and not in a civil law enforcement sense. In a case where a military unit has contingency or incidental law enforcement functions, as is the case with our own Coast Guard and National Guard, sales are not prohibited. However, when a military unit has substantial civil law enforcement responsibilities as a part of its ongoing functions, we cannot regard the internal security language in section 4 of the Arms Export Control Act as sufficient to authorize sales for the purpose of carrying out those responsibilities.

Dept. of State File No. P77 0116-2442.

Suspension of U.S. Program in Indonesia

During his July 19, 1977, testimony before the Subcommittee on International Organizations of the Committee on International Relations, George H. Aldrich, Deputy Legal Adviser of the Department of State, described the legal aspects of the suspension and subsequent resumption of U.S. military assistance to Indonesia following Indonesia's military intervention in East Timor in December of 1975 which resulted in the incorporation of East Timor into Indonesia in July of 1976:

The immediate legal question posed to the United States by Indonesia's intervention in East Timor was whether any use by Indonesia in East Timor of U.S.-furnished military equipment placed Indonesia in substantial violation of its agreements with the United States governing the use of such equipment. These agreements had been entered into in implementation of the provisions of the Foreign Assistance Act and Foreign Military Sales Act governing the purposes for which such equipment could be furnished by grant or by sale to Indonesia. Essentially, the applicable agreements limited use of U.S.-furnished equipment to internal security and legitimate self-defense, and the statutes precluded furnishing of new items of assistance while any substantial violation continued.

This matter was considered within the Department of State in light of all prevailing circumstances, including the difficulty of determining the relevant facts as to the extent and nature of use of any U.S. equipment and the urgent consideration being given to the question in the United Nations. We had in mind specifically United Nations Security Council Resolution 384 of December 22, 1975, which called upon all states to respect the right of the people of East Timor to self-determination and requested the United Nations Secretary-General to send to East Timor a special representative to make an on-the-spot assessment and to establish contact with all interested parties in order to ensure implementation of the resolution. It was decided that it would be appropriate in these circumstances to defer further sales under the foreign military sales program and grants under the military assistance program with respect to Indonesia, and to defer FMS financing for Indonesia pending further clarification and developments. In view

of this action, it was not necessary for us to make any determination whether there had beeen any "substantial violation" within the meaning of the law.

This situation continued until the end of June 1976, a period of approximately six months. At that time, for a variety of reasons, we decided to resume our military assistance and sales programs to Indonesia. The legal basis for ending the suspension included congressional authorization of military assistance for Indonesia (for fiscal years 1976 and 1977) and the defeat of a proposed amendment urging a cut-off of such assistance on account of Indonesian actions in Timor.

*

Human Rights in East Timor, Hearings before the Subcommittee on International Organizations of the Committee on International Relations of the House of Representatives, 95th Cong., 1st Sess. (June 28-29, 1977), pp. 46-47.

Statutory references are to sec. 505(d) of the Foreign Assistance Act of 1961, which was amended by sec. 201(a) of the Foreign Assistance Act of 1962, and to sec. 3 of the former Foreign Military Sales Act (now the Arms Export Control Act), which was amended by sec. 45(a)(1) of the Foreign Assistance Act of 1974.

References to applicable agreements between the United States and Indonesia are to the Agreement relating to the sale to Indonesia of military equipment, materials, and services done Aug. 13, 1958 (TIAS 4095; 9 UST 1149; entered into force Aug. 13, 1958); the Agreement relating to the furnishing of military equipment, materials, and services for a program of civic action done Apr. 14, 1967 (TIAS 6247; 18 UST 384; entered into force Apr. 14, 1967); and the Agreement relating to the furnishing of combat equipment to Indonesia as additional military assistance done Aug. 18 and 19, 1970 (TIAS 6959; 21 UST 2140; entered into force Aug. 19, 1970).

For the remainder of Mr. Aldrich's testimony, see ante, Ch. 2, § 1, pp. 10–12.

Chapter 15

PRIVATE INTERNATIONAL LAW

§ 1 Conflict of Laws

Recognition of Judgments

In Sangiovanni Hernandez v. Dominicana de Aviacion, 556 F. 2d 611 (1977), the plaintiff, a minor, individually and by his mother, brought an action in the U.S. District Court for the District of Puerto Rico to recover damages for the death of his father in an aircraft operated by the defendants. The defendants, asserting that the same claim had been brought against the same defendants in the courts of the Dominican Republic and had been compromised and settled in accordance with Dominican law, moved to dismiss the action on the basis of the doctrine of res judicata. The district court denied the motion and refused to give the Dominican proceedings res judicata effect on the grounds that the method followed in the Dominican Republic to protect the plaintiff's interests did not satisfy the standards established under the laws of Puerto Rico and thus violated a strong public policy of Puerto Rico to protect the interest of minors.

The U.S. Court of Appeals, First Circuit, in an opinion issued on November 30, 1977, by Senior Circuit Judge Martin D. Van Oosterhout, found that the procedures followed by the Dominican court to protect the plaintiff were different from those required by Puerto Rican law but that the manner in which the Dominican court approved the settlement in no way violated the public policy of Puerto Rico. The case was reversed and remanded with a direction to dismiss the complaint.

The court of appeals adopted the following text from the district court opinion outlining U.S. practice with respect to the doctrine of res judicata, comity, and judgments contrary to public policy in recognizing foreign judgments:

*

Unless bound by treaties to the contrary, the courts of no nation are obliged to recognize and respect the judgments of the courts of another nation. Nevertheless, whether motivated by a desire for reciprocal treatment of American judgments abroad or the basic policies behind the doctrine of res judicata, that there must be some

end to litigation, see 1B Moore's Federal Practice Par. 0.405 (1), many American courts follow the practice of recognizing foreign judgments unless there are clear reasons not to do so in a particular case. See generally, Reese, "The Status in this Country of Judgments Rendered Abroad," 50 Colum.L. Rev. 783 (1950). In the words of the Court of Appeals for the Third Circuit:

"Comity is a recognition which one nation extends within its own territory to the legislative, executive, or judicial acts of another. It is not a rule of law, but one of practice, convenience, and expediency. . . . Comity should be withheld only when its acceptance would be contrary or prejudicial to the interest of the nation called upon to give it effect." Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F. 2d 435, 440 (3d Cir. 1971).

One occasion for rejecting the principle of res judicata in relation to foreign judgments is where recognition of a foreign judgment would be contrary to public policy:

"It is a well-established rule of law that a court will not enforce a foreign judgment, be it of a sister state or foreign nation, if to do so would violate the forum's public policy." Somportex Ltd. v. Philadelphia Chewing Gum Corp., 318 F. Supp. 161, 168 (E.D.Pa. 1970, aff'd 453 F. 2d 435, supra.

The court of appeals indicated in part as follows how the judgment of the court of the Dominican Republic did not violate the public policy of Puerto Rico to protect the interest of minors:

The Dominican court sets forth in detail the proceedings of the Family Council resulting in the unanimous approval of the settlement and the opinion of the independent advisory attorneys favoring the settlement. While it is not clear that the court itself conducted yet another independent review of the sort a Puerto Rican court would undertake, we do not think that this difference in method goes to the heart of Puerto Rico's policy. The fundamental concern is that the settlement be evaluated impartiallythat is, considering only the minor's interests, independent of the possibly conflicting interests of his parent or guardian. As the district court observed, the Dominican procedure was certainly more than a "rubber stamp" of the proposed agreement: the settlement was "reviewed and approved by two bodies, one judicial and the other quasi-judicial, charged with protection of the minor plaintiff's interests." Given this elaborate system of review, it seems quite insignificant that the impartial evaluation may not have been made by the court that ultimately approved the settlement. We believe that the public policy of the Dominican Republic to protect the rights of minors is consistent with that of Puerto Rico and that the manner in which the settlement was approved by the Dominican court in no way violated the public policy of Puerto Rico.

556 F.2d 614-615.

*

Enforcement of Foreign Tax Judgments

In Her Majesty the Queen, Etc. v. Gilbertson, 433 F.Supp. 410 (1977), the U.S. District Court for the District of Oregon held that a foreign government may not enforce a tax judgment in a U.S. court. The Court, in a January 20, 1977, opinion by District Judge James M. Burns, adopted the Recommendation and Order of Magistrate George E. Juba, which dismissed an action brought by Her Majesty the Queen in right of the province of British Columbia seeking to recover a tax judgment of nearly $200,000 previously obtained against Oregon citizens in British Columbia.

The Court reasoned that the legislative and executive branches are better suited than the judiciary to decide which foreign tax judgments should be enforced. In arriving at this conclusion, the Court traced the history of the "revenue rule" from its origins in Lord Mansfield's dictum that "no country ever takes notice of the revenue laws of another" through Judge Learned Hand's analysis of the rule in Moore v. Mitchell, 28 F.2d 997 (D.N.Y. 1928), aff'd, 30 F.2d 600 (2d Cir. 1929), aff'd on other grounds, 281 U.S. 18, 50 S.Ct. 175, 74 L.Ed. 673 (1930). The Court further found that the Supreme Court of Canada in United States of America v. Harden, 41 D.L.R. 2d 721 (1963), would not in a reciprocal situation enforce Oregon tax judgments. The Court described the issue of enforcing a foreign tax judg ment as apparently "of first impression" in "American legal history. ." Id. 411. Portions of the Recommendation and Order adopted in the Court's opinion follow:

In Moore, the issue before the court was whether to maintain an action in New York to recover delinquent taxes due in Indiana. The complaint was dismissed. Judge Hand compared the revenue rule to the rule that a foreign state will not enforce the penal laws of another state:

While the origin of the exception in the case of penal liabilities does not appear in the books, a sound basis for it exists, in my judgment, which includes liabilities for taxes as well. Even in the case of ordinary municipal liabilities, a court will not recognize those arising in a foreign state, if they run counter to the "settled public policy" of its own. Thus a scrutiny of the liability is necessarily always in reserve, and the possibility that it will be found not to accord with the policy of the domestic state. This is not a troublesome or delicate inquiry when the question arises between private persons, but it takes on quite another face when it concerns the relations between the foreign state and its own citizens or even those who may be temporarily within its borders. To pass upon the provisions for the public order of another state is, or at any rate should be beyond the powers of a court; it involves the relations