Legality of the International Agreement with Iran and Its Implementing Executive Orders (I)

Legality of the International Agreement with Iran

and Its Implementing Executive Orders

Executive orders providing for the establishment of escrow accounts with the Bank of

England and the Central Bank o f Algeria, directing the transfer of previously blocked

Iranian governm ent assets to those accounts, and nullifying all interests in the assets

other than the interests of Iran and its agents, are within the President’s authority under

the International Em ergency Econom ic Pow ers A ct (IEEPA ). Banks and other holders

of Iranian assets need not await formal vacation of court-ordered attachm ents before

complying with transfer orders, since they as well as Executive Branch officials are

relieved from any liability for actions taken in good faith in reliance on the IEEPA .

Executive order prohibiting the prosecution o f any claims against Iran arising from the

hostage seizure, and term inating any previously instituted judicial proceedings based on

such a claim, is within the President’s authority under the IE E PA and the Hostage

Act. The order does not purport to preclude any claimant from petitioning Congress

for relief in connection w ith his claim, nor could it constitutionally do so.

Provisions o f executive order blocking property of the form er Shah’s estate and that of

his close relatives, and requiring all persons subject to the jurisdiction of the United

States to submit to the Secretary of the T reasury information about this property to be

made available to the governm ent of Iran, are within the President’s authority under

the IE E PA . Proposed order also directs the A ttorney General to assert in appropriate

courts that claims o f Iran for recovery o f this property are not barred by foreign

sovereign immunity or act o f state doctrines, and asserts that all Iranian decrees

relating to the form er Shah and his family should be enforced in courts of the United

States.

The President has constitutionally and congressionally conferred authority to enter an

agreem ent designating the Iran-United States Claims Tribunal as the sole forum for

determ ination o f claims by the United States or its nationals against Iran, and to confer

upon the Tribunal jurisdiction over claims against the United States.

January 19, 1981

T h e P r e s id e n t

T h e W h it e H o u se

I have been asked for my opinion concern­

M y D e a r M r . P r e s id e n t :

ing the legality of certain actions designed to resolve issues arising from

the detention in Iran of 52 American hostages, including the diplomatic

and consular staff in Tehran.

An international agreement has been reached with Iran. The agree­

ment, which consists of four separate documents, commits the United

States and Iran to take specified steps to free the hostages and to

resolve specified claims between the United States and its nationals and

Iran and its nationals. These documents embody the interdependent

302

commitments made by the two parties for which Algeria has been

acting as intermediary.

The first document is captioned “Declaration of the Government of

the Democratic and Popular Republic of Algeria” (Declaration). The

Declaration provides, first, for non-intervention by the United States in

the internal political and military affairs of Iran.

Second, the Declaration provides generally for return of Iranian

assets. The transfer utilizes the Central Bank of Algeria as escrow agent

and the Bank of England in London as depositary: their obligations and

powers are specified in two other documents, the “Escrow Agreement”

and the “Depositary Agreement.” Separate timetables and conditions

are described for assets in the Federal Reserve Bank of New York

(Fed), in foreign branches of United States banks, and in domestic

branches of United States banks, and for other financial assets and other

property located in the United States and abroad. The transfer of the

assets in the Fed and in the foreign branches to the Bank of England is

scheduled to take place first. Upon Iran’s release of the hostages, the

Central Bank of Algeria, as escrow agent, shall direct the Bank of

England, under the terms of the Escrow and Depositary Agreements,

to disburse the escrow account in accordance with the undertakings of

the United States and Iran with respect to the Declaration.

The transfer from the Central Bank of Algeria to Iran of the assets

presently in the domestic branches will take place upon Iran’s establish­

ment with the Central Bank of Algeria of a Security Account to be

used for the purpose of paying claims against Iran in accordance with a

Claims Settlement Agreement set forth in the fourth document, which

is captioned “Declaration of the Government of the Democratic and

Popular Republic of Algeria Concerning the Settlement of Claims by

the Government of the United States of America and the Government

of the Islamic Republic of Iran” (Claims Settlement Agreement). The

Claims Settlement Agreement provides for the establishment of an Iran-

United States Claims Tribunal, which will have jurisdiction to decide

three categories of claims: (1) claims by United States nationals against

Iran and claims by Iranian nationals against the United States, and

counterclaims arising out of the same transaction or occurrence, for

claims and counterclaims outstanding on the date of the Agreement; 1

(2) Official claims of the governments of the United States and Iran

against each other arising out of contracts for the purchase and sale of

goods and services; and (3) any dispute as to the interpretation or

performance of any provision of the Declaration.

’ T w o categories o f claims are specifically excluded: (1) claims relating to the seizure or detention

o f the hostages, injury to United States property or property within the com pound o f the embassy in

Tehran, and injury to persons or property as a result o f actions in the course o f the Islamic Revolution

in Iran w hich w ere not actions o f the governm ent of Iran and (2) claims arising under the term s o f a

binding contract specifically providing that any disputes thereunder shall be within the sole jurisdic­

tion of the com petent Iranian courts.

303

Third, the Declaration provides for nullification of trade sanctions

against Iran and withdrawal of claims now pending in the International

Court of Justice. The United States also agrees not to prosecute its

claims and to preclude prosecution by a United States national or in the

United States courts of claims arising out of the seizure of the embassy

and excluded by the Claims Settlement Agreement.

Fourth, the Declaration provides for actions by the United States

designed to help effectuate the return to Iran of the assets of the family

of the former Shah.

A series of executive orders has been proposed to carry out the

domestic, and some foreign, aspects of the international agreement. It is

my opinion that under the Constitution, treaties, and laws of the United

States you, your subordinates, the Fed, and the Federal Reserve Board

are authorized to take the actions described in the four documents

constituting the international agreement and in the executive orders.2

I shall first examine the proposed executive orders and consider them

as to form and legality. Subsequently I shall consider certain questions

which arise from other proposed actions and documents related thereto.

1. The first proposed executive order is captioned “Direction Relat­

ing to Establishment of Escrow Accounts.” Under it, the Secretary of

the Treasury is authorized to direct the establishment of an appropriate

escrow agreement with the Bank of England and with the Central Bank

of Algeria to provide as necessary for distribution of funds in connec­

tion with the release of the hostages. The Escrow Agreement provides,

among other things, that certain assets in which Iran has an interest

shall be credited by the Bank of England to an escrow account in the

name of the Central Bank of Algeria and transferred to Iran after the

Central Bank of Algeria receives certification from the Algerian gov­

ernment that the 52 hostages have safely departed from Iran.

The International Emergency Economic Powers Act (IEEPA), 50

U.S.C. §§ 1701-1706 (Supp. I 1977), provides you with authority,

during a declared national emergency, to direct transactions and trans­

fers of property in which a foreign country has an interest under such

regulations as you may prescribe. As the proposed order recites, such

an emergency has been declared. IEEPA was the authority for the

blocking order of November 14, 1979, Executive Order No. 12,170,

which asserted control over Iranian government assets. Moreover, the

statute known as the Hostage Act, 22 U.S.C. § 1732, authorizes the

President, when American citizens are unjustly deprived of liberty by a

foreign government, to use such means, not amounting to acts of war,

as he may think “necessary and proper” to bring about their release.

The phrase “necessary and proper” is, of course, borrowed from the

Constitution, and has been construed as providing very broad discre­

2 D ocum ents testifying to the adherence to the agreem ent by both the United States and Iran will

also be executed; these docum ents present no substantive legal issues.

304

tionary powers for legitimate ends. U.S. Const. Art. I, § 8, cl. 18;

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). Establishment of

the escrow account is directed to the release of the hostages. This order

thus falls within your powers under these Acts.3

It is approved as to form and legality.

2. The second proposed executive order is captioned “Direction to

Transfer Iranian Government Assets.” The Fed is directed to transfer

to its account at the Bank of England, and then to the escrow account

referred to in paragraph 1, the assets of the government of Iran, as

directed by the Secretary of the Treasury. The order also revokes the

authorization for, and nullifies all interests in, the frozen Iranian gov­

ernment property except the interests of Iran and its agents. The effect

of this order will be to void the rights of plaintiffs in any possible

litigation to enforce certain attachments and other prejudgment reme­

dies that were issued against the blocked assets following the original

blocking order.

I believe that this provision is lawful for several reasons. I am

informed, first, that the Iranian funds on deposit in the Fed are funds of

the Bank Markazi, the Central Bank of Iran. As such, they are clearly

not subject to attachment. The Foreign Sovereign Immunities Act of

1976 specifically states that the property of a foreign central bank held

for its own account shall be immune from attachment and execution

unless that immunity has been explicitly waived. 28 U.S.C. § 1611(b). It

is my view that there has been no such waiver.

Even assuming, arguendo, that the attachments are not precluded by

28 U.S.C. § 1611(b), there is power under IEEPA to nullify them or to

prevent the exercise of any right under them. Under IEEPA, the

President has authority in time of emergency to prevent the acquisition

of interests in foreign property and to nullify new interests that are

acquired through ongoing transactions. The original blocking order

delegated this power to the Secretary of the Treasury, who promul­

gated regulations prohibiting the acquisition, through attachment or any

other court process, of any new interest in the blocked property. The

effect of these regulations was to modify both the substantive and the

procedural law governing the availability of prejudgment remedies to

creditors of Iran. The regulations contemplated that provisional reme­

dies might be permitted at a later date but provided that any unauthor­

ized remedy would be “null and void.” 31 C.F.R. § 535.203(e).

Subsequently, all of the attachments and all of the other court orders

against the Iranian assets held by the Fed were entered pursuant to a

general license or authorization given by the Secretary of the Treasury

effective November 23, 1979. This authorization, like all authorizations

issued under the blocking regulations, may be revoked at any time in

3 A lthough I do not specifically discuss the applicability of the H ostage A ct to the other proposed

orders described in this opinion, I believe that it generally supports their issuance.

305

accordance with 31 C.F.R. § 535.805, which expressly provides that

any authorization issued under the blocking order could be “amended,

modified, or revoked at any time.” See Orvis v. Brownell, 345 U.S. 183

(1953). The regulations did not purport to authorize any transaction to

the extent that it was prohibited by any other law (other than IEEPA),

such as the Foreign Sovereign Immunities Act.4 31 C.F.R. § 535.101(b).

Upon revocation, the exercise or prosecution of any interests created

by the outstanding attachments and other orders will be unauthorized.

The orders themselves will no longer confer any enforceable right upon

the creditors. Indeed, because IEEPA expressly grants to the President

a power of nullification, the interests created by these provisional reme­

dies are themselves subject to nullification, in addition to nullification

by the revocation of the underlying authorization. In this respect the

President’s power under IEEPA is analogous to his constitutional

power to enter into international agreements that terminate provisional

interests in foreign property acquired through domestic litigation if

necessary in the conduct of foreign affairs. See The Schooner Peggy, 5

U.S. (1 Cranch) 103 (1801). The nullification of these interests is an

appropriate exercise of the President’s traditional power to settle inter­

national claims. United States v. Pink, 315 U.S. 203 (1942); United States

v. Belmont, 301 U.S. 325 (1937).

Upon the direction of the Secretary of the Treasury, the Fed will be

free to transfer the Iranian assets; the attachments and other pre-

judgment encumbrances will have been rendered unenforceable by the

contemporaneous change in law. Moreover, the Fed may comply with

the Secretary’s directive without litigating in advance the issue of the

Secretary’s authority to nullify the provisional interests. IEEPA explic­

itly states, and the proposed order affirms, that “[n]o person shall be

held liable in any court . . . for anything done or omitted in good faith

in connection with the administration of, or pursuant to and in reliance

on, [IEEPA] or any regulation, instruction, or direction issued under

[IEEPA].” 50 U.S.C. § 1702(a)(3). I believe that Congress intended this

provision to relieve holders of foreign property, as well as individuals

administering or carrying out orders issued pursuant to IEEPA, from

any liability for actions taken in good faith in reliance on IEEPA and

presidential directives issued under IEEPA. This provision protects not

only the Fed and the Federal Reserve Board but Executive Branch

officials as well. In my opinion, this provision is valid and effective for

that purpose.

4 In New England Merchants National Bank v. Iran Power Generation and Transmission Co., 502 F.

Supp. 120 (S.D.N.Y. 1980), the district court took the position that the freeze order under IEE PA

took precedence o ver the Foreign Sovereign Immunities A ct, thus rem oving Iran’s immunity. Assum­

ing, arguendo, the correctness o f that position, the legal effect o f the totality of actions discussed

herein w ould be to reinstate Iran's immunity, thereby rem oving the ratio decedendi o f the district

cou rt’s decision.

306

Similarly, the Secretary himself is empowered, in my opinion, to

nullify these provisional interests and to license the transfer of the assets

without submitting the issue to litigation and without insisting that the

Fed refuse any; transfer until all objections to the transfer have been

definitively rejected by the courts. As noted, the interests, if any,

created by these prejudgment remedies were created upon the condi­

tion that the authority for the underlying transactions might be revoked

“at any time”; and that condition may be invoked without delay. The

powers that the Constitution gives and the Congress has given the

President to resolve this kind of crisis could be rendered totally ineffec­

tive if they could not be exercised expeditiously to meet opportunities

as they arise. The primary implication of an emergency power is that it

should be effective to deal with a national emergency successfully.

United States v. Yoshida International, Inc., 526 F.2d 560, 573 (C.C.P.A.

1975).

Moreover, the Fed may transfer the assets before the outstanding

court orders have been formally vacated. When a supervening legisla­

tive act expressly authorizes a course of conduct forbidden by an

outstanding judicial order, the new legislation need not require the

persons subject to it to submit the matter to litigation before pursuing

the newly authorized course. See Pennsylvania v. Wheeling & Belmont

Bridge Co., 59 U.S. (18 How.) 421 (1855). I believe that this case is

closely on point. A valid executive order has the force of a federal

statute, superseding state actions to the extent that it is inconsistent.

Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 442

F.2d 159, 166 (3d Cir.), cert, denied, 404 U.S. 854 (1971). Thus, the

holding of the Wheeling case applies here.

The order is approved as to form and legality, and actions taken

consistent with and pursuant to it will be lawful and valid.

3. The third proposed executive order is captioned “Direction to

Transfer Iranian Government Assets Overseas.” In general, it directs

branches of United States banks outside the country to transfer Iranian

government funds and property to the account of the Fed in the Bank

of England. The transfer is to include interest at commercially reason­

able rates from the date of the blocking order. The Secretary of the

Treasury shall determine when the transfers shall take place. Any

banking institution that executed a set-off against Iranian funds after

entry of the blocking order is directed to cancel the set-off and to

transfer the funds in the same manner as the other overseas deposits.

The Iranian funds in the branches of American banks overseas were

subject to the November 1979 blocking order. Subsequently the Secre­

tary of the Treasury licensed foreign branches and subsidiaries of

American banks to set off their claims against Iran or Iranian entities by

debit to the blocked accounts held by them for Iran or Iranian entities.

31 C.F.R. §535.902. As a result of this license, American banks with

307

branches overseas set off various debts owing to them by Iran and

Iranian entities. I understand that most of the debts were loans origi­

nally made from offices in the United States and that most of the

overseas deposits were in branches located in the United Kingdom. The

banks with overseas Iranian accounts set off amounts owing not only to

them directly but to other banks with whom they were participants in

syndicated loans. The banks have acted on the assumption that any loan

made to Iran or an Iranian entity could be set off against any account

of Iran or an Iranian entity or enterprise on the theory that, as a result

of the control of the Iranian economy by the government of Iran and

nationalization of private enterprises, all such entities and enterprises

were the same party for purpose of setting off debts. In addition, the

banks accelerated the amounts due on loans that were in default, and,

under the doctrine of anticipatory breach, set off loans that had not

come due.

The blocking order delegated to the Secretary of the Treasury the

authority to license the set-offs to the extent that the executive order

prevented them. The license did not, however, determine whether the

set-offs were valid under any other law. 31 C.F.R. § 535.101(b). I

understand that Iran and its entities are contesting in litigation overseas

whether the set-offs are lawful. The issues include the proper situs of

the debts, identity of the parties, the propriety of acceleration, and the

anticipation of breach.

IEEPA authorizes the President, under such regulations as he may

prescribe, to nullify and void transactions involving property in which a

foreign country has an interest and to nullify and void any right re­

specting property in which a foreign country has an interest. 50 U.S.C.

§ 1702. Either analysis is appropriate here: Iran had an interest in the

original set-off transaction and continues to have an interest both in the

amounts in the accounts which have and have not been set off. The

latter, as noted, are the subject of litigation abroad. See 31 C.F.R.

§§ 535.311-312. Cf. Behring International v. Miller, 504 F. Supp. 552

(D.N.J. 1980) (holding that Iran continues to have interest in a trust

account created to pay debt). The very use of the words “nullify” and

“void” persuades me that Congress intended to authorize the President

to set aside preexisting transactions.5

As noted, the order also requires the overseas banks, when transfer­

ring the Iranian assets, to include interest on those assets from Novem­

ber 14, 1979, at commercially reasonable rates. I understand that in

most cases the accounts in overseas branches of American banks are

interest-bearing. To the extent that they are not, such interest represents

51 believe that the present case is distinguishable in several respects from that in Brownell v.

National City Bank, 131 F. Supp. 60 (S.D.N.Y. 1955). T here, the district court concluded that the

m ere revocation o f a license did not serve to void a preexisting and apparently uncontested set-off; the

bank, m oreover, had no opportunity to recoup its potential loss by bringing the loan current.

308

the benefit realized by the banks from holding the blocked Iranian

assets which, under the law of restitution, should accrue to the owners

of the assets. C f Phillips Petroleum Co. v. Adams, 513 F.2d 355 (5th

Cir.), cert, denied, 423 U.S. 930 (1975). As such, the interest or benefit

realized by the banks is property in which Iran has an interest.6

For these reasons, I believe that you are thus authorized under

IEEPA to compel the transfer of both principal and interest to the

Federal Reserve account at the Bank of England as provided by the

order and to nullify or prevent the exercise of any interests in this

property by anyone other than Iran. I also believe, as discussed in

paragraph 2 above, that 50 U.S.C. § 1702(a)(3) relieves from liability

anyone taking action in good faith under this executive order.7

The proposed order is approved as to form and legality, and actions

taken consistent with and pursuant to it will be lawful and valid.

4. The fourth proposed executive order is captioned “Direction to

Transfer Iranian Government Assets Held by Domestic Banks.” The

proposed order directs American banks in the United States with Ira­

nian deposits to transfer them, including interest from the date of

blocking at commercially reasonable rates, to the Fed, which will hold

the funds subject to the direction of the Secretary of the Treasury.

As discussed in paragraphs 2 and 3, the President has power under

IEEPA to direct the transfer of funds of Iran, including interest, and to

nullify or prevent the exercise of any interests of anyone other than

Iran in Iranian property. Actions taken in good faith pursuant to this

order will be, as discussed above, immune from liability.

The order is approved as to form and legality, and actions taken

consistent with and pursuant to it will be lawful and valid.

5. The fifth proposed executive order is captioned “Direction to

Transfer Iranian Government Financial Assets Held by Non-Banking

Institutions.” This order is similar to the order described in paragraph 4

except that it requires the transfer to the Fed of funds and securities

held by non-banking institutions. The President has the power to direct

the transfer of funds and securities of Iran held by non-banking institu­

tions, and actions taken in good faith pursuant to this order shall

likewise enjoy the immunity from liability as reflected in 50 U.S.C.

§ 1702(a)(3).

The proposed order is approved as to form and legality, and actions

taken consistent with and pursuant to it will be lawful and valid.

6See also A rt. VII(2)(b) o f the T reaty of A m ity, Econom ic Relations, and Consular Rights, Aug. 15,

1955, United States-Iran, 8 U.S.T. 901, 905, T.I.A.S! No. 3853.

1Cf. Cities Service Co. v. McGrath. 342 U.S. 330, 334-36 (1952). It is my opinion that a person w ho

has taken action in com pliance w ith this executive order and is subsequently finally required by any

court to pay amounts w ith respect to funds transferred pursuant to this executive order will have the

right as a m atter o f due process to recover such amount from the United States to the extent of any

double liability.

309

6. The sixth proposed executive order is captioned “Direction to

Transfer Certain Iranian Government Assets.” The order would require

anyone in possession or control of property owned by Iran, not includ­

ing funds and securities, to transfer the property as directed by the

Iranian government. The order recites that it does not relieve persons

subject to it from existing legal requirements other than those based on

IEEPA. It does, however, nullify outstanding attachments and court

orders in the same manner as does the order discussed in paragraph 2.

For the reasons discussed in the preceding paragraphs, the President

has power under IEEPA to order the transfer of property owned by

Iran as directed by Iran and to nullify outstanding attachments and

court orders related to such property. Actions taken in good faith

pursuant to this order shall likewise enjoy the immunity from liability

as reflected in 50 U.S.C. § 1702(a)(3).

The order is approved as to form and legality, and actions taken

consistent with and pursuant to it will be lawful and valid.

7. The seventh proposed executive order is captioned “Revocation of

Prohibitions against Transactions Involving Iran.” It revokes the prohi­

bitions of Executive Order No. 12,205 of April 7, 1980; Executive

Order No. 12,211 of April 17, 1980; and Proclamation 4702 of Novem­

ber 12, 1979. The two executive orders limited trade with and travel to

Iran. The proclamation restricted oil imports from Iran. It is my under­

standing that although the prohibitions are revoked, the underlying

declarations of emergency remain in effect.

The order is approved as to form and legality.

8. The eighth proposed executive order is captioned “Non-

Prosecution of Claims of Hostages and for Actions at the United States

Embassy and Elsewhere.” The order directs the Secretary of the Treas­

ury to promulgate regulations prohibiting persons subject to U.S. juris­

diction from prosecuting in any court or elsewhere any claim against

Iran arising from the hostage seizure on November 4, 1979, and the

occupation of the embassy in Tehran, and also terminating any previ­

ously instituted judicial proceedings based upon such claims.

The President has the power under IEEPA and the Hostage Act to

take steps in aid of his constitutional authority 8 to settle claims of the

United States or its nationals against a foreign government.9 Thus, he

has the right to license litigation involving property in which a foreign

national has an interest, as described in paragraph 2. That license can be

suspended by the Executive acting alone. New England Merchants Na­

tional Bank v. Iran Power Generation and Transmission Co., 508 F. Supp.

47 (S.D.N.Y., 1980) (Duffy, J.). But see National Airmotive Corp. v.

*See, ££., Restatem ent (Second) o f Foreign Relations Law o f the United States §213 (1965).

9 IE E P A was drafted and enacted w ith the explicit recognition that the blocking of assets could be

directly related to a later claims settlem ent. H. R. Rep. N o. 459, 95th Cong., 1st Sess. 17 (1977); S.

Rep. N o. 466, 95th Cong., 1st Sess. 6 (1977). See 50 U.S.C. § 1706(aXl) (authorizing continuation of

controls, after the em ergency has ended, w here necessary for claims settlement purposes).

310

Government and State of Iran, 499 F. Supp. 401 (D.D.C., 1980)

(Greene, J.).10

The order is approved as to form and legality.

9. The final proposed executive order is captioned “Restrictions on

the Transfer of Property of the Former Shah of Iran.” It invokes the

blocking powers of IEEPA to prevent transfer of property located in

the United States and controlled by the Shah’s estate or by any close

relative until litigation surrounding the estate is terminated. The order

also invokes the reporting provisions of IEEPA, 50 U.S.C. § 1702(a)(2),

to require all persons subject to the jurisdiction of the United States to

submit to the Secretary of the Treasury information about this property

to be made available to the government of Iran. The property involved

is property in which “[a] foreign country or a national thereof” has an

interest. Restrictions on transfer and reporting requirements therefore

fall within the authority provided by IEEPA.

The order would further direct me, as Attorney General, to assert in

appropriate courts that claims of Iran for recovery of this property are

not barred by principles of sovereign immunity or the act of state

doctrine. I have previously communicated to you and to the Depart­

ment of State my view to this effect (based on advice furnished to me

by the-Office of Legal Counsel and the Civil Division of this Depart­

ment) and will so assert in appropriate proceedings. The proposed

order also recites that it is the position of the United States that all

Iranian decrees relating to the assets of the former Shah and his family

should be enforced in our courts in accordance with United States law.

The proposed order is approved as to form and legality.

10. The other questions relate to the Claims Settlement Agreement. I

conclude that you have the authority to enter an agreement designating

the Iran-United States Claims Tribunal as the sole forum for determina­

tion of claims by United States nationals or by the United States itself

against Iran and to confer upon the Tribunal jurisdiction over claims

against the United States, including both official contract claims and

disputes arising under the Declaration.

The authority to agree to the establishment of the Tribunal as an

initial matter cannot be challenged. The Claims Settlement Agreement

falls squarely within powers granted to the Executive by the Constitu­

tion, by treaty, and by statute.

As a step in the reestablishment of diplomatic relations with Iran, the

Claims Settlement Agreement represents an appropriate exercise of the

President’s powers under Article II of the Constitution to conduct

foreign relations. Moreover, by Article XXI(2) of the 1957 Treaty with

101 note that the issue of appropriate compensation for the hostages will be considered by a

Commission on Hostage Compensation established by separate executive order. Moreover, this eighth

order does not, of course, purport to preclude any claimant from presenting his claim to Congress and

petitioning for relief; nor could it constitutionally do so.

311

Iran, the Senate gave its agreement for the two nations to settle dis­

putes as to the interpretation or application of the treaty by submission

to the International Court of Justice or by any “pacific means.” 11

Arbitration by the Iran-United States Claims Tribunal is a pacific means

of dispute settlement. Finally, by the Hostage Act, 22 U.S.C. § 1732,

Congress has conferred upon the President specific statutory powers

applicable to this crisis. The agreement to resolve by arbitration the

disputes now obstructing the release of the hostages is a proper exercise

of this power.

I note in conclusion the congruence of your constitutional powers

and the congressionally conferred authority. In this situation, of course,

your authority is at its maximum. Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579, 635-36 (1952) (Jackson, J., concurring).

The specific jurisdiction conferred upon the Tribunal must be further

examined. The first category of claims, the private claims based on

debts, contracts, expropriations, or other measures affecting property

rights, includes both claims by United States nationals against Iran and

claims by Iranian nationals against the United States. The former are

referrable to the Tribunal under the constitutional authority to settle

claims recognized in United States v. Pink, 315 U.S. 203 (1942), and

United States v. Belmont, 301 U.S. 324 (1937). See also Restatement

(Second) of Foreign Relations Law of the United States § 213 (1965).12

From these claims are excluded claims arising out of the seizure of

the embassy and claims on binding contracts providing for dispute

resolution solely by Iranian courts. Again, the power to settle claims

includes the power to exclude certain claims from the settlement proc­

ess. Cf. Aris Gloves, Inc. v. United States, 420 F.2d 1386 (Ct. Cl. 1970).

Moreover, the exclusion is not intended to be a final settlement or

determination of these claims. I understand that the claims based on the

seizure will be given separate consideration, see note 10 supra. I note

also that the exclusion of the claims on binding contracts that provide

the exclusive procedure for dispute resolution does not adversely affect

any option that these claimants would have had prior to the hostage

crisis and all the actions taken in response to it. These claimants are not

disadvantaged by the Claims Settlement Agreement; as to them, the

status quo as of the time that the hostages were taken is merely

preserved.

n Art. XXI(2) provides:

Any dispute between the High Contracting Parties as to the interpretation or applica­

tion of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted

to the International Court of Justice, unless the High Contracting Parties agree to

settlement by some other pacific means.

Because the Treaty provides for peace and friendship between the two nations, trade and commercial

freedom, protection and security of nationals, prompt and just compensation for the taking of

property, and the absence of restrictions on the transfer of funds, the disputes to be referred to the

Tribunal are disputes “as to the interpretation or application of the . . . Treaty.”

13Here again, your constitutional powers are supplemented by statute. See note 9 supra.

312

The latter claims in the first category, the claims by Iranian nationals

against the United States, and also the official claims in the second

category by Iran against the United States, are referrable to the Tribu­

nal for adjudication under the same authority. The President’s power to

refer these claims to binding arbitration as part of an overall settlement

of our disputes with Iran is within the authority conferred on him by

the Treaty and the Hostage Act and is also within his sole authority

under Article II of the Constitution. Any award made by the Tribunal

against the United States would create an obligation under international

law. Such obligations have invariably been honored by the Congress in

our constitutional system.

The remainder of the claims in this second category are official

claims of the United States against Iran. The submission of the claims to

the Tribunal is a matter for the Executive’s sole determination in the

conduct of foreign relations.

Finally, jurisdiction over the third category of claims, consisting of

disputes as to the interpretation or performance of the Declaration, is

appropriately conferred upon the Tribunal incident to the exercise of

the power to agree to the Declaration in the first instance.

For these reasons, I conclude that the United States may enter into

the international agreement and that you have legal authority to issue

all of these documents and executive orders.

Respectfully,

B e n j a m i n R. C i v i l e t t i

313