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).

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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 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

caused by water control activities in which the Commission is involved. . . .]

Dept. of State File No. P77 0128-1508.

On February 16, 1977, David A. Gantz, Assistant Legal Adviser for European Affairs in the Department of State, responded by letter to Mr. Clark's inquiry by noting the applicability of 22 U.S.C. 288 et seq., popularly known as the International Organizations Immunities Act, and Executive Order 9972 of June 25, 1948 (13 F.R. 3573), designating the International Joint Commission as an international organization for the purposes of the Act. Mr. Gantz outlined the privileges and immunities available to the members and staff of the International Joint Commission (IJC) as follows:

The Department considers that the Commission, its members and staff, pursuant to this designation, enjoy as a matter of domestic law the privileges and immunities provided by the Act, none of which have been withheld by the Executive order, as would be permissible under § 288 of the Act.

With respect to official acts immunity from suit and all forms of legal process, the Department of State considers the immunity conferred by § 288d (b) to extend to the six Commissioners, and to all officers and employees of each office of the Commission, including members of boards employed by the Commission to assist it in discharging its responsibilities. The property and assets of the Commission in the United States are considered to be immune from search and seizure consistent with § 288a (b) and (c) of the Act. Section 288 (c) further provides that the archives of international organizations are inviolable.

We are well aware of the potential difficulty in drawing fine distinctions at times between the governmental and Commission activities of Commissioners and other IJC personnel, in particular board members, who may serve in dual capacities, and receive their salaries from and remain otherwise associated with a government agency of their usual employment. Our courts typically would make their own determination as to the application of official acts immunity in particular factual situations. Such board members, of course, may enjoy other immunities in connection with their governmental official acts.

The Commission, consistent with article XII of the 1909 Boundary Waters Treaty, has developed a successful tradition of impartial, collegial consideration of matters before it which has been reinforced with respect to government employees serving on its boards by a number of means. These include direct, formal appointment by the Commission of board members, the issuance of precise directives governing the boards it creates, and measures to ensure the ready identification of Commission documentation generated by such boards and their members. We have encouraged the U.S. Section to continue refinement of Commission procedures with regard to its

boards in light of the provisions of this Act, as well as the requirements of the Freedom of Information Act (5 U.S.C. 552). While the latter Act does not affect an international organization such as the Commission, or its U.S. Section, it does govern the release of records of agencies of the United States Government which may be intimately involved with Commission activities.

Further, § 288e (a) of the International Organizations Immunities Act requires notification to and acceptance by the Secretary of State of persons entitled to the benefits of the Act. It is therefore also incumbent upon the U.S. Section to notify the Office of Protocol of the Department as required of the members, officers and employees of the Commission.

Dept. of State File No. P77 0025-2368. E.O. 9972 reads in part as follows:

By virtue of the authority vested in me by section 1 of the International Organizations Immunities Act, approved December 29, 1945 (59 Stat. 669), and having found that the United States participates in the International Joint Commission-United States and Canada, established under the authority of the Treaty between the United States and Great Britain relating to the boundary waters between the United States and Canada, signed at Washington, January 11, 1909 (36 Stat. 2448), I hereby designate such organization as a public international organization entitled to enjoy the privileges, exemptions, and immunities conferred by the said Act.

The designation of the above-named organization as a public international organization within the meaning of the said International Organizations Immunities Act is not intended to abridge in any respect privileges, exemptions, and immunities which such organization may have acquired or may acquire by treaty or congressional action.

This order supplements Executive Orders.

Harry S. Truman

Art. XII of the Treaty Relating to the Boundary Waters and Questions Arising Along the Boundary between the United States and Canada signed on Jan. 11, 1909 (TS 548; 36 Stat. 2448; 12 Bevans 319; entered into force May 5, 1910), reads as follows:

ARTICLE XII

The International Joint Commission shall meet and organize at Washington promptly after the members thereof are appointed, and when organized the Commission may fix such times and places for its meetings as may be necessary, subject at all times to special call or direction by the two Governments. Each Commissioner, upon the first joint meeting of the Commission after his appointment, shall, before proceeding with the work of the Commission, make and subscribe a solemn declaration in writing that he will faithfully and impartially perform the duties imposed upon him under this treaty, and such declaration shall be entered on the records of the proceedings of the Commission.

The United States and Canadian sections of the Commission may each appoint a secretary, and these shall act as joint secretaries of the Commission at its joint sessions, and the Commission may employ engineers and clerical assistants from time to time as it may deem advisable. The salaries and personal expenses of the Commission and of the secretaries shall be paid by their respective Governments, and all reasonable and necessary joint expenses of the Commission, incurred by it, shall be paid in equal moieties by the High Contracting Parties.

The Commission shall have power to administer oaths to witnesses, and to take evidence on oath whenever deemed necessary in any proceeding, or inquiry. or matter within its jurisdiction under this treaty, and all parties interested therein shall be given convenient opportunity to be heard, and the High Contracting Parties agree to adopt such legislation as may be appropriate and necessary to give the Commission the powers above mentioned on each side of the boundary, and to provide for the issue of subpoenas and for compelling the