Page 144 - Law of Peace, Volume ,

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plications of an issue are for our foreign relations, the weaker the and ineffective to pass title, the wisdom of the precedents is confied.
justif~cationfor exclusivity in the political branches. The balance of rele- While each of the leading cases in this Court may be argued to be dis-
, vant considerations may also be shifted if the government which per- tinguishable on its facts from thisone-Underhillbecause sovereign im-
I petrated the challenged act of state is no longer in existence, as in the munity provided an independent ground and Oetien, Ricaud, and
Bemstein case, for the political interest of this country may, as a result, Shapleigh bemuse there was actually no violation of international law-
be measurably altered. Therefore, rather than laying down or reaffi- the plain implication of all these opinions, and the import of express
ing an inflexible and all-encompassing rule in this case,we decide only statements in Oegien, 246 U.S., at 304, 38 S.Ct. at 311, and Shapleigh,
that the Judicial Branch will not examine the validity of a taking of prop- 299 U.S., at 471, 57 S.Ct. at 262, is that the act of state doctrine is ap-
erty within its own territory by a foreign sovereign government, extant plicable even if international law has been violated. In Ricaud, the one
and remgnized by this country at the time of suit, in the absence of a case of the three most plausibly involving all international law violation,
treaty or other unambiguous agreement regarding controlling legal prin- the possibility of an exception to the act of state doctrine was not dis-
ciples, even if the complaint alleges that the taking violates customary cussed. Some commentators have concluded that it was not brought to
international law. the Court's attention, 35 but Justice Clarke delivered both the OeQen
There are few if any issues in international law today on which opin- and Ricaudopinions, on the same day, so we can assume that principles
ion seemsto be so divided as the limitations on a state's power to ex- stated in the former were applicable to the latter case.
propriate the property of aliens. 26 There is, of course, authority, in in- The possible adverse consequences of a conclusion to the contrary of
ternational judicial 27 and arbitral28 decisions, in the expressions of na- that implicit in these cases is highli&ted by contrasting the practices of
tional governments, 29 and among commentators 30 for the view that a the political branch with the limitations of the judicial process in matters
taking is improper under international law if it is not for a public pur- of this kind. Following an expropriation of any sigd~cance, the Execu-
pose, is discriminatory, or is without provision for prompt, adequate, tive engages in diplomacy aimed to assure that United States citizens
and effective compensation. However, Communist countries, although who are harmed are compensated fairly. Representing all claimants of
they have in fact provided a degree of compensation after diplomatic thiscountry, it will often be able, either by bilateral or mulitlateral talks,
efforts, commonly recognize no obligation on the part of the taking by submission to the United Nations, or by the employment of econom-
country. 31 Certain representatives of the newly independent and under- ic and political sanctions, to achieve some degree of general redress.
developed countries have questioned whether rules of state respon- Judicial determinations of invalidity of title can, on the other hand, have
sibility toward aliens can bind nations that have not consented to only an occasional impact, since they depend on the fortuitous circum-
them 32 and it is argued that the traditionally articulated standards stance of the property in question being brought into this country. 36
governing expropriation of property reflect "imperialist" interests and Such decisions would, if the acts involved were declared invalid, often
are inappropriate to the circumstances of emergent states. 33 be likely to give offense to the expropriating country; since the concept
The disagreement as to relevant international law standards reflects of temtorial sovereignty is so deep seated, any state may resent the
an even more basic divergence between the national interests of capital refusal of the courts of another sovereign to accord validity to acts within
importing and capital exporting nations and between the social its territorial borders. Piecemeal dispositions of this sort involving the
ideologies of those countries that favor state control of a considerable probability of affront to another state could seriously interfere with
portion of the means of production and those that adhere to a free en- negotiations being canied on by the Executive Branch and might pre-
terprise system. It is difficult to imagine the courts of this country em- vent or render less favorable the terms of an agreement that could
barking on adjudication in an area which touches more sensitively the othenvise be reached. Relations with third countries which have
practical and ideological goals of the various members of the community engaged in similar expropriations would not be immune from effect.
of nations. 34 The dangers of such adjudication are present regardless of whether
When we consider the prospect of the courts characterizing foreign the State Department has, as it did in this case,asserted that the rele-
expropriations, however justifiably, as invalid under international law vant act violated international law. If the Executive Branch has under-
taken negotiations with an expropriating country, but has refrained from
26. Coqre, e.g.. Frkdman, &mprhHon In Inrernatlo~lLuw 206 21 l (1953); Damn claims of violation of the law of nations, a determination to that effect by
and Weston, "Pmmpr. Adequate and &EecHw'? A Unlwml Stanclclrd afCompen?uHon ? 30 a court might be regarded as a serious insult, while a finding of com-
Fordham L.Rev. 727 (1%2), with Note from Se~etmyof State Hull to Mexican Ambassador, pliance with international law, would greatly strengthen the bargaining
Auuusl22, 1938, V Fomign Relations of the United States 685 (1938); Doman, Postwar Na-
tionallrotion afforeign Proper(v In Europe, 48 Col.L.Rev. 1125, 1127 (1948). We do not, of hand of the other state with consequent detriment to American in-
mwse, meanto say that there is no international standard in this area;we mnclude only that the terests.
matler is not met for adjudication by domestic tribuhals. Even if the State Department has proclaimed the impropriety of the
27. SeeOscarChinn Case, P.C.I.J., ser. A/B, No. 63, at 87 (1934); Chorrow Factory Case,
P.C.I.J., str. A,, No.17, at 46, 47 (1928). expropriation, the stamp of approval of its view by a judicial tribunal,
28. See, e.g.. Norwegian Shipowners' Case (NomyNnited States) (Perm. Ct.Arb.) however impartial, might increase any affront and the judicial decision
(1922), 1 U.N.Rep.Int'l Arb. Awards 307, 334, 339 (1948). Hague Court Reports, 2d Series, might occur at a time, almost always well after the taking, when such an
39.69.74 (1932); Marguerite de Ioly de SaMa, Ameh and PanSmanianGenersl Claims Ar- impact would be contrary to our national interest. Considerably more
bitration 379, 447, 6 U.N.Rep.ht'1 Arb. Awards 358, 336 (1955).
29. See. e.g., Dispatch from Lord Palmerston to British Envoy at Athens, Aug. 7, 1846.39 serious and farreaching consequences would flow from a judicial finding
Britishand Foreign State Papers 1849-1850.431-432. NotefmmSccrcrary ofstate Hull to Mex- that international law standards had been met if that determination flew
ican Amhsador, July 21, 1938, V Foreign Relations of the Unical States 674 (1938); Note to in the face of a State Department proclamation to the contrary. When
the Cuban Government, July 16, 1960.43 Dept. State Bull. 171 (1960). articulating principles of international law in its relations with other
30. Sec. e.8.. McNsir, The Sekure afProper(v and EnlerprLres In Indonesh, 6 Netherlands
ht'l L.Rev. 218, 243-253 (1959); Restatement, Foreign Rebnons Luw afthe Unlted Smtes states, the Executive Branch speaks not only as an interpreter of
(ROW Offi Draft 1962), 55 190-195. generally accepted and traditional rules, as would the courts, but also as
31. See Doman, supra, note 26, at 1143-1158: Fleming,States,Contracts and R-, an advocate of standards it believes desirable for the community of na-
Na-
62-63 (1960); Bystridry. Notes on Certain Inter~do~I LegalProbIemRehnng to Sochll~t tions and protective of national concerns. In short, whatever way the
ti~~kaH~n, InlernationaIAssn. afDemocraflc Lawyers, Roawhgs of the CommiPsion on
In
Rivstc laternational Law, Sixth Co- (1956). IS. matter is cut, the possibility of conflict between the Judicial and Execu-
32. See Anand, Role qf the "New" Ashn-Nrlcan Countries ln the Pwnt 1nlernaHo~l tive Branches could hardly be avoided.
&I Order, 56 Am.J.ht'l L. 383 (1962); Roy, Is the hw qfResponslblH@ afStateafor I&- Respondents contend that, even if there is not agreement regarding
rks to Akm a Part qf Un~wncrl Inler~HonalL.aw7 55 Am.J.lnt'1 L. 863 (1961).
33. See 1957 Yb.U.N.lnt'l L. Comm'n (Vol.1) 155,158 (statements of Mr. PsdillaNmo I
(Mexico) and Mr. Pal (India)). 35. See Restac~menr. Foreign RebHons Luw Jthe United States, Reporters' Notes (Pro-
is
w. Then arc, of mum, areas of international law in which mmm as to s~~~dards pcscd OflicislDraft 1962). § 43, note 3.
€aw~terand which do not represent a battleground for wnIlic@ ideologies Tbis de&on in no M. It in, of mwse, true that such detenninations mi@ innumcc others not to bring ex-
'my intimatesthat the mum of Ulismunw arc broadly foredosed from considering queslions of proprialed property into the munw, * * * so their indirut impad might exlend beyond the ac-
intemationsl law. lud invalidations of title.