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straint upon the exercise of its jurisdiction to pass on that question. 18 international obligation. If international law does not prescribe use of the
This Court has never had occasion to pass upon the so-called Bern- doctrine, neither does it forbid application of the rule even if it is claimed
skin exception, nor need it do so now. For whatever ambiguity may be that the act of state in question violated international law. The traditional
thought to exist in the two letters from State Department officials on view of international law is that it establishes substantive principles for
which the Court of Appeals relied, 19 307 F.2d, at 858, is now removed determining whether one country has wronged another. Because of its
by the position which the Executive has taken in this Court on the act of peculiar nation-to-nation character the usual method for an individual to
state claim; respondents do not indeed contest the view that these .let- seek relief is to exhaust local remedies and then repair to the executive
ters were intended to reflect no more than the Department's then wish authorities of his own state to persuade them to champion his claim in
not to make any statement bearing on this litigation. diplomacy or before an international tribunal. See United States v.
The outcome of this he, therefore, turns upon whether any of the Diekelman, 92 U.S. 520, 524. Although it is, of course, true that
contentions urged by respondents against the application of the act of United States courts apply international law as part of our own in ap-
state doctrine in the premises is acceptable: (1) that the doctrine does propriate circumstances, Ware v. Hylton, 3 Dall. 199, 281; The Nereide,
not apply to acts of state which violate international law, as is claimed to 9 Cranch 388, 423; The Paquete Habana, 175 U.S. 677, 700, 20 S.Ct.
be the case here; (2) that the doctrine is inapplicable unless the Execu- 290, the public law of nations can hardly dictate to a country which is in
tive spenf~cally interposes it in a particular case; and (3) that, in any theory wronged how to treat that wrong within its domestic borders.
event, the doctrine may not be invoked by a foreign govemment plain- Despite the broad statement in Oegen that "The conduct of the
tiff in our courts. foreign relations of our Government is committed by the Constitution
to the Executive and Legislative * * Departments," 246 U.S., at 302,
38 S.Ct. at 311, it cannot of course be thought that "every case or wn-
Preliminarily, we discuss the foundations on which we deem the act troversy which touches foreign relations lies beyond judicial cog-
of state doctrine to rest, and more particularly the question of whether nizance." Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691. The text of
state or federal law governs its application in a federal diversity case. 20 the Constitution does not require the act of state doctrine; it does not ir-
We do not believe that -thisdoctrine is compelled either by the in- revocably remove from the judiciary the capacity to review the validity
herent nature of sovereign authority, as some of the earlier decisions of foreign acts of state.
seem to imply, see Underhill, supra; American Banana, supra; Oebien, The act of state doctrine does, however, have "constitutional" un-
supra, 246 U.S. at 303,38 S.Ct. at 311, or by some principle of interna- derpinnings. It arises out of the basic relationships between branches of
tional law. If a transaction takes place in one jurisdiction and the forum is govemment in a system of separation of powers. It concerns the wmpe-
in another, the forum does not by dismissingan action or by applying its tency of dissimilar institutions to make and implement particular kinds
own law purport to divest the fmt jurisdiction of its territorial of decisions in the area of international relations. The doctrine as for-
sovereignty; it merely declines to adjudicate or makes applicable its own mulated in past decisions expresses the strong sense of the Judicial
law to parties or property before it. The refusal of one country to enforce Branch that its engagement in the task of passing on the validity of
the penal laws of another (supra, pp. 932-933) is a typical example of an foreign acts of state may hinder rather than further this country's pur-
instance when a court will not entertain a cause of action arising in suit of goals both for itself and for the community of nations as a whole
another jurisdiction. While historic notions of sovereign authority do in the international sphere. Many commentators disagree with this view;
bear upon the wisdom of employing the act of state doctrine, they do they have striven by means of distinguishing and limiting past decisions
not dictate its existence. and by advancing various considerations of policy to stimulate a narrow-
That international law does not require application of the doctrine is ing of the apparent scope of the rule. Whatever considerations are
evidenced by the practice of nations. Most of the countries rendering thought to predominate, it is plain that the problems involved are u-
decisions on the subject fail to follow the rule rigidly. No international niquely federal in nature. If federal authority, in this instance this Court,
arbitral or judicial decision discovered suggests that international law orders the field of judicial competence in this area for the federal courts,
prescribes recognition of sovereign acts of foreign govements, see 1 and the state courts are left free to formulate their own rules, the pur-
Oppenheim's International Low, 8 115aa (Lauterpacht, 8th ed. 1955), poses behind the doctrine could be as effectively underminded as if
and apparently no claim has ever been raised before an international tri- there had been no federal pronouncement on the subject.
bunal that failure to apply the act of state doctrine constitutes a breach of

la. The letter stated: . . . [Wle are constrained to make it clear that an issue concerned with
I. 'Ibis government has consistently o m the forcible am of dispass&on of a dk- a basic choice regarding the competence and function of the Judiciary
criminatory and confiscatory nature praniced by the Gennans on the countries or peoples subject
...
to their controls. and the National Executive in ordering our relationships with the other
members of the international community must be treated exclusively as
3. The policy of the Executive, with respect to claims asserted in the United Slates for the an aspect of federal law. 23
restitution of identiliable property (or compensation in lien themi) lost Ulrough force, coercion.
or duress as a result of Nazi pexcution in Germany, is to relieve American courts from any
remain1 upon the exercise of their jurisdiction to pass upon the validity of the acts of Nazi oRi-
nals. Slate Department Res Release, April 27, 1949,20 Dept. Slate Bull. 592. If the act of state doctrine is a principle of decision biding on federal
19. Abram Chayea. the LegalAdvisor to theStaIe Department. wrote onOctober 18.1961. and state courts alike but compelled by neither international law nor the
in answer to an inquiry regarding the position of the Department by Mr. John Laylin, attorney Constitution, its continuing vitality depends on its capacity to reflect the
for amici: proper distribution of functions between the judicial and political
The Department of Slate W not, in the Bahia de Nipe case or eke where, done anything in-
consistent with the position laken on the Cubannationalizations by Secretary Herter. Whether or branches of the Government on matters bearing upon foreign affairs. It
no1 these nationalitions will in the fufure be given eITm in the United Stam is, of course, for should be apparent that the greater the degree of dcation or consen-
the couns to determine. Sicethe Sabbatino case and other similarc49esare at present before the sus concerning a particular area of international law, the more appropri-
courts, any comments on this question by the Department of SIatewould be out of place at this ate it is for the judiciary to render decisions regarding it, since the courts
time. As you yourself point out, statements by the executive branch are h@hly suxeptible of
misconslruction. can then focus on the application of an agreed principle to circumstances
A letter &led November 14,1961,from George Ball, Under Ssretary for Emnomic AfTirs, of fact rather than on the sensitive task of establishing a principle not in-
responded to a similar inquiry by the same attorney: consistent with the national interest or with international justice. It is
I have carefully considered your letter and have discusd it with the Legal Adviser. Ourcon- also evident that some aspects of international law touch much more
clusion. in which the Secretary concurs, is that the Department should not comment on matters
pendin# before the courts. sharply on national nerves than do others; the less important the im-
10. Although the complaint in this~ 8 all&
9 ~ both diversity and fcdd question jwisdiri
tion. the Court of Appeels reachedjurisdidion only on Ibe former ground, 307 F.2d at 852. We 23. At least this is me when the Courl Limits the smpe ofjudicial inquiry. Wenezd not now
need not dedde. for reasons apparine hereafter, whether fedsral pueation jutididion also ex- consider whether a state cow mmt, in certaincircumstances,adhere to a more restrictive view
isted. concerning the smpe of examination of foreign ans Ulan that required by thisCourt.