have been able to identify but for its surveillance operations within the United States. Did the United States government breach a duty owed Tinarian aliens under international law by failing to take steps to prevent their surveillance?

Under the predominant view27 a state is responsible under international law, for injury to an alien caused by conduct subject to its jurisdiction, provided that the conduct in question is attributable to the state and wrongful under international law. 28 The term "conduct" includes both acts and omissions29 attributable to the state. Conduct is wrongful if it (a) departs from the international standard of justice, 30 or (b) constitutes a violation of an international agreement. 31

Although the "international standard of justice" required is not altogether clear, the State Department has argued that, with respect to injuries caused by private persons, it is the duty of a government to "exercise reasonable care to prevent such injuries. "32 "Due diligence" is the term employed by the Harvard Draft Convention on the International Responsibility of States for Injuries to Aliens:33 "A State not only has a duty to protect aliens . . . it likewise has an obligation to protect aliens in the territory of other States from wrongful acts which may have their origin within territory under its control."34

Under the hypothetical, violations of internationally recognized human rights were perpetrated against foreign nationals upon their return to their home state. Those acts had their origin in THRUSH surveillance conducted in the United States. 35 The United States did

27. A minority of states take the position that a state need grant only equality of treatment to nationals and non-nationals to fulfill its international obligations. J. BRIERLY, The Law of NATIONS, 278-79 (H. Waldock 6th ed. 1963).

28. Restatement (Second) of the Foreign Relations Law of the United States § 164 (1965).

29. Id. 30. Id.

31. Id.

32. Letter from the Assistant Legal Adviser for International Claims (English) to John W. Smetana, July 17, 1957 reprinted in 8 M. WHITEMan, Digest of International Law 738 (1970).

33. Article 13 states:

1. Failure to exercise due diligence to afford protection to an alien, by way of preventive or deterent measures, against any act wrongfully committed by any person, acting singly or in concert with others, is wrongful:

(a) if the act is criminal under the law of the state concerned; or

(b) the act is generally recognized as criminal by the principal legal systems of the world.

Draft Convention on the International Responsibility of States for Injuries to Aliens, Art. 13(1), (Draft No. 12, Apr. 15, 1961) (Reporters Sohn and Baxter, Harvard Law School).

34. Id. A State may be put on notice of a special duty to protect an alien if there has been violence against him or against groups of aliens or nationals of a particular state . . . have been threats of such violence and criminal conduct." Id.

35. See infra note 42.

or if there

little to prevent those acts of surveillance and, indeed, acquiesced in them. 36

2. Sovereignty and Police Functions

In the hypothetical, Tinaria's secret police, THRUSH, engaged in covert intelligence collection within the United States by gathering information about dissident students through a network of paid student informants.

Article 2(4) of the United Nations Charter provides that all members “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state. "37 This principle was elaborated upon by the General Assembly in 1970 in the Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States, 38 which provides that “all . . . forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law.”39

Pursuant to these general precepts, customary international law proscribes the exercise of sovereign power within the territory of another state without its consent.40 Police activities are a function of sovereign power. Whether enforcement activities pursued in the territory of another state would necessarily offend the sovereignty of that state is unclear. Under the prevailing view all activities related to law enforcement would offend the sovereignty of the host state. 41 A less restrictive position would proscribe only activities actually illegal under the law of the host state. Under this view, assassination or at

36. See supra text accompanying notes 21, 22.

37. U.N. CHARTER art. 2, para. 4.

38. G.A. Res. 2625, 25 U.S. GAOR Supp. (No. 28) at 121, U.N. Doc. A/8028 (1970). 39. Id. at 123.

40. S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J., Ser. A., No. 10, at 20 (“the first and foremost restriction imposed by international law upon a state is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another state"). See Akehurst, Jurisdiction in International Law [1972–73], 46 BRIT. Y.B. INT'L L. 145– 51. The United States, in a note to the Soviet Embassy in Washington, dated August 19, 1948, stated that "the United States cannot permit the exercise within the United States of the police power of any foreign government." Note from Under Secretary of State Lovett to the Soviet Embassy at Washington (Aug. 19, 1948), reprinted in 8 M. WHITEMAN supra note 32, 384 (1967). The note was sent in response to the demand of the Soviet Consulate General in New York City for the return of a Soviet citizen who sought asylum in the United States. For a discussion of this incident, see Borchard, The Kasenkina Case, 42 Am. J. INT'L. L. 858 (1948). For purposes of the "waiver" of sovereign rights it would seem reasonable to view acquiescence

as consent.

41. See The Schooner Exchange v. McFadden, 11 U.S. (7 Cranch) 116, 136 (1812). In Nevada v. Hall, 440 U.S. 410, 416-17 (1979), Justice Stevens, writing for the Court, favorably included Chief Justice Marshall's Schooner Exchange observation that any exceptions to a state's territorial sovereignty must be traced to the state's consent to the exceptions. Hall concerned the refusal of a California court to recognize Nevada's sovereign immunity claim, a refusal upheld by the Court.

tempted assassination would constitute exercises of police power in violation of international legal precepts, whereas simply following persons or infiltrating meetings would not.

a. Surveillance Leading to Sanctions

Physical surveillance, in and of itself, harms no one and is not unique to police activity. In the realm of intelligence operations, however, surveillance is infrequently conducted as an end in itself. It is carried out as a means of harassing or intimidating the subject. Furthermore, surveillance provides information for use in "countering" the subject upon her return to her home state, and for acts of retaliation against her relatives. 42 Since surveillance in the United States leads directly to these acts of violence abroad and restricts the exercise of free speech by other nationals of that state living in the United States, 43 such surveillance would seem to interfere with the sovereignty of the United States.

b. The Question of Consent

Police activities conducted in the United States by foreign intelligence agencies are an offense against United States sovereignty unless the United States consents to them. Did the United States in the hypothetical described above consent to the performance of police functions in its territory by THRUSH? Under the hypothetical facts the CIA (and to some extent the FBI) and THRUSH were engaged in a symbiotic relationship. The consequences of this pattern of cooperation, under both international and domestic law, depend in part upon whether it constitutes an agreement.

i. Did An International Agreement Exist?

The International Court of Justice has ruled that a state may be bound legally in some circumstances without an exchange of express

42. An Amnesty International report describes Iranian legislation under which Iranians have been held upon their return home:

[T]he Act for the punishment of persons acting against the security and independence of the state (1931) provides for the punishment of persons "forming or belonging to organizations opposed to the monarchy, or having a collectivist ideology" {and_those} “acting against the constitutional monarchy outside Iran." Sentences under these articles range from three years' imprisonment to death. A report in Kayhan, Teheran's largest daily newspaper, on 20 August 1975 stated that penalties for some of the above offences were to be increased. In practice this would mean that an Iranian who returned to Iran from abroad could be sentenced to life imprisonment, solely for participation in political activities outside Iran

[Q]uite apart from the shortcomings of the legal system . . . this legislation is so loosely interpreted that it can be used to punish even the mildest opposition to the regime. Amnesty International Briefing, supra note 3, at 2.

43. See infra text accompanying notes 73–76.

50-408 0-85——6

.

"46

promises. 44 Accordingly, the State Department will examine this possibility when determining what constitutes an agreement.45 "[A]gency level agreements are international agreements [T]he fact that an agreement is signed by a particular department or agency of the United States Government is not determinative. Agencies can and do bind the United States Government in international law Moreover, the so-called "Rush Letter"47 requires all government agencies to transmit to the State Department "any agreements of political significance . . . and any that involve .continuing or substantial cooperation in the conduct of a particular program or activity including the exchange or receipt of information and its treatment. "48 One may reasonably conclude that the pattern of conduct characterizing the relationship between THRUSH and the CIA, under the hypothetical, implied an international agreement.

ii. The Case Act

...

Under the hypothetical the CIA did not inform the State Department of any agreement it made with THRUSH. The Case Act49 provides that:

The Secretary of State shall transmit to the Congress the text of any international agreement (including the text of any oral international agreement, which agreement shall be reduced to writing) other than a treaty, to which the United States is a party as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than 60 days thereafter. 50

The parenthetical phrase was added to the Act in 1978.51 The Senate Foreign Relations Committee explained that the purpose of the amend

44. Nuclear Tests (Austl. v. Fr.), 1974 I.C.J. 253; Nuclear Tests (N.Z. v. Fr.), 1974 I.C.J. 457. See also Franck, Word Made Law: The Decision of the ICJ and the Nuclear Test Cases, 69 AM. J. INT'L L. 612 (1975).

45. State Department Airgram to All Diplomatic Posts Concerning Criteria for Deciding What Constitutes an International Agreement (March 9, 1976), reprinted in 1 M. GLENNON & T. FRANCK, United States Foreign Relations Law 14 (1980).

Id. Other criteria are the significance of the arrangement; requisite specificity, including objective criteria for determining enforceability; the necessity for two or more parties to the arrangement; and form. There probably were not, in this instance, any “objective criteria for determining enforceability," and the customary form—"style, final clauses, signatures, entry into force dates, etc."clearly was not used. On the other hand, “[i]f the general content and context reveal an intention to enter into a legally binding relationship, the lack of proper form will not be decisive." Id. 46. Id.

47. Id., at 339.

48. Id.

49. The Case-Zablocki Act, 1 U.S.C. § 1126 (1976 & Supp. III 1979).

50. 1 U.S.C. § 1126 (1976 & Supp. III 1979).

51. Pub. L. No. 95-426, § 708, 92 Stat. 993 (1978).

ment was to "require the transmission of intelligence-sharing and intelligence liaison agreements, many of which are oral."52

If an international agreement were found to exist, the law would require that the text be transmitted to Congress. In the hypothetical above, no such transmittal occurred.

iii. Liaison Agreements and Human Rights

Under international law, the CIA-THRUSH agreement is probably invalid. First, precepts of the sort set forth in the 1948 Universal Declaration of Human Rights" are binding on states as part of customary international law. 54 Acquiescence by the United States government in THRUSH activities in the United States (activities that led to arrest, torture, cruel, inhumane and degrading punishment, and prolonged Tinarian detention without charges or trial) would constitute a violation. If the Universal Declaration of Human Rights is viewed as a legal adjunct to the United Nations Charter, and thus as a binding treaty obligation," article 103 of the Charter would void

52. S. REP. No. 842, 95th Cong., 2d Sess. (1978), reprinted in 1 M. GLENNON & T. FRANCK, supra note 45, at 177.

Upon passage of the bill by the Senate, the Deputy Director of the CIA, Frank Carlucci, wrote the Chairman of the Senate Foreign Relations Committee to "express the concerns" of the Agency about the provision. Mr. Carlucci continued:

[I]n terms of intelligence equities, the provisions of section 501 of S. 3076 that relate to oral agreements could have a serious negative impact on intelligence activities conducted pursuant to the Director's authority which may involve, for example, liaison relationships with foreign counterparts. This impact could extend not only to the Director's liability to protect sensitive intelligence information from disclosure, but to our ability in the first instance to maintain certain authorized intelligence relationships, which are dependent on the willingness of foreign entities to deal with us. For these reasons, we would oppose inclusion in legislation of the provisions . . . relating to oral agreements.

Letter from Frank C. Carlucci, Deputy Director of the CIA, to Sen. John Sparkman, Chairman, Senate Foreign Relations Committee (July 7, 1978) reprinted in 1 M. GLENNON & T. FRANCK, supra note 45, at 185-88.

53. Relevant provisions of the Universal Declaration of Human Rights, G.A. Res. 217A III, U.N. Doc. A/810 (1948), include the right to be free from distinction "made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs" (art. 2); the right to “life, liberty, and the security of person" (art. 3); the right to equality before the law and "without any discrimination to equal protection of the law" (art. 7); the right to an effective remedy for "acts violating the fundamental rights granted . . . by the constitution or by law" (art. 8); the right to “protection of the law” against “arbitrary interference with... privacy, family, home, or correspondence" (art. 12); the right to “seek and to enjoy in other countries asylum from persecution" (art. 14); the right to "hold opinions without interference and to seek, receive, and impart information and ideas" (art. 19); and the right to "freedom of peaceable assembly and association" (art. 20).

54. See, e.g., Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276, 1971 I.C.J. 16 (separate opinion of Judge Ammoun); Montreal Statement of the Assembly For Human Rights (1968), reprinted in 9 J. INT'L COmm. Jur. No. 1, 94, 95 (1968); Declaration of Teheran, Final Act of the International Conference on Human Rights 3, at 4, para. 2, U.N. Doc. A/CONF 32/41 (1968); R. LILLICH & F. Newman, INTERNATIONAL HUMAN RIGHTS: PROBLEMS Of Law 7 (1979).

55. See infra notes 156-60 and accompanying text.