b'Review of Domestic and International Legal Implications of\nImplementing the Agreement with Iran\nW hile a num ber of the presidential actions implementing the agreem ent with Iran are\nlikely to be the subject o f domestic legal challenge, a review o f the authorities\npreviously relied on by the Office o f Legal Counsel and by the A ttorney General in his\nJanuary 19, 1981, opinion leads to the conclusion that those actions are well within the\nPresident\xe2\x80\x99s pow er under the Constitution and applicable statutes and treaties.\nA persuasive argum ent can be made that the agreem ent with Iran was procured by the\nthreat or use o f force in violation o f principles of international law, and is thus void ab\ninitio under Article 52 of the Vienna Convention on the Law of Treaties. As the party\ncoerced, the United States may decide w hether it wishes to repudiate the agreement,\nthough it would be desirable to seek confirmation o f the appropriateness o f that action\nfrom an independent legal body, such as the International C ourt of Justice. Private\nlitigants would have no standing to contest in United States courts any decision that\nthe President may make in this respect.\nShould the United States decide to repudiate the agreem ent with Iran, a number of\nquestions would arise relating to the disposition of Iranian assets already transferred to\nthe escrow account pursuant to the agreement, or still frozen in dom estic accounts.\n\nJanuary 29, 1981\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL\nThis responds to your request for our views regarding certain legal\nquestions arising out of implementation or nonimplementation of the\nagreement of January 19, 1981, between the United States and Iran,\nwhich resulted in the release of the 52 Americans held hostage in Iran.\nThe first section of the memorandum discusses the legal issues that are\nlikely to be raised in litigation challenging the agreement. The second\nsection sets forth the legal basis for securing a judicial determination\nthat the agreement is void. The third section identifies and analyzes the\nimpact that nonimplementation might have on Americans with claims\nagainst Iran and the litigation that could be expected to arise out of a\ndecision not to implement the agreement.1\n\'T h e agreem ent adhered to by the U nited States and Iran is set forth prim arily in tw o documents,\ncaptioned \xe2\x80\x9c D eclaration of the G overnm ent o f the D em ocratic and Popular Republic of Algeria\'*\n(D eclaration), and \xe2\x80\x9c D eclaration o f the G overnm ent o f the D em ocratic and Popular Republic of\nA lgeria Concerning the Settlem ent o f Claims by the G overnm ent of the U nited States o f A m erica and\nthe G overnm ent of the Islamic Republic o f Iran" (Claims Settlement A greem ent). O ther docum ents\nsubsidiary to these docum ents will be described as necessary. T he overall agreem ent w as implemented\nin most particulars through a series of executive orders issued by President C arter on January 19,\n1981. Exec. O rder Nos. 12,276-12,285, 3 C .F.R . 104-118 (1982).\n\n314\n\n\x0cI. Domestic Legal Issues\n\nThe major legal issues that we expect to be raised in litigation\nchallenging the implementation of the agreement, if the United States\nchooses that course, concern the scope and limits of presidential power\nto deal with the hostage crisis. The following presidential actions are\nlikely to be challenged as having been taken without legal authority:\n1. Settlement of claims of American citizens against Iran by sub\xc2\xad\nmission of claims to binding arbitration by an international tribunal;\n2. Nullification of outstanding attachments against property of Iran;\n3. Ordering the return of the frozen assets to Iran;\n4. Prohibition against the prosecution of any claim arising out of\nthe seizure and detention of the 52 American citizens; and\n5. Blocking the transfer of the former Shah\xe2\x80\x99s property located in\nthe United States.\nThe legal authority for each of these actions and relevant legal issues\nare discussed below.\nA. Settlement of Claims by Submission to Binding Arbitration\nIt is likely that if the agreement is implemented, a fundamental issue\nwill be the President\xe2\x80\x99s authority to settle claims of American citizens by\nagreeing to submit those claims to binding arbitration. Because of the\nlegal precedent and historical practice supporting this action, any chal\xc2\xad\nlenge on this ground is not likely to prevail.\nThe authority of the President under Article II of the Constitution to\nenter into executive agreements with other nations to settle claims has\nbeen explicitly upheld by the Supreme Court. United States v. Belmont,\n301 U.S. 324, 330-31 (1937); United States v. Pink, 315 U.S. 203 (1942).\nAs Justice Frankfurter observed in his concurring opinion, \xe2\x80\x9cThat the\nPresident\xe2\x80\x99s control of foreign relations includes the settlement of claims\nis indisputable.\xe2\x80\x9d 315 U.S. at 240. See also Restatement (Second) of\nForeign Relations Law of the United States \xc2\xa7 213 (1965). Belmont and\nPink upheld the Litvinov Assignment, by which outstanding Soviet\nclaims were assigned to the United States by a single exchange of\nletters between the President and the Soviet Foreign Minister. Both\ncases emphasized the Executive\xe2\x80\x99s exclusive constitutional power to rec\xc2\xad\nognize foreign governments and to normalize diplomatic relations with\nthem, and viewed claims settlements as necessary incidents of the Ex\xc2\xad\necutive\xe2\x80\x99s foreign relations power. See generally United States v. CurtissWright Export Corp., 299 U.S. 304 (1936).\nThis exercise of the President\xe2\x80\x99s foreign relations power is also sup\xc2\xad\nported by the Treaty of Amity, Economic Relations, and Consular\nRights, Aug. 15, 1955, United States-Iran, Art. XXI(2), 8 U.S.T. 901,\nT.I.A.S. No. 3853. In ratifying that treaty, the Senate gave its approval\nfor the two nations to settle disputes regarding interpretation of the\n315\n\n\x0ctreaty by submission to the International Court of Justice or by any\npacific means for settling these disputes. Because the treaty provides for\npeace and friendship between the two nations, trade and commercial\nfreedom, protection and security of nationals, prompt and just compen\xc2\xad\nsation for the taking of property, and the absence of restrictions on the\ntransfer of funds, the private claims expressed by the United States and\nreferred to the Tribunal are disputes between the United States and\nIran \xe2\x80\x9cas to the interpretation or application of the . . . Treaty.\xe2\x80\x9d\nSupport may be drawn as well from the President\xe2\x80\x99s statutory power\nunder the International Emergency Economic Powers Act (IEEPA), 50\nU.S.C. \xc2\xa7 1701 et seq. (Supp. I 1977). That statute, which authorized the\nNovember 14, 1979, blocking of Iranian assets, was drafted in explicit\nrecognition that the blocking of assets could have as a primary-purpose\ntheir preservation for later claims settlement. H.R. Rep. No. 459, 95th\nCong., 1st Sess. 17 (1977); S. Rep. No. 466, 95th Cong., 1st Sess. 6\n(1977). Thus, \xc2\xa7 1706(a)(1) authorizes the continuation of controls after\nthe underlying emergency has ended, where \xe2\x80\x9cnecessary on account of\nclaims involving such country or its nationals.\xe2\x80\x9d The need to provide a\nmeans for orderly termination of a blocking of assets once the emer\xc2\xad\ngency has passed implies presidential power to resolve the plethora of\nclaims that will invariably arise.\nThe law known as the Hostage Act, 22 U.S.C. \xc2\xa7 1732, also provides\nan independent statutory authority for the settlement of claims by\nexecutive agreement when the settlement is in connection with negotia\xc2\xad\ntions for the release of American citizens wrongfully detained by a\nforeign government. The Act confers upon the President the broad\npower to \xe2\x80\x9cuse such means, not amounting to acts of war, as he may\nthink necessary and proper to obtain or effectuate [their] release.\xe2\x80\x9d\nHistorical practice also reflects the existence of presidential power to\nsettle claims. Although claims settlements have often been concluded\nby treaty or convention, historical examples abound of settlements\nthrough executive agreement. Numerous lump-sum agreements have\nsettled claims of American nationals against foreign nations. See, e.g.,\nClaims Settlement Agreement, July 16, 1960, United States-Poland, 11\nU.S.T. 1953, T.I.A.S. No. 4545; Claims Settlement Agreement, July 19,\n1948, United States-Yugoslavia, 62 Stat. 2658, T.I.A.S. No. 1803. His\xc2\xad\ntory also provides numerous examples of claims settlements through\nexecutive agreements that establish international arbitrations rather than\nprovide a lump sum. See generally W. McClure, International Executive\nAgreements 52-56 (1941). In 1935, a congressional study identified 40\narbitration agreements entered into by the Executive between 1842 and\n1931 which were not submitted to the Senate for advice and consent.\n79 Cong. Rec. 969-71 (1935).2\n2 T he corollary to the pow er to settle claims o f A m erican citizens by submitting the claims to\nbinding arbitration is the pow er to prohibit any prosecution of claims in court.\n\n316\n\n\x0cB. Nullification of Outstanding Attachments\nPursuant to the agreement with Iran, President Carter issued Execu\xc2\xad\ntive Order No. 12,277, 3 C.F.R. 105 (1982), which revoked the authori\xc2\xad\nzation for, and nullified all interests in, the frozen Iranian government\nproperty except the interests of Iran and its agents. The effect of this\norder was to void the rights of plaintiffs in any possible litigation to\nenforce certain attachments and other prejudgment remedies that were\nissued against the blocked assets following the original blocking order.\nIn implementing the agreement, the United States is likely to face\nnumerous challenges by the attachment holders against the transfer of\nthe attached funds to the Federal Reserve Bank (Fed) and ultimately to\nIran. The attachment holders can be expected to argue that with the\nissuance of the attachment orders, they acquired a vested right to prove\ntheir claims and recover against the attached property and that this\nright may not be taken away by the Executive. We believe that the\nattachment holders will not succeed in preventing the transfer of the\nattached funds to the Federal Reserve Bank, although the litigation,\nincluding the appeals, will make difficult compliance with the United\nStates\xe2\x80\x99 pledge to Iran to effect the transfer within six months.\nWe believe that the law is clear that the President had Nthe power to\nnullify the attachments.3 Under IEEPA, the President has authority in\ntime of emergency to prevent the acquisition of interests in foreign\nproperty and to nullify new interests that are acquired through ongoing\ntransactions. The original blocking order delegated this power to the\nSecretary of the Treasury, who promulgated regulations prohibiting the\nacquisition, through attachment or any other court process, of any new\ninterest in the blocked property. The effect of these regulations was to\nmodify both the substantive and the procedural law governing the\navailability of prejudgment remedies to creditors of Iran. The regula\xc2\xad\ntions contemplated that provisional remedies might be permitted at a\nlater date but provided that any unauthorized remedy would be \xe2\x80\x9cnull\nand void.\xe2\x80\x9d 31 C.F.R. \xc2\xa7 535.203(e).\nSubsequently, all of the attachments and all of the other court orders\nagainst the Iranian assets held by the Fed were entered pursuant to a\ngeneral license or authorization given by the Secretary of the Treasury\neffective November 23, 1979. This authorization, like all, authorizations\nissued under the blocking regulations, was revocable at any time in\naccordance with 31 C.F.R. \xc2\xa7 535.805, which expressly provides that\n3 It is also our opinion that, in any event, the attachm ents w ere void because they w ere barred by\nthe Foreign Sovereign Immunities A ct o f 1976, 28 U .S .C \xc2\xa7 1602 et seq. T w o district courts have\nadopted that view. E-Systems. Inc. v. Islamic Republic o f Iran, 491 F. Supp. 1294 (N .D . Tex. 1980);\nReading & Bates Corp. v. National Iranian Oil Co.. 478 F. Supp. 724 (S.D.N.Y. 1979). Contra. Behring\nInt\'l Inc. v. Imperial Iranian Air Force, 475 F. Supp. 383 (D .N .J. 1979). See also New England\nMerchants Nat\'l Bank v. Iran Power Generation & Transmission Co.. 502 F. Supp. 120 (S.D.N.Y. 1980)\n(holding that the Foreign Sovereign Immunities A ct barred prejudgm ent attachm ent o f Iranian assets\nbut that the operation of the A ct w as suspended by Executive O rder No. 12,170\'s freezing the assets).\n\n317\n\n\x0cany authorization issued under the blocking order could be \xe2\x80\x9camended,\nmodified, or revoked at any time.\xe2\x80\x9d Because the original authorization\nwas subject to the reservation that it might be revoked at any time, the\nPresident could lawfully extinguish any interest created by the attach\xc2\xad\nment by exercising that reservation. See Orvis v. Brownell, 345, U.S. 183\n(1953).\nA related issue that may be raised by holders of attachments against\nfunds that have already been transferred to Iran is the legality of a\ntransfer without prior hearing and judicial dissolution of outstanding\nattachment orders and preliminary injunctions. We believe that no prior\nhearing was required because the precarious nature of the negotiations\nwarranted swift presidential action to achieve the resolution of the\nemergency. United States v. Yoshida Int\'l, Inc., 526 F.2d 560, 573\n(C.C.P.A. 1975). Moreover, because the authorization for attachments\ncould be revoked at any time, the attachment holders, under traditional\ndue process analysis, were not entitled to a prerevocation hearing. Cf.\nBishop v. Wood, 426 U.S. 341 (1976). Finally, it was not necessary for\nthe government to obtain a judicial dissolution of the attachments\nbefore transferring the assets because presidential action in revoking the\nauthorization for the attachments removed the underlying legal predi\xc2\xad\ncate for the attachment orders and expressly authorized the conduct\nthat had been previously-forbidden by the attachment order. See Penn\xc2\xad\nsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421\n(1855).4\nC. Return of the Frozen Assets to Iran\nPursuant to the agreement, the frozen assets held by the Fed, as well\nas the frozen assets held by overseas branches of United States banks\n(less payments on outstanding loans and the amount held in escrow to\ncover disputed amounts of unpaid principal and interest) have already\nbeen returned to Iran. The agreement also provides that the remaining\nfrozen assets in the United States will be returned upon establishment of\na security account to satisfy awards made by the international arbitral\ntribunal. This eventual return of the bulk of the frozen assets to Iran\nwill probably give rise to litigation challenging the President\xe2\x80\x99s authority\nto order such a return. In our opinion, presidential authority to issue\nsuch an order is clear.\nUnder IEEPA, the President is empowered to \xe2\x80\x9cdirect and compel\n. . . any . . . transfer [or] withdrawal . . . of . . . any property in\nwhich any foreign country or national has an interest.\xe2\x80\x9d 50 U.S.C.\n\xc2\xa7 1702(a)(1)(B). Upon nullification of any provisional remedies encum\xc2\xad\nbering the assets, the President was free to exercise his power to order\n4 Because these assets have already been transferred from the control o f the United States to Iran,\nlitigation concerning the exercise of this pow er will be limited to defense on a show cause order issued\nagainst federal officials involved in directing or executing these actions.\n\n318\n\n\x0cthe transfer of the assets, which was in effect the withdrawal of the\nassets by Iran.\nD. Prohibition of Prosecution of Hostage Claims\nPresident Carter, acting pursuant to the agreement, has ordered the\nSecretary of the Treasury to promulgate regulations prohibiting the\nprosecution of any claims arising out of the seizure of the United States\nembassy in Iran and the subsequent detention of the American hostages.\nThis prohibition is a sensitive issue that is likely to be challenged to be\nwithout authority, as well as a Fifth Amendment \xe2\x80\x9ctaking\xe2\x80\x9d without just\ncompensation and a denial of equal protection.\nAs discussed above, the President has the power under IEEPA and\nthe Hostage Act to take steps in aid of his constitutional authority 5 to\nsettle claims of the United States or its nationals against a foreign\ngovernment. Thus, he has the right to license litigation involving prop\xc2\xad\nerty in which a foreign national has an interest. That license can be\nsuspended by the Executive acting alone. New England Merchants Na\xc2\xad\ntional Bank v. Iran Power Generation & Transmission Co., 508 F. Supp.\n47 (S.D.N.Y. 1980) (Duffy, J.). But see National Airmotive Corp. v.\nGovernment and State of Iran, 499 F. Supp. 401 (D.D.C. 1980)\n(Greene, J.).\nThe Court of Claims has suggested in dicta that if the President\nsettles a claim for less than \xe2\x80\x9cvalue\xe2\x80\x9d for unrelated foreign policy pur\xc2\xad\nposes, a taking for public use occurs. See Gray v. United States, 21 Ct.\nCl. 340 (1886); Meade v. United States, 2 Ct. Cl. 224 (1866), affd on\nother grounds, 76 U.S. (9 Wall.) 691 (1869). Some of the former hostages\nor their families may rely on this dicta to seek compensation from the\nUnited States, arguing that prohibiting them from prosecuting their\nclaims against Iran amounts to a taking without just compensation.\nWhatever the vitality of the Meade and Gray dicta, the hostage claims\nare distinguishable because they are held by persons whose benefit was\na prime purpose of the Administration\xe2\x80\x99s negotiations to settle the crisis.\nEven though that settlement has been reached, the courts are not likely\nto question whether release could have been secured without settlement\nor extinction of the tort claims in return. Cf. Aris Gloves, Inc. v. United\nStates, 420 F.2d 1386 (Ct. Cl. 1970).\nThe foregoing conclusion regarding the difficulty of identifying loss\nto the hostages and their families as a result of a claims settlement is\nreinforced by analysis of their prospects for tort recovery absent an\nagreement. It seems unlikely that they could recover damages against\nIran in United States courts. The Foreign Sovereign Immunities Act, 28\nU.S.C. \xc2\xa7 1605(a)(5), provides for jurisdiction for an award of tort dam\xc2\xad\nages against a foreign state only \xe2\x80\x9cfor personal injury or death . . .\n*See. e.g., Restatem ent (Second) of Foreign Relations Law o f the United States \xc2\xa7 213 (1965).\n\n319\n\n\x0coccurring in the United States.\xe2\x80\x9d Torts to the hostages have not oc\xc2\xad\ncurred in the United States. In support of claims by their families for\nsuch torts as intentional infliction of emotional distress, it could be\nargued that the statute is ambiguous regarding whether it is enough for\nthe injury to occur here even if the tortious actions do not. The Act\xe2\x80\x99s\nlegislative history, however, emphasizes that the immunity of foreign\nstates for their \xe2\x80\x9cpublic\xe2\x80\x9d acts as opposed to \xe2\x80\x9ccommercial or private\xe2\x80\x9d\nacts is to be maintained and that the exception for torts in the United\nStates \xe2\x80\x9cis directed primarily at the problem of traffic accidents,\xe2\x80\x9d sug\xc2\xad\ngesting that the wrong must occur here to be actionable. H.R. Rep. No.\n1487, 94th Cong., 2d Sess. 7, 20 (1976).\nFinally, the \xe2\x80\x9ctakings\xe2\x80\x9d question may become moot. If the Hostage\nCompensation Commission recommends that Congress compensate the\nhostages and their families and Congress acts upon such a recommenda\xc2\xad\ntion, there will be no taking.\nIf the hostages and their families receive no compensation for their\nclaims, they may also argue that in obtaining satisfaction from Iran for\nthe commercial claims but not for the hostage claims, the government\ndenied them equal protection in violation of the Fifth Amendment. In\nour view, that argument will not prevail. Prohibiting prosecution of the\nhostage claims can be justified for equal protection purposes as the best\n\xe2\x80\x9cdeal\xe2\x80\x9d that could be struck with Iran for their release. As such, it is\nrationally related to and it furthers a legitimate governmental interest\nand thus does not deny equal protection. The determination by the\nPresident that precluding prosecution of the hostage claims facilitated\nthe release of the hostages will not be second-guessed by the courts. See\nUnited States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936);\nNarenji v. Civiletti, 617 F.2d 745 (D.C. Cir. 1979), cert, denied, 446 U.S.\n957 (1980); Miller v. United States, 583 F.2d 857, 865 (6th Cir. 1978);\nAris Gloves, Inc. v. United States, supra, 420 F.2d at 1393.\nE. Freezing the Assets of the Former Shah\nAs part of the agreement, President Carter prohibited the transfer of\nall property and assets located in the United States of the former Shah\nof Iran, his estate and his close relatives until litigation involving such\nproperty is terminated.6 Although the Shah\xe2\x80\x99s family may well challenge\nthis blocking order, we believe that the President\xe2\x80\x99s authority to block\nthe Shah\xe2\x80\x99s assets is not open to serious question. IEEPA authorizes the\nPresident to block transfers of \xe2\x80\x9cany property in which any foreign\ncountry or a national thereof has any interest,\xe2\x80\x9d 50 U.S.C. \xc2\xa7 1702(a)(1).\n6 A lthough the United States will not be directly involved in the litigation, Executive O rder No.\n12,284 directs the A ttorney G eneral pursuant to the agreem ent to present to the court at the request of\nIran\'s counsel a suggestion of interest stating it is the United States\' position that Iran\'s claim against\nthat property is not barred by either principles o f sovereign imm unity or the act o f state doctrine and\nthat Iranian decrees and acts relating to the assets o f the form er Shah should be enforced by the courts\nin accordance w ith our laws.\n\n320\n\n\x0cThe application of this language in the predecessor Trading with the\nEnemy Act to the assets of foreign nationals was firmly established by\nthe time that IEEPA was enacted and has repeatedly survived constitu\xc2\xad\ntional challenge. See, e.g., Sardino v. Federal Reserve Bank of New York,\n361 F.2d 106 (2d Cir.), cert, denied, 385 U.S. 898 (1966) (upholding the\nblocking of assets of Cuban nationals).\nF. Conclusion\nAlthough we fully expect legal challenges to be brought to the major\nactions discussed above, our review of the legal authorities previously\nrelied upon by this Office and the Attorney General in his January 19,\n1981, opinion to the President regarding the legality of the actions\ntaken by President Carter convinces us that these actions were well\nwithin the power conferred on the President by the Constitution, stat\xc2\xad\nutes, and treaty.\nII. Status of the Agreements with Iran under International Law\nA. The Relevance of \xe2\x80\x9cDuress"\nYou have asked us to consider whether the agreement reached with\nIran is enforceable under international law, a question not previously\naddressed by this Office or your predecessor as Attorney General.\nThe primary source for international treaty law is the Vienna Con\xc2\xad\nvention on the Law of Treaties (the Convention), which entered into\nforce in 1980. It has been signed by both the United States and Iran,\nbut neither has yet become a party.7 It is frequently cited by nonparties,\nhowever, as a statement of customary international law. At the time\nthat the Secretary of State sent the Convention to the President for\ntransmittal to the Senate, he said: \xe2\x80\x9cAlthough not yet in force, the\nConvention is already generally recognized as the authoritative guide to\ncurrent treaty law and practice.\xe2\x80\x9d Ex, L., 92d Cong., 1st Sess. 1 (1971).\nThe Executive did not recommend any reservations to the Convention\nat the time that it was submitted for advice and consent. This action\nstrongly suggests acceptance by the Executive of the Convention\xe2\x80\x99s\nrules.8\nThe Convention includes a number of articles concerning the invalid\xc2\xad\nity of treaties, the most pertinent of which is Article 52. It addresses the\nissue of coercion of a state by the threat or use of force:\n7 It was signed for the United States in 1970 and transm itted to the Senate by President Nixon on\nN ovem ber 22, 1971. Ex. L., 92d Cong., 1st Sess. (1971), reproduced at 8 I.L.M . 679.\n8 Hearings on ratification o f the C onvention w ere held before the Senate Foreign Relations Com \xc2\xad\nmittee in 1972 (unpublished), but the Convention was never reported out. T he problem w as prim arily\na disagreement betw een the Senate and President over the authority to make international agreem ents\nrather than disagreement about the substance of the Convention.\n\n321\n\n\x0cA treaty is void if its conclusion has been procured by\nthe threat or use of force in violation of the principles of\ninternational law. embodied in the Charter of the United\nNations.\nAt the outset, we would observe that the agreement concluded with\nIran is a \xe2\x80\x9ctreaty\xe2\x80\x9d within the meaning of the Convention even though it\nis designated as an executive agreement for purposes of domestic law.\nThe Convention applies to any written international agreement con\xc2\xad\ncluded between states which is governed by international law. Art.\n2(l)(a).\nThe principle expressed in Article 52 is of relatively recent origin.\nPrior to the establishment of the League of Nations, the use of force in\ninternational law was generally accepted. Thus, its use to procure\ntreaties was not considered unlawful. Experience under the League and\nthe U.N. Charter led to a fundamental change.9 Thus, the International\nLaw Commission (ILC), which drafted the Convention, concluded in\n1966 that\' Article 52 stated an existing norm of international law. Re\xc2\xad\nports of the Commission to the General Assembly, [1966] 2 Y.B. Int\xe2\x80\x99l\nL. Comm\xe2\x80\x99n 169, U.N. Doc. A/6309/Rev. 1/1966, at 246 (hereafter 1966\nI.L.C. Yearbook).\nWe believe that a persuasive argument can be made that the agree\xc2\xad\nment with Iran was \xe2\x80\x9cprocured by the threat or use of force in violation\nof the principles of international law\xe2\x80\x9d in the U.N. Charter, within the\nmeaning of Article 52. The International Court of Justice (ICJ) found\nthat the initial seizure was privately planned, Case Concerning United\nStates Diplomatic and Consular Staff in Tehran (US. v. Iran) ,1980 I.C\'J.\n3, 1J59, but that the government of Iran failed to take any steps to\ncorrect the situation. U 68. The continued holding of the hostages by\nforce enjoyed the \xe2\x80\x9cseal of official governmental approval.\xe2\x80\x9d H 73. It was\ncarried on \xe2\x80\x9cfor the purpose of exerting pressure on the United States,\xe2\x80\x9d\nH 74, and \xe2\x80\x9cforcing\xe2\x80\x9d the United States \xe2\x80\x9cto bow to certain demands,\xe2\x80\x9d\nH 91. Thus, the initially private action was transmuted into an act of\nstate. H 74 During this period, three of the hostages were held by the\nForeign Ministry itself. U 78. In addition, Iran constantly used threats to\nput the hostages on trial. U 79\nThe Court did not have occasion to address directly whether Iran\xe2\x80\x99s\nactivity was an illegal use of force under U.N. Charter Article 2(4),10 or\nwhether the United States\xe2\x80\x99 attempt to rescue the hostages was proper\nself-defense to an \xe2\x80\x9carmed attack\xe2\x80\x9d under Article 51 of the Charter. The\nCourt\xe2\x80\x99s opinion, however, uses words such as \xe2\x80\x9carmed,\xe2\x80\x9d \xe2\x80\x9cattack,\xe2\x80\x9d and\n9T . O. Elias, T he M odern Law of Treaties 170 (1974); M cN air, T he Law of Treaties 209 (1961);\nRestatem ent of Foreign Relations Law of the United States (Revised), tentative draft No. 1, \xc2\xa7338\n(1980).\n10 "A ll M embers shall refrain in their international relations from the threat or use o f force against\nthe territorial integrity or political independence o f any state, or in any other m anner inconsistent with\nthe Purposes o f the United Nations.**\n\n322\n\n\x0c\xe2\x80\x9coverrun\xe2\x80\x9d in describing both the February and November 1979 take\xc2\xad\novers, 14, 17, which strongly suggests that it views Iran\xe2\x80\x99s activity as\nan illegal use of armed force.\nThe formulation in Article 52 goes beyond the prohibitions embodied\nin Article 2(4) of the Charter. The Vice President of the ICJ has\nwritten: \xe2\x80\x9cBy emphasizing the principles of the Charter, the Article\nimplies all those rules and practices of international law which underlie\nthe Charter provisions and which are of general application today.\xe2\x80\x9d\nT.O. Elias, supra, at 170-71 (emphasis in original). Thus, use of force to\nviolate other basic Charter provisions is relevant.\nOne such provision is Article 94, under which each member under\xc2\xad\ntakes to comply with the decision of the ICJ in any case to which it is\na party. Since May 24, 1980, Iran has used force to defy such a decision\nand has therefore used force to violate the principles of the Charter.\nAlthough the basic principles are clear, there is a dearth of judicial\ninterpretation of Article 52 and state practice under it. The ICJ consid\xc2\xad\nered it briefly in the Fisheries Jurisdiction Case (U.K. v. Ice.), 1973\nI.C.J. 1, Iceland, which refused to participate in the case, challenged\nthe validity of an exchange of notes with the United Kingdom confer\xc2\xad\nring jurisdiction on the ICJ. It sent a letter to the Court stating that the\nexchange took place \xe2\x80\x9cunder extremely difficult circumstances,\xe2\x80\x9d when\nthe British navy had been using force to oppose Iceland\xe2\x80\x99s fishing limit.\nThe ICJ noted that this could be interpreted as a \xe2\x80\x9cveiled charge of\nduress,\xe2\x80\x9d 1) 24, but said that the Court could not consider an accusation\nof that kind without evidence to support it. It said that the history of\nthe jurisdictional agreement revealed that those instruments were freely\nnegotiated by the parties on the basis of \xe2\x80\x9cperfect equality and freedom of\ndecision on both sides." Id. (emphasis added). The Court recognized that\nArticle 52 represented \xe2\x80\x9ccontemporary international law\xe2\x80\x9d and that \xe2\x80\x9can\nagreement concluded under the threat of or use of force is void.\xe2\x80\x9d This\nstatement was made seven years before the Convention came into\nforce.\nThe Court\xe2\x80\x99s finding that the agreement was not void is not conclu\xc2\xad\nsive here.11 Unlike Iceland, which failed to produce evidence to sup\xc2\xad\nport its charge, we believe that the United States can convincingly\nestablish the presence of duress in procuring the agreement. Indeed, as\nwe have noted, the ICJ has already found that the illegal acts were \xe2\x80\x9cfor\nthe purpose of exerting pressure on the United States,\xe2\x80\x9d H 74, and used\nthe words \xe2\x80\x9ccoercing\xe2\x80\x9d and \xe2\x80\x9ccoercive\xe2\x80\x9d in this context. 11 87. There would\nappear to be no reason why, for example, the United States should have\ndropped its claim for compensation and the claims of the hostages\n(Declaration U 11)\xe2\x80\x94claims which had already been established in the\n11 The Fisheries Jurisdiction Case can also be viewed as a situation in which the ICJ was, understand\xc2\xad\nably, protecting its own jurisdiction. In this case, by contrast, the Court would protect its jurisdiction\nby voiding our agreement to withdraw our case against Iran from the ICJ.\n\n323\n\n\x0cICJ (Judgment of May 24, 1980)\xe2\x80\x94except for the threat against the\nhostages.\nB. The Consequences of Duress\nIf one accepts this reading of Article 52 and the proposition that it\napplies to the agreement with Iran, then the conclusion that would\nfollow is not that the United States has to break its agreement but that\nthere never was an agreement: it was void ab initio. The question\nwhether such an agreement should be void or merely voidable was\nconsidered by the ILC, which indicated the need, as a matter of\ninternational policy, to eliminate the consequences of coercion:\nThe prohibitions on the threat or use of force contained in\nthe Charter are rules of international law the observance\nof which is legally a matter of concern to every State.\nEven if it were conceivable that after being liberated from\nthe influence of a threat or of a use of force a State might\nwish to allow a treaty procured from it by such means,\nthe Commission considered it essential that the treaty\nshould be regarded in law as void ab initio. This would\nenable the State concerned to take its decision in regard\nto the maintenance of the treaty in a position of full legal\nequality with the other State. If, therefore, the treaty\nwere maintained in force, it would in effect be by the\nconclusion of a new treaty and not by the recognition of\nthe validity of a treaty procured by means contrary to the\nmost fundamental principles of the Charter of the United\nNations.\n1966 I.L.C. Yearbook at 247.\nThe ILC analysis raises several pertinent points. First, by clear impli\xc2\xad\ncation it recognizes that negotiating a treaty under duress is not a\nviolation of international law insofar as the state being subjected to\nduress is concerned. Thus, the negotiation of the agreement by the\nUnited States was proper as a matter of domestic and international law.\nThe ILC analysis also points out that once the coercion has been\nremoved, the coerced party is free, as a matter of international law, to\nadhere to that treaty. Thus, the President would act in full accord with\ninternational law were he now to decide to maintain the agreement. It\nis not clear what procedure would be preferable to implement a deci\xc2\xad\nsion to maintain the agreement. Because concluding the agreement was\nwithin the Executive\xe2\x80\x99s power, a simple statement acknowledging that\nthe United States wishes to maintain the agreement, even after the\nrelease of the hostages, should suffice.12\n12 An example o f confirm ing state practice is the 1973 treaty betw een the Federal Republic of\nG erm any and Czechoslovakia, w hich replaced the 1938 M unich A greem ent and stated it to be \xe2\x80\x9cvoid\xe2\x80\x9d\nbecause imposed under threat o f force. T.O. Elias, supra, at 176.\n\n324\n\n\x0cFinally, the President may act, also fully consistent with international\n(and domestic) law, to repudiate the agreement. If the President wishes\nto treat the agreements as void, he must treat them as completely so.\nArticle 44(5) of the Convention provides that in cases falling under\nArticle 52, no separation of the provisions of the treaty is permitted.\nThe ILC took the position that this rule was necessary to permit the\ncoerced State to act in a position of full freedom from coercion. 1966\nI.L.C. Yearbook at 239.\nThe consequence of repudiation would be that the United States\ncould, in theory, demand that Iran establish the position that would\nhave existed prior to the agreement. Thus, the United States could ask\nfor return of the money paid over to Iran. Iran, as the party to which\ncoercion is imputable, does not have a similar right. See Article 69 of\nthe Convention. Thus, it cannot demand return of the hostages. The\nUnited States would then be left with the means of redress available\nelsewhere through self-help or international adjudication for both the\ncoercive acts and their consequences. 1966 I.L.C. Yearbook at 264. See\nPart III(B), infra.\nC. Litigating the Issue of Duress\nIf the United States were to repudiate the agreement, it would be\ndesirable, for reasons of self-protection and international relations, to\nseek confirmation from an independent body, particularly the ICJ. It\nshould be possible to present the issue to the ICJ relatively quickly. In\nits judgment of May 24, 1980, the ICJ decided that the form and\namount of reparation to be paid by Iran \xe2\x80\x9cshall be settled by the Court.\xe2\x80\x9d\nBecause the Court thus reserved its jurisdiction in the case, the United\nStates could simply move for the designation of a master or other\nappropriate method for taking evidence of damages. Under the Decla\xc2\xad\nration, the United States agreed to withdraw the case. Iran would thus\nbe forced to raise the Declaration as a bar to halt the case, and the ICJ\nwould be directly presented with the issue of duress.13\nIran might choose to secure a determination of this matter from the\nIran-United States Claims Tribunal, as established under the Claims\nSettlement Agreement, by proving our default with regard to paying\nthe balance due to Iran. If the agreement is void and its provisions are\ninseparable, then the United States would take the position that the\nTribunal has no authority. Iran could in theory designate three mem\xc2\xad\nbers and, failing designation by the United States, apply under Article 7\nof the UNCITRAL rules, 15 I.L.M. 705, for designation of the remain\xc2\xad\ning arbitrators. See Claims Settlement Agreement, Art. 111(2). We doubt\n13 W e note that, under 28 U.S.C. \xc2\xa7\xc2\xa7516 and 519, conduct o f this litigation is reserved to the\nA ttorney General. T he Legal A dviser o f the D epartm ent of State is, o f course, an active participant in\nsuch litigation.\n\n325\n\n\x0cthat Iran could quickly constitute the Tribunal and obtain a judgment,\ngiven both the technical and legal problems and the time factors built\ninto the agreement. The Tribunal is given jurisdiction \xe2\x80\x9cover any dispute\nas to the interpretation or performance of any provision\xe2\x80\x9d of the Decla\xc2\xad\nration, which conceivably includes whether nonperformance by the\nUnited States based on a defense of duress was justified. There may be\nsome way that the United States could make this point to the Tribunal\nwithout conceding its authority. If the ICJ ruled first and held the\nagreement to be a nullity, the Tribunal would be bound by that deci\xc2\xad\nsion.14\nA further issue is whether the issue of duress can be adjudicated in\nour domestic courts. Litigants may attempt to argue that the agree\xc2\xad\nments are void even if the President decides to carry out the agree\xc2\xad\nments; conversely, Iran may argue their validity as a bar to litigation\neven if the government decides that they are void. We believe that any\ndecision made by the President as to duress is solely his to make and\nwill not be reviewed by the courts, which can be expected to view it as\na political question. A plurality of the Supreme Court held that Presi\xc2\xad\ndent Carter\xe2\x80\x99s decision to terminate the Taiwan Defense Treaty was a\npolitical question. Goldwater v. Carter, 444 U.S. 996 (1979). We believe\nthat the reasons for that decision are even more compelling here be\xc2\xad\ncause, as explained in the Attorney General\xe2\x80\x99s opinion of January 19, the\nagreement with Iran was an executive agreement, which is the Execu\xc2\xad\ntive\xe2\x80\x99s to make and to terminate and which does not require participa\xc2\xad\ntion by the Senate. Cf. Charlton v. Kelly, 229 U.S. 447, 476 (1913);\nRestatement (Second) of Foreign Relations Law of the United States\n\xc2\xa7 163 (1965).\nD. Conclusion\nFor the reasons set forth above, we conclude that: (1) a persuasive\ncase can be established that the agreement with Iran is void ab initio\nunder international law; (2) the negotiation of the agreement was not a\nviolation of international laws; (3) the President may, fully consistent\nwith international law, either repudiate or maintain the agreement; (4) if\nthe President decides to repudiate the agreement, confirmation of the\nappropriateness of that action should be sought in the ICJ; and (5)\nprivate litigants have no standing to contest in our courts any decision\nthat the President may make.\n14 T he agreem ent by the United States to arbitrate does not mean that w e have to present the case\nfor voidness to the Tribunal rather than make that decision ourselves. T he Tribunal is not given\nexclusive jurisdiction over these questions. If the agreem ent is void, the Tribunal has no authority.\nM oreover, the existence o f an arbitration agreem ent does not preclude measures o f self-help taken in\ngood faith. See L. D am rosch, Retaliation or Arbitration\xe2\x80\x94 or Both? The 1978 United States-France\nAviation Dispute. 74 Am. J. Int\'l L. 785 (1980).\n\n326\n\n\x0cIII. Legal Considerations Arising from Nonimplementation of the\nInternational Agreement with Iran\n\nThree important questions that would arise from a decision not to\nimplement the executory portions of the international agreement with\nIran are:\n1) What would become of the $1,418 billion in the escrow\naccount at the Bank of London (currently being held under\nthe terms of the \xe2\x80\x9cUndertakings\xe2\x80\x9d for payment of disputed\namounts between the Bank Markazi and the United States\nbanks);\n2) Can the still frozen domestic assets, including bank assets,\nother financial assets, and other Iranian governmental assets,\nbe used to satisfy claims by United States nationals against\nIran; and\n3) What rights will the hostages and their families have to sue\nIran for damages, and what possibility exists for collection of\nany award made?\nThe following discussion proceeds on the assumption that the United\nStates, following an executive decision against implementation, secures\na judgment from the ICJ or otherwise determines that the agreement is\nvoid.\nA. The Escrow Account\nThe Undertakings provide that $1,418 billion of the Fed and foreign\nbank assets previously transferred to the escrow account at the Bank of\nLondon shall be retained for the purpose of paying to U.S. banks any\nunpaid principal or interest on loans to Iran and paying to Iran any\ndeposits, assets, or interest owing on Iranian deposits. The division is to\nbe made by the agreement of the Bank Markazi and the appropriate\nU.S. bank; or, failing agreement on the amount, by reference to an\ninternational arbitration panel as the parties might agree; or failing\nagreement on a panel, by the Iran-United States Claims Tribunal. No\nother provision is made for distribution of the account.\nThe agreement between the banks\xe2\x80\x94and the obligations and rights\nthereunder\xe2\x80\x94is arguably severable from the international agreement.\nBut the overall context of the bank agreement, as well as the provision\nof terms and conditions for the escrow account in the Undertakings\ndocument, signed by the United States, may well make this argument\nunpersuasive. Thus, as discussed in Part II above, the Technical Ar\xc2\xad\nrangement between the banks, which implements .the Undertakings,\nmight well fall within the international agreement.\'In the time available,\nwe have been unable to assess the consequences of such failure.\n327\n\n\x0cB. Claims of United States Nationals\n\nThe domestic bank assets, valued at approximately $2.2 billion, and\nother Iranian assets, valued at approximately $1 billion, remain in this\ncountry. The first step of the two-step transfer process\xe2\x80\x94to the Fed and\nthen to Iran\xe2\x80\x94is underway, subject to litigation. The second step de\xc2\xad\npends upon adherence to the Claims Settlement Agreement, including\nestablishment of a Claims Settlement Tribunal. The Security Account is\nto be opened at $1 billion (taken from the $2.2 billion in domestic bank\nassets) and replenished by Iran with \xe2\x80\x9cnew\xe2\x80\x9d money if it drops below\n$500 million as awards are made.\nNonimplementation would preclude funding of the Security Account.\nPresumably, the domestic assets could be used directly for settling the\nclaims. The claims settlement procedure would require legislation to\nvest the assets and confer jurisdiction on the Foreign Claims Settlement\nCommission or a comparable body to hear and determine claims and\nmake awards. One theoretical difference is that the amount that the\nClaims Tribunal can award has no upper limit, while the total of\nawards against the domestic assets would of course be limited to about\n$3.2 billion. It is also possible that damages assessed by the ICJ in the\ncourse of that litigation could, with congressional approval by statute,\nbe made available for the satisfaction of private claims. The only claims\nnow pending, however, relate to the embassy seizure and not to com\xc2\xad\nmercial disputes. We would add, however, that if the United States\nprevails in the ICJ we could expect difficulty in collecting anything on\nany judgment other than by self-help. Judgments of the ICJ are not\ndirectly enforceable in domestic courts.\nIran ignored the ICJ\xe2\x80\x99s judgment in May 1980, which ordered Iran to\ncease its illegal acts. The Security Council has power under Article 94\nof the U.N. Charter to enforce ICJ judgments and could, in theory,\nimpose economic sanctions, a break in diplomatic relations, or other\npenalties on Iran for failure to pay. Experience has shown, however,\nboth in this case and in others, that the Security Council, for political\nreasons, has generally failed to support the ICJ.\nAs noted in Part II, if the ICJ were to confirm that the agreement is\nvoid, the United States may, in theory, ask for return of the assets paid\nover to Iran as well as damages to the United States and its nationals.\nIran can be expected to reply, if it participates, that the assets were\ntheirs in any event and that the United States has no right to return of\nthe assets. There is a question whether any judgment will exceed what\nwe already control. An ICJ judgment would serve, however, to give\nlegitimacy to any action we may take in vesting Iranian assets already\nin our control.\n328\n\n\x0cC. The Hostage Claims\nIn H 11 of the Declaration, the United States agreed to preclude\nprosecution of any claim related to the seizure and detention of the\nhostages. We have previously expressed the view that recovery against\nIran on a tort claim seemed unlikely in the absence of an amendment to\nthe Foreign Sovereign Immunities Act, which presently provides for\ntort damages for personal injury or death occurring in the United States\nand not resulting from a discretionary function. 28 U.S.C. \xc2\xa7 1605(a)(5).\nWe also believe, however, that an amendment to that Act could impose\nretroactive tort liability on Iran. Presumably, funds to pay out on any\njudgments secured would have to come out of the frozen assets after\nvesting or out of funds, if any, collected under an ICJ judgment.\nIt should be noted that during the period in which the United States\nwas pressing its claim that the agreement is void before the ICJ, we\nmight not meet certain of our obligations under the agreement. Such\n\xe2\x80\x9cbreaches\xe2\x80\x9d could then lead to awards against the United States by the\nClaims Tribunal in the unlikely event that the ICJ ultimately ruled\nagainst the United States.\nD. Conclusion\nIn the short time available, we have identified three of what we\nbelieve would be the most important issues to be confronted if the\nagreement with Iran were not implemented. We are concerned, how\xc2\xad\never, that other problems may arise, particularly the possibility of\nclaims brought against the United States which might result in the\nimposition of liability on the government. We are exploring these po\xc2\xad\ntential problems as quickly as possible.\nL a r r y L . S im m s\n\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n329\n\n\x0c'


b"April 20, 1979\n\n79-28\n\nMEMORANDUM OPINION FOR THE\nGENERAL COUNSEL, DEPARTMENT OF\nCOMMERCE, AND THE SOLICITOR,\nDEPARTMENT OF THE INTERIOR\nCoastal Zone Management Act (16 U.S.C.\n\xc2\xa7 1456(c)(1))\xe2\x80\x94Outer Continental Shelf Lands\xe2\x80\x94\nApplicability of Section 307(c)(1) to Department of\nthe Interior Preleasing Activities Directly Affecting\nthe Coastal Zone\xe2\x80\x94Repeals by Implication\n\nThis responds to your request that we address the issue whether the\npreleasing activities o f the Secretary o f the Interior relating to the Outer\nContinental Shelf1 are subject to the consistency requirement o f\n\xc2\xa7 307(c)(1) o f the Coastal Zone Management Act, 16 U .S.C . \xc2\xa7 1456(c)(1).\nSection 307(c)(1) provides:\nEach Federal agency conducting or supporting activities directly\naffecting the coastal zone shall conduct or support those ac\xc2\xad\ntivities in a m anner which is, to the maximum extent practicable,\nconsistent with approved state management programs.\nThe Department o f the Interior (Interior) asserts that its preleasing ac\xc2\xad\ntivities relating to the Outer Continental Shelf lands do not directly affect\nthe Coastal Zone, and that the applicability o f \xc2\xa7 307(c)(1) to those ac\xc2\xad\ntivities was superseded by the Coastal Zone Management Act Am end\xc2\xad\nments o f 1976 and the Outer Continental Shelf Lands Act Amendments of\n1978. The Department o f Commerce disagrees. In its view, the statutory\nlanguage \xe2\x80\x9c directly affecting the coastal zone\xe2\x80\x9d [emphasis added] must be\nread as \xe2\x80\x9c significantly affecting the coastal zone;\xe2\x80\x9d the significance o f these\n\n1 The preleasing activities o f the Secretary of the Interior include calls for nom inations\n(ascertainment o f tracts that the industry would like to have offered for lease, and that other\nparties believe should not be leased), tract selection, the preparation o f an environm ental im\xc2\xad\npact statem ent, consultation with the Governors, and individual tract selection.\n\n189\n\n\x0cactivities must be considered in terms o f \xe2\x80\x9c primary, secondary, and\ncumulative effects\xe2\x80\x9d on the Coastal Zone; and the two am endatory acts\nhave no bearing on the scope o f \xc2\xa7 307(c)(1).\nWe have examined the materials submitted with your request, as well as\nthe complex pertinent legislative histories. We conclude (1) that neither the\nCoastal Zone Management Act Am endm ents o f 1976 nor the O uter Conti\xc2\xad\nnental Shelf Lands Act Am endm ents o f 1978 affect the application of\n\xc2\xa7 307(c)(1) to O uter Continental Shelf land preleasing activities; (2) that\n\xc2\xa7 307(c)(1) applies only to activities directly affecting the Coastal Zone; and\n(3) that the Attorney General is not authorized to resolve the factual ques\xc2\xad\ntion whether and to what extent any o f the preleasing activities o f the\nDepartment o f the Interior under the O uter Continental Shelf Lands Act\ndirectly affect the Coastal Zone.\nI.\nThe Coastal Zone Management Act, 86 Stat. 1285, 16 U .S.C . \xc2\xa7 1451 et\nseq., is primarily concerned with the effective management, beneficial use,\nprotection, and development o f the Coastal Zone. Section 302(a), 16\nU .S.C . \xc2\xa7 1451(a). The Coastal Zone extends seaward to the outer limit of\nthe United States territorial sea, inland to the shore line, and to a limited\nextent to the adjacent shore lands. Section 304(1), 16 U .S.C . \xc2\xa7 1453(1).2\nThe Act is administered by the Secretary o f Commerce. Section 304(15),\n16 U .S.C . \xc2\xa7 1453(15). The Act provides for the development and ad\xc2\xad\nministration by the States o f State management programs for the Coastal\nZone. Those programs require the approval o f the Secretary o f Com\xc2\xad\nmerce. Sections 305, 306, 16 U.S.C. \xc2\xa7\xc2\xa7 1454, 1455.\nThe O uter Continental Shelf Lands Act o f 1953, as amended, provides\nthat the Secretary o f the Interior shall administer the program o f oil and\ngas leasing on the O uter Continental Shelf. Sections 5 and 6, 43 U.S.C.\n\xc2\xa7\xc2\xa7 1334, 1335. The O uter Continental Shelf consists generally o f the\nsubmerged lands lying seaward o f the Coastal Zone o f which the subsoil\nand seabed appertain to the United States and are subject to its jurisdic\xc2\xad\ntion and control. \xc2\xa7 2(a), 43 U .S.C . \xc2\xa7 1331(a).\nThe basic issue is whether and to what extent the preleasing activities of\nthe Secretary o f the Interior under the Outer Continental Shelf Lands Act\nare subject to the provisions o f \xc2\xa7 307(c)(1) o f the Coastal Zone Manage\xc2\xad\nment Act.\nA. The Coastal Zone Management Act Amendments o f 1976\nSection 6 o f the Coastal Zone Management Act Amendments o f 1976\n\n2 Section 2(e) o f the O uter C ontinental Shelf Lands A ct, as added by \xc2\xa7 201(b) o f the\nAm endm ents o f 1978, 43 U .S.C . \xc2\xa7 1331(e), uses the same definition.\n\n190\n\n\x0cadded to \xc2\xa7 307(c)(3) a new paragraph (B).3 The Department o f the Interior\ncontends that this paragraph is intended to constitute the exclusive m ethod\nby which, and the only stage at which, the consistency o f all aspects o f the\nOuter Continental Shelf Lands leasing process, including preleasing activi\xc2\xad\nties, with the State management programs is to be determined and that the\nnew paragraph pro tanto supersedes the consistency requirement o f \xc2\xa7307\n(c)(1). We cannot concur in that interpretation o f the 1976 Amendments.\nThe enactment o f \xc2\xa7 307(c)(3)(B) originated from a dispute between the\nDepartment o f the Interior and the Department o f Commerce concern\xc2\xad\ning the proper interpretation o f \xc2\xa7 307(c)(3), now \xc2\xa7 307(c)(3)(A).4 That\n\n' Section 307(c)(3)(B), as am ended by the O uter Continental Shelf Lands Act Am endment\no f 1978, \xc2\xa7 504, provides:\n(B) After the management program o f any coastal state has been approved by the Sec\xc2\xad\nretary under section 1455 o f this title, any person who submits to the Secretary o f the In\xc2\xad\nterior any plan for the exploration or development of, or production from , any area\nwhich has been leased under the O uter Continental Shelf Lands Act (43 U .S.C . 1331 et\nseq.) and regulations under such Act shall, with respect to any exploration, develop\xc2\xad\nm ent, or production described in such plan and affecting any land use or water use in the\ncoastal zone o f such state, attach to such plan a certification that each activity which is\ndescribed in detail in such plan complies with such state\xe2\x80\x99s approved management pro\xc2\xad\ngram and will be carried out in a m anner consistent with such program . No Federal o f\xc2\xad\nficial or agency shall grant such person any license or permit for any activity described in\ndetail in such plan until such state or its designated agency receives a copy o f such cer\xc2\xad\ntification and plan, together with any other necessary data and inform ation, and until\xe2\x80\x94\n(i) such state or its designated agency, in accordance with the procedures required\nto be established by such state pursuant to subparagraph (A), concurs with such per\xc2\xad\nson\xe2\x80\x99s certification and notifies the Secretary and the Secretary o f the Interior o f such\nconcurrence;\n(ii) concurrence by such state with such certification is conclusively presumed as\nprovided for in subparagraph (A), except if such state fails to concur with or object to\nsuch certification within three m onths after receipt o f its copy o f such certification\nand supporting inform ation, such state shall provide the Secretary, the appropriate\nfederal agency, and such person with a written statem ent describing the status o f\nreview and the basis for further delay in issuing a final decision, and if such statem ent\nis not provided, concurrence by such state with such certification shall be conclusively\npresumed; or\n(iii) the Secretary finds, pursuant to subparagraph (A), that each activity which is\ndescribed in detail in such plan is consistent with the objectives o f this chapter or is\notherwise necessary in the interest o f national security. If a state concurs or is con\xc2\xad\nclusively presumed to concur, or if the Secretary makes such a finding, the provisions\no f subparagraph (A) are not applicable with respect to such person, such state, and\nany Federal license or permit which is required to conduct any activity affecting land\nuses or water uses in the coastal zone o f such state which is described in detail in the\nplan to which such concurrence or finding applies. If such state objects to such cer\xc2\xad\ntification and if the Secretary fails to make a finding under clause (iii) with respect to\nsuch certification, or if such person fails substantially to comply with such plan as\nsubm itted, such person shall submit an amendm ent to such plan, or a new plan, to the\nSecretary o f the Interior. W ith respect to any amendm ent or new plan subm itted to\nthe Secretary o f the Interior pursuant to the preceding sentence, the applicable time\nperiod for purposes o f concurrence by conclusive presum ption under subparagraph\n(A) is 3 m onths.\n4 Section 307(c)(3)(A) provides:\n(3)(A) A fter final approval by the Secretary o f a state\xe2\x80\x99s management program , any\napplicant for a required Federal license or permit to conduct an activity affecting land or\n(Continued)\n\n191\n\n\x0cparagraph provides that, after a State\xe2\x80\x99s management program has been\napproved by the Secretary o f Commerce, an applicant for a Federal permit\nor license for an activity affecting the Coastal Zone must include in the ap\xc2\xad\nplication a certification that the proposed activity complies with the\nState\xe2\x80\x99s program, and that the activity will be conducted in accordance with\nthat program .5 The Departm ent o f the Interior contended that leases in the\nO uter Continental Shelf did not come within the purview o f the provision;\nthe Department o f Commerce took the opposite position.\nThis dispute came to the attention o f Congress during its consideration\no f the Coastal Zone Act Amendments o f 1976. Both legislative committees\nconcluded that \xc2\xa7 307(c)(3) is intended, and indeed always was intended, to\ncover leases, and reported out bills amending \xc2\xa7 307(c)(3) by adding the\nword \xe2\x80\x9c lease\xe2\x80\x9d to the words \xe2\x80\x9c license or perm it\xe2\x80\x9d already included in the\nparagraph. S. Rept. 94-277, pp. 19, 36-37, 53, 59; H. Rept. 94-878, pp. 4,\n52, 67-68, 48.\nThe Senate concurred in the committee report. The bill passed by it\namended \xc2\xa7 307(c)(3) to include the word \xe2\x80\x9c lease.\xe2\x80\x9d 121 C o n g r e s s i o n a l\nR e c o r d 23050, 23086.6 W hen the bill reached the floor o f the House it\ncontained the same provision. 122 C o n g r e s s i o n a l R e c o r d 6124. The\namendment o f \xc2\xa7 307(c)(3), however, was stricken on motion o f Congress\xc2\xad\nman duP ont because he felt, on the basis o f testimony received from the\nAdministration and the industry, that more time was needed to evaluate\nthe full impact o f the proposed amendm ent. He continued:\n\n(Continued)\nwater uses in the coastal zone o f that state shall provide in the application to the licens\xc2\xad\ning or permitting agency a certification that the proposed activity complies with the\nstate\xe2\x80\x99s approved program and that such activity will be conducted in a manner consistent\nwith the program . A t the same time, the applicant shall furnish to the state or its\ndesignated agency a copy o f the certification, with all necessary inform ation and data.\nEach coastal state shall establish procedures for public notice in the case o f all such cer\xc2\xad\ntifications and, to the extent it deems appropriate, procedures for public hearings in con\xc2\xad\nnection therewith. At the earliest practicable time, the state or its designated agency shall\nnotify the Federal agency concerned that the state concurs with or objects to the appli\xc2\xad\nc an t\xe2\x80\x99s certification. If the state or its designated agency fails to furnish the required\nnotification within six m onths after receipt o f its copy o f the applicant\xe2\x80\x99s certification,\nthe state\xe2\x80\x99s concurrence with the certification shall be conclusively presumed. No license\nor permit shall be granted by the Federal agency until the state or its designated agency\nhas concurred with the applicant\xe2\x80\x99s certification or until, by the state\xe2\x80\x99s failure to act, the\nconcurrence is conclusively presum ed, unless the Secretary, on his own initiative or upon\nappeal by the applicant, finds, after providing a reasonable opportunity for detailed\ncom m ents from the Federal agency involved and from the state, that the activity is con\xc2\xad\nsistent with the objectives o f this chapter or is otherwise necessary in the interest o f\nnational security.\n\n\xe2\x80\x99 Slate concurrence in the certification is presumed if it fails to object within 6 months\nafter receipt o f a copy o f the applicant\xe2\x80\x99s certification. The permit or license may not issue\nunless the State concurs in the certification o r is presumed to have concurred, or unless the\nSecretary o f Commerce finds that the activity is consistent with the objectives o f the Act or\notherwise necessary in the interest o f national security.\n6 See also the explanation o f the provision by Senator Hollings, who was in charge o f the\nlegislation. 121 C o n g r e s s i o n a l R e c o r d 23053.\n\n192\n\n\x0cBy striking it in the House bill and leaving it in the bill that has\nalready passed the Senate we will be giving ourselves a little bit of\nflexibility in the conference to either adopt the language as the\nSenate put it in or adopt some other language we feel would be\nmore beneficial and at the same time protect the rights o f the\nStates.\nSo the purpose o f this amendment is not to get rid o f the word\n\xe2\x80\x9c lease\xe2\x80\x9d but to allow us time to work on the problem a little bit\nlonger. [122 C o n g r e s s i o n a l R e c o r d 6128.]\nRepresentative M urphy, who was in charge o f the legislation in the House,\naccepted the amendm ent, pointing out that even if an applicant were\ngranted a lease the statute required permits and licenses to be subject to the\nconsistency requirement o f \xc2\xa7 307(c)(3). Ibid. This observation appears to\nhave been related to the position taken by the Department o f the Interior\nconcerning the interminable delays that would result if every lease and\nrelated permit and license were to be subject to the procedures of\n\xc2\xa7 307(c)(3), a m atter that could bring about repeated delays. See the letter\nfrom Secretary o f the Interior Kleppe to the Director, Office o f Manage\xc2\xad\nment and Budget, dated May 24, 1976.\nThe conference report adopted by both Houses provided that \xc2\xa7 307(c)(3)\nshould be divided. The original paragraph became \xc2\xa7 307(c)(3)(A), and the\ncommittee added a new paragraph (B). See, footnote 3, supra. The import\no f the new paragraph is that an individual or organization submitting to\nthe Secretary o f the Interior a plan for the exploration, development of,\nor production from, an area leased under the continental Shelf Lands Act\nmust submit a certification similar to the one required under paragraph\n(A). If the State agreed to the certification o r did not object within 6\nmonths, or if the Secretary o f Commerce made a finding o f consistency,\nsubsequent requests for permits or licenses required for activities described\nin detail in such plan would not have to go through the conform ity pro\xc2\xad\ncedures provided for in paragraph (A).\nThe conference report contains the following explanation o f the am end\xc2\xad\nment:\nAlso, under the substitute, any subsequent OCS [Outer Conti\xc2\xad\nnental Shelf] Federal license or permit required for activities\nspecified in any exploration, development, and production plan\nare presumed to be consistent once the plan is certified as being\nso consistent. This im portant change will significantly expedite\nOCS oil and gas development. Under present Department o f\nInterior regulations, Federal permits are required for a large\nnumber o f individual activities, including geophysical explora\xc2\xad\ntion, bottom sampling, well drilling for exploration or produc\xc2\xad\ntion, pipeline right-of-w ay, structure placem ent, waste\ndischarge, and dredging and filling operations. Thus, separate\nconsistency determination on each activity, described in detail in\nan exploration, development or production plan, will not be\nnecessary. [H. Rept. 94-1298, pp. 30-31.]\n193\n\n\x0cThe explanation o f the conference report on the floor o f the Senate by\nSenator Hollings contained the following observation:\nThird, a new incentive for expediting determ ination o f whether\nparticular off-shore energy activity is consistent with a coastal\nState\xe2\x80\x99s approved management program, on an overall plan basis\nrather than on an individual license/permit by license/permit\nbasis; * * *. [122 C o n g r e s s i o n a l R e c o r d 21230.]\nThe am endment was thus designed to overcome the difficulties adverted to\nby Secretary Kleppe, namely, that a new conform ity review under\n\xc2\xa7 307(c)(3), involving a 6-m onth delay, would be required every time the\nlessee o f O uter Continental Shelf Lands had to apply for a new license or\npermit.\nThe Departm ent o f the Interior believes that paragraph (B) embodies an\nexclusive provision concerning the consistency requirement of the Outer\nC ontinental Shelf lands leasing process with Coastal Zone State manage\xc2\xad\nment plans, and that it therefore supersedes \xc2\xa7 307(c)(1) with respect to the\nentire process, including the preleasing stage. It relies on the doctrine of\nrepeal by implication. The Supreme C ourt, however, has consistently ap\xc2\xad\nplied the rule that a repealing intention o f the legislation to repeal must be\nclear and manifest; that every attem pt must be made to reconcile the\nstatutes involved; and that a repeal by implication will be found only\nwhere there is a \xe2\x80\x9c positive repugnancy\xe2\x80\x9d between the statutes. Morton v.\nMancari, 417 U.S. 535, 549-551 (1974); Borden v. United States, 308 U.S.\n188, 198-199 (1939).\nIn our view, the relationship between \xc2\xa7 307(c)(1) and 307(c)(3)(B) does\nnot meet these rigorous standards, at least not for the preleasing period.1\nThe two provisions can readily coexist during that period and there is no\n\xe2\x80\x9c positive repugnancy.\xe2\x80\x9d There is nothing explicit or implied in the 1976\nAmendments to the effect that the procedure set forth in \xc2\xa7 307(c)(3)(B)\nprovides the only consistency requirement for the O uter Continental Shelf\nland leasing process. Paragraph (B) is designed to relieve the lessee o f the\nburdens and delays resulting from successive consistency determinations\nfor the many license and permit applications that may follow the grant of\na lease and the approval o f an exploration, development, or produciton\nplan. U nder \xc2\xa7 307(c)(3)(B) there will be a single consistency review follow\xc2\xad\ning the submission o f the plan and that review will cover any future ac\xc2\xad\ntivities described in detail in the plan. Section 307(c)(3)(B) thus simplifies\nthe regulatory process during the postleasing period. It has no bearing on\nthe consistency requirements antedating that stage o f the leasing process.\nIt is well possible that some o f the preleasing activities o f Interior will give\n\n\xe2\x80\x99 We need not examine the question, not presented by your inquiry, whether once a plan for\nthe exploration, or developm ent, or production envisaged by \xc2\xa7 307(c)(3)(B) has been filed, that\nparagraph becomes the exclusive procedure for the determ ination o f the consistency require\xc2\xad\nment, covering both the Departm ent o f the Interior and the lessee, or whether the Department\no f the Interior remains subject to the additional consistency requirement o f \xc2\xa7 307(c)(1).\n\n194\n\n\x0crise to consistency problems that cannot be reviewed at all under the para\xc2\xad\ngraph (B) procedure, or for which such review comes too late. It is our\nopinion that with respect to preleasing activities \xc2\xa7 307(c)(1) and\n\xc2\xa7 307(c)(3)(B) can both be given effect, and accordingly that the enact\xc2\xad\nment o f \xc2\xa7 307(c)(3)(B) does not disclose any clear and manifest legislative\nintent to supersede, and does not supersede, the applicability o f \xc2\xa7 307(c)(1)\nto those preleasing activities o f Interior relating to the O uter Continental\nShelf lands that come within the scope o f that section.\nB.\n\nThe Outer Continental Shelf Lands Act Amendments o f 1978\n\nThe second statute that according to Interior supersedes \xc2\xa7 307(c)(1)\nregarding leases is the O uter Continental Shelf Lands Act Amendm ents o f\n1978. Section 208 o f that Act adds to the Outer Continental Shelf Lands\nAct of 1953 a num ber o f new sections containing specific procedures for\nthe O uter Continental Shelf lands leasing program. Some o f those pro\xc2\xad\nvisions are expressly adjusted to the Coastal Zone Management Act. (See\nespecially the repeated references to \xc2\xa7\xc2\xa7 306 and 307(c)(3)(B) o f the Coastal\nZone Management Act in \xc2\xa7 25 o f the O uter Continental Shelf Lands Act,\nadded by the 1978 Amendments, 43 U .S.C . \xc2\xa7 1351.)\nThe most significant apparent conflict between the 1978 Amendments\nand \xc2\xa7 307(c)(1) appears in \xc2\xa7 19 o f the O uter Continental Shelf Lands Act,\n43 U .S.C. \xc2\xa7 1345, entitled \xe2\x80\x9c Coordinaton and Consultation with Affected\nState and Local Governm ents.\xe2\x80\x9d Pursuant to \xc2\xa7 19(c), the Governor o f a\nState, or the executive officer o f an affected local government, may sub\xc2\xad\nmit to the Secretary o f the Interior recommendations regarding the size,\ntiming, or location o f a proposed lease sale or with respect to a proposed\n------development-or production-plan.- It-provides that the Secretary_of the In -____\nterior shall accept those recommendations unless he decides that they do\nnot provide for a reasonable balance between the national interest [in in\xc2\xad\ncreasing oil production] and the well-being o f the citizens o f the affected\nState. The pertinent committee reports say that no \xe2\x80\x9c State should have a\nveto power over OCS [Outer Continental Shelf] oil and gas activities.\xe2\x80\x9d S.\nRept. 95-284, p. 78; H. Rept. 95-590, p. 153.\nAlthough we might be inclined to find a clear legislative intent that the\nrecommendations referred to in \xc2\xa7 19(c) were designed to take the place o f\nthe conformity requirement o f \xc2\xa7 307(c)(1) o f the Coastal Zone Manage\xc2\xad\nment Act, the language and legislative history o f the 1978 Amendments\nrefute that intent.\nSection 608(a) o f the 1978 Amendments provides expressly that:\nExcept as otherwise expressly provided in this Act, nothing in\nthis Act shall be construed to am end, modify, or repeal any pro\xc2\xad\nvision o f the Coastal Zone Management Act o f 1972 * * *.\nMore specifically, the section-by-section analysis o f \xc2\xa7 19 in the House\nreport contains the following footnote expressly disclaiming any congres\xc2\xad\nsional intent to modify by implication the consistency requirements o f the\nCoastal Zone Management Act:\n195\n\n\x0cThe committee is aware that under the Coastal Zone Manage\xc2\xad\nm ent Act o f 1972, as am ended in 1976 (16 U .S.C . 1451 et seq.),\ncertain OCS [Outer Continental Shelf] activities including lease\nsales and approval o f development and production plans must\ncomply with \xe2\x80\x9c consistency\xe2\x80\x9d requirements as to coastal zone\nm anagement plans approved by the Secretary o f Commerce. Ex\xc2\xad\ncept for specific changes made by Titles IV and V o f the 1977\nAm endm ents, nothing in this Act is intended to amend modify or\nrepeal any provision o f the Coastal Zone Management Act.\nSpecifically, nothing is intended to alter procedures under that\nAct for consistency once a State has an approved Coastal Zone\nM anagement Plan. [H. Rept. 95-590, p. 153, fn. 52.]8\nWe conclude that neither the Coastal Zone Management Act Amendment\no f 1976 nor the O uter C ontinental Shelf Lands Act Amendments o f 1978\naffect the application o f the consistency requirement o f \xc2\xa7 307(c)(1) o f the\nCoastal Zone M anagement Act to the preleasing activities o f the D epart\xc2\xad\nment o f the Interior.\nII.\nHaving determined that the preleasing activities o f the Secretary o f the\nInterior are subject to the conform ity requirement o f \xc2\xa7 307(c)(1) o f the\nCoastal Zone M anagement Act, we reach the second question posed in the\nsubmission. Interior contends that, if \xc2\xa7 307(c)(1) applies at all to its\npreleasing activities, it applies only to those activities which, according to\nthe plain statutory language o f the paragraph, directly affect the Coastal\nZone.\nThe implementing regulations issued by the Department o f Commerce\nin 1978, however, substitute the term \xe2\x80\x9c significantly\xe2\x80\x9d for the statutory\nword \xe2\x80\x9c directly\xe2\x80\x9d and define \xe2\x80\x9c significantly\xe2\x80\x9d in terms o f \xe2\x80\x9c primary, second\xc2\xad\nary, and cumulative effects.\xe2\x80\x9d 15 CFR \xc2\xa7\xc2\xa7 930.30, 43 F.R. 10518-10519.\nThe Departm ent explains its departure from the statutory language on the\nground that, while the various provisions relating to the consistency re\xc2\xad\nquirement are not uniform in language, the legislative history is \xe2\x80\x9c replete\xe2\x80\x9d\nwith statements that Congress intended to cover all Federal activities\ncapable o f significantly affecting the Coastal Zone. See 43 F.R. 10511. In\nour view, the legislative history does not justify the departure.\nPrior to the conference, the text o f \xc2\xa7 307(c)(1), as passed by both\nHouses o f Congress, subjected all Federal activities in the Coastal Zone, to\nthe consistency requirement. Senate: 118 C o n g r e s s i o n a l R e c o r d 14190\n(\xc2\xa7 314(b)(1)); House: 118 C o n g r e s s i o n a l R e c o r d 26502 (\xc2\xa7 307(c)(1)).\nThe conference committee changed Federal activities \xe2\x80\x9c in the Coastal\n\n\xe2\x80\x98 The H ouse report was subm itted in 1977. Title V o f the 1978 Am endm ents contains ex\xc2\xad\npress am endm ents to the Coastal Zone M anagement Act. Section 504 modifies \xc2\xa7 307(c)\n(3)(B)(ii).\n\n196\n\n\x0cZone\xe2\x80\x9d to the present statutory language o f \xe2\x80\x9c directly affecting the Coastal\nZ one.\xe2\x80\x9d The explanatory statement in the conference report does not ex\xc2\xad\nplain why the committee departed from the language com m on to the bill\nas it had passed both H ouses.9 The statem ent, however, indicates a full\nawareness that the different paragraphs o f \xc2\xa7 307(c) applied different\nstandards o f Federal impact on the Coastal Zone: \xc2\xa7 307(c)(1), \xe2\x80\x9c directly\naffecting;\xe2\x80\x9d \xc2\xa7 307(c)(2), \xe2\x80\x9c in the Coastal Z one;\xe2\x80\x9d 10 \xc2\xa7 307(c)(3), \xe2\x80\x9c similar\nconsideration.\xe2\x80\x9d\nIn the light o f this history o f the words \xe2\x80\x9c directly affecting,\xe2\x80\x9d we are\nunable to accept an interpretation that would dilute \xe2\x80\x9c directly,\xe2\x80\x9d first to\n\xe2\x80\x9c significantly\xe2\x80\x9d and then to \xe2\x80\x9c primarily, secondarily, and cumulatively.\xe2\x80\x9d\nFinally, in our discussion o f the question o f repeal by implication we\nhave pointed out that \xc2\xa7 307(c)(1) and \xc2\xa7 307(c)(3)(B) are separate provisions\ndealing with different stages o f the leasing process. We have concluded\nthat the provision concerning the postleasing process does not necessarily\nrepeal a provision addressed to the preleasing stage. Similarly, when the\nstatute provides for different impact requirements at different stages of\nthe leasing process, there is no need, and indeed no justification, for an at\xc2\xad\ntempt to obliterate those express statutory differences by regulation. It is\nour opinion that the conform ity requirement o f \xc2\xa7 307(c)(1) applies only to\nthe preleasing activities o f the Department o f Interior directly affecting the\nCoastal Zone. The question whether those activities or any o f them di\xc2\xad\nrectly affect the Coastal Zone is essentially one o f fact which the A ttorney\nGeneral is not authorized to address. See 28 Op. A tt\xe2\x80\x99y Gen. 218, 22 (1910);\n39 Op. A tt\xe2\x80\x99y Gen. 425, 428 (1940).\nL eo n U lm an\n\nD eputy Assistant A ttorney General\nOffice o f Legal Counsel\n\n' \xe2\x80\x9c They (the conferees) also agreed that as to Federal agencies involved in any activities\ndirectly affecting the State coastal zone and any Federal participation in development p ro j\xc2\xad\nects in the coastal zone , the Federal agencies must m ake certain that their activities are to the\nmaximum extent practicable consistent with approved State management programs. In addi\xc2\xad\ntion, similar consideration o f State management programs must be given in the process o f is\xc2\xad\nsuing Federal licenses or permits for activities affecting State coastal zones.\xe2\x80\x9d H. Rept.\n92-1544, p. 14. [Emphasis added.]\n10 The regulations issued by the D epartm ent o f Commerce extend the \xe2\x80\x9c significantly\naffect\xe2\x80\x9d tests even to \xc2\xa7 307(c)(2), which in terms applies only to activities \xe2\x80\x9c in the Coastal\nZ one.\xe2\x80\x9d\n\n197\n\n\x0c"


b'Authority of the United States Olympic Committee to Send\nAmerican Teams to the 1980 Summer Olympics\nT h e A m ateur Sports A ct o f 1978, 36 U.S.C. \xc2\xa7371 el seq.. does not com pel the United\nStates O lym pic Com m ittee to send A m erican team s to any Olym pics.\nT h e United States O lym pic Com m ittee m ay w ithdraw its delegation at any time before\nfinal entries are made.\nT h e A m ateur Sports A ct o f 1978, 36 U.S.C. \xc2\xa7 371 et seq.. does not create any substantive\nright in an individual athlete to participate in a particular Olym pic.\n\nApril 10, 1980\nT\n\nhe\n\nP\n\nr e s id e n t\n\nM y D e a r M r. P r e s i d e n t : Y o u have requested my opinion on the\nquestion whether the United States Olympic Committee (USOC) has a\nlegal duty, under the Amateur Sports A ct of 1978, 36 U.S.C. \xc2\xa7 371 et\nseq., to send a team of American athletes to the Summer Olympic\nGames in Moscow. For reasons stated below, it is my opinion that no\ntenable argument can be made that the USOC is required to send an\nAmerican team to the Moscow Games. To the contrary, I believe that\nthe Amateur Sports Act gives the USOC discretion not to send a team\nto any particular Olympic Games, including the Moscow Games.\nThere would appear to be only two conceivable bases for an argu\xc2\xad\nment that the USOC is legally bound to send an American team to the\nMoscow Gam es.1 One argument might be that the Amateur Sports Act\nof 1978 grants no discretion to the USOC to refuse to send an Ameri\xc2\xad\ncan team to any particular Olympic Games no matter what the circum\xc2\xad\nstances might be. Another argument would be that the Amateur Sports\nA ct of 1978 creates in individual athletes a substantive legal right to\ncompete in any particular Olympic Games if they otherwise qualify to\ncompete on the basis of their performance in competition with other\nathletes for berths on our Olympic team. I will address each of these\narguments in turn.\nThe Amateur Sports Act of 1978 recognized and established the\nUSOC as a federally chartered corporation, inter alia, to \xe2\x80\x9cexercise\nl W e d o n o t b e lie v e th a t \xc2\xa7 202(a)(5) o f th e A m a te u r S p o rts A c t o f 1978, 36 U .S .C . \xc2\xa7 392(a)(5), to\nw h ic h C o u n sel to th e P re s id e n t L lo y d C u tle r\'s le tte r o f A p ril 9, 1980, refers, is re le v a n t. T h e O ly m p ic\nG a m e s a r e n o t c o n d u c te d u n d e r th e a u sp ic e s o f th e n a tio n a l g o v e rn in g b o d ie s a n d n ee d n o t m e et th e\nre q u ire m e n ts o f \xc2\xa7 202(b), 39 U .S .C . \xc2\xa7 392(b).\n\n8\n\n\x0cexclusive jurisdiction . . . over all matters pertaining to the participa\xc2\xad\ntion of the United States in the Olympic Games . . . \xe2\x80\x9d \xc2\xa7 104(3), 36\nU.S.C. \xc2\xa7 374(3).2 The creation of the USOC as a corporation rather\nthan a government agency is, I believe, important to an understanding\nof its powers regarding the participation of an American team in any\nparticular Olympic Games. Although the USOC does not have all the\npowers normally associated with a private corporation, such as the\npower to issue capital stock,3 its creation as a corporation having most\nof the powers associated with private corporations suggests quite\nstrongly a congressional intent to vest in it wide discretion to take any\naction not specifically precluded by the Amateur Sports Act of 1978.\nNo provision of the Amateur Sports Act of 1978 expressly precludes\nthe USOC\xe2\x80\x99s making a decision not to participate in any particular\nOlympic Games. Nor does any provision of that Act, by implication,\npreclude the USOC\xe2\x80\x99s making such a decision. Indeed, I believe that the\n1978 Act should be read to assume congressional awareness that under\nthe rules of the International Olympic Committee (IOC), national\nOlympic committees established by countries to represent them on the\nIOC could decide not to participate in any particular Olympic Games.\nFor example, in 1976 numerous African nations through their respec\xc2\xad\ntive Olympic bodies declined to send teams to or withdrew teams from\nthe Summer Games in Montreal. Congress may be charged, I believe,\nwith enacting the 1978 Act with that recent history in mind. In addi\xc2\xad\ntion, there is no sanction if a delegation withdraws before \xe2\x80\x9cfinal en\xc2\xad\ntries\xe2\x80\x9d have been made.4 Moreover, the current IOC bylaws state that\nnational Olympic committees such as the USOC\xe2\x80\x94\nshall organize and supervise their country\xe2\x80\x99s representation\nat the Olympic Games. Representation covers the decision\nto participate . . . .5\nGiven that \xc2\xa7 105(a)(2) of the Amateur Sports Act of 1978, 36 U.S.C.\n\xc2\xa7 375(a)(2), establishes the power of the USOC to \xe2\x80\x9crepresent the United\nStates as its national Olympic committee in relations with the Interna\xc2\xad\ntional Olympic Committee,\xe2\x80\x9d I believe that Congress intended in enact\xc2\xad\ning that Act that the USOC would be empowered to decide not to\nparticipate in any particular Olympic Games.\nUnder my analysis above, I believe the argument that the 1978 Act\ncreated substantive legal rights in individual athletes to participate in\n2\nU n d e r \xc2\xa7 105(a)(3), 36 U .S .C . \xc2\xa7 375 (a)(3), th e U S O C is e m p o w e re d to \xe2\x80\x9c o rg a n iz e , fin a n ce, a n d\nc o n tro l th e re p re s e n ta tio n o f th e U n ite d S ta te s in th e c o m p e titio n s a n d e v e n ts o f th e O ly m p ic\nG am e s. . . .\xe2\x80\x9c\n3 36 U .S .C . \xc2\xa7 378.\n4 R u le 25 o f th e R ules o f th e In te rn a tio n a l O ly m p ic C o m m itte e (1979) (IO C R u le). A lth o u g h \xe2\x80\x9c final\ne n trie s \xe2\x80\x9d is n o t defin ed , it a p p e a rs to re fe r to th e e n try fo rm c o n ta in in g th e n am es a n d n u m b e rs o f\nc o m p e tito rs w h ic h m ust b e s u b m itte d to th e O rg a n iz in g C o m m itte e o f th e O ly m p ic G a m e s n o la te r\nth a n 10 d a y s b efo re th e re le v a n t O ly m p ic c o m p e titio n s begin. IO C R u le 36,\n4; B y la w V ,\n8 to IO C\nR u le 24.\n5 B y la w V , 7, to IO C R ule 24.\n\n9\n\n\x0cany particular Olympic Games may be disposed of summarily. Under\n\xc2\xa7 114 of the Act, 36 U.S.C. \xc2\xa7 382(b), the USOC \xe2\x80\x9cshall establish and\nmaintain provisions for the swift and equitable resolution of disputes\ninvolving any of its members and relating to the opportunity of an\namateur athlete . . . to participate in the Olympic Games . . . .\xe2\x80\x9d (Em\xc2\xad\nphasis added!) Although it might be argued that Art. IX, \xc2\xa7 1 of the\nUSOC Constitution,6 read literally, suggests the existence of a right of\nindividual athletes to participate in particular Olympic Games \xe2\x80\x9cif se\xc2\xad\nlected,\xe2\x80\x9d the language of \xc2\xa7 114 and its legislative history contradict the\nsuggestion that this \xe2\x80\x9cright\xe2\x80\x9d was to be viewed as a substantive restric\xc2\xad\ntion on the USOC\xe2\x80\x99s power to make the participation decision. Thus,\nwhile the report issued by the Senate committee recognized a \xe2\x80\x9cright to\ntake part in the Olympic Games,\xe2\x80\x9d the context in which that \xe2\x80\x9cright\xe2\x80\x9d\nwas described demonstrates that Congress\xe2\x80\x99 concern in \xc2\xa7114 was to\nprevent athletes from being \xe2\x80\x9cused as pawns by one organization to gain\nadvantage over another.\xe2\x80\x9d S. Rep. No. 770, 95th Cong., 2d Sess. 6\n(1978).7 See also H.R. Rep. No. 1627, 95th Cong., 2d Sess. 15 (1978).\nIn view of the historical understanding and practice regarding the\npower of national Olympic committees to make participation decisions,\nand given that no provision of the Amateur Sports Act of 1978 ex\xc2\xad\npressly or implicitly qualified that understanding, I do not believe that a\ntenable argument can be made that the USOC is required by law to\nsend an American team to the Moscow Games. In reaching this conclu\xc2\xad\nsion, I do not mean to suggest that Congress could not, by statute,\naccomplish that end or otherwise dictate the course the USOC is to\nfollow in this matter. I merely conclude that in enacting the 1978 Act,\nCongress implicitly recognized the preexisting understanding that the\nUSOC, as our country\xe2\x80\x99s national Olympic committee, would have the\npower to make a decision whether to participate in particular Olympic\nGames.\nSincerely,\nB e n ja m in\n\nR.\n\nC iv ile tti\n\n6 N o m e m b e r o f th e U S O C m ay d e n y o r th re a te n to d e n y an y a m a te u r a th le te th e o p p o rtu n ity to\nc o m p e te in th e O ly m p ic G a m e s, th e P a n -A m e ric a n G a m e s, a w o rld c h a m p io n s h ip c o m p e titio n , o r\no th e r su ch p ro te c te d c o m p e titio n as d e fin e d in A rtic le I, \xc2\xa7 2(g); n o r m ay a n y m em b er, su b se q u en t to\ns u c h c o m p e titio n , ce n su re , o r o th e rw is e pen a lize , (a) a n y su ch a th le te w h o p a rtic ip a te s in su ch\nc o m p e titio n , o r (b) a n y o rg a n iz a tio n w h ic h th e a th le te re p re se n ts. T h e U S O C sh all, b y all law fu l\nm e a n s a t its d isp o sal, p r o te c t th e rig h t o f an a m a te u r a th le te to p a rtic ip a te if se le c te d (o r to a tte m p t to\nq u a lify fo r s e le c tio n to p a rtic ip a te ) as an a th le te re p re s e n tin g th e U n ite d S ta te s in an y o f th e afo resaid\nc o m p e titio n s .\n7 E v e n if \xc2\xa7 114 w e re v ie w e d as g ra n tin g a s u b sta n tiv e rig h t to " s e le c te d \xe2\x80\x9d a th le te s to p a rtic ip a te in\nan y p a rtic u la r O ly m p ic G a m e s, th e le g isla tiv e h is to ry o f th a t p ro v isio n in d ic a te s th a t th e rig h t\nc o n f e r re d w o u ld be lim ited to p ro te c tio n fro m \xe2\x80\x9c a n a rb itra r y ru le w h ic h , in its a p p lic a tio n , re stric ts, fo r\nn o real p u rp o s e , an a th le te \'s o p p o rtu n ity to c o m p e te ." S. R ep. N o. 770, at 6.\n\n10\n\n\x0c'