When Is International Law a Political Question?
July 12, 2023
In a provocative essay posted on SSRN, The Political Question Doctrine and International Law, TLB Advisor Curt Bradley looks at the historical relationship between the political question doctrine and international law, arguing that “the political question doctrine emerged in part to allow the political branches, rather than the courts, to make determinations about this country’s—and other countries’—rights and responsibilities under international law.”
Curt describes his essay as “descriptive, not normative.” But reading the essay left me feeling that the descriptive project has a normative purpose—to justify judicial deference to the political branches on questions of international law by giving such deference a historical pedigree. Near the end of the essay, Curt writes:
Recovering what foreign relations law scholars from an earlier era understood about the political question doctrine helps us better understand our foreign relations law today. The general theme is that U.S. courts follow the lead of the political branches when faced with questions concerning the rights and responsibilities of the United States and other countries under international law.
I agree with Curt that some questions of international law are political. The critical issue is how far one can extrapolate from those instances to say something about international law more generally.
Recognition and the Status of Treaties
Recognizing foreign governments and the extents of their territories have long been considered political questions in the United States. For example, Curt discusses Rose v. Himely (1808), in which the Supreme Court held that it was for the political branches to decide whether to recognize a French colony’s independence. Modern cases have taken the same position. Only recently, the Supreme Court held in Zivotofsky v. Clinton (2012) that the constitutional distribution of authority over recognition is not a political question and then held in Zivotofsky v. Kerry (2015) that such authority belongs exclusively to the executive branch. The fact that the Constitution vests the authority to recognize foreign governments with the President makes recognition a political question—that is, a question to be decided by a political actor rather than a court.
The same has long been true with respect to the status of treaties. As early as Ware v. Hylton (1796), Justice Iredell wrote with respect to British violations of the Paris peace treaty that Congress, not the courts, had the authority “to consider or declare it broken.” Curt discusses the later cases of Terlinden v. Ames(1902) and Charlton v. Kelly (1913), to the same effect. It was similarly up to the Senate to say whether a treaty was self-executing and up to Congress whether to supersede a treaty as domestic law by passing a later-in-time statute.
But there was another category of cases in which courts applied international law independently of the political branches. Although international law gave belligerent nations the right to capture enemy ships as prizes of war, the lawfulness of a capture had to be adjudicated by a prize court. “The Court of prize is emphatically a Court of the law of nations,” Justice Story wrote in The Adeline (1815).
“[I]t was general international practice—mandated by the law of nations—that states establish and maintain prize courts that would apply the law of nations to all of their belligerent captures of property on the seas,” David Golove and Daniel Hulsebosch have written. “Thus, the grant of admiralty jurisdiction to the federal courts—with their constitutionally guaranteed independence from the legislative and executive branches—was an important signal to European powers of the willingness and capacity of the new nation to uphold its legal obligations.”
From the quasi-war with France in the 1790s through the Spanish American War in 1898, federal courts applied international law to decide prize cases independently. They often held against U.S. captors, including in such famous cases as The Charming Betsy and The Paquete Habana. There was no political question doctrine in prize cases.
Act of State Doctrine
Curt’s essay also invokes the act of state doctrine as “related to the political question doctrine.” He starts with Oetjen v. Central Leather Co. (1918), in which the Supreme Court stated broadly that “[t]he conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative—‘the political’—departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.” He notes that “the Court in Baker [v. Carr (1964)]cited and quoted from Oetjen.”
It is true, of course, that Baker quoted this line from Oetjen. But it did so as an example of an overbroad statement about judicial incapacity and went on to caution that “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” As Curt notes, two years after Baker, in Banco Nacional de Cuba v. Sabbatino (1964)—another act of state case—the Court made the same point.
The Supreme Court’s most recent act of state decision, W.S. Kirkpatrick & Co. v. Environmental Tectonics(1990), goes further still in repudiating the notion that courts should stay out of foreign relations cases. Writing for a unanimous court, Justice Scalia rejected the Solicitor General’s suggestion that courts should simply defer to the executive branch’s view about whether a case should be dismissed on act of state grounds. “The act of state doctrine is not some vague doctrine of abstention,” he wrote. “Courts in the United States have the power, and ordinarily the obligation, to decide cases and controversies properly presented to them.”
I find it hard to see how the act of state doctrine supports the general proposition that questions of international law are questions for the political branches.
Foreign Official Immunity
It is with foreign official immunity that the respective roles of the judiciary and the executive with respect to international law are perhaps most contested. As Curt notes, starting in the late 1930s, the Supreme Court adopted a policy of deferring to the executive branch on questions of foreign sovereign immunity, in cases like Ex Parte Peru (1943) and Mexico v. Hoffman (1945). In 1976, Congress codified foreign state immunity in the Foreign Sovereign Immunities Act. Diplomatic and consular immunities are covered by treaties. But the immunities of other foreign officials are governed by customary international law and, as the Supreme Court held in Samantar v. Yousuf (2010), by federal common law.
After Samantar, the executive branch has relied on Peru and Hoffman to argue that courts are bound to follow the rules of foreign official immunity that it articulates and its determinations of immunity in particular cases. But, as Ingrid (Wuerth) Brunk and I have argued together at TLB and in other pieces elsewhere, this raises significant constitutional problems. Under the U.S. Constitution it is the President’s job to execute laws, not make them. As the Supreme Court reiterated in Medellín v. Texas (2008), “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”
Curt cites two cases, Manoharan v. Rajapaksa and Habyarimana v. Kagame, in which U.S. courts deferred to the executive’s determinations of foreign official immunity. But both cases involved head-of-state immunity. As an incident of his recognition power, it is well established that the President has authority to determine who is a foreign country’s head of state, and under both customary international law and federal common law, immunity from suit flows automatically from such a determination. In non-head-of-state cases, Chimène Keitner and I have shown (here pp. 715-16) that U.S. courts have looked to sources other than the executive branch for principles to apply.
This makes sense. Whereas determining the head of state of another country is a question of fact, determining the immunity to which a foreign official is entitled under customary international law and federal common law is a question of law. In my view, the State Department is entitled to deference on questions of customary international law, just as it is with respect to the interpretation of treaties. But deference is not obedience, and questions of foreign official immunity under customary international law are not political questions.
Curt’s essay is an important reminder of how the political question doctrine has applied historically to questions of international law, and it is well worth reading. But it would not be correct, in my view, to conclude that questions of international law are generally political questions to be answered only by the political branches.
The Supreme Court’s seminal decision in Baker v. Carr (1962) has something to say on this score. After cautioning that “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance,” Justice Brennan went on to say this:
Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action.
In the U.S. legal system, some questions of international law are political questions. But not all of them are.