Litigation Responsibility of the Attorney General in Cases in the International Court of Justice

Litigation Responsibility of the Attorney General in
Cases in the International Court of Justice
Under 28 U.S.C. §§516 and 519, the conduct and supervision of litigation in which the
United States is a party is reserved to the A ttorney General, except as otherw ise
authorized by law; under 5 U.S.C §3106, other agencies shall not conduct litigation,
but shall refer the m atter to the D epartm ent of Justice.
The A ttorney G eneral’s authority and responsibility to conduct litigation extends to
litigation in foreign and international tribunals, including litigation affecting foreign
relations of the United States, and contentious litigated proceedings before the Interna­
tional Court of Justice are thus within his supervisory power.
April 21, 1980
T h e L e g a l A d v is e r o f t h e D e p a r t m e n t o f S t a t e
My D e a r S i r : I have your letter of March 7, 1980, concerning repre­
sentation of the United States in the International Court of Justice. The
letter and attached memorandum raise the question of the applicability
of the litigation responsibility of the Attorney General to cases in the
International Court of Justice.
Two provisions, 28 U.S.C. §§516 and 519, reserve to the Attorney
General “the conduct of litigation in which the United States . . . is a
party.” A third, 5 U.S.C. § 3106, states the obverse of the same proposi­
tion—that other agencies shall not conduct litigation in which the
United States is party but shall refer the matter to the Department of
Justice. All three allow for exceptions “as otherwise authorized by
law.”
It seems plain that bringing a contentious or litigated proceeding
before the International Court of Justice, as was done in United States
v. Iran, is the conduct of litigation in which the United States is a
party. In any case concerning the interpretation of a statute, the starting
point must be the language of the statute itself. Lewis v. United States,
48 U.S.L.W. 4205, 4207 (U.S. Feb. 27, 1980). You suggest, however,
that this principle ought not conclude the matter, and we therefore turn
to the reasons that you offer.
Your memorandum analyzes the legislative history of the pertinent
statutes and concludes that 28 U.S.C. § 516 is not applicable here. You
point out that the 1966 codification was not intended to change the
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law. S. Rep. No. 1380, 89th Cong., 2d Sess. 20-21 (1966).' Neverthe­
less, the analysis concerning §516 of Title 28, states, “The section
concentrates the authority for the conduct of litigation in the Depart­
ment of Justice.” S. Rep. No. 1380, supra, at 205 which now appears as
28 U.S.C. §516, note.2 In commenting on this provision, the courts
have recognized that the Attorney General’s litigation power was
meant to be “pervasive,” S & E Contractors, Inc. v. United States, 406
U.S. 1, 12 (1972), and “[i]f any [litigation] is conducted, it shall be done
by the Department of Justice.” United States v. Daniel, Urbahn, Seelye
and Fuller, 357 F. Supp. 853, 858 (N.D. 111. 1973).
It is true that the section was revised “to express the effect of the
law,” 28 U.S.C. §516, note. If there had been preexisting law “other­
wise authorizing” the State Department to conduct litigation independ­
ent of the Attorney General, then a different result would be indicated.
Such authorization must be specific, however, to be viewed as an
exception to “the Attorney General’s plenary power over government
litigation.” ICC v. Southern Ry. Co., 543 F.2d 534, 537-38 (5th Cir.
1976). Not only is there no preexisting statute, but it appears that there
is no formal opinion or agreement covering this matter that could be
viewed as having the status of law.3
You suggest that the statute is limited in its applicability to domestic
courts and that another interpretation would interfere with the ability
of the Secretary of State to conduct the foreign affairs of the United
States. The responsibility of the Attorney General has not, however,
been limited to litigation in domestic courts. 28 C.F.R. § 0.46. This
Department regularly supervises litigation in courts in foreign countries.
Such litigation frequently raises questions of international law and af­
fects foreign relations of the United States. Domestic litigation has also
involved both foreign relations and international law questions fully as
much as cases in the International Court of Justice.4 This fact does not,
however, lessen the responsibility of the Attorney General for the
conduct of such litigation. At the same time, the Department of Justice
l T he statements you cite in the com m ittee reports, w hich indicate that there are no “substantive
changes,” refer directly to the enactm ent o f T itle 5 and not to am endm ents to Title 28.
2T he language of the law conferring litigation authority prior to 1966 was narrow er, referring only
to suits in the Supreme Court and the C ourt o f Claims. 5 U.S.C. § 306 (1964).
3 T he effect and relevance o f the early practice cited is not clear since, with the establishment of the
D epartm ent o f Justice in 1870, the A ttorney G eneral assumed responsibility for the legal w ork o f the
D epartm ent o f State. Until 1931, the Solicitor of the State D epartm ent was an employee o f the
D epartm ent o f Justice. R. Bilder, The Office o f the Legal Adviser, 56 Am J. Int’l L. 633, 634 (1962).
T he last significant litigated or contentious case prior to 1966, when §516 was enacted, was
Interhandel, w hich lasted from 1957 to 1959, and w here representatives of both the Justice and State
D epartm ents appeared as co-agents. See 1957 I.C.J. 105, 107-08. T he present case, United States
Diplomatic and Consular S taff in Tehran, is the first contentious case in the I.C.J. involving the United
States since enactm ent o f 28 U.S.C. § 516. O ther United States involvem ent in International C ourt of
Justice proceedings since 1966 has related to advisory opinions.
4 F or example, a proposed treaty w ould vest the International C ourt of Justice with jurisdiction to
resolve fisheries and O uter Continental Shelf boundary disputes with Canada. T he issues closely
resemble litigation conducted by the D epartm ent of Justice presenting the very kinds o f issues, both
factual and legal, that are raised in dom estic litigation.
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recognizes the need for close cooperation with the State Department
on matters affecting foreign relations or with any other agency which
has specialized experience necessary to the conduct of litigation.
I conclude, therefore, that litigated proceedings before the Interna­
tional Court of Justice are within the supervisory power committed to
the Attorney General by 28 U.S.C. §§516, 519, and 5 U.S.C. §3106.
This does not mean, of course, that this Department intends to carry
out this responsibility without the fullest participation by your Office.
We look forward to such a continuing relationship.
Sincerely,
B e n j a m i n R. C i v i l e t t i
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