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In dispute over interest on World War II reparations from Germany, Third Circuit finds that Joint Statement and 2000 Berlin Accords that provide for reparations fund are international political documents not enforceable contracts and do not confer private rights of action upon beneficiaries
The Berlin Accords came into being in July 2000 after intense negotiations to resolve long‑pending claims over Nazi‑era slave labor, forced labor, appropriations of personal property, and dishonored insurance policies. Germany and a consortium of German companies each agreed to contribute 5 billion German Marks to the Reparations Fund created by the Berlin Accords. The parties’ Joint Statement envisioned a collection schedule that would generate at least 100 million German Marks in interest. The parties, however, failed to transfer the funds as quickly as expected.
Several claimants, as third‑party beneficiaries, filed suit in New Jersey federal court to enforce the “interest” provision of the Joint Statement. Here, the Claimants argue that the defendant German companies “owe” interest on their payments to the reparations fund. The district court found the claims non‑justiciable and dismissed them.
On the first appeal, the Third Circuit reversed even though the claims did implicate foreign policy issues. On remand, the district court found that the Joint Statement is not a contract but a political document and thus does not confer a private right of action on the Claimants. The Claimants again appealed. The Third Circuit affirms, largely agreeing with the district court; it holds that the disputed interest provision in the Joint Statement did not create or confer a privately enforceable cause of action.
The appellate Court first recognizes the unique importance of the Berlin Accords. “‘July 17, 2000, was the occasion of one of the most remarkable diplomatic achievements since the end of World War II.’ … It was on that day that eight sovereign nations, a consortium representing numerous German companies, an international organization devoted to Nazi‑era claims, and U.S. Plaintiffs’ attorneys together signed the Joint Statement of the Berlin Accords.
Appellants cannot reasonably dispute the significant political nature of the talks leading to the Accords. Granted, one objective was to settle then‑pending U.S. litigation between the Plaintiffs and the Defendant German companies, but we [must] weigh that private aspect of the resolution against the Berlin Accords’ political, diplomatic, and historical significance.”
“The creation of the Berlin Accords was more than a mere settlement; it was a profound
expiation by the Federal Republic of Germany and the German companies. Indeed, from the start of the negotiations, Deputy Secretary Eizenstat, the lead U.S. negotiator, ‘was determined that the responsible foreign government [i.e., Germany], not just private companies, would have to be directly involved and directly engaged through a senior official who would be [Eizenstat’s] counterpart.’”
“We recognize that the Joint Statement is not a formal treaty; nevertheless, it constitutes part of the understanding reached among sovereign nations and private parties. Negotiations occurred during plenary sessions comprising high‑level executives of foreign nations. The signatories of the Joint Statement itself include the representatives of eight different nations. Further, the Joint Statement has meaning only in the context of the entire Berlin Accords.”
“Indeed, the Joint Statement by itself is incomplete, as it talks of the Foundation, but understanding what the Foundation is requires resort to the Foundation Law. In sum, the Joint Statement appears to be a unique document, the objectives of which are to memorialize the efforts of the diplomatic talks resolving both political and legal issues. Thus, for at least these reasons, we agree with the district court that the law of international agreements provides the appropriate jurisprudential guidance in the analysis of whether the Joint Statement creates a private cause of action.” [Slip op. 4]
To determine whether an international agreement creates a private cause of action, the Court first looks at its text. A court’s role in this regard is limited to giving effect to the intent of the treaty parties. Here, the text of the Joint Statement and the entire Berlin Accords support the district court’s conclusion. The parties did not intend to create a private cause of action. The purpose of the Berlin Accords is to bring about a lawful peace.
Furthermore, in line with political documents, it refers to “participants,” not “parties,” who “declare” rather than “undertake.” This choice of words strongly suggests that the document neither creates, nor allows for, privately enforceable rights.
Citation: Gross v. The German Foundation Industrial Initiative, 549 F.3d 605 (3rd Cir. 2008).
Filed in: 2008 International Law Update, Issue 11
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D.C. Circuit affirms dismissal of claims brought against United States by Indian Ocean islanders dispossessed by U. S. military base as non-justiciable political questions involving matters of foreign policy and national security entrusted to political branches
Plaintiffs here are the descendants of Chagossians. These peoples are indigenous residents of the Chagos Islands, British dependencies in the central Indian Ocean south of India.
They filed suit against the U. S., and several senior executive officials (defendants), alleging that the government had forcibly removed them from their homes in 1965 in order to build a military base. The plaintiffs specifically claimed forced relocation; torture; racial discrimination; cruel, inhuman, or degrading treatment; genocide; intentional infliction of emotional distress; negligence; trespass; and destruction of real and personal property.
The district court granted the defendants’ motions to dismiss all of the plaintiffs’ claims. The court held that the individual defendants were immune from suit under the Westfall Act, 28 U.S.C. Section 2679. The Act converts any claims against an employee of the federal government acting within the scope of his employment into claims against the U. S. under the Federal Tort Claims Act (FTCA).
The court dismissed the FTCA claims (1) because of plaintiffs’ failure to exhaust administrative remedies, and (2) because the alleged injuries arose on foreign soil, an exception to the FTCA’s waiver of sovereign immunity in Section 2680(k).
Turning then to the “political question” doctrine, the lower court dismissed the remaining claims against the U. S. for lack of subject matter jurisdiction. Bancoult v. McNamara, 370 F. Supp. 2d 1 (D.D.C 2004). On plaintiffs’ appeal, the U. S. Court of Appeals for the D.C. Circuit reviews the dismissals solely under the political question doctrine and affirms the district court’s judgment.
The Court initially notes that the nonjusticiability of a political question is primarily a function of the separation of powers, and applies the analytical framework laid out in Baker v. Carr, 369 U.S. 186, 217 (1962). The Court first concludes that the Constitution textually allocates foreign policy decisions to the political departments of the government, the Executive and Legislative branches. See Article I, Section 8 and Article II, Section 2.
Second, the Court recognizes that it lacks judicially manageable standards for resolving claims of this type. The Courts cannot recast U. S. foreign policy and national security questions in tort terms; that, for example, would require it to define standards for the government’s use of covert operations in conjunction with political turmoil in another country.
Finally, the Court admits that it cannot adjudicate whether the U. S. should or should not have taken drastic measures in the realms of foreign policy and national security, without expressing a lack of respect to the coordinate branches of government. For these reasons, the Court concludes that it lacks jurisdiction to decide this case. The decision to depopulate and set up a military base on the Chagos islands was an exercise of the foreign policy and national security powers entrusted by the Constitution to the political branches.
The same considerations that render the claims against the United States non-justiciable also block the claims against the individual defendants. “[W]e … hold that when the political question doctrine bars suit against the United States, this constitutional constraint cannot be circumvented merely by bringing claims against the individuals who committed the acts in question within the scope of their employment.” [Slip op. 10].
Citation: Bancoult v. McNamara, 445 F.3d 427 (D.C. Cir. 2006).
Filed in: 2006 International Law Update, Issue6
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In action for compensation by Austrian victims of Nazi confiscations, Second Circuit dismisses based on Political Question doctrine giving decisive importance to Executive Branch views on whether judicial decision would conflict with foreign policy interests of U.S.
A group of Holocaust victims and their representatives brought a putative class action against Austria, certain government agencies, and other Austrian entities arising out of property seizures by Nazi forces in Austria during the years 1938 to 1945. Among the defendants is an auction house allegedly owned by Austria which allegedly sold property seized from Austrian Jews.
The plaintiffs argued that the U.S. courts had jurisdiction based on exceptions to the Foreign Sovereign Immunities Act of 1976 (FSIA), Section 1330, 1602-11. Austria moved to dismiss based on sovereign immunity arguing that the court should not apply the FSIA retroactively to alleged events that took place before 1976. The U.S. Supreme Court, however, rejected this contention.
In remanding to the Second Circuit in June 2004, the Supreme Court left open the degree of deference a federal court should accord to views of the Executive Branch in asserting judicial jurisdiction over a foreign sovereign. See Republic of Austria v. Altmann, 541 U.S. 677 (2004); Republic of Austria v. Whiteman, 124 S.Ct. 2835 (2004).
The Second Circuit now takes up those issues. They include (1) Austria’s interlocutory appeal challenging the discovery order of the district court relating to subject-matter jurisdiction; and (2) Austria’s mandamus petition to compel the district court to rule on the defendants’ motion to dismiss. An executive agreement between the U.S. and Austria had created a compensation fund in 2001. The amici curiae, the U.S. government and the American Council for Equal Compensation of Nazi Victims from Austria, are asking the Court to dismiss this case. They stress that this case constitutes the only remaining bar to disbursing the Fund to Austrian Jewish victims of the Nazi regime. In a 2 to 1 split, the U.S. Court of Appeals for the Second Circuit vacates in part, dismisses in part, and remands in part.
The U.S. government claimed that it has been pursuing a consistent policy of resolving Holocaust victims’ claims through international agreements rather than by litigation. One of the results is the U.S.-Austria Executive Agreement of 2001 to set up the Fund in question. The Agreement makes distributions contingent on the dismissal of the present case.
The U.S. argued that negotiation and cooperation is the best way to resolve matters of Holocaust-era compensation. For example, unlike time-consuming litigation, the Fund process can more quickly and uniformly get compensation into the hands of elderly victims who are dying at an accelerating rate. Further, it helps the U.S. to keep up good relations with Israel and other countries with an interest in these matters.
“In light of the Supreme Court’s political question jurisprudence, as well as its recent rulings directing ‘case-specific deference’ to the expressed foreign policy interests of the United States, … we hold that deference to a statement of foreign policy interests of the United States urging dismissal of claims against a foreign sovereign is appropriate where, as here, (1) the Executive Branch has exercised its authority to enter into executive agreements respecting the resolution of those claims; (2) the United States Government (a) has established, through an executive agreement, an alternative international forum for considering the claims in question, and (b) has indicated that, as a matter of foreign policy, the alternative forum is superior to litigation; and (3) the United States foreign policy advanced by the Executive Agreement is substantially undermined by the continuing pendency of the claims.” [Slip op. 4]
“We therefore hold that plaintiffs’ claims against Austria and its instrumentalities must be dismissed as non-justiciable under the political question doctrine. In so holding, we defer to a United States statement of foreign policy interests in this particular litigation, which is the one remaining … obstacle to the implementation of the Agreement. …”
“We conclude that we cannot ‘undertak[e] independent resolution without expressing lack of the respect due’ the Executive Branch … Due to the ‘case-specific’ nature of our ‘deference to the political branches,’ Sosa, 124 S.Ct. at 2766 …, we need not determine whether any of these factors is necessary or sufficient for dismissal, and we merely conclude that the dismissal of a claim against a foreign sovereign is appropriate in the circumstances presented to us here.” [Slip op. 16]
Citation: Whiteman v. Dorotheum GmbH & Co. KG, 2005 WL 3117196, Nos. 02-9361(L), 02-3087 (CON) (2d Cir. November 23, 2005).
Filed in: 2005 International Law Update, Issue 11
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Based on political question doctrine, D.C. Circuit dismisses lawsuit against former National Security Advisor and Secretary of State, Henry Kissinger, for his alleged role in death of Chilean army general during 1970 overthrow
The plaintiffs in the following case are the children and personal representative of the Chilean general, Rene Schneider, who died during the 1970 coup d’Etat in Chile. In 2001, they sued the U.S. Government and former National Security Advisor, Henry Kissinger, in the District of Columbia federal court, alleging that the U.S. had a role in the abduction, torture and death of General Schneider.
According to plaintiffs, Socialist candidate Dr. Salvador Allende won a plurality of the vote in Chile’s 1970 presidential election. To prevent Allende from becoming president, U.S. “policymakers” considered a military coup. President Richard Nixon allegedly authorized $10 million toward such a goal. The then-U.S. Ambassador in Chile considered General Schneider an obstacle and recommended that he be “neutralized.”
The district court granted the Government’s motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) [lack of subject matter jurisdiction] and 12(b)(6) [failure to state a claim]. The U.S. Court of Appeals for the District of Columbia Circuit affirms, ruling that the claims raise non-justiciable political questions.
The Court first outlines the doctrine’s legal framework. “Contemporary application of the Political Question Doctrine … draws on the analysis set forth in Baker v. Carr, 369 U.S. 186 (S. Ct. 1962). The Baker Court first recognized that ‘the political question doctrine is ‘primarily a function of the separation of powers.’”
“‘ … In Baker, the Supreme Court enumerated six factors that may render a case nonjusticiable under the Political Question Doctrine: ‘… [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment of multifarious pronouncements by various departments on one question.’ Baker, 369 U.S. at 217 … The Baker analysis lists the six factors in the disjunctive, not the conjunctive. To find a political question, we need only conclude that one factor is present, not all.” [Slip op. 3]
With respect to the first factor, the Constitution commits the conduct of foreign relations to the Executive and Legislative Branches. Courts should not review such political matters. The second factor supports dismissal under Fed.R.Civ.P. 12(b)(1), because the court would have to determine whether it was proper 35 years ago to support covert action against a socialist regime. The Judicial Branch does not have intelligence sources, spies, or policy advisors, and is thus ill-equipped to review such decisions.”
“As for the third factor, the Court opines that it would have to evaluate the potential Allende Government in 1970 and then judge the Executive’s policy-based decision to use covert action to prevent Allende from becoming President. As for the fourth factor, this matter has already been investigated by Congress.”
As a result, at least the first four Baker factors suggest that this case involves non-reviewable political questions and is thus beyond the courts’ prudential jurisdiction.
Citation: Schneider v. Kissinger, 2005 WL 1513083 (D.C. Cir. June 28, 2005).
Filed in: 2005 International Law Update, Issue 7
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Following remand from U.S. Supreme Court, D. C. Circuit affirms dismissal of non-Japanese plaintiffs’ complaint against Japan for their sexual enslavement as “comfort women” in 1940s because review would entail interpretation of treaties to which U.S. does not belong thus involving political questions
The following case involves compensation claims by 15 Asian women from China, Taiwan, South Korea and the Philippines whom the Japanese army allegedly forced into sexual slavery before and during the Second World War.
The plaintiffs sued Japan in 2000 under the Alien Tort Claims Act (28 U.S.C. Section 1350) (ATCA). The district court for the District of Columbia dismissed the action based on foreign sovereign immunity and the “political question” doctrine. The U.S. Court of Appeals for the District of Columbia Circuit affirmed. The U.S. Supreme Court granted certiorari, vacated the judgment, and remanded. For further consideration in light of Republic of Austria v. Altmann, 541 U.S. 677 (2004), See 2004 International Law Update 91 & 169. See Hwang Geum Joo v. Japan, 124 S. Ct. 2835 (2004).
At the outset, the Court of Appeals here holds that it does not have to determine subject-matter jurisdiction before applying the political question doctrine. Here, the complaint does present a non-justiciable political question. Thus, the Court affirms the dismissal of the action.
The Court first rejects the plaintiffs’ argument that Japan’s acts fall under the “commercial activity” exception of the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. Section 1605(a)(2). Deeming it unnecessary to make the subject-matter jurisdiction determination of whether Japan is entitled to sovereign immunity, the Court turns to the political question issue.
Here, the treaties that Japan concluded after World War II foreclose the plaintiffs’ claims. Article 14 of the 1951 Treaty of Peace between Japan and the Allied Powers [3 U.S.T. 3169], for example, expressly waived all claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in furtherance of the war. Plaintiffs, however, contended that their respective governments were not parties to the 1951 Treaty.
“Even if we assume … that the 1951 Treaty does not of its own force deprive the courts of the United States of jurisdiction over [the plaintiffs'] claims, it is pellucidly clear [that] the Allied Powers intended that all war-related claims against Japan be resolved through government-to-government negotiations rather than through private tort suits.”
“Indeed, Article 26 of the Treaty obligated Japan to enter into ‘bilateral’ peace treaties with non-allied states ‘on the same or substantially the same terms as are provided for in the present treaty,’ which indicates the Allied Powers expected Japan to resolve other states’ claims, like their own, through government-to-government agreement.”
“To the extent the subsequent treaties between Japan and the governments of the [plaintiffs'] countries resolved the claims of their respective nationals, the 1951 Treaty at a minimum obliges the courts of the United States not to disregard those bilateral resolutions.” [Slip op. 4]
As for the plaintiffs’ home countries, the Philippines was, in fact, one of the Allied Powers. The other countries signed their own peace treaties with Japan which failed to allow for individual claims. The key question is whether the treaties’ failure to deal with individual claims preserved them for later enforcement. That issue, however, is not for a U.S. court to resolve.
“… The United States is not a party to the treaties the meaning of which is in dispute, and the Executive does not urge us to adopt a particular interpretation of those treaties. Rather, the Executive has persuasively demonstrated that adjudication by a domestic court not only ‘would undo’ a settled foreign policy of state-to-state negotiation with Japan, but also could disrupt Japan’s ‘delicate’ relations with China and Korea, thereby creating ‘serious implications for stability in the region.’”
“Consider: According to the [plaintiffs], the Republic of Korea does not agree with Japan’s understanding that the treaty between [sic] extinguished the [plaintiffs'] claims against Japan. … Is it the province of a court in the United States to decide whether Korea’s or Japan’s reading of the treaty between them is correct, when the Executive has determined that choosing between the interests of two foreign states in order to adjudicate a private claim against one of them would adversely affect the foreign relations of the United States? Decidedly not. …”
“We hold that the [plaintiffs'] complaint presents a nonjusticiable political question, namely, whether the governments of the [plaintiffs'] countries resolved their claims in negotiating peace treaties with Japan. In so doing we defer to ‘the considered judgment of the Executive on [this] particular question of foreign policy.’ … For the court to disregard that judgment, to which the Executive has consistently adhered, and which it persuasively articulated in this case, would be imprudent to a degree beyond our power.” [Slip op. 6-7]
Citation: Joo v. Japan, 2005 WL 1513014 (D.C. Cir. June 28, 2005). [Further background information is available on website www.comfort-women.org.]
Filed in: 2005 International Law Update, Issue 7
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In case of claims by Holocaust Survivors against Vatican Bank for alleged support to Croatian puppet regime during World War II, Ninth Circuit finds property claims justiciable
Here, 24 individuals and four organizations (jointly the “Holocaust Survivors”) claim that the Vatican Bank (officially known as Instituto per le Opere di Religione), the Order of Friars Minor, and the Croatian Liberation Movement (Hvratski Oslobodilacki Pokret) profited from the genocidal acts of the Croatian Ustasha regime which was supported by Nazi forces during the Second World War. The ill-gotten profits allegedly passed through the Vatican Bank.
The Holocaust Survivors’ claims include conversion, unjust enrichment, as well as human rights violations. They base jurisdiction on the Alien Tort Claims Act (ATCA), 28 U.S.C. Section 1350, the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. Section 1605, 28 U.S.C. Section 1331, as well as federal common law to the extent it incorporates customary international law and treaties. The Vatican Bank and the Order of Friars Minor moved to dismiss. The district court held that the political question doctrine barred the Holocaust Survivors’ claims in their entirety. This appeal ensued.
The U.S. Court of Appeals for the Ninth Circuit affirms in part and reverses in part.
In its view, the political question doctrine applies to some of the plaintiffs’ claims and some are justiciable. The doctrine, however, does not bar the Holocaust Survivors’ claims as to lost and looted property while the alleged human rights violations related to the Vatican Bank’s alleged aid are nonjusticiable.
There may be cases that involve foreign relations and are nevertheless justiciable. “Our conclusion is rooted in the principles of Baker v. Carr. Despite the dissent’s cataclysmic and speculative projections about the sweep of our opinion, our decision boils down to letting the common law property claims proceed to the next stage and foreclosing the political, human rights and war-related claims. In doing so, we respect the limits of our jurisdiction as a national court, recognize the role of the Executive in foreign relations, and stick to our role of interpreting the law.” [Slip op. 7]
As for the property claims, the fact that they are “politically charged” does not make them “political questions.” According to the complaint, the property claims are ordinary claims for the recovery of property. For instance, “50 advanced industrial Singer sewing machines” taken from the family of one plaintiff, as well as “money and other belongings including gold” taken from the mother and grandmother of another plaintiff.
In essence, the property claims lead to the ultimate question of whether the Vatican Bank is wrongfully holding any of the looted assets. This is a simple determination that courts make, and does not implicate the political branches of the Government.
The Court then applies the Baker v. Carr formulations to this case:
“Beginning logically with the first Baker test, we divine no explicit constitutional reference that is applicable in this case … Because the Property Claims do not raise questions ‘entrusted to one of the political branches or involving no judicially enforceable rights,’ … we fulfill our duty to say what the law is.” [Slip op. 36-45]
As for judicially discoverable and manageable standards, the Court notes that “[t]he Holocaust Survivors’ most straightforward claims involve identifiable personal property for which federal statutes, common law, state law, and well-established case law provide a concrete legal basis for courts to reach a reasoned decision. See, e.g., 28 U.S.C. Section 1605(a)(3) (providing an expropriation exception to sovereign immunity in certain cases involving ‘rights in property taken in violation of international law’) …” [Slip op. 48-49]
“Nor do we think that adjudicating the Property Claims will be impossible ‘without [making] an initial policy determination of a kind clearly for nonjudicial discretion.’ … The Property Claims focus on the extent to which the Holocaust Survivors were wrongfully deprived of personal property and the value of such property that was transferred to the Vatican Bank. Adjudicating these discrete issues will not require the court to make pronouncements on foreign policy or otherwise trigger the third Baker test.” [Slip op. 55]
“The fourth Baker test requires us to consider whether it would be impossible for the courts to resolve the Property Claims without expressing a lack of respect for the political branches. … As evidenced by the Vatican’s protest to the State Department, this case implicates foreign relations. Whether the court’s involvement would inevitably express a lack of respect for the Executive Branch’s handling of U.S.-Vatican relations, as well as relations with other foreign states, is a separate matter. … We conclude that judicial handling of the Property Claims will not run afoul of this fourth test.” [Slip op. 55-56]
As for the fifth Baker formulation, “[w]e see no concern that judicial handling of the Property Claims will involve ‘an unusual need for unquestioning adherence to a political decision already made.’ … Indeed, this case is before us not because the Holocaust Survivors disagree with a political decision made regarding their claims, but rather because there simply has been no decision. … Because of the lack of a policy decision on point, we do not reach the question posed by the fifth Baker test whether there is an ‘unusual need for unquestioning adherence’ thereto.” [Slip op. 62-63]
“The only question remaining is whether adjudicating the Property Claims would ‘cause the potentiality of embarrassment from multifarious pronouncements by various departments on one question.’ … On the contrary, this case is marked by the absence of ‘pronouncements’ by the political branches regarding the resolution of claims to the Ustasha treasury.”
“In the landscape before us, this lawsuit is the only game in town with respect to claimed looting and profiteering by the Vatican Bank. No ongoing government negotiations, agreements, or settlements are on the horizon. … In sum, none of the Baker formulations is ‘inextricable’ from the Property Claims. … The Holocaust Survivors have presented a justiciable controversy.” [Slip op. 63-65]
The Holocaust Survivors’ allegations that the defendants assisted the Ustasha regime present a nonjusticiable political question (“War Objectives Claims”). It is not the Court’s task “to step in a half-century later and condemn the Vatican Bank and related parties for ‘participating in the activities of the Ustasha Regime in furtherance of the commission of war crimes, crimes against humanity, [and] crimes against peace.’ We are not a war crimes tribunal. To act as such would require us to ‘intrude unduly on certain policy choices and value judgments that are constitutionally committed to [the political branches,]‘ …” [Slip op. 69] Neither are the slave labor claims justiciable.
Citation: Alperin v. Vatican Bank, Nos. 03-15208 & 03-16166, 2005 WL 878603 (9th Cir. 2005); The Jerusalem Post, April 20, 2005, page 6; Israel Faxx, April 20, 2005.
Filed in: 2005 International Law Update, Issue4
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Eleventh Circuit upholds dismissal of constitutional challenge to NAFTA as political question, and, as matter of first impression, ponders question of whether NAFTA constituted “treaty” under Article II of Constitution
The Made in USA Foundation, along with several labor organizations, sued the United States, arguing that the North American Free Trade Agreement (NAFTA) is unconstitutional.
After the U.S., Mexico and Canada had concluded NAFTA on December 17, 1992, the U.S. Congress passed the NAFTA Implementation Act, approving NAFTA and providing for several implementing laws (Pub. Law No. 103-182, 107 Stat. 2057 (1993), codified at 19 U.S.C. Sections 3301-3473). Thus, neither NAFTA nor the Implementation Act went through the ratification procedures of the Treaty Clause of the Constitution whereby two-thirds of the Senate would give its consent.
An Alabama federal court granted the U.S.’ summary judgment motion, and the plaintiffs appealed. This case presented an issue of first impression in the Eleventh Circuit, i.e., whether certain kinds of international commercial agreements are “treaties” (see Article II, Section 2 of the U.S. Constitution), and if so, whether the Treaty Clause provides the sole means of enacting such agreements into law. The U.S. Court of Appeals for the Eleventh Circuit dismisses the appeal, and remands with instructions to dismiss the action and vacate the decision of the district court.
The U.S. Supreme Court has never decided which international agreements require Senate ratification under Article II, Section 2 and which do not. First, the Circuit Court finds that the plaintiffs do in fact have standing because they are alleging injuries that open trade under NAFTA has caused them. Moreover, they claim that, if the courts were to invalidate NAFTA, U.S. consumers would buy more U.S. products rather than imports.
Second, the Court essentially agrees with the Government’s argument that the Constitution fails to define the term “treaty” or proper procedures for approving international commercial agreements. Rather, it gives the choice of what procedure to use for a given agreement to the Legislative and Executive Branches, a principle crystallized in the “political question” doctrine.
To determine this issue, the Court uses the three-pronged inquiry proposed by Justice Powell’s concurrence to Goldwater v. Carter, 444 U.S. 996, 998 (1979): (1) whether the issue involves resolution of questions committed by the text of the Constitution to a coordinate branch of government; (2) whether resolution of the question demands that a court move beyond areas of judicial expertise; and (3) whether prudential considerations counsel against judicial intervention.
The first issue counsels against reaching the merits of this case. “We … have little doubt that courts have the authority — indeed, the duty — to invalidate international agreements which violate the express terms of the Constitution. Nonetheless, with respect to commercial agreements, we find that the Constitution’s clear assignment of authority to the political branches of the Government over our nation’s foreign affairs and commerce counsels against an intrusive role for this court in overseeing the actions of the President and Congress in this matter.” [Slip op. 38]
As for the second issue, the Court readily agrees with the Government that this case is beyond judicial expertise. “We … find the disposition in Goldwater instructive, if not controlling, in that the Supreme Court declined to act because the constitutional provision at issue does not provide for an identifiable textual limit on the authority granted by the Constitution. [Cit.] Indeed, just as the Treaty Clause fails to outline the Senate’s role in the abrogation of treaties, we find that the Treaty Clause also fails to outline the circumstances, if any, under which its procedures must be adhered to when approving international commercial agreements.” [Slip op. 42] Here, the plaintiffs themselves failed to offer a workable definition of “treaty,” contenting themselves with arguing that “major and significant” agreements require Senate approval under Article II, Section 2.
As for the third issue, the Court notes that prudential factors such as the necessity of federal uniformity, and the potentially adverse effect on foreign relations, counsel against reaching the merits of the case.
“A judicial declaration invalidating NAFTA at this stage would clearly risk ‘the potentiality of embarrassment from multifarious pronouncements by various departments on one question.’ [Cits.] …[W]e believe in this case that a challenge to the procedures used to enact NAFTA is inextricably bound to its substantive provisions, inasmuch as a judicial declaration invalidating NAFTA would be aimed at forcing the withdrawal of U.S. participation in the agreement, with serious repercussions for our nations external relations with Mexico and Canada.”
“A judicial order contradicting the action of the President and Congress could also have a profoundly negative effect on this nation’s economy and its ability to deal with other foreign powers. Significantly, granting the appellant’s requested relief in this case would not only affect the validity of NAFTA, but would potentially undermine every other major international commercial agreement made over the past half-century.” [Slip op. 50]
Citation: Made in USA Foundation v. United States, No. 99-13138 (11th Cir. February 27, 2001.
Filed in: 2001 International Law Update, Issue 3
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Eleventh Circuit upholds dismissal of damage claims by Turkish sailors injured by U.S. missiles during NATO exercises as involving political question
On October 1, 1992, during 1992 NATO training exercises in the Mediterranean, a Sparrow missile crew on the USS Saratoga accidentally fired two live missiles that struck a Turkish naval vessel causing several deaths and many injuries.
Three hundred survivors and representatives of victims sued the U.S. for damages under the Public Vessels Act and the Death on the High Seas Act. The district court gave summary judgment to the U.S. on the grounds that the case involved non-justiciable political questions. The plaintiffs took an appeal.
The U. S. Court of Appeals for the Eleventh Circuit affirms. The justiciability of a controversy does not depend upon the existence of a federal statute, but upon whether judicial resolution of that controversy would be consonant with the separation of powers. Foreign policy and military affairs often implicate the political question doctrine. The U.S. Supreme Court has generally declined to reach the merits of cases requiring review of military decisions, particularly when those cases challenged the institutional functioning of the military.
In the Court’s view, the case at bar involves a non-justiciable political question. The underlying events deal with two nations taking part in a simulated NATO training exercise. The relationship of the U.S. with its political allies is a matter of foreign policy which the Constitution commits to the executive and legislative branches. Furthermore, there are no judicially discoverable and manageable standards for resolving the question at bar. To determine whether the U.S. Navy was negligent, a court would have to determine how a reasonable military force would have conducted the drill. Courts have very little, if any, competence in this area. Courts also lack standards with which to assess whether the Navy took reasonable care to achieve military objectives with minimal risk of injury and loss of life.
This case would require that courts second guess initial policy decisions which lie in the area of military discretion. To interject tort law into the realms of foreign policy and military decision-making would unduly interfere with military effectiveness.
Citation: Aktepe v. United States, No. 96-2167 (11th Cir. February 20, 1997).
Filed in: 1997 International Law Update, Issue 5