnote appears below)". Id. 895.

The characterization of the court of appeals of the change in status of the Republic of Vietnam between 1970 when the complaint was filed and July of 1976 follows:

In 1970, the Republic of Vietnam filed a complaint alleging that various American drug companies had acted in violation of the antitrust laws of the United States in selling broad spectrum antibiotics. When an amended complaint was filed by the Republic of Vietnam in 1974, it could accurately describe itself as "a sovereign foreign state with whom the United States of America maintains diplomatic relations." One year later, however, the status of the Republic of Vietnam changed drastically, for in April 1975, the President of the Republic of Vietnam surrendered unconditionally to the military forces of North Vietnam. In July 1976, the former territory of the Republic of Vietnam was joined to that of North Vietnam and the resulting state was designated the Socialist Republic of Vietnam. Thus, the Republic of Vietnam, the plaintiff, is not simply moribund; it is defunct. The United States has not recognized the Socialist Republic of Vietnam and presently recognizes no government as the sovereign authority in the territory known formerly as South Vietnam.

Id. 893-894.

The court of appeals summarized U.S. law concerning the maintenance of suit in U.S. courts by a foreign government not recognized by the United States as follows:

The law is well settled that a foreign government that is not recognized by the United States may not maintain suit in State or Federal court. Guaranty Trust Co. v. United States, 304 U.S. 126, 137, 58 S.Ct. 785, 82 L.Ed. 1224 (1938). The recognition of foreign governments is a function of the executive branch and is wholly outside the competence of the judiciary. National City Bank v. Republic of China, 348 U.S. 356, 358, 75 S.Ct. 423, 99 L.Ed. 389 (1955). While executive action pertaining to the recognition or nonrecognition of a foreign government is binding on the courts, the courts are nevertheless free to determine the legal consequences of that executive action upon pending litigation. Guaranty Trust Co. v. United States, supra, 304 U.S. at 138, 58 S.Ct. 785. On occasion, suit has been brought by a foreign government recognized by the United States and, during the pendency of the action, diplomatic recognition of the party plaintiff has been withdrawn. Under these circumstances, courts have traditionally responded by either dis

missing the action or suspending it sine die pending recognition of a new government by the United States.

Id. 894.

The plaintiff contended that the district court should have suspended the action. In support of its holding that the district court had not abused its discretion in dismissing the action with prejudice, the court of appeals found that the Republic of Vietnam has ceased to exist and quoted in a footnote the following portion of a letter from the Department of State to the Department of Justice concerning the U.S. position with reference to the Government of South Vietnam:

The official position of the executive branch is set forth in a letter of June 9, 1975, from the Department of State to the Department of Justice: "The Government of South Vietnam has ceased to exist and therefore the United States no longer recognizes it as the sovereign authority in the territory of South Vietnam. The United States has not recognized any other government as constituting such authority. . . . The Department of State would not advise any requests to the Court to suspend, rather than dismiss, the proceedings."

Id. 894, n. 4.

For further information concerning this case, see the 1975 Digest, Ch. 2, § 3, pp. 30-33 and Ch. 3, § 3, pp. 134–135.

For further information concerning a related case, see Pfizer v. Government of India, 46 Law Week 4073 (1978).

$ 4

International Organizations

A. GENERAL; PERSONALITY AND CAPACITY

United Nations

Charter Review

Section 503 of the Foreign Relations Authorization Act, Fiscal Year 1978, Public Law 95-105, 91 Stat. 858, approved on August 17, 1977, recommends that the United States "present a program for United Nations reform to the Special United Nations Committee on the Charter of the United Nations and on Strengthening of the Role of the Organization." The section requests that the President submit a report to Congress by January 31, 1978, with his recommendations for reform of the United Nations including proposals concerning the General Assembly, the International Court of Justice, U.N. finances and assessments, human rights activities, dispute settlement machinery, and the U.N. Development Program. Section 503, which

was initiated by Senator George McGovern and by Senate Minority Leader Howard H. Baker, Jr., appears below:

(a) The United States should make a major effort toward reforming and restructuring the United Nations system so that it might become more effective in resolving global problems. Toward that end, the United States should present a program for United Nations reform to the Special United Nations Committee on the Charter of the United Nations and on Strengthening of the Role of the Organization. In developing such a program the United States should give appropriate consideration to various possible proposals for reforming the United Nations, including but not limited to proposals which would

(1) adjust decisionmaking processes in the United Nations by providing voting in the General Assembly weighted according to population and contributions and by modifying veto powers on certain categories of questions, such as membership recommendations, in the Security Council;

(2) foster greater use of the International Court of Justice by the United States and other members of the United Nations;

(3) supplement United Nations finances through contributions. from commerce, services, and resources regulated by the United Nations;

(4) improve coordination of and expand United Nations activities on behalf of human rights;

(5) establish more effective United Nations machinery for the peaceful settlement of disputes, including means for the submission of differences to mediation or arbitration;

(6) adjust assessment scale calculations to reflect more accurately the actual ability of member nations to contribute to the United Nations and its specialized agencies; and

(7) provide greater coordination of United Nations technical assistance activities by the United Nations Development Program.

(b) Accordingly, the President shall submit a report to the Speaker of the House of Representatives and the chairman of the Committee on Foreign Relations of the Senate, as soon as possible, but no later than January 31, 1978, on his recommendations for reform of the United Nations.

See S. Rep. No. 95-194, 95th Cong., 1st Sess., 24-25 (1977).

B. PRIVILEGES AND IMMUNITIES

General

International Development Association, International Centre for Settlement of Investment Disputes, and International Telecommunications Satellite Organization (INTELSAT) On January 19, 1977, President Ford issued Executive Order 1966, designating the International Development Association, the

International Centre for Settlement of Investment Disputes, and the International Telecommunications Satellite Organization (INTELSAT) as public international organizations entitled to enjoy the privileges, exemptions, and immunities conferred by the International Organizations Immunities Act (59 Stat. 669, 22 U.S.C. 288), approved December 29, 1945. The Executive order provided that, with respect to the International Development Association, the designation did not affect in any way the applicability of section 3, article VIII, of the Articles of Agreement of the International Development Association, which is entitled "Status, Immunities, and Privileges." The Executive order was effective as of November 24, 1976.

See 42 Fed. Reg., 4331. The United States participates in the International Development Association pursuant to the Articles of Agreement of the International Development Association (11 UST 2284, TIAS 4607), in the International Centre for Settlement of Investment Disputes pursuant to the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (17 UST 1270, TIAS 6090), and in INTELSAT pursuant to the Agreement Relating to the International Telecommunications Satellite Organization and its Operating Agreement (TIAS 7532; 23 UST 3813).

U.S.-Canadian International Joint Commission

On December 21, 1976, Lorne S. Clark, Counselor of the Canadian Embassy in Washington, D.C., wrote a letter to Monroe Leigh, then Legal Adviser of the Department of State, requesting, inter alia, answers to the following questions concerning the privileges and immunities of Commissioners, employees, and members of the Boards of Control established by the U.S.-Canadian International Joint Commission:

(1) Do the Canadian and U.S. Commissioners enjoy immunity from suit in the United States of America in respect of their official acts?

(2) Do the employees, both at headquarters and at regional offices, of the Canadian and U.S. Sections of the Commission enjoy immunity from suit in the United States of America in respect of their official acts?

(3) Do Canadian and American members of Boards of Control established by the Commission enjoy immunity from suit in the United States of America in respect of their official acts?

(4) Are the premises of the headquarters and regional offices of the Commission located in the United States of America immune from search and seizure?

[... if the immunities referred to in the above questions do exist, the Canadian authorities may also wish to explore with United States officials the remedies which are available under United States law to private citizens who allege injury as a result of damage