# Petition — Occidental of Umm Al Qaywayn, Inc. v. Cities Service Oil Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2164%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 440 U.S. 934 ## Text ao Sup em 8 Cou irt, U, Sy F ILED DEC 6 1978 ~~ f 2 ene og IN THE Supreme Court of the HuitedY Staten: Octoser Term, 1978 No. 7-8 -910 > . OccwrentTaL or Umm Au Qayrwayy, Inc., K, JR, CLERK Petitioner, —V.— Crries Service Or Co., eé al., Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Louis NIzER GERALD MEYER New. A, Poiuio Puruuires, NizEr, BENJAMIN, Krim & BaLLon 40 West 57th Street New York, New York 10019 Tuomas M. BEerGcstTept J. Bonp Smita, JR. BicHaM, ENnGuar, JONES & Houston 14 Wall Street New York, New York 10005 Henry J. Reap MoNnTGOMERY, BARNETT, Brown & Reap 806 First National Bank of Commerce Building New Orleans, Louisiana 70130 ScoFreELD, Bercstept & GERARD 1114 Ryan Street P. O. Box 1136 Lake Charles, Louisiana 70601 Davin STONE Strong, Pigman, WALTHER, Witrmann & HutcHInson 1000 Whitney Bank Building New Orleans, Louisiana 70130 Attorneys for Occidental of Umm Al Qaywayn, Inc., Petitioner _ INDEX PAGE Opinions Below 1 Jurisdiction 1 Questions Presented 2 Statutory Provisions Involved ca Treaty Provisions Involved + Statement of the Case ne A. The Facts 5 B. The Theory of the Petitioner’s Case .................... 9 C. Proceedings Below i" 11 Reasons for Granting the Writ on ae I. The decision of the court of appeals undermines the rule of law in international affairs, offends the constitutional mandate of an independent ju- diciary and denies due process of law to parties relying on foreign boundaries determined by the United States 13 A. The Decision of the Court of Appeals Un- ; dermines the Rule of Law in International Affairs 14 1. The three-mile limit proclaimed by the Executive Branch has the force of law and is binding upon the courts ............ 14 PAGE 2. The letter from the State Department on which the court of appeals relied does not profess to change the law of the three-mile limit .........0.0......ccc-cceces 3. The court of appeals erroneously de- clined jurisdiction because of its mis- taken view that it had to determine the dispute between Iran and Sharjah over Abu Musa; this dispute is irrelevant to Occidental’s claim ..................c-0c0c-eee0e+ 4. This Court’s policy of fostering a rule of law in international affairs is under- mined by the decision below .................. B. The Decision of the Court of Appeals Of- fends the Constitutional Mandate of an In- dependent Judiciary C. The Refusal of the Court of Appeals to Take Jurisdiction Denies Due Process of Law to Parties Relying on Foreign Borders Deter- mined by the United States . II. Even if the law of the three-mile limit were not dispositive, this Court would still be required to decide this case; otherwise, the litigants would be relegated to self-help III. The issue in this case which the court of appeals denominated a political question is indistinguish- able from an act of state issue and is therefore controlled by the Hickenlooper Amendment ........ 16 16 18 19 21 22 a at le eh 2 ees Neb eons tlie a PAGE IV. The refusal of the court of appeals to hear this © case offends the strong Congressional policy favoring judicial determination of the property claims of American victims of foreign confisca- tions 30 ConcLusion - Oe Appenprx A—Opinion of the Fifth Cirewit ...................... A-1 Apprenpix B—Opinion of the District Court .................... B-1 Appenprx C—Map attached to, and made a part of, oil concession agreement dated November 18, 1969, be- tween Ruler of Umm Al Qaywayn and Occidental of Umm Al Qaywayn, Inc. C-1 Aprenprx D—Same map as Appendix “C” with clari- fying notations, shadings, and identifications added by Petitioner for Court’s convenience D-1 TaBLe or AUTHORITIES Cases: Airhart v. Massieu, 98 U.S. 491 (1879) 10 Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682 (1976) 20 American Federation of Musicians v. Wittstein, 379 U.S. 171 (1964) 30 Baker v. Carr, 369 U.S. 180 (1962) 23, 24, 25, 30 Banco Nacidnal de Cuba v. Farr, 243 F. Supp. 957 (S.D.N.Y. 1965), aff'd 383 F.2d 166 (2 Cir.), cert. denied 390 U.S. 956, reh. denied 390 U.S. 1037 (1968) 27, 28, 29 iv PAGE Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964) .... 28, 29 Bernstein v. N.V. Nederlandsche-Amerikaansche, 210 F.2d 375 (2d Cir. 1954) 19 De la Croix v. Chamberlain, 25 U.S. (12 Wheat.) 599 (1827) 23 First National City Bank v. Banco Nacional de Cuba, 406 U.S. 764 (1972) 18, 19, 20, 22, 28, 30 Foster & Elam v. Neilson, 27 U.S. (2 Pet.) 253 (1829) 23 Guarantee Trust Co. of New York v. United States, 304 Th Be Cee hirceatceeprinlciincintinniipipciiliistincitbeaminaiiinnetaia 16 Jones v. United States, 137 U.S. 202 (1890) .................. 16 The Maret, 145 F.2d 431 (3d Cir. 1944) ...........ccsececesees 16 United States v. California, 332 U.S. 19 (1947) ............ 16 United States v. O’Donnel, 303 U.S. 501 (1938) ............ 10 United States v. Percheman, 32 U.S. (7 Pet.) 51 (1833) 10 United States v. Ruzicka, 329 U.S. 287 (1946) .............. 30 Williams v. Suffolk Insurance Co., 38 U.S. (13 Pet.) 414 (1939) 15, 16, 22, 23 United States Constitution Article ITI, § 2 ne Amendments, Article V = a PAGE Statutes 28 U.S.C. § 1254(1) 22 U.S.C. § 2370(e)(2) (Hickenlooper Amendment) ....3, 11, 12, 26, 27, 28, 29, 30, 31 Louisiana Code of Civil Procedure, Article 3501 et seq. 12 Treaty Convention on the Continental Shelf of April 29, 1958, 15 U.S.T. 471, TIAS 5578; 499 U.N.T.S. 311 ............ 3, 4, 17 Other authorities 110 Cong. Rec. 18936, 19555 (1964) 2.2... eee eeeseeeneeeeee 26 Department of State Bulletin, v. LXXI, no. 1832, at 233 (Aug. 5, 1974) ...........cccccscccceceeee ad. ae Department of State Press Release 64, Feb. 25,1970... 14 Foreign Relations of the United States, 1935, at 919 (State Dept. 1953) HS FAN Ae RR 14, 15 Restatement (Second) of Foreign Relations Law, note to §15 at 40 (ALI 1965) 14 State Department Airgram to United States Embassy, London, July 22, 1970 .............c.cocscse-seee in United States note to Saudi Arabia, Foreign Relations of the United States, 1949, v. VI, at 157-60 (State Dept. 1977) Seren Coen 14 IN THE Supreme Court of the United States Ocroser Term, 1978 OcomentaL or Umm At Qayrwayy, Ino., Petitioner, —_—V—e— Cites Service Ow Co., et al., Respondents. > PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Occidental of Umm Al Qaywayn, Inc. petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fifth Circuit in this case. Opinions Below The opinion of the court of appeals (App. A, infra) is reported at 577 F.2d 1196. The opinion of the district court (App. B, infra) is reported at 396 F.Supp. 461 (W.D. La.). ! Jurisdiction The judgment of the court of appeals was entered on. August 9, 1978. On October 31, 1978, Justice Powell issued an order granting to the petitioner an extension of time through December 7, 1978 within which to apply for cer- 2 tiorari. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). Questions Presented 1. In an action between American citizens concerning title to property illegally confiscated abroad and brought into the United States, did the court of appeals err in declining jurisdiction on the ground that the ownership of an island contested between two foreign states in- volves a political question, when no such issue existed be- cause no matter who owned that island, the confiscated oil before the court was extracted outside of that island’s three-mile territorial water limit? 2. Where the Executive Branch of our Government has repeatedly proclaimed a three-mile water limit rule and applied it to the very territories involved in this case, must not the Federal Court follow such rule in deciding the case, instead of declining jurisdiction? 3. Did the court of appeals err in surrendering its judi- cial function upon the suggestion of the Legal Adviser of the State Department that it should not decide this case? 4. Does not the political question doctrine merely require the courts to follow an executive determination as here, rather than create a judicial vacuum by depriving the courts of jurisdiction? 5. Is not the issue in this case, which the court of ap- peals has denominated a “political question”, indistin- guishable from an act of state issue, and therefore with- in the Hickenlooper mandate that “no court .. . shall decline .. . to make a determination on the merits”? 3 6. Even if the court of appeals was not bound by the Hickenlooper Amendment, did it err in disregarding the strong Congressional policy embodied in it, which requires judicial determination of the property claims of victims of foreign confiscations? Statutory Provisions Involved United States Code, Title 22 §2370(e) (2). Notwithstanding any other provision of law, no court in the United States shall decline on the ground of the fed- eral act of state doctrine to make a determination on the merits giving effect to the principles of international law in a case in which a claim of title or other right to prop- erty is asserted by any party including a foreign state (or a party claiming through such state) based upon (or traced through) a confiscation or other taking after Janu- ary 1, 1959, by an act of that state in violation of the principles of international law, including the principles of compensation and the other standards set out in this sub- section: Provided, That this subparagraph shall not be applicable (1) in any case in which an act of a foreign state is not contrary to international law... or (2) in any case with respect to which the President determines that application of the act of state doctrine is required in that particular case by the foreign policy interests of the United States and a suggestion to this effect is filed on his behalf in that case with the court. Treaty Provisions Involved Convention on the Continental Shelf of April 29, 1958, 15 U.S.T. 471, TIAS 5578; 499 U.N.T.S. 311, effective as of June 10, 1964), article 2, paragraph 1 and article 6, paragraphs 1 and 2. 4 “Article 2 “1. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and ex- ploiting its natural resources. “Article 6 “1. Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf apper- taining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured. “2. Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary of the con- tinental shelf shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the prin- ciple of equidistance from the nearest points of the base- lines from which the breadth of the territorial sea of each State is measured. Statement of the Case This case involves crucial constitutional questions that transcend the hundreds of millions of dollars at stake here. All of the parties are American corporations. The peti- tioner attached crude oil in the United States. It was ex- 5 tracted from a location in the Persian Gulf included within an oil concession that was validly granted to the petitioner, and later confiscated without payment of compensation, in violation of international law. The respondents have thus far persuaded the courts to refuse jurisdiction of the dis- pute, thereby preserving an immune “thieves market’’ in the United States for confiscated property. The district court declined to try the case and granted summary judgment for the respondents on the ground of the “act of state” doctrine. The court of appeals affirmed on what it called a “slightly different ground”—that the case presents a “political question”, and is therefore not a “case or controversy”. A. The Facts The basic issue in this case is simple, and not “unman- ageable” as held by the courts below. Despite the geo- graphic details and the exotic sheikhdoms involved, the case is determined by the three-mile territorial water rule which has been applied by the United States for nearly two centuries. Umm Al Qaywayn (“Umm”) and Sharjah are two of the Trucial Sheikhdoms (now known as the United Arab Emirates), located on the southeastern coast of the Persian Gulf. For over a century until November 30, 1971, the United Kingdom was the protecting power over the Trucial Sheikhdoms, including Umm and Sharjah. By treaty, the United Kingdom was in charge of the international rela- tions and defense of the Sheikhdoms and had jurisdiction over their territories, including their territorial waters. This treaty was recognized by the United States. No oil concession could be granted by any of the Trucial Sheikh- doms without the approval of the British Government. 6 In 1964, the Rulers of Umm and Sharjah entered an agreement under the auspices of the British Government establishing the seabed border between them. The agree- ment was based on an admiralty chart delineating the boundary between the continental shelves of Umm and Sharjah, and showing the continental shelf of Umm as extending to the three-mile limit of the territorial waters of the island of Abu Musa. This tiny island is situated about forty miles off the coast of Umm and Sharjah, and had for centuries been under the exclusive sovereignty of Sharjah. On November 18, 1969, Occidental of Umm Al Qaywayn, Inc. (“Occidental”) a California corporation, acquired from the Ruler of Umm a forty-year exclusive oil con- cession granting Occidental all property rights and owner- ship to the oil. Said concession covered all offshore waters of Umm and the underlying seabed, as outlined on a map annexed to the concession. (A copy of the map is repro- duced as Appendix C to this petition; a copy of the same map with clarifying identifications is annexed as Appendix D.) The boundaries of the concession shown on the map were identical to the boundaries established by agreement be- tween the rulers of Umm and Sharjah five years earlier, in 1964. Specifically, the map showed that Occidental’s con- cession area extended on the northwest to the three-mile limit of the territorial waters of the island of Abu Musa. Great Britain, as the protecting power, ratified the Occi- dental concession. Six weeks later, the Ruler of Sharjah granted an oil con- cession to Buttes Gas & Oil Co. (“Buttes”). The Sharjah- Buttes concession covered an area that was contiguous with, and did not conflict with, the concession recently granted to Occidental. This too was formally approved by Great Britain. - ~~ OT OOo —— — = — Se a 7 Occidental promptly conducted extensive seismic tests in its concession area, at a cost of more than $4,000,000. These tests indicated the prospect of oil and gas in large quantities at a location clearly outside the three-mile ter- ritorial water limit of the island of Abu Musa, in a location wholly within Occidental’s concession area. Buttes learned of Occidental’s oil find and launched a campaign to capture Occidental’s property. It notified the British Political Agent in the Trucial Sheikhdoms, on March 25, 1970, that it intended to commence drilling in the precise location of Occidental’s oil find. A few days later, the Ruler of Sharjah claimed for the first time to have issued a decree, allegedly made six months earlier, on September 10, 1969, and concededly “unpublished” at that. This “secret” decree, which by strange coincidence pre- dated Occidental’s approved concession, purported to ex- tend the territorial waters of Sharjah and of its islands, including Abu Musa, from three to twelve miles. The Sharjah decree was obviously back-dated, and was issued at the inducement of Buttes, to deprive Occidental of its property. The British Government rejected this fraudulent decree, and refused to give effect to the at- tempted extension of Sharjah’s territorial waters. The British Foreign Office advised the Ruler of Sharjah that his attempt to extend the territorial waters of Abu Musa from three to twelve miles violated the 1964 seabed border agreement between Sharjah and Umm, and violated the vested concession rights of Occidental. The British Gov- ernment also refused Buttes’ request for permission to drill, on the ground that the proposed drilling site was within Occidental’s concession area, and outside the Buttes concession area.’ Sharjah resisted and the’ matter was 1 Britain’s express language was: “the location lies in an area which was not included in the concession area specified in the submitted to mediation. When the mediator ruled in favor of Umm and Occidental, however, Sharjah, in bad faith, re- jected the mediator’s ruling.’ Thus frustrated, Buttes took another tack. It persuaded Iran to assert a claim to the valuable portion of Occi- dental’s concession. Iran, through the National Iranian Oil Company, announced in May 1970 that the Island of Abu Musa belonged to Iran and not to Sharjah, and claimed a twelve-mile limit for territorial waters of the island. When Great Britain relinquished its rights and obliga- tions as protecting power over the Trucial Sheikhdoms on November 30, 1971, the constraints on Buttes’ manipula- tions ended. Under threat of forcible occupation of Abu Musa by Iran, the Ruler of Sharjah entered into an agree- ment with Iran providing that Iran and Sharjah would jointly occupy the island; that the oil concession granted by Sharjah to Buttes, including the illegally extended ter- ritorial water limits, would be “confirmed”; and that Iran and Sharjah would split the governmental royalties derived from the concession. Iran then occupied Abu Musa (together with Sharjah) and patrolled the territorial waters extended to twelve miles. Umm had no means to prevent this seizure and occupation of.a portion of its continental shelf, and its sov- ereignty over that portion was terminated by annexation. concession agreement between [Sharjah] and Puttes... on 29 December 1969 and as approved by Her Majesty's Government at that time and . . . the location lies in an area which was included in the concession agreement concluded at an earlier date between Umm and Occidental . *The opinion of the court of appeals, through oversight, states incorrectly that Umm, rather than Sharjah, “refused to abide” by the mediator’s decision. App. A at p. A-5; 577 F. 2d at 1200. After the annexation, Sharjah and Iran confiscated Oc- cidental’s concession in favor of Buttes. The confiscation was uncompensated, and therefore illegal. Buttes immediately began drilling operations in the very location of Occidental’s oil find, Buttes later sold interests in its Sharjah concession to subsidiaries of Ashland Oil, Inc., Kerr-McGee Corporation, Skelly Oil Company and Cities Service Oil Company. Each of these companies, be- fore acquiring its interest, was put on notice of Occidental’s ownership of the concession. In 1974, the defendants began to extract oil from Occi- dental’s concession area and to ship it to the United States. Among these shipments were the three cargoes that were attached in Louisiana in these proceedings. Occidental has also attached some ninety other cargoes in proceedings in- stituted in state and federal courts in Louisiana and Texas, and in the Virgin Islands.’ B. The Theory of the Petitioner’s Case Occidental’s cause of action arises from the following ultimate facts alleged in the complaint: (a) The Ruler of Umm issued to Occidental a valid oil concession. (b) Occidental made an important oil find. There- after, Sharjah and Iran annexed the area of the oil find. (c) After the annexation, Sharjah and Iran con- fiscated Occidental’s vested property right in its con- cession without compensation. *In every case, by prior stipulation, the oil was released im- mediately after seizure, upon an undertaking by the consignees to stand good for the value of the cargo. 10 (d) Buttes extracted the oil from Occidental’s con- cession area and shipped the oil to the United States. The legal theory of Occidental’s claim is simple. After the annexation on November 30, 1971, Iran and Sharjah were obligated to respect vested concession rights within the annexed portion of Umm’s continental shelf, under the rule of international law, applied repeatedly by this Court, that a change of sovereignty does not alter vested rights within the acquired territory.‘ The failure of Sharjah and Iran to honor Occidental’s vested right in its concession constituted a taking of Occidental’s property. Because the taking was uncompensated, it violated international law, and did not confer upon Sharjah and Iran, or upon anyone claiming through them, title to the confiscated conces- sion or to the oil extracted from it. Occidental’s claim arises not from the annoxation of Umm’s continental shelf, but from the confiscation of its concession by Sharjah and Iran, which occurred after the annexation. Iran and Sharjah have carved up Abu Musa between them. So be it. Occidental does not challenge this fait accompli. To put it plainly, there is nothing in the case that will affect the boundary line of any of Iran’s terri- tories, no matter where they are. Similarly, the case will not affect Sharjah’s or anyone else’s boundary lines, no matter where they are, There is nothing in Occidental’s claim that will affect one cent of the royalties now being collected by Iran or any other sovereign from the oil being drilled on the original Occidental site. They have been collected and will continue to be collected without challenge by Occidental. All that is *Umited States v. O’Donnel, 308 U.S. 501, 510-11 (1938); Airhart v. Massieu, 98 U.S. 491 (1879); United States v. Perche- man, 32 U.S. (7 Pet.) 51, 86-87 (1833). 11 involved in this case is that the oil, which was shipped into the United States, and which is the product of an illegal confiscation, is subject to a claim in American courts. No judgment for one cent beyond the property before the Court is requested or can be granted. The respondents have, by complex argument and fear thoughts of involved issues, persuaded the court of ap- peals that this case is “unmanageable.” Aside from the fact that American courts decide far more complex issues, the fright approach is an unworthy one. If the courts with- draw from deciding this case they return to the day when the United States was looked upon as a haven for stolen property and was the delight of thieves, to the consterna- tion of the rightful owners. It was to eliminate this im- moral position in which the United States found itself, aptly called the “thieves market”, that Congress directed the courts to decide cases like this one. 22 U.S.C. §2370(e) (2). C. Proceedings Below Shortly after filing its complaint, Occidental served on Buttes a request for production of documents.’ The de- fendants responded with a motion to stay all discovery, and a motion to dismiss the complaint. The motion was converted into a motion for summary judgment at the court’s suggestion. The matter was submitted without an evidentiary hearing and with virtually no discovery, on the basis of the defendants’ concession that they would not controvert any of the facts pleaded in the complaint. In reliance on this concession, the district court granted the defendants’ motion to stay discovery. For purposes of this ® Civil Action No. 74-868 (“Dauntless Colocotronis”’) is an in rem action in admiralty. Buttes Gas & Oil Company, Skelly Oil Com- pany, Kerr-McGee Corporation, Cities Service Oil Co., Ashland Oil, Inc., Juniper Oil Corporation, and certain of their subsidiaries and 12 appeal, therefore, the allegations of Occidental’s complaint must be taken as true. | The motion for summary judgment was based on five grounds. The district court rejected four of these grounds, but granted summary judgment on the theory that the act of state doctrine prevented the court from reaching the merits of Occidental’s claim. The district court refused to apply the provisions of 22 U.S.C. §2370(e)(2) (“the Hick- enlooper Amendment”), which precludes application of the act of state doctrine in a case involving a claim based upon a confiscation in violation of international law. The court of appeals, after hearing oral argument, asked the Department of Justice to file an amicus brief. The Department, in its brief, disagreed with the holding of the district court that the act of state doctrine would foreclose a determination of the validity of Occidental’s concession. But the Department argued that Occidental’s claim should nevertheless be dismissed, on the theory that a determina- tion of the sovereignty of Umm at the time the concession was granted would present a nonjusticiable political ques- tion. This was a new argument, never before made. Annexed to the Department’s brief was a letter from the Legal Adviser to the State Department arguing that re- gardless of which theory was adopted, the court should not hear the case. The court of appeals yielded to this sug- gestion, abdicated its judicial function, and declined juris- diction. affiliates intervened as claimants to the seized cargo. Civil Action No, 74-1192 (“Lykavitos”) and Civil Action No. 75-0033 (“Anglo- Maersk”) were filed in the Fourteenth Judicial District Court for the Parish of Calcasieu, as sequestration proceedings under Article 3501 et seg. of the Louisiana Code of Civil Procedure. The defen- dants removed both cases to the United States District Court for the Western District of Louisiana, on the basis of diversity of citizenship. The three cases were then consolidated. 13 REASONS FOR GRANTING THE WRIT The decision of the court of appeals undermines the rule of law in international affairs, offends the constitu- tional mandate of an independent judiciary and denies due process of law to parties relying on foreign bound- aries determined by the United States. The sole basis for the court of appeals’ dismissal of Occi- dental’s action was that it allegedly would have required resolution of a non-justiciable territorial dispute between Iran and Sharjah as to which of them owned the island of Abu Musa in 1969." This dispute, however, could not affect Occidental’s claim. No matter who owned Abu Musa, under the law of the 3-mile limit to the territorial seas of nations, Occidental’s concession site was clearly outside of that 3- mile territorial water limit. Thus the court of appeals’ mis- taken notion that the ownership of Abu Musa affected petitioner’s claim, gave rise to the court applying the “political question” theory while in fact no such question existed in the case herein. In arriving at its decision, the court of appeals ignored the 3-mile limit recognized by the United States and substituted in its place a blind adherence to the transitory pleasure of the State Department as ex- pressed in a letter from the Department’s Legal Adviser. ‘8 The court of appeals said: [I]n order to resolve appellant's right to possess the oil, we would have to resolve the dispute over Abu Musa. The resolu- tion of a territoria) dispute between sovereigns, however, is a political question which we are powerless to decide. App. A. at p. A-11; 577 F. 2d at 1203; see also the court of ap- peals’ footnote 7: ... @ determination of sovereignty over Abu Musa is necessary to the ultimate resolution of the right to oil in this case. This question, however, we hold to be a political question and therefore non-justiciable. App. A. at p. A-8, fn.7; 577 F. 2d at 1201, fn.7. 14 A. The Decision of the Court of Appeals Undermines the Rule of Law in International Affairs. 1. The three-mile limit proclaimed by the Executive Branch has the force of law and is binding upon the courts. “The United States has been committed to the three-mile limit from the early days of its existence.” Restatement (Second) of Foreign Relations Law, note to $15, at 40 (ALI 1965). Through its Executive Branch, the United States has consistently maintained that the three-mile breadth of the territorial sea is part of the substantive “law of nations” which “no nation may legally extend or enlarge by unilateral action.” Foreign Relations of the United States, 1935, v. I, at 919 (State Dept. 1953). The United States has repeatedly proclaimed to the world that this substantive international law can be amended only by treaty; absent such a treaty, the United States does not recognize claims of territorial sovereignty seaward of three miles. Department of State Press Release 64, Feb. 25, 1970. The United States firmly maintains that any change in the law of the three-mile limit “is conditional on a satisfactory overall treaty.” Department of State Bulletin, v. LXXI, no, 1832, at 233 (Aug. 5, 1974). No such treaty has been made. In an effort to foster the rule of law in international affairs, the United States has sent notes of diplomatic pro- test to foreign governments whenever they have sought to extend their territorial seas through unilateral action. See, e.g., United States note to Saudi Arabia, Foreign Re- lations of the United States, 1949, v. VI, at 157-60 (State Dept. 1977). In particular, with respect to Iran and Shar- jah, the United States has declared illegal their attempts to 15 extend their territorial seas beyond three miles. In both cases, the United States expressly reserved the rights of American nationals (thus including Occidental) in inter- national waters beyond three miles. When Jran first attempted to extend its territorial sea, the United States protested as follows: The Government of the United States cannot recognize as valid the legislation under reference in so far as it purports to extend the dominion of Persia over the sea beyond three miles from its coast, and it is impelled therefore, to make full reservation of all its rights and the rights of its nationals. Foreign Relations of the United States, 1935, at 919. Similarly, when Sharjah purported to extend its terri- torial sea to twelve miles around Abu Musa in 1970, the United States proclaimed that it “reserves its rights and those of its nationals in all areas . . . seaward of the tradi- tional 3-mile limit.” State Department Airgram to United States Embassy, London, dated July 22, 1970.° Thus, the United States through its Executive Branch clearly refused recognition of Iran’s and Sharjah’s claims of territorial jurisdiction beyond three miles from the coast. This determination by the Executive is binding upon the courts, “[W]hen the Executive branch of the govern- ment, which is charged with our foreign relations, shall in its correspondence assume a fact in regard to the sov- ereignty of any island or country, it is conclusive on the judicial department.” Williams v. Suff:'* ‘«surance Co., *This protest by the United States was addressed to the same ree - rte decree under which Buttes claims title to the ecidental oil. 16 38 U.S. (13 Pet.) 414, 420 (1939). See also United States v. California, 332, U.S. 19, 33-34 (1947); Guarantee I'rust Co. of New York v. United States, 304 U.S. 126, 138 (1937) ; Jones v. United States, 137 U.S. 202 (1890). “A policy of non-recognition when demonstrated by the Executive must be deemed to be as affirmative and positive in effect as a policy of recognition.” The Maret, 145 F.2d 431, 442 (3d Cir, 1944). 2. The letter from the State Department on which the court of appeals relied does not profess to change the law of the three-mile limit. The letter from the Legal Adviser of the State Depart- ment relied upon by the court of appeals did not purport to change the law of the three-mile limit. It merely sug- gested that the court ought not to decide this case. Therefore, the Legal Adviser’s letter was just that, ad- visory, and could not and did not change the officially ex- pressed position taken by the United States Government over and over again in its international relations that it adheres to the three-mile territorial water limit. 3. The court of appeals erroneously declined jurisdiction because of its mistaken view that it had to deter- mine the dispute between Iran and Sharjah over Abu Musa; this dispute is irrelevant to Occidental’s claim. Occidental’s oil find was located nine miles seaward of the island of Abu Musa and thus well outside the island’s three-mile territorial sea, as recognized by our government. Occidental’s grantor, Umm, had sole jurisdiction over that area for the exploitation of oil under the 1964 agreement ex- 17 ecuted through British auspices. App. A, at pp. A-3, 4; 577 F.2d at 1199. This agreement was concluded pursuant to Article 6, §2 of the 1958 Convention on the Continental Shelf of which the United States is a signatory. 15 U.S.T. 471, TLAS 5578." he sole basis for Iran’s adverse claim to Occidental’s oil find was the assertion that Abu Musa was an Iranian island, and that the island’s territorial sea extended twelve miles from its coast under a unilateral Iranian decree. Similarly, Sharjah’s sole basis for claiming Occidental’s drilling site was that Abu Musa belonged to Sharjah and had a territorial sea of twelve miles under Sharjah’s uni- lateral, secret, “unpublished” decree that was revealed in March 1970. Buttes itself, as late as 1972, cited as the sole basis of its alleged title the rights of Iran and Sharjah to the “entire 12-mile area around the island.” Buttes Press Release of October 25, 1972.* "In addition to its other errors, the refusal of the court of appeals to take jurisdiction was a refusal to apply and interpret a treaty of the United States. “The judicial power shall extend to all oases ... arising under... treaties... .” U. §. Oonst., Art. III, § 2. The 1958 Convention on the Continental Shelf was ratified by the United States and proclaimed by the President as taking effect as of June 10, 1964. 15 U.S.T. 471, TLAS 5578; 499 U.N.T.S. 311. The court of appeals erred when it held that “no manageable law exists to resolve disputed continental ownership.” 577 Fed. 2d 1205; App. A. pp. A-15, 17. On the contrary, a treaty of the United States provided a body of law which the court was re- quired to interpret and apply. It was the duty of the court, if necessary, to make that law “manageable” through the ordinary process of judicial construction. *Since the three-mile limit is a binding rule of law, American courts must hold invalid the adverse claims of Iran and Sharjah to Occidental’s drilling site. To overcome this legal barrier, Buttes for the first time on appeal raised the novel contention that the tiny island of Abu Musa a continental shelf of its own extending beyond the limits of its territorial waters. But neither Iran nor Sharjah has ever claimed an independent conti- nental shelf for Abu Musa. Buttes lacks the standing and 18 The court of appeals was wrong in believing that it would have to decide the adverse claims of Sharjah and Iran to the island of Abu Musa. It does not matter one whit whether Iran or Sharjah was right in its claim to Abu Musa. In either event, Occidental’s concession stands unaf- fected because it is outside the three-mile limit of Abu Musa. To hold otherwise would do violence to the official position of the United States Government. Therefore, contrary to the view of the court of appeals, this case does not present embarrassing, unmanageable or even difficult issues. It merely requires the court to apply the law of the three-mile limit adopted by our Executive Branch. 4. This Court's policy of fostering a rule of law in international affairs is under- mined by the decision below. In First National City Bank v. Banco Nacional de Cuba, 406 U.S. 764 (1972), Justice Brennan, writing for four members of this Court,’ repeatedly appealed for a judicial policy which would promote the rule of law in international affairs. Id., at 778; 793; 794. A “rule of law” exists to the extent that conduct is guided by general principles rather capacity to assert sovereign rights unclaimed by the sovereigns themselves. ‘Moreover, we ask this Court to take judicial notice of the 50-odd tiny islands similar to Abu Musa that are scattered throughout the Persian Gulf. To attribute independent continental shelves to these islands would make chaos of the present division of offshore mineral rights, and would come as a rude shock to the coastal states of the Gulf, including Iran, Sharjah, and Umm. * Brennan, Stewart, Marshall and Blackmun, JJ. Though tech- nically a dissent, Justice Brennan’s opinion in fact represented the plurality of a Court divided 3-1-1-4. The remaining five justices with the dissenters on other points, but their opinions show that they share the dissenters’ concern for a rule of law in the international sphere. 19 than momentary expediency. When the subject matter be- fore any court extends into the iniernational arena, the rule of law is advanced or retarded by the way the court exer- ‘eises its jurisdiction and by the rules of decision it applies. In this case, the court of appeals refused to give effect to the law of the three-mile limit which the United States has steadfastly proclaimed for nearly two centuries in its defense of the international rule of law. Instead, the Court’s decision was controlled by a desire to avoid judicial pro- ceedings which might embarrass the State Department at a given moment in the ever-changing configuration of for- eign powers. App. A, at pp. A-14, 15; 577 F.2d at 1204. The result is that a momentary preference of the State Depart- ment has prevailed in our courts against a principle of law. A government department charged with diplomatic func- tions may find it desirable in a turbulent world to yield from day to day to special pressures. The courts, however, have a different mission. The judicial department must up- hold the rule of law. B. The Decision of the Court of Appeals Offends the Constitutional Mandate of an Independent Judiciary. In First National City Bank, supra, six members of this Court denied legal effect to the so-called “Bernstein let- ters.” These were letters from the Legal Adviser of the State Department which professed to authorize the courts to inquire into the validity of foreign acts of state which otherwise would have been presumed valid under the act of state doctrine. See Bernstein v. N.V. Nederlandsche- Amerikaansche, 210 F.2d 375 (2d Cir. 1954). Prominent among the reasons for this Court’s rejection of the Bernstein letters was their interference in the judi- 20 cial process. “I would be uncomfortable with a doctrine which would require the judiciary to receive permission before invoking its jurisdiction. Such a notion, in the name of separation of powers, seems to me to conflict with that very doctrine.” First National City Bank vy. Banco de Cuba, 406 U.S. at 773 (Powell, J., concurring). In the same case, Justice Douglas said the Bernstein letters tended to make this Court “a mere errand boy for the Executive Branch, which may choose to pick some people’s chestnuts from the fire but not others.” Jd. at 773. Similarly, Justice Brennan, joined by Justices Stewart, Marshall and Blackmun, said that the Bernstein letters “would require us to abdicate our judicial responsibility ....” Id. at 778. In a later case, Justice Marshall, noting this Court’s disapproval of the Bernstein letters, said that “the task of defining the role of the Judiciary is for this Court, not the Executive Branch.” Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 724-5 (1976) (dissenting opinion joined by Bren- nan, Stewart and Blackmun, JJ.). The instant case would bring before this Court for the first time the question of the validity of an “inverse Bern- stein letter,” i.e., a letter from the Legal Adviser which urges the courts to decline jurisdiction of a case between two private litigants, both American nationals, which other- wise the court would have to decide. Inverse Bernstein letters offend the same constitutional pong as the dis- avowed Bernstein letters. It was not law, but a letter, that the court of appeals felt compelled it to refuse jurisdiction. The court said, “[wle are persuaded that a judicial determination would reflect a lack of respect for the executive branch, particularly the State Department. ... A decision in this case, the State Department warns, would seriously impinge on executive 21 neutrality. Therefore, we are convinced that the issue of sovereignty over disputed territory is a political ques- tion....” App. A, at pp. A-14, 15; 577 F.2d at 1204 (em- phasis ‘added). The very formulation of this sentence which reveals the non sequitur expressed in the word “Therefore” demon- strates that the court of appeals resorted to the political question theory to comply with the State Department’s “advice” rather than because it was convinced that there was such a question here. In short, the law was artificially accommodated to another branch of government. The Executive cannot by mere suggestion change a cog- nizable claim into a nonjusticiable political question. More- over, it is a dangerous error when a court permits “respect for the State Department” to control whether the door to the courtroom is open or locked to a litigant. The issue of the existence of a “case or controversy” is a constitutional question entrusted to the courts, and not to the State De- partment. C. The Refusal of the Court of Appeals to Take Jurisdiction Denies Due Process of Law to Parties Relying on Foreign Bor- ders Determined by the United States. Occidental had the right to rely on the law of the three- mile limit. To the extent that the Executive makes and interprets international law, it must do so within the stric- tures of the Fifth Amendment. A law, once made, remains in force until repealed; the Executive cannot turn it on and off at will. Nor can a party whose rights have been re- served under a principle of law be deprived of the law’s protection because the facts of his case displease a govern- mental department. Due process abhors any doctrine 22 whereby “similarly situated litigants would not be likely to receive even-handed treatment.” First National City Bank v. Banco Nacional de Cuba, 406 U.S. at 793 (Brennan, J., dissenting). II. Even if the law of the three-mile limit were not dis- positive, this Court would still be required to decide this case; otherwise, the litigants would be relegated to self- help. The decision of the court of appeals in this case is the only reported decision in American law holding that a court may not decide a case involving the private rights of private parties to property before the court, merely be- cause the adjudication of those private rights touches upon an issue of sovereignty or boundaries. Nor is there any other reported decision holding that if the Executive Branch fails or refuses to make a determination with respect to sovereignty or boundaries, a court may not make such a determination in the course of adjudicating private rights. In its amicus brief filed in the court of appeals, the Depart- ment of Justice conceded, at page 7, “we have uncovered no case in which the Supreme Court has specifically held that cases involving boundary disputes raise nonjusticiable political questions”.”” There is one case in which this Court, by way of dictum, has specifically addressed this issue. Williams v. Suffolk *” Even the district court below, though it dismissed under the act of state doctrine, recognized that there is no “unassailable rule of law ... that a United States court cannot decide a case involving the private rights of private parties to property if the adjudication requires a collateral determination with respect to boundaries. 396 F.Supp. at 468. 23 Insurance Company, 38 U.S. (13 Pet.) 414 (1839). The Williams case involved the legality of the seizure of an American seal fishing vessel by the Government of Buenos Aires, and required a determination of sovereignty over the Falkland Islands. This Court made it quite clear that, in the absence of a determination by our executive or legis- lative branch, the issue of sovereignty over foreign terri- tory is “an open question”, into which a court may inquire. The Court went on to hold that it was “saved from this inquiry” because the issue of sovereignty over the islands had been resolved by our Executive. 38 U.S. (Pet.) at 419." The fact that primary conduct of foreign relations is entrusted to the Executive Branch is no obstacle to the power of an American court to decide a collateral issue of boundaries. If the Executive has made a substantive deter- mination of sovereignty, the court will ordinarily respect that position. If the position of the Executive cannot be ascertained, however, then the Court is bound to decide the case independently. In Baker vy. Carr, 369 U.S. 180 (1962), this Court re- viewed the status of the political question doctrine, includ- ing the applicability of the doctrine to cases involving foreign relations. 369 U.S. at 211-213. The Court pointed out that “it is wrong to suppose that every case or contro- versy which touches foreign relations lies beyond judicial cognizance”. 369 U.S. at 211. The opinion in Baker v. Carr draws a distinction between cases in which the Executive has made a determination, and cases in which there has been “no conclusive governmental action”, and suggests that the judiciary may make its own determination “in the "See also Foster & Elam v. Neilson, 27 U.S. (2 Pet.) 253, 307 (1829). (“If the course of the nation has been a plain one, its courts would hesitate to pronounce it erroneous.”); De la Croiz v. Chamberlain, 25 U.S. (12 Wheat.) 599 (1827). ~~ 24 absence of recognizedly authoritative executive declara- tion”. 369 U.S. at 213. With respect to issues of foreign sovereignty in particular, the Court stated merely that “the judiciary ordinarily follows the executive as to which na- tion has sovereignty over disputed territory”, 369 U.S. at 212 (emphasis added). In the present case, the court of appeals has abandoned this Court’s careful statement in Baker v. Carr in favor of a sweeping rule of nonjusticiability that would prevent an American court from reaching any decision at all in a case that touches upon an issue of foreign boundaries, past or present, if the Executive has refrained from taking a position : Just as the judiciary will follow an executive determi- nation as to which nation has sovereignty over a dis- puted area [citation], so must the judiciary refuse to decide the dispute in the absence of executive action because of that absence of direction. App. A, at pp. 13, 14; 577 F.2d at 1203-04. This holding of the court of appeals is erroneous. The political question doctrine, where applicable, requires a court to decide the merits of a case by deferring to an executive or congressional position. The doctrine embraced by the court of appeals is something very different, and would require the Court to decline to decide the merits by deferring to an executive nonposition. The political ques- tion doctrine does not, and should not, encompass this rule of nondecision.” 12 The court of appeals also disregards the distinction between a determination of present sovereignty and a determination of former sovereignty. Occidental does not assert that Umm is now sovereign over the valuable portion of Occidental’s concession area, but merely that Umm was formerly sovereign on November 18, 25 The decision of the court of appeals misapplies the lan- guage of Baker v. Carr and conflicts with clear expressions of this Court in earlier decisions. The court of appeals abdicated its duty to decide the rights of the litigants in this case, in deference to a mistaken notion of the separa- tion of powers. The ruling of the court of appeals creates a decisional vacuum, in which the claims of the parties can never be adjudicated, regardless of merit. The result is a form of anarchy, in which the victor may keep his spoils, free from the rule of law. The doctrine of nondecision, if allowed to stand, would put a premium on raw power and self-help. Under this doctrine, if a victim of a confiscation would piratically seize a cargo on the high seas and bring it into the United States, the contrary claimant would be fore- closed from any remedy. The “pirate” would be immune from suit and would then prevail, not on th merits of his claim, but merely because he would be the defendant, and not the plaintiff. The decision below raises important issues relating to the role of the courts and the relationship among branches of government. These issues warrant the attention of this Court on review. 1969, when the concession was granted. It is a central element of Occidental’s theory that Umm’s sovereignty was terminated by annexation at the end of 1971, and that Sharjah and Iran assumed sovereignty thereafter. The relief that Occidental seeks—recovery of the oil extracted from its confiscated concession—would not, directly or indirectly, challenge the present sovereignty of Iran or Sharjah over the confiscated concession area, or any of their present boundary lines. 26 Ill. The issue in this case which the court of appeals denominated a political question is indistinguishable from an act of state issue and is therefore controlled by the Hickenlooper Amendment. Congress enacted the Hickenlooper Amendment in 1964 for the express purpose of affording relief to victims of illegal foreign confiscations who had previously been denied access to our courts. The amendment provides: “Notwithstanding any other provision of law, no court in the United States shall decline on the ground of the federal act of state doctrine to make a determination on the merits giving effect to the principles of inter- national law in a case in which a claim of title or other right of property is asserted by any party * ° * based upon * * * a confiscation or other taking * * * by an act of state in violation of the principles of interna- tional law * * * , 22 U.S.C. §2370(e) (2). (emphasis sup- plied) The Hickenlooper Amendment was designed to alter the role of the United States as a “thieves market” where the confiscator was immune from suit by the victim. 110 Cong. Rec. 18936, 19555 (1964) : “Tt insures that however the case may arise or the act of state doctrine be invoked, a party who had suffered an expropriation in violation [of international law] may bring suit to assert his claim to the expropriated property if there is an attempt to market it in the United States * * *” (Ibid., page 23680). (Emphasis supplied). ; 27 In the present case, the district court dismissed on the ground of the act of state doctrine, and refused to apply the Hickenlooper Amendment. The court of appeals pur- ported to circumvent the Hickenlooper Amendment entirely by sustaining the dismissal not on the act of state doctrine, but on what it called a “slightly different ground”—the no- tion that the case presents a nonjusticiable political ques- tion. App. A, at p. A-1; 577 F.2d at 1198. The reasons the court of appeals used in holding the case nonjusticiable under the political question doctrine are identical to the reasons that have been expressed from time to time to justify the act of state doctrine—imagined sensi- tivity to foreign relations or difficulty of the issues, unman- ageability, regard for the separation of powers, avoidance of embarrassment to the Executive Branch. It was pre- cisely these contentions that Congress rejected when it en- acted the Hickenlooper Amendment. Under Hickenlooper, the courts are required to assume jurisdiction over all cases involving illegal confiscations of property which is later shipped into the United States re- gardless of the issues involved. The courts have no disere- tion under the statute. The directions of Congress to hear and determine the merits of such cases are clear and uncon- ditional, and may not be avoided by the judiciary through abstention or otherwise. The district court refused to apply the Hickenlooper Amendment. The court of appeals questioned its constitu- tionality. Hickenlooper is constitutional and it is clearly applicable to this case. Banco Nacional de Cuba v. Farr, 243 F. Supp. 957 (S.D.N.Y. 1965), aff’d 383 F.2d 166 (2 Cir.), cert. denied 390 U.S. 956, reh. denied 390 U.S. 1037 (1968). 28 The fact that every confiscation of property in violation of international law involves a political question does not render the matter nonjusticiable, nor does it foreclose the court from inquiring into its legality under Hickenlooper. In the Farr case, the Hickenlooper Amendment was chal- lenged on the ground that it represented ar. impermissible encroachment upon the power of the President and Execu- tive Branch over foreign relations in violation of the doc- trine of separation of powers. This is the same ground noted by the court below in support of its decision. In upholding the validity of Hickenlooper, the district court in the Farr case held that the statute related to a sub- ject “in which Congress had an interest, and in respect to which it could give direction” (243 F.Supp. at 972, 973). On appeal, the court of appeals for the Second Circuit confirmed the constitutionality of Hickenlooper. It held that “the act of state doctrine * * * was not constitutionally compelled”, and rejected the notion that illegal confisca- tion by foreign states “presented a non-justiciable polit- ical question” beyond the court’s power to adjudicate under Hickenlooper (383 F.2d at 180-1). This holding is entirely in accord with the decisions of this Court. In Banco Nacional de Cuba v. Sabbatino, 376 US. 398 (1964) this Court held that the act of state doctrine is a “principle of decision * * * compelled by neither inter- national law nor the Constitution” and that said doctrine “does not irrevocably remove from the gt ee ity to review the validity of foreign acts of s e (876 1 “fy at 423, 427). Similarly, in First National City Bank, this Court held that the act of state doctrine was “judicially created to effectuate general notions of comity among ° * * the respective branches of the Federal Gov- ernment”, and did not have “its roots * * * in the Consti- tution” (406 U.S, at 762, 765). 29 In the Farr case, this Court twice denied certiorari. On each occasion, it refused to review the holdings of the Court of Appeals for the Second Circuit that the act of state doc- trine was not constitutionally compelled, and that the ju- diciary was free to inquire into any act of confiscation under Hickenlooper even though the underlying issue of any such inquiry involved a political question. In Sabbatino, this Court held that the validity of a foreign act of state in certain circumstances is a “political question” not cognizable in our courts. The purpose of the Hickenlooper Amendment was to reverse this holding by directing the courts to assume jurisdiction over these “political questions” in determining the merits of the con- troversy. Thus, whether the case presents a political ques- tion or an act of a foreign state, in neither event is the court precluded from making a merit determination under the Hickenlooper Amendment in a case involving the unlawful taking of property by a foreign power in violation of in- ternational law. In declining jurisdiction herein, the court of appeals repudiated the very purpose of Hickenlooper. In refusing to determine the merits of the unlawful confiscation, the court has rejected the statutory command of Congress. In dismissing the action, the court of appeals has left the victim of the illegal confiscation without a judicial remedy in violation of the statute. Unless the decision below is vacated by this Court, the Hickenlooper Amendment will be devoid of all meaning, and will be totally ineffective in preventing the United States from again becoming a “thieves market” for the disposal of our citizens’ property illegally obtained through confiscation. The importance of the issue presented by this case goes far beyond the private rights of the litigants, and deals 30 essentially with the rights of all victims of confiscation to seek legal redress under a federal statute that was enacted for that very purpose. The case presents a question of first impression under a statute that has not been construed by this Court since its enactment, and therefore warrants this Court’s review. American Federation of Musicians v. Witt- stein, 379 U.S. 171, 175 (1964); United States v. Ruzicka, $29 U.S, 287, 288 (1946). IV, The refusal of the court of appeals to hear this case offends the strong Congressional policy favoring judi- cial determination of the property claims of American victims of foreign confiscations. Even if the Hickenlooper Amendment were to be 80 narrowly construed as to control only those issues explicitly denominated as acts of state, the statute nevertheless em- bodies a strong Congressional policy that the victims of foreign conSacation should not be left helpless but should have their day in court. Even before Hickenlooper, it was settled law that in matters involving political questions, ‘it is wrong to sup- pose that every case or controversy which touches foreign relations lies beyond judicial cognizance”. Baker v. Carr, 869 U.S. 180, 211 (1962). In First National City Bank v. Banco Nacional de Cuba, 406 U.S. at 790, a plurality of judges of this Court held that “the task of defining the contours of a political ques- tion, such as the act of state doctrine, is exclusively the function of this Court”, citing Baker v. Carr, supra (em- phasis added). On the facts of this case, this Court, in “defining the contours”, should give due regard to the Hickenlooper Amendment and to the strong policy of jus- 31 ticiability that it embodies. The policy of the amendment dictates that when an American citizen comes into an Amer- ican court seeking to recover illegally confiscated property the American court may no longer say to that citizen, (whether under the act of state doctrine or on a “slightly different ground”), “However meri eritoriou : hands are tied”, 8 your claim, our The trumpet call of justice sounded by the Congress should not have been disregarded by the court of appeals even if only a matter of discretion were involved, Entirely apart from the mandate of Hickenlooper, there is a philosophical compulsion in its logic. It has a salons moral impact. In a world in which terror is not unknown in many parts of the globe, may a wrongdoer cloak himself in technical immunity? Should the courts of our land aid him in such dishonorable evasion? The pronouncement of this Court will be awaited eagerly by constitutionalists as well as by h baat ators. y hapless victims of pred- 32 CONCLUSION The petition for a writ of certiorari should be granted, the judgment of the court of appeals vacated, and the case remanded for discovery and a trial on the merits. Respectfully submitted, Louis Nizer GeraLD MEYER Nem A. Pou.io Pues, Nizer, BenJsaMin, Krim & Baton 40 West 57th Street New York, New York 10019 Txomas M, Berostept J. Bonn Smita, Jr. Scorie.p, Berostept & BicHAM, ENGuLar, JONES GERARD & Houston 1114 Ryan Street 14 Wall Street P. O. Box 1136 New York, New York | Lake Charles, Louisiana 10005 70601 Henry J. Reap Davin Stone | MontTcoMeryY, BARNETT, Stone, Piaman, WALTHER, Brown & Reap Witrmann & HutcHiInson 806 First National Bank 1000 Whitney Bank of Commerce Building Building New Orleans, Louisiana New Orleans, Louisiana 70130 70130 Attorneys for Occidental of Umm Al Qaywayn, Inc., Petitioner SES Appendices A-l APPENDIX A Opinion of the Fifth Circuit oo OccrwentaL or Umm aL Qaywayy, Inc., Plaintiff-Appellant-Cross Appellee, —V,— A ©. v-rary Carco or Perroteum Lapen ABOARD THE Tanker Dauntiess CoLocorronis, etc., ET AL., Defendants-Appellees-Cross Appellants. _— No. 75-3088. United States Court of Appeals, Fifth Circuit. Aug. 9, 1978. Before THorNBERRY, MorGAN and INGraHaAM, Circuit Judges. Lewis R. Moroan, Circuit Judge: In these conversion actions, consolidated on appeal, the federal court is asked for a decision we consider impos- sible. The immediate question is whether the district court erred in granting appellee’s motion for summary judg- ment. The district court determined that it should refrain from deciding the issue on the merits, the rights to oil ex- tracted from the Persian Gulf, because the decision would call into question the acts of foreign states. We dismiss on the slightly different ground that the question presented is political, being both constitutionally devolving on the A-2 executive and judicially unmanageable, and therefore, not a “case or controversy” within Article III of the Constitu- tion, On appellee’s counterclaim to enjoin appellants from further litigation in this and other federally cognized juris- dictions, we reverse the district court and grant the in- junction. A thorough factual development is a necessary pre- requisite to analysis. A. Geography. The scene for this political drama is the exotic Persian Gulf, once noted for the Arabian nights, now famous and important as a source of oil to light those nights. On the southern “lip” of the mouth of the Gulf lie the Trucial Sheikhdoms of Umm al Qaywayn (hereafter Umm), Shar- jah, and Al Ajiman. Situated near the mouth of the Gulf, about 40 miles northwest of Umn, is the tiny island of Abu Musa. The island is also approximately 50 miles due south from Iran, the country with the largest contiguous border on the Gulf. B. History, relatively ancient. For almost a century, Great Britain had been the “pro- tectorate” of the Trucial Sheikhdoms, including Umm and Sharjah. Pursuant to the treaty establishing this relation- ship, the United Kingdom was responsible for the Sheikh- doms’ international relations, defense, and internal rela- tions among the individual states. This protectorate juris- diction included all the territories and territorial waters of the Sheikhdoms and territorial waters. As provided by the treaty, the protectorate ended in November 30, 1971. During the course of this protectorate, a dispute over the sovereignty of Abu Musa had existed between Great Brit- A-3 ain as agent of Sharjah, and Iran.' For example, the India Survey Map of 1897 represented the island in the colors of Persia (now Iran), as did the Viceroy’s unofficial map of 1892. Later, in April of 1904, the dispute flared as the Persian government placed custom officials on the island and flew the Persian flag. This establishment of sov- ereignty was short-lived, however, and the evidence was quickly removed at the demand of the British government. Persia did not abandon its claim with this setback, however. In 1923, Persia reasserted its claim to Abu Musa by pro- testing the leasing, by Great Britain, of mineral rights to the island. In 1930, Great Britain and Persia discussed settlement of the dispute, but no accord was reached. C. Modern History. In the early 1960’s, because of rising worldwide energy demands and the growth of offshore drilling technology, the Persian Gulf was becoming hot property. In 1964, per- haps as a response to this increased demand, Umm and Sharjah entered into an agreement, under the auspices of the British, establishing their territorial waters and con- tinental shelf borders. This treaty not only established the territorial waters of the parties, but also established their respective continental shelf. The agreement was embodied in an admiralty map establishing the continental shelf of 1 Appellant contends that the district court erred in permitting appellees to introduce evidence of a longstanding dispute between Iran and Sharjah over Abu Musa because of appellees’ agreement to limit discovery on the issue. Even if the agreement could be deemed a stipulation the federal court is not bound by a factual stipulation that will impact on its jurisdiction. Just as the court will not be bound by the pleadings in collusive federal question cases, Lord v. Veazie, 8 How. 251, 12 L.Ed. 1067 (1850) and collu- sive diversity claims, Caribbean Mills, Inc. v. Kramer, 392 F.2d 387 (5th Cir. 1968), so would the court not be bound by stipulations on which the existence of a “case or controversy” might turn. A-4 Umm 4s extending to the three-mile territorial waters of Abu Musa, recognized by the British as Sharjah’s posses- sion, giving Umm 37 miles of the intervening continental shelf. On November 18, 1969, appellant and the Ruler of Umm contracted that appellant would have the exclusive right to explore for and extract oil within Umm, its con- tinental shelf, and its territorial waters for forty years. The boundaries to this concession conformed to those es- tablished for Umm by the treaty with Sharjah of 1964. The British Foreign Office ratified the concession agreement, as a condition precedent required under the protectorate. A month later, Sharjah granted Buttes Oil Company, ap- pellees’ predecessor, a similar concession to extract oil from its territories. The boundaries of the Buttes concession also conformed to the 1964 treaty and the agreement was subsequently ratified by the British Foreign Office. No conflict existed between the parties until March 25, 1970, when Buttes Oil and Gas Company notified the British representative to the Sheikhdoms that Buttes intended to drill for oil within the Occidental concession area, approxi- mately 31 miles from Umm, 9 miles east of Abu Musa. Indeed, the drilling location coincided with that suggested by Occidental’s exploratory testing. Also at that time, the British agent was made aware of a Sharjah decree pur- porting to extend its territorial waters from three to twelve miles, including those of Abu Musa. Of course, this uni- lateral decree did substantial violence to the 1964 treaty, and the British Foreign Office rejected the subsequent amendment of Buttes’ concession agreement with Sharjah to reflect the extension. Additionally, the Buttes’ request to drill was also denied by the British Government. Al- though the Foreign Office considered the unilateral action in violation of international law, it strove to bring about A-5 an amicable solution. Although Umm and Sharjah were persuaded by the United Kingdom to mediate their claims, mediation failed when Umm refused to abide by the me- diator’s decision. Meanwhile, to further muddy the political waters, in a letter dated May 28, 1970, appellant was informed by the National Iranian Oil Company that it should desist all drilling operations in its concession area. The stated basis for this demand was that because Abu Musa was an Iran- ian possession, and because Iran recognizes twelve mile territorial limits, Occidental concession was within Iran’s territories. Faced with the probability of intervention by Iran, the British Government maintained the suspension of all drilling in the disputed area. On November 26, 1971, the dispute between Iran and Sharjah over Abu Musa was settled, at least practically and prospectively.? This agreement between Iran and Sharjah occurred only four days prior to the expiration of the British protectorate over the Trucial Sheikhdoms. Pursuant to this agreement, the island was essentially di- vided, and Sharjah’s concession with Buttes was ratified and the future royalties were split between the sovereigns. On November 30, 1971, Iranian troops landed on Abu Musa, and the Iranian navy began patrolling the waters of the island. Shorn of the protection of the British Govern- ment, Umm had no means to protect its territories as de- fined under the 1964 agreement, and Occidental was with- out protection as well. Buttes began drilling immediately with salutory results, Buttes later sold interests in the oil to appellees, Ashland Oil Inc., Kerr McGee Corp., Skelly Oil Company, and Cities Services Company. Each was put * By the terms of this partition agreement neither Sharjah nor Iran abandoned its claim to Abu Musa in favor of the other. A-6 on notice of Occidental’s claim. In 1974, appellants began extracting oil] from the disputed concession area, and among the shipments of this oil to the United States were those aboard the “Dauntless Colocotronis,” “Lykavitos,” and the “Anglo-Maersk,” which were seized in proceedings.* At least among the sovereigns, the rights to the royal- ties from the area were definitely settled. Some time after the Iranian occupation of Abu Musa, the Rulers of Umm and Sharjah agreed to divide royalties payable to Sharjah with Umm receiving thirty percent. Appellant suffered its final political reverse when in June of 1973, the Ruler of Umm terminated Occidental’s concession for failure to pay rentals due under the contract. D. History of the Case. Prior to analysis of the case, a brief legal history of the dispute is helpful. The appellants and appellees’ predeces- sors have once before litigated the underlying basis of their dispute. In Occidental Petroleum Corporation v. Buttes Gas and Oil Co., 331 F.Supp. 92 (C.D.Cal.1971), aff’d, 461 F.2d 1261 (9th Cir. 1972), cert. denied, 409 U.S. 950, 93 S.Ct. 272, 34 L.Ed.2d 221, appellants brought an antitrust action against Buttes, and Clayco Petroleum Company and certain officers of the corporations alleging a conspiracy among the defendants to oust appellant from its concession. This action was filed more than eight months prior to the Iranian occupation of Abu Musa, and years prior to the exportation of oil. The district court held, and the court of appeals affirmed, that the court was ® Immediately after the seizures, the oil is released to the ap- pellees as provided by agreement. The appellees have not been re- quired to post bond. A-7 precluded from piercing the veil of sovereign action by the “act of state” doctrine‘ and granted summary judg- ment. Although appellee contends that the Ninth Circuit case is res judicata for the case sub judice, we need not decide the question because we hold that we lack jurisdic- tion. Actions No, 74-1192 and No. 75-0033 were brought as diversity actions.’ Action No. 74-868 was brought as an in rem action in admiralty. The district court granted appel- lee’s motion for summary judgment in the diversity actions holding that because the actions of foreign sovereigns were called into dispute, the “act of state doctrine” required the court to refrain from deciding on the merits. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964). Moreover, the district court con- eluded that, under the circumstances, the Hickenlooper Amendment, 22 U.S.C.A. 2370(e)(2) (Cum. 1977), did not *In 1897 the Supreme Court formulated what has become known as the “act of state” doctrine. The Court held that “the courts of one country will not sit in judgment on the acts of the govern- ment of another, done within its own territory.” Underhill v. Hernandez, 168 U.S. 250, 252, 18 S.Ct. 83, 84, 42 L.Kd. 456 (1897). This is not an abstention doctrine, but rather resembles a conflicts of laws principle. See Ricaud v. American Metal Co., 246 U.S. 304, 310, 38 S.Ct. 312, 62 L.Ed. 733 (1917). Although in one decision the Court stated both that the doctrine had constitutional underpinnings and the doctrine was not compelled by the Con- stitution, the better view would be that the doctrine is constitution- ally compelled by the concept of separation of powers and placement of plenary foreign relations powers in the executive. See Banco Nacional de Cuba v. Sabbatino, 376 U.S, 398, 84 8.Ct. 923, 11 L.Ed. 2d 804 (1964). a * The civil actions were first brought in the Fourteenth Judi- cial District Court for the Parish of Calcasieu as sequestration pro- ceedings pursuant to Article 3501 of the Louisiana Code of Civil Procedure. The appellants, removed to the federal district court of the Western District of Louisiana, claim diversity of citizenship. A-8 prevent such abstention.’ The district court dismissed the admiralty action holding that admiralty jurisdiction was absent because if any conversion occurred, it occurred at the well-head not on the seas. Because we hold that no case or controversy exists, we dismiss all three claims for ° want of jurisdiction, but on the common ground that a reso- lution would involve a political question.’ * In response to the refusal of the Supreme Court to pierce the sovereign veil in Sabbatino, Congress passed the so-called Hicken- looper Amendment designed to prevent such abstention. The amendment provides, in pertinent part: Notwithstanding any other provision of law, no court in the United States shall decline on the grounds of the federal act of state doctrine to make a determination on the merits giving effect to the principles of international law in a case in which a claim of title or other right to property is asserted by any party including a foreign state (or a party claiming through such state) based upon (or traced through) a confiscation or other taking after January 1, 1959, by an act of that state in violation of the principles of international law, including the principles of compensation and the other standards set out in this subsection: Provided, That this subparagraph shall not be applicable (1) in any case in which an act of a foreign state is not contrary to international law or with respect to a claim of title or other right to property acquired pursuant to an irrevocable letter of credit of not more than 180 days dura- tion issued in good faith prior to the time of the confiscation or other taking, or (2) in any case with respect to which the President determines that application of the act of state doc- trine is required in that particular case by the foreign policy interests of the United States and a suggestion to this effect is filed on his behalf in that case with the court. 22 U.S.C.A. § 2370(e) (2) (Cum. 1977). It should be noted that if the act of state doctrine is constitutionally compelled, as was both suggested and negated in Sabbatino, the Hickenlooper Amendment would be ineffective. See note 4, supra. " As will be developed infra, a determination of sovereignty over Abu Musa is necessary to the ultimate resolution of the right to the oil in this case. This question, however, we hold to be a political question and therefore non-justiciable. Note well that this question would also have to resolved under the “act of state” doctrine. A-9 A political question clearly emerges under the proper analysis. Although, whether a political question is present and the court lacks jurisdiction are issues committed to federal law, we need to address such questions only if they would arise in the diversity action framework.’ See Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Therefore, we must analyze appellant’s claim as it would be tried, to determine whether a political question will emerge.*® Shorn of its factual complexity, appellants claim a tortious conversion of oil. Because this is a diver- sity case, we apply the law of the forum. Louisiana, to the claim. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Additionally, because the operative facts occurred outside of Louisiana, we must also apply Louisiana’s conflicts principles to determine which forum’s law to apply. Klaxon v. Stentor Mfg. Co., 318 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Applying these prin- ciples, we find that to successfully maintain its tortious conversion action, appellant would have to establish its fa * We analyze the question with regard to the diversity action only because the procedure is more involved. The political question emerges directly under admiralty jurisdiction because we would immediately apply international law as a matter of federal law. See Kossick v. United Fruit Co., 365 U.S. 731, 81 8.Ct. 886, 6 L.Ed. 2d 56, reh. denied, 366 U.S. 941, 81 S.St. 1657, 6 L.Ed.2d 852 (1961). As a matter of federal law the district court would then de- ra whether the conversion violated the principles of interna- tional law. * Appellant complains that the court is unduly delving into the merits to determine the presence of a political question. Just as it is necessary to delve into the “merits” of a case to determine whether the claimant has sustained an injury in fact to determine standing, United States ex rel. Chapman v. Federal Power Com- mission, 345 U.S. 153, 156, 73 8.Ct. 609, 97 L.Ed. 918 (1953), so must we analyze the legal “merits” of the instant case in order to determine whether a case or controversy exists. A-10 right to possess the oil at the time of conversion.” Appel- lant apparently contends that the conversion occurred when appellant was supplanted by Buttes through the in- tervention of Iran, sometime after November 30, 1971.” Because, as a matter of international law, one who receives an interest in land which is in dispute between sovereigns In Importsales v. Lindeman, 231 La. 663, 92 So.2d 574 (1957 ), the Louisiana Supreme Court stated that the essence of conversion is the wrongful deprivation of the claimant’s possession, to which he is rightfully entitled. Thus, in order to successfully maintain a conversion action, appellant would have to show that at the time of conversion it was entitled to possession of the res. As a matter of conflicts, if this action did not involve acts of foreign states, a Louisiana court would apply the law of the forum in which the conversion.occurred to.determine whether appellant was entitled to possession. See Matney v. Blue Ribbon Inc., 12 So.2d 249, 253 (La. App. 1942) ; Quickkick v. Quickkick International, 304 So.2d 402, 406 (La. App. 1974). Because appellee traces its title to the oil to acts of the sovereigns of Sharjah and Iran in supplanting appellant with Buttes, however, a court setting in Louisiana would follow the “act of state” doctrine and accept the act of the sover- eign as a rule of decision. Monte Blanco Real Estate Corp. v. Wolvin Line, 147 La. 563, 85 So. 242 (1920). It is clear that the Louisiana Supreme Court intended that the act of state doc- trine operate as a conflicts principle and that Louisiana courts will accept and apply as law the acts of foreign sovereigns. The Louisiana Supreme Court also made it abundantly clear that it considered the act of state doctrine mandated by federal law. The Hickenlooper Amendment, however, prevents any United States court from applying the federal act of state doctrine if the confisca- tion violated international law. A Louisiana court, therefore, would apply international law to determine whether the Hickenlooper Amendment is applicable. Because the Hickenlooper analysis is federal, however, the Louisiana court would be bound by the international law as developed by the Supreme Court in Poole v. Fleeger, 36 U.S. 185, 9 L.Ed. 680 (1837) and Coffee v. Groover, 123 U.S. 1, 8 8.Ct. 1, 31 L.Ed. 51 (1887). ™ The lanation for appellant’s ambiguity with regard to the compiaalinaunar be the mistaken conception that the Hickenlooper Amendment in some way provides a cause of action. At most, the amendment is a federal conflicts principle; at least, a mandate to the states to follow state law, not the federal “act of state” doc- trine. A-11 takes subject to the dispute, Coffee v. Groover, 123 U.S. 1, 29-30, 8 S.Ct. 1, 31 L.Ed. 51 (1887); Poole v. Fleeger, 36 U.S. 185, 9 L.Ed. 680 (1837), appellant must necessarily develop Umm’s right to undisputed possession of the por- tion of the continental shelf where the oil was extracted at the time the interest was passed, 1969. It is evident from the record, however, that the sovereignty, Abu Musa, and. derivatively, its continental shelf was in dispute between Iran and Sharjah (through Great Britain). Therefore, in order to resolve appellant’s right to possess the oil, we would have to resolve the dispute over Abu Musa. The resolution of a territorial dispute between sovereigns, how- ever, is a political question which we are powerless to . decide. Throughout the history of the federal judiciary, political questions have been held to be nonjusticiable and therefore ‘not a “case or controversy” as defined by Article III. In Ware v. Hylton, 3 Dall. 199, 300, 1 L.Ed. 568 (1796), the Supreme Court recognized that in the realm of foreign relations policy considerations render issues incompetent for a decision by the court. In Marbury v. Madison, 1 Cranch 137, 164-166, 2 L.Ed. 60 (1803), Chief Justice Mar- shall acknowledged the existence of a class of cases which involve a “mere political act of the executive” and which Tt is arguable that the conversion did not occur until the oil was actually severed from the realty in 1974. At that time, how- ever, the boundary disputed was settled among the sovereigns, at least practically. Application of Coffee and Poole would directly result in vesting title in the appellees. It is also arguable, how- ever, that because Iran and Sharjah still refuse to recognize each other’s claim, the dispute was not settled as a matter of inter- national'law. See note 2, infra. Therefore, we only use these cases for the proposition that under international law if a dispute exists at the time of taking, in the instant case, 1969, when the concession was granted by Umm, then appellant took subject to that dispute. a been developed, supra, the sovereignty was disputed in 1969. A-12 were placed by the Constitution in the hands of the execu- tive. The Supreme Court therefore appreciated that the genesis of the political question is the constitutional sepa- ration and dispersement of powers among the branches of government. In Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939), the Supreme Court clearly rec- ognized that the political question doctrine partakes not only of the existence of separation of powers, but also of the limitation of the judiciary as a decisional body. The Court stated: “In determining whether a question falls within [the political question category], the appropriate- ness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations.” The Court was merely admit- ting that they were not tribal wisemen dispensing divinely or theoretically inspired judgments, but were a court lim- ited to the application of predetermined law. In Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663. (1962), the Supreme Court extensively reviewed the history and evolution of the political question. As a result of this survey, the Court identified a number of basic char- acteristics or considerations relevant. to the existence of a political question. The Court held that the inextricable presence of one or more of these factors will render the cas nonjusticiable under the Article III “case or contro- versy” requirement, and therefore, the Court would be without jurisdiction. In this most definitive pronounce- ment, the Court identified the following factors as relevant to the affirmative determination of the existence of a polit- ical question: (1) “a textually demonstrable commitment of the issue to a coordinate political department” A-13 (2) “a lack of judicially discoverable and manage- able standards” (3) “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion” (4) “the impossibility of a court’s undertaking inde- pendent resolution without expressing lack of the re- spect due coordinate branches of government” (5) “an unusual need for unquestioning adherence to a political decision already made” (6) “the potentiality of embarrassment from multi- farious pronouncements by various departments on one question” 369 U.S. at 217, 82 S.Ct. at 710. In the instant case, nearly every one of the factors is present and the vitality of the political question in the arena of foreign relations is abun- dantly demonstrated. The ownership of lands disputed by foreign sovereigns is a political question of foreign relations, the resolution or neutrality of which is committed to the executive branch by the Constitution. As has been demonstrated, to deter- mine whether a tortious conversion has occurred, it is necessary to determine the sovereign ownership of the por- tion of the continental shelf from which the oil was ex- tracted. Although sovereigns are not directly involved, a judicial pronouncement on the sovereignty of Iran or Sharjak would be unavoidable. Such a determination is constitutionally reserved to the executive branch, however. Just as the judiciary will follow an executive determina- tion as to which nation has sovereignty over a disputed area, United States v..Klintock, 5 Wheat. 144, 149, 5 L.Ed. A-14 55 (1820), so must the judiciary refuse to decide the dis- pute in the absence of executive action because of that absence of direction. That is, in the language of Baker v. Carr, supra, the question of sovereignty is committed to the executive branch by the Constitution, and decision of the issue is impossible in the absence of the executive policy decision. Additionally, we are persuaded that a judicial determination would reflect a lack of respect for the executive branch, particularly the State Department. Contained in the Government’s amicus brief is a letter from the State Department” indicating the importance of ** In pertinent part the letter states: Your Division has asked for our views concerning certain aspects of the case of Occidental of Umm Al Qaiwain [sic] Inc. v. A certain Cargo of Petroleum Laden Aboard the Tanker “Dauntless Colocotonic,” [sic] Etc., et al., C.A. 5, No. 75-3088, It is our unders nding that the disposition of this case would require a ¢ rmination of the disputed boundary be- tween Umm Al Qa.wain on the one hend and Sharjah and Iran on the other at the time Umm Al Qaiwain granted the con- cession in issue to Occidental. It is our view that it would be contrary to the foreign relations interests of the United States if our domestic courts were to adjudicate boundary contro- versies between third countries and in particular that con- troversy involved here. The extent of territorial sovereignty is a highly sensitive issue to foreign governments. Territorial disputes are gen- erally considered of national significance and politically deli- cate. Even arrangements for the peaceful settlement of terri- torial differences are often a matter of continued sensitivity, These considerations are applicable to the question of Umm Al Qaiwain’s sovereignty over the continental shelf surround- ing Abu Musa at the time of the concession to Occidental and to the subsequent arrangements worked out among the affected states. For these reasons, the Department of State considers that it would be potentially harmful to the conduct of our foreign relations were a United States court to rule on the territorial issue involved in this case. We believe that the political sensitivity of territorial issues, the need for unquestionable U.S. neutrality and the harm to our foreign relations which may otherwise ensue, as well as the evidentiary and jurisprudential difficulties for a U.S. court A-15 neutrality in the politically and economically sensitive Middle East.’* A decision in this case, the State Depart- ment warns, would seriously impinge on executive neu- trality. Therefore, we are convinced that the issue of sovereignty over disputed territory is a political question reserved to the executive branch. The issue of sovereignty is political not only for its impact on the executive branch, but also because judicial or manageable standards are lacking for its determination. To decide the ownership of the concession area it would be necessary to decide (1) the sovereignty of Abu Musa, (2) the proper territorial water limit and (3) the proper allocation of continental shelf. A judicial resolution of the dispute over Abu Musa between Iran and Sharjah is clearly impossible. In their external relations, sovereigns to determine such issues, are compelling grounds for judicial abstention. We do not believe that this judicial self-restraint should turn on such analytical questions as whether the so-called Act of State doctrine which is traditionally limited to govern- mental actions within the territory of the respective state can apply to an exercise of disputed territorial jurisdiction. It rather follows from the general notion that national courts should not assume the function of arbiters of territorial con- flicts between third powers even in the context of a dispute hetween private parties. As a result, we are of the view that the court should be encouraged to refrain from setting the extent of Umm Al! Qaiwain’s sovereign rights in the continental shelf between its coast and Abu Musa at the time of its grant of the concession to Occidental. 1*In determining whether to abstain or dismiss because of con- flicting executive interest, federal courts are becoming more amen- alle to receiving opinion by the executive branch. See First Na- tional City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 92 S.Ct. 1808, 32 L.Ed.2d 466 (1972); Bernstein v. N. V. Neder- landsche-Amerikaansche, 210 F.2d 375 (2d Cir. 1954). Although these are act of state doctrine cases, not political questions, it is nonetheless clear that whether the state department believes that judicial action would interfere with its foreign relations is germane to whether a court may decide actions involving foreign relations. A-16 are bound by no law; they are like our ancestors before the recognition or imposition of the social contract. A pre- requisite of law is a recognized superior authority whether delegated from below or imposed from above—where there is no recognized authority, there is no law. Because no law exists binding these sovereigns and allocating rights and liabilities, no method exists to judicially resolve their disagreements. The ownership of the island, and deriva- tively its waters, has long been the subject of dispute. Were we to resolve this dispute we would not only usurp the executive power, but also intrude the judicial power beyond its philosophical limits. The international law of territorial waters and of the continental shelf would also be involved in determining Occidental’s right to oil from the concession area. Al- though some standards have been developed for the deline- ation of territorial waters, these formulations leave un- resolved the permissible seaward extent of territorial waters. See 4 Whiteman, Digest of International Law 94- 137 (1965). Therefore, we would be in a judicial no-man’s land were we to purport to decide the legality of Sharjah’s unilateral extension of its territorial waters or Iran’s twelve-mile limit. Moreover, the ownership of the conces- sion area would depend upon the ownership of the con- tinental .shelf between Abu Musa and Umm.” Again, although some standards have been developed, these stand- ards depend in part on the existence of agreement among * According to Article I of the Convention on the Continental Shelf, the continental shelf begins at the termination of the terri- torial waters and extends “to a depth of 200 meters or, beyond that limit, to where the depth of the superjacent waters admit of the exploitation of natural resources... .” Thus, rights to the continental shelf of Abu Musa depend both upon the extension of er waters by Sharjah and the sovereignty over Abu Musa itself. A-17 sovereigns. Because ownership of the continental shelf is derivative of the ownership of the unsubmerged land, the extent and ownership of Abu Musa’s shelf is necessarily in dispute. No manageable law exists to resolve disputed continental shelf ownership, however. See Article VI, Con- vention on the Continental Shelf, 15 U.S.T. The nexus be- tween the absence of manageable standards and the poli- tical question is quite evident. Resolution of disputed con- tinental shelf can only occur by the political action of the sovereigns themselves.”* On cross-appeal, we are asked to review the decision of the district court refusing to grant cross-appellant’s mo- tion for an injunction against all pending and further litigation, both in state and federal courts. The result of the immediate imposition of this injunction would serve to deprive the appellant of its statutory remedy of seizing further shipments of oil. On the other hand, appellees have a right to a speedy determination of this issue to avoid endless seizures that may amount to a major nuisance if this action is not finally determined on appeal.’ We there- ©The response to the appellant’s plea for a day in court can be interpolated from Ware v. Hylton, supra. The Supreme Court suggested that anyone dismissed from the judicial remedy because of executive prerogative should, of course, seek recourse through the intervention of the executive. Because the president holds ple- nary power in foreign relations, however, the president is free to refuse. Should the president ever officially act on a political issue, we would be constitutionally bound to accept his act. Moreover, there is no law against executive advisory opinions. As an alterna- tive, the executive could create administrative courts to handle all political cases, review to the Supreme Court limited to the existence of a political question. 17 As of May 9, 1975, there were 58 suits pending involving the same set of facts; 23 in the Western District of Louisiana, 12 in the Eastern District, 3 in the Eastern District of Texas, 2 in the Virgin Islands, 17 in the Louisiana State Court, Calcaieu Parish, and one in Texas State Court, Jefferson County. At the time of appeal, approximately 120 such suits were pending. A-18 fore grant the injunction in order to protect the appellee, and stay the injunction pending disposition by the Supreme Court, in order to protect the appellant and promote a speedy resolution of this problem.” Should the appellant fail to appeal this judgment, the stay shall expire with the time limit for filing the appeal. Dismissep in part, Reversep in part. Although federal courts are normally precluded from enjoin- ing state litigation, an injunction is proper “where necessary in aid of its jurisdiction or to protect or effectuate its judgments.” 28 U.S.C.A. § 2288. Because we have held that, as a matter of federal law, a political question emerges we deem it necessary to enjoin state proceedings in order to effectuate our judgment that the issue is one committed to the executive. Such an injunction also is necessary to aid the jurisdiction of the Supreme Court to finally resolve the question of the existence of a political question. B-1 APPENDIX B Opinion of the District Court > - OcciwenTAL OF UMM aL Qaywayy, Ino, —V.— Crrres Service Orn Co., et al., (“Lykavitos”). —_ OcomweEnTAL or Umm au Qaywayy, Ino, —VvV.— Kerr-McGere Corporation (“Anglo-Maersk’’). —>— OccipenTAL oF UMM Au Qaywayyn, Inc. —_—VvV.— A Certain Carco Lapen Asoarp DauntTLess CoLocorronis. Civ. A. Nos. 74-1192, 75-0033 and 74-868. Ee | tas . SC bhA RD LIfe mo —o i ft *s, = F “ t ‘ ad Seda? i as Tidal Information and Chart Datum r Height above datum of dings Average Heights pm a Gy orn OTRO EXHIBIT "A" ‘ ~ od mn » » o een ae - és » "3 e). A Attached to and made a part of Oi! Concessio a Pa Agreement dated November 18, 1969, betwee : » ry a » pe igs the Ruler of Umm Al Qaywayn and Occidenta ® n i ic ” al of Umm Al Qaywayn, Inc. "er - oe 6 ra ‘ x. 2 ‘ Oreat Peart Bank ; ‘ * commences iw ‘ = TE, ee 29 691-1990 1965S. 20 rep-1e9- 180-16) 1900-2089 Tran 50 Miles D-1 = « i. , ; ” Pi APPENDIX D aes ie hk Sewer” OLS eens “ i pat Same map as Appendix “C” with clarifying notations, shadings, om " - ay Pease | : and identifications added by Petitioner for Court’s convenience, 4 * . . z 7 - pe al safe wr, a P =o @ ‘ . vad a = Sana! 2", | | \ \ \y* a " 2°" ST nf ov) 3} - ‘ a Great Pearl Bank 2 i commences ia s +0 46 © A ayotning Chart NP a7or! 55° . eal 55° Longimde SG" Kom from G ss-pnane 1968-<019s0-eneann ens ; : re ete ny he ; 2 : Fat Pgs ; D pg? a wer aC otk ow se ~, * h. @ i's ’ . N- “ elon Published at the Adméraky, 30% July 1962. under 7 ‘Ai -~ re mee MP cen BAe Ze VMN... . . “ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2164%3A1. Public record. Not legal advice.