Banco Nacional de Cuba v. Sabbatino/Dissent White

by Byron White

United States Supreme Court

376 U.S. 398

Banco Nacional de Cuba  v.  Sabbatino

 Argued: Oct. 22 and 23, 1963. --- Decided: March 23, 1964

Mr. Justice WHITE, dissenting.

I am dismayed that the Court has, with one broad stroke, declared the ascertainment and application of international law beyond the competence of the courts of the United States in a large and important category of cases. I am also disappointed in the Court's declaration that the acts of a sovereign state with regard to the property of aliens within its borders are beyond the reach of international law in the courts of this country. However clearly established that law may be, a sovereign may violate it with impunity, except insofar as the political branches of the government may provide a remedy. This backward-looking doctrine, never before declared in this Court, is carried a disconcerting step further: not only are the courts powerless to question acts of state proscribed by international law but they are likewise powerless to refuse to adjudicate the claim founded upon a foreign law; they must render judgment and thereby validate the lawless act. Since the Court expressly extends its ruling to all acts of state expropriating property, however clearly inconsistent with the international community, all discriminatory expropriations of the property of aliens, as for example the taking of properties of persons belonging to certain races, religions or nationalities, are entitled to automatic validation in the courts of the United States. No other civilized country has found such a rigid rule necessary for the survival of the executive branch of its government; the executive of no other government seems to require such insulation from international law adjudications in its courts; and no other judiciary is apparently so incompetent to ascertain and apply international law. ^[1]

I do not believe that the act of state doctrine, as judicially fashioned in this Court, and the reasons underlying it, require American courts to decide cases in disregard of international law and of the rights of litigants to a full determination on the merits.

Prior decisions of this Court in which the act of state doctrine was deemed controlling do not support the assertion that foreign acts of state must be enforced or recognized or applied in American courts when they violate the law of nations. These cases do hold that a foreign act of state applied to persons or property within its borders may not be denied effect in our courts on the ground that it violates the public policy of the forum. Also the broad language in some of these cases does evince an attitude of caution and self-imposed restraint in dealing with the laws of a foreign nation. But violations of international law were either not presented in these cases, because the parties or predecessors in title were nationals of the acting state, or the claimed violation was insubstantial in light of the facts presented to the Court and the princ ples of international law applicable at the time. ^[2] These cases do not strongly imply or even suggest that the Court would woodenly apply the act of state doctrine and grant enforcement to a foreign act where the act was a clear and flagrant violation of international law, as the District Court and the Court of Appeals have found in respect to the Cuban law challenged herein. 193 F.Supp. 375, aff'd, 307 F.2d 845.

Though not a principle of international law, the doctrine of restraint, as formulated by this Court, has its roots in sound policy reasons, and it is to these we must turn to decide whether the act of state doctrine should be extended to cover wrongs cognizable under international law.

Whatever may be said to constitute an act of state, ^[3] our decisions make clear that the doctrine of nonreview ordinarily applies to foreign laws affecting tangible property located within the territory of a government which is recognized by the United States. Oetjen v. Central Leather Co., 246 U.S. 297, 38 S.Ct. 309, 62 L.Ed. 726; Ricaud v. American Metal Co., 246 U.S. 304, 38 S.Ct. 312, 62 L.Ed. 733. This judicially fashioned doctrine of nonreview is a corollary of the principle that ordinarily a state has jurisdiction to prescribe the rules governing the title to property within its territorial sovereignty, see Clarke v. Clarke, 178 U.S. 186, 20 S.Ct. 873, 44 L.Ed. 1028; De Vaughn v. Hutchinson, 165 U.S. 566, 17 S.Ct. 461, 41 L.Ed. 827, a principle reflected in the conflict of laws rule, adopted in virtually all nations, that the lex loci is the law governing title to property. ^[4] This conflict rule would have been enough in itself to have controlled the outcome of most of the act of state cases decided by this Court. Both of these rules rest on the deeply imbedded postulate in international law of the territorial supremacy of the sovereign, a postulate that has been characterized as the touchstone of private and public international law. ^[5] That the act of state doctrine is rooted in a well-established concept of international law is evidenced by the practice of other countries. These countries, without employing any act of state doctrine, afford substantial respect to acts of foreign states occurring within their territorial confines. ^[6] Our act of state doctrine, as formulated in past decisions of the Court, carries the territorial concept one step further. It precludes a challenge to the validity of foreign law on the ordinary conflict of laws ground of repugnancy to the public policy of the forum. Against the objection that the foreign act violates domestic public policy, it has been said that the foreign law provides the rule of decision where the lex loci rule would so indicate, in American courts. Bernstein v. Van Heyghen Freres Societe Anonyme, 163 F.2d 246, 249 (C.A.2d Cir.); Holzer v. Deutsche Reichsbahn-Gesellschaft, 277 N.Y. 474, 14 N.E.2d 798; McCarthy v. Reichsbank, 259 App.Div. 1016, 20 N.Y.S.2d 450, aff'd, 284 N.Y. 739, 31 N.E.2d 508. But cf. Sulyok v. Penzintezeti Kozpont Budapest, 279 App.Div. 528, 111 N.Y.S.2d 75, aff'd, 304 N.Y. 704, 107 N.E.2d 604. See also Perutz v. Bohemian Discount Bank, 304 N.Y. 533, 537, 110 N.E.2d 6, 7.

The reasons that underlie the deference afforded to foreign acts affecting property in the acting country are several; such deference reflects an effort to maintain a certain stability and predictability in transnational transactions, to avoid friction between nations, to encourage settlement of these disputes through diplomatic means and to avoid interference with the executive control of foreign rela ions. To adduce sound reasons for a policy of nonreview is not to resolve the problem at hand, but to delineate some of the considerations that are pertinent to its resolution.

Contrary to the assumption underlying the Court's opinion, these considerations are relative, their strength varies from case to case, and they are by no means controlling in all litigation involving the public acts of a foreign government. This is made abundantly clear by numerous cases in which the validity of a foreign act of state is drawn in question and in which these identical considerations are present in the same or a greater degree. American courts have denied recognition or effect to foreign law, otherwise applicable under the conflict of laws rules of the forum, to many foreign laws where these laws are deeply inconsistent with the policy of the forum, notwithstanding that these laws were of obvious political and social importance to the acting country. For example, foreign confiscatory decrees purporting to divest nationals and corporations of the foreign sovereign of property located in the United States uniformly have been denied effect in our courts, including this Court; ^[7] courts continued to recognize private property rights of Russian corporations owning property within the United States long after the Russian Government, recognized by the United States, confiscated all such property and had rescinded the laws on which corporate identity depended. ^[8] Furthermore, our courts customarily refuse to enforce the revenue and penal laws of a foreign state, since no country has an obligation to further the governmental interests of a foreign sovereign. ^[9] And the judgments of foreign courts are denied conclusive or prima facie effect where the judgment is based on a statute unenforceable in the forum, where the procedures of the rendering court markedly depart from our notions of fair procedure, and generally where enforcement would be contrary to the public policy of the forum. ^[10] These rules demonstrate that our courts have never been bound to pay unlimited deference to foreign acts of state, defined as an act or law in which the sovereign's governmental interest is involved; they simultaneously cast doubt on the proposition that the additional element in the case at bar, that the property may have been within the territorial confines of Cuba when the expropriation decree was promulgated, requires automatic deference to the decree, regardless of whether the foreign act violates international law. ^[11]

I start with what I thought to be unassailable propositions: that our courts are obliged to determine controversies on their merits, in accordance with the applicable law; and that part of the law American courts are bound to administer is international law.

Article III, § 2, of the Constitutional states that '(t)he judicial Power shall extend to all Cases * * * affecting Ambassadors, other public Ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies * * * between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.' And § 1332 of the Judicial Code gives the courts jurisdiction over all civil actions between citizens of a State and foreign states or citizens or subjects thereof. The doctrine that the law of nations is a part of the law of the land, originally formulated in England and brought to America as part of our legal heritage, is reflected in the debates during the Constitutional Convention ^[12] and in the Constitution itself. ^[13] This Court has time and again effectuated the clear understanding of the Framers, as embodied in the Constitution, by applying the law of nations to resolve cases and controversies. ^[14] As stated in The Paquete Habana, 175 U.S. 677, 700, 20 S.Ct. 290, 299, 44 L.Ed. 320 '(i)nternational law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.' Principles of international law have been applied in our courts to resolve controversies not merely because they provide a convenient rule for decision but because they represent a consensus among civilized nations on the proper ordering of relations between nations and the citizens thereof. Fundamental fairness to litigants as well as the interest in stability of relationships and preservation of reasonable expectations call for their application whenever international law is controlling in a case or controversy. ^[15]

The relevance of international law to a just resolution of this case is apparent from the impact of international law on other aspects of this controversy. Indeed it is only because of the application of international rules to resolve other issues that the act of state doctrine becomes the determinative issue in this case. The basic rule that the law of the situs of property is the proper law to be applied in determining title in other formus, whether styled a rule of private international law or domestic conflict of law, is rooted in concepts firmly embedded in a consensus of nations on territorial sovereignty. Without such a consensus and the conflict of laws rule derived therefrom, the question of whether Cuba's decree can be measured against the norms of international law would never arise in this litigation, since then a court presumably would be free to apply its own rules governing the acquisition of title to property. Furthermore, the contention that the sugar in question was within the territorial confines of Cuba when the Cuban decree was enacted itself rests on widely accepted principles of internationsl law, namely, that the bays or inlets contiguous to a country are within its boundaries and that territorial jurisdiction extends at least three miles beyond these boundaries. See Oppenheim, International Law, §§ 186, 190-191 (Lauterpacht, 8th ed. 1955). Without these rules derived from international law, this confiscation could be characterized as extraterritorial and therefore-unless the Court also intends to change this rule-subject to the public policy test traditionally applied to extraterritorial takings of property, even though embarrassing to foreign affairs. Further, in response to the contention that title to the sugar had already passed to Farr, Whitlock by virtue of the contract with C.A.V. when the nationalization decree took effect, it was held below that under 'the law merchant common to civilized countries' (emphasis supplied) Farr, Whitlock could not acquire title to the shipment until payment was made in New York. Thus the central issue in this litigation is posed only because of numerous other applications of the law of nations and domestic rules derived therefrom in respect to subsidiary, but otherwise controlling, legal issues in the controversy.

The Court accepts the application of rules of international law to other aspects of this litigation, accepts the relevance of international law in other cases and announces that when there is an appropriate degree of 'consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it, since the courts can then focus on the application of an agreed principle to circumstances of fact rather than on the sensitive task of establishing a principle not inconsistent with the national interest or with international justice.' Ante, p. 428. The Court then, rather lightly in my view, dispenses with its obligation to resolve controversies in accordance with 'international justice' and the 'national interest' by assuming and declaring that there are no areas of agreement between nations in respect to expropriations. There may not be. But without critical examination, which the Court fails to provide, I would not conclude that a confiscatory taking which discriminates against nationals of another country to retaliate against the government of that country falls within that area of issues in international law 'on which opinion seems to be so divided.' Nor would I assume, as the ironclad rule of the Court necessarily implies, that there is not likely to be a consensus among nations in this area, as for example upon the illegality of discriminatory takings of alien property based upon race, religion or nationality. ^[16] But most of all I would not declare that even if there were a clear consensus in the international community, the courts must close their eyes to a lawless act and validate the transgression by rendering judgment for the foreign state at its own request. This is an unfortunate declaration for this Court to make. It is of course, wholly inconsistent with the premise from which the Court starts, and, under it, banishment of international law from the courts is complete and final in cases like this. I cannot so cavalierly ignore the obligations of a court to dispense justice to the litigants before it. ^[17]

The reasons for nonreview, based as they are on traditional concepts of territorial sovereignty, lose much of their force when the foreign act of state is shown to be a violation of international law. All legitimate exercises of sovereign power, whether territorial or otherwise, should be exercised consistently with rules of international law, including those rules which mark the bounds of lawful state action against aliens or their property located within the territorial confines of the foreign state. Although a state may reasonably expect that the validity of its laws operating on property within its jurisdiction will not be defined by local notions of public policy of numerous other states (although a different situation may well be presented when courts of another state are asked to lend their enforcement machinery to effectuate the foreign act), ^[18] it cannot with impunity ignore the rules governing the conduct of all nations and expect that other nations and tribunals will view its acts as within the permissible scope of territorial sovereignty. Contrariwise, to refuse inquiry into the question of whether norms of the international community have been contravened by the act of state under review would seem to deny the existence or purport of such norms, a view that seems inconsistent with the role of international law in ordering the relations between nations. Finally, the impartial application of international law would not only be an affirmation of the existence and binding effect of international rules of order, but also a refutation of the notion that this body of law consists of no more than the divergent and parochial views of the capital importing and exporting nations, the socialist and free-enterprise nations.

The Court puts these considerations to rest with the assumption that the decisions of the courts 'of the world's major capital exporting country and principal exponent of the free enterprise system' would hardly be accepted as impartial expressions of sound legal principle. The assumption, if sound, would apply to any other problem arising from transactions that cross state lines and is tantamount to a declaration excusing this Court from any future consequential role in the clarification and application of international law. See National City Bank of New York v. Republic of China, 348 U.S. 356, 363, 75 S.Ct. 423, 428, 99 L.Ed. 389. This declaration ignores the historic role which this Court and other American courts have played in applying and maintaining principles of international law.

Of course, there are many unsettled areas of international law, as there are of domestic law, and these areas present sensitive problems of accommodating the interests of nations that subscribe to divergent economic and political systems. It may be that certain nationalizations of property for a public purpose fall within this area. Also, it may be that domestic courts, as compared to international tribunals, or arbitral commissions, have a different and less active role to play in formulating new rules of international law or in choosing between rules not yet adhered to by any substantial group of nations. Where a clear violation of international law is not demonstrated, I would agree that principles of comity underlying the act of state doctrine warrant recognition and enforcement of the foreign act. But none of these considerations relieve a court of the obligation to make an inquiry into the validity of the foreign act, none of them warrant a flat rule of no inquiry at all. The vice of the act of state doctrine as formulated by the Court and applied in this case, where the decree is alleged not only to be confiscatory but also retaliatory and discriminatory and has been found by two courts to be a flagrant violation of international law, is that it precludes any such examination and proscribes any decision on whether Cuban Law No. 851 contravenes an accepted principle of international law.

The other objections to reviewing the act challenged herein, save for the alleged interference with the executive's conduct of foreign affairs, seem without substance, both in theory and as applied to the facts of the instant case. The achievement of a minimum amount of stability and predictability in international commercial transactions is not assured by a rule of nonreviewability which permits any act of a foreign state, regardless of its validity under international law, to pass muster in the courts of other states. The very act of a foreign state against aliens which contravenes rules of international law, the purpose of which is to support and foster an order upon which people can rely, is at odds with the achievement of stability and predictability in international transactions. And the infrequency of cases in American courts involving foreign acts of state challenged as invalid under interntional law furnishes no basis at all for treating the matter as unimportant and for erecting the rule the Court announces today. ^[19]

There is also the contention that the act of state doctrine serves to channel these disputes through the processes designed to rectify wrongs of an international magnitude, see Oetjen v. Central Leather Co., supra; Shapleigh v. Mier, supra. The result of the doctrine, it is said, requires an alien to seek relief in the courts or through the executive of the expropriating country, to seek relief through diplomatic channels of his own country and to seek review in an international tribunal. These are factors an American court should consider when asked to examine a foreign act of state, although the availability and effectiveness of these modes of accommodation may more often be illusory than real. Where alternative modes are available and are likely to be effective, our courts might well stay their hadn and direct a litigant to exhaust or attempt to utilize them before adjudicating the validity of the foreign act of state. But the possibility of alternative remedies, without more, is frail support for a rule of automatic deference to the foreign act in all cases. The Court's rule is peculiarly inappropriate in the instant case, where no one has argued that C.A.V. can obtain relief in the courts of Cuba, where the United States has broken off diplomatic relations with Cuba, and where the United States, although protesting the illegality of the Cuban decrees, has not sought to institute any action against Cuba in an international tribunal.

v.

There remains for consideration the relationship between the act of state doctrine and the power of the executive over matters touching upon the foreign affairs of the Nation. It is urged that the act of state doctrine is a necessary corollary of the executive's authority to direct the foreign relations of the United States and accordingly any exception in the doctrine, even if limited to clear violations of international law, would impede or embrrass the executive in discharging his constitutional responsibilities. Thus, according to the Court, even if principles of comity do not preclude inquiry into the validity of a foreign act under international law, due regard for the executive function forbids such examination in the courts.

Without doubt political matters in the realm of foreign affairs are within the exclusive domain of the Executive Branch, as, for example, issues for which there are no available standards or which are textually committed by the Constitution to the executive. ^[20] But this is far from saying that the Constitution vests in the executive exclusive absolute control of foreign affairs or that the validity of a foreign act of state is necessarily a political question. International law, as well as a treaty or executive agreement, see United States v. Pink, 315 U.S. 203, 62 S.Ct. 552, 86 L.Ed. 796, provides an ascertainable standard for adjudicating the validity of some foreign acts, and courts are competent to apply this body of law, notwithstanding that there may be some cases where comity dictates giving effect to the foreign act because it is not clearly condemned under generally accepted principles of international law. And it cannot be contended that the Constiution allocates this area to the exclusive jurisdiction of the executive, for the judicial power is expressly extended by that document to controversies between aliens and citizens or States, aliens and aliens, and foreign states and American citizens or States.

A valid statute, treaty or executive agreement could, I assume, confine the power of federal courts to review or award relief in respect of foreign acts or otherwise displace international law as the rule of decision. I would not disregard a declaration by the Secretary of State or the President that an adjudication in the courts of the validity of a foreign expropriation would impede relations between the United States and the foreign government or the settlement of the controversy through diplomatic channels. But I reject the presumption that these undesirable consequences would follow from adjudication in every case, regardless of the circumstances. Certainly the presumption is inappropriate here.

Soon after the promulgation of Cuban Law No. 851, the State Department of the United States delivered a note of protest to the Cuban Government declaring this nationalization law to be in violation of international law. ^[21] Since the nationalization of the property in question, the United States has broken off diplomatic relations with the present Government of Cuba. And in response to inquiries by counsel for the respondent in the instant case, officials of the State Department nowhere alleged that adjudication of the validity of the Cuban decree nationalizing C.V.A. would embarrass our relations with Cuba or impede settlement on an international level. In 1963, the United States Government issued a freeze order on all Cuban assets located in the United Sates. On these facts although there may be others of which we are not aware-it is wholly unwarranted to assume that an examination of the validity of Cuban Law No. 851 and a finding of invalidity would intrude upon the relations between the United States and Cuba.

But the Court is moved by the spectre of another possibility; it is said that an examination of the validity of the Cuban law in this case might lead to a finding that the Act is not in violation of widely accepted international norms or that an adjudication here would require a similar examination in other more difficult cases, in one of which it would be found that the foreign law is not in breach of international law. The finding, either in this case or subsequent ones, that a foreign act does not violate widely accepted international principles, might differ from the executive's view of the act and international law, might thereby seriously impede the executive's functions in negotiating a settlement of the controversy and would therefore be inconsistent with the national interest. '(T)he very expression of judicial uncertainty might provide embarrassment to the Executive Branch.' Ante, p. 433. These speculations, founded on the supposed impact of a judicial decision on diplomatic relations, seem contrary to the Court's view of the arsenal of weapons possessed by this country to make secure foreign investment and the 'ample powers (of the political branches) to effect compensation,' ante, p. 436, and wholly inconsistent with its view of the limited competence and knowledge of the judiciary in the area of foreign affairs and diplomacy. Moreover, the expression of uncertainty feared by the Court is inevitable under the Court's approach, as is well exemplified by the ex-cathedra pronouncements in the instant case. While premising that a judicial expression of uncertainty on whether a particular act clearly violates international law would be embarrassing to the executive, this Court, in this very case, announces as an underpinning of its decision that '(t)here are few if any issues in international law today on which opinion seems to be so divided as the limitations on a State's power to expropriate the property of aliens,' and proceeds to demonstrate the absence of international standards by cataloguing the divergent views of the 'capital exporting,' 'free enterprise' nations, of the 'newly independent and underdeveloped countries,' and of the 'Communist countries' toward both the issue of expropriation and international law generally. The act of state doctrine formulated by the Court bars review in this case and will do so in all others involving expropriation of alien property precisely because of the lack of a consensus in the international community on rules of law governing foreign expropriations. ^[22] Contrariwise, it would seem that the act of state doctrine will not apply to a foreign act if it concerns an area in which there is unusual agreement among nations, ante, p. 428, which is not the case with the broad area of expropriations. ^[23] I fail to see how greater embarrassment flows from saying that the foreign act does not violate clear and widely accepted principles of international law than from saying, as the Court does, that nonexamination and validation are required because there are no widely accepted principles to which to subject the foreign act. ^[24] As to potential embarrassment, the difference is semantic, but as to determining the issue on its merits and as to upholding a regime of law, the difference is vast.

These assertions might find much more support in the authorities relied on by the Court and others if the issue under discussion was not the undefined category-expropriation-but the clearly discrete issue of adequate and effective compensation. It strains credulity to accept the proposition that newly emerging nations or their spokesmen denounce all rules of state responsibility-reject international law in regard to foreign nationals generally-rather than reject the traditional rule of international law requiring prompt, adequate, and effective compensation.

There is a further possibility of embarrassment to the executive from the blanket presumption of validity applicable to all foreign expropriations, which the Court chooses to ignore, and which, in my view, is far more self-evident than those adduced by the Court. That embarrassment stems from the requirement that all courts, including this Court, approve, validate, and enforce any foreign act expropriating property, at the behest of the foreign state or a private suitor, regardless of whether the act arbitrarily discriminates against aliens on the basis of race, religion, or nationality, and regardless of the position the executive has taken in respect to the act. I would think that an adjudication by this Court that the foreign act, as to which the executive is protesting and attempting to secure relief for American citizens, is valid and beyond question enforcible in the courts of the United States would indeed prove embarrassing to the Executive Branch of our Government in many situations, much more so than a declaration of invalidity or a refusal to adjudicate the controversy at all. For the likelihood that validation and enforcement of a foreign act which is condemned by the executive will be inconsistent with national policy as well as the goals of the international community is great. ^[25] This result is precisely because the Court, notwithstanding its protestations to the contrary, ante, p. 428, has laid down 'an inflexible and all-encompassing rule in this case.' ^[26]

Obviously there are cases where an examination of the foreign act and declaration of invalidity or validity might undermine the foreign policy of the Executive Branch and its attempts at negotiating a settlement for a nationalization of the property of Americans. The respect ordinarily due to a foreign state, as reflected in the decisions of this Court, rests upon a desire not to disturb the relations between countries and on a view that other means, more effective than piecemeal adjudications of claims arising out of a large-scale nationalization program of settling the dispute, may be available. Precisely because these considerations are more or less present, or absent, in any given situation and because the Department of our Government primarily responsible for the formulation of foreign policy and settling these matters on a state-to-state basis is more competent than courts to determine the extent to which they are involved, a blanket presumption of nonreview in each case is inappropriate and a requirement that the State Department render a determination after reasonable notice, in each case, is necessary. Such an examination would permit the Department to evaluate whether adjudication would 'vex the peace of nations,' whether a friendly foreign sovereign is involved, and whether settlement through diplomacy or through an international tribunal or arbitration is impending. Based upon such an evaluation, the Department may recommend to the court that adjudication should not proceed at the present time. Such a request I would accord considerable deference and I would not require a full statement of reasons underlying it. But I reject the contention that the recommendation itself would somehow impede the foreign relations of the United States or unduly burden the Department. The Court notes that '(a) dverse domestic consequences might flow from an official stand,' by which I take it to mean that it might be politically embarrassing on the domestic front for the Department of State to i terpose an objection in a particular case which has attracted public attention. But an official stand is what the Department must take under the so-called Bernstein exception, which the Court declines to disapprove. Assuming that there is a difference between an express official objection to examination and the executive's refusal to relieve 'the court from any constraint upon the exercise of its jurisdiction,' it is not fair to allow the fate of a litigant to turn on the possible political embarrassment of the Department of State and it is not this Court's role to encourage or require nonexamination by bottoming a rule of law on the domestic public relations of the Department of State. The Court also rejects this procedure because it makes the examination of validity turn on an educated guess by the executive as to the probable result and such a guess might turn out to be erroneous. The United States in its brief has disclaimed any such interest in the result in these cases, either in the ultimate outcome or the determination of validity, and I would take the Government at its word in this matter, without second-guessing the wisdom of its view.

This is precisely the procedure that the Department of State adopted voluntarily in the situation where a foreign government seeks to invoke the defense of immunity in our courts. ^[27] If it is not unduly disruptive for the Department to determine whether to issue a certificate of immunity to a foreign government itself when it seeks one, a recommendation by the Department in cases where generally the sovereign is not a party can hardly be deemed embarrassing to our foreign relations. Moreover, such a procedure would be consonant with the obligation of courts to adjudicate cases on the merits except for reasons wholly sufficient in the particular case. As I understand it, the executive has not yet said that adjudication in this case would impede his functions in the premises; rather it has asked us to adopt a rule of law foreclosing inquiry into the subject unless the executive affirmatively allows the courts to adjudicate on the merits.

Where the courts are requested to apply the act of state doctrine at the behest of the State Department, it does not follow that the courts are to proceed to adjudicate the action without examining the validity of the foreign act under international law. The foreign relations' considerations and potential of embarrassment to the executive inhere in examination of the foreign act and in the result following from such an examination, not in the matter of who wins. Thus, all the Department of State can legitimately request is nonexamination of the foreign act. It has no proper interest or authority in having courts decide a controversy upon anything less than all of the applicable law or to decide it in accordance with the executive's view of the outcome that best comports with the foreign or domestic affairs of the day. We are not dealing here with those cases where a court refuses to measure a foreign statute against public policy of the forum or against the fundamental law of the foreign state itself. In those cases the judicially created act of state doctrine is an aspect of the conflicts of law rules of the forum and renders the foreign law controlling. But where a court refuses to examine foreign law under principles of international law, which it is required to do, solely because the Executive Branch requests the court, for its own reasons, to abstain from deciding the controlling issue in the controversy, then in my view, the executive has removed the case from the realm of the law to the realm of politics, and a court must decline to proceed with the case. The proper disposition is to stay the proceedings until circumstances permit an adjudication or to dismiss the action where an adjudication within a reasonable time does not seem feasible. To do otherwise would not be in accordance with the obligation of courts to decide controversies justly and in accordance with the law applicable to the case.

It is argued that abstention in the case at bar would allow C.A.V. to retain possession of the proceeds from the sugar and would encourage wrongfully deprived owners to engage in devious conduct or 'self-help' in order to compel the sovereign or one deriving title from him into the position of plaintiff. The short answer to this is that it begs the question; negotiation of the documents by Farr and retention of the proceeds by C.A.V. is unlawful if, but only if, Cuba acquired title to the shipment by virtue of the nationalization decree. This is the issue that cannot be decided in the case if deference to the State Department's recommendation is paid (assuming for the moment that such a recommendation has been made). Nor is it apparent that 'self-help,' if such it be deemed, in the form of refusing to recognize title derived from unlawful paramount force is disruptful of or contrary to a peaceful international order. Furthermore, a court has ample means at its disposal to prevent a party who has engaged in wrongful conduct from setting up defenses which would allow him to profit from the wrongdoing. Where the act of state doctrine becomes a rule of judicial abstention rather than a rule of decision for the courts, the proper disposition is dismissal of the complaint or staying the litigation until the bar is lifted, regardless of who has possession of the property whose title is in dispute.

The position of the Executive Branch of the Government charged with foreign affairs with respect to this case is not entirely clear. As I see it no specific objection by the Secretary of State to examination of the validity of Cuba's law has been interposed at any stage in these proceedings, which would ordinarily lead to an adjudication on the merits. Disclaiming, rightfully, I think, any interest in the outcome of the case, the United States has simply argued for a rule of nonexamination in every case, which literally, I suppose, includes this one. If my view had prevailed I would have stayed further resolution of the issues in this Court to afford the Department of State reasonable time to clarify its views in light of the opinion. In the absence of a specific objection to an examination of the validity of Cuba's law under international law, I would have proceeded to determine the issue and resolve this litigation on the merits.

Notes

1. The courts of the following countries, among others, and their territories have examined a fully 'executed' foreign act of state expropriating property:
2. In one of the earliest decisions of this Court even arguably invoking the act of state doctrine, Hudson v. Guestier, 4 Cranch 293, 2 L.Ed. 625, Chief Justice Marshall held that the validity of a seizure by a foreign power of a vessel within the jurisdiction of the sentencing court could not be reviewed 'unless the court passing the sentence loses its jurisdiction by some circumstance which the law of nations can notice.' (Emphasis added.) Underhill v. Hernandez, 168 U.S. 250, 18 S.Ct. 83, 42 L.Ed. 456, where the Court stated the act of state doctrine in its oft-quoted form, was a suit in tort by an American citizen against an officer of the Venezuelan Government for an unlawful detention and compelled operation of the plaintiff's water facilities during the course of a revolution in that country. Well-established principles of immunity precluded the plaintiff's suit, and this was one of the grounds for dismissal. However, as noted above, the Court did invoke the act of state doctrine in dismissing the suit and arguably the forced detention of a foreign citizen posed a claim cognizable under international law. But the Court did not ignore this possibility of a violation of international law; rather in distinguishing cases involving arrests by military authorities in the absence of war and those concerning the right of revolutionary bodies to interfere with commerce, the Court passed on the merits of plaintiff's claim under international law and deemed the claim without merit under then existing doctrines. '(A)cts of Legitimate warfare cannot be made the basis of individual liability.' (Emphasis added.) 168 U.S. at 253, 18 S.Ct. at 84, 42 L.Ed. 456. Indeed the Court cited Dow v. Johnson, 100 U.S. 158, 25 L.Ed. 632, a suit arising from seizures by American officers in the South during the Civil War, in which it was held without any reliance on the act of state doctrine that the law of nations precluded making acts of legitimate warfare a basis for liability after the cessation of hostilities and Ford v. Surget, 97 U.S. 594, 24 L.Ed. 1018, which held an officer of the Confederacy immune from damages for the destruction of property during the war. American Banana Co. v. United Fruit Co., 213 U.S. 347, 29 S.Ct. 511, 53 L.Ed. 826, a case often invoked for the blanket prohibition of
3. An act of state has been said to be any governmental act in which the sovereign's interest qua sovereign is involved. 'The expression 'act of State' usually denotes 'an executive or administrative exercise of sovereign power by an independent State or potentate, or by its or his duly authorized agents or officers.' The expression, however, is not a term of art, and it obviously may, and is in fact often intended to, include legislative and judicial acts such as a statute, decree or order, or a judgment of a superior Court.' Mann, The Sacrosanctity of the Foreign Act of State, 59 L.Q.Rev. 42 (1943).
4. IV Rabel, The Conflict of Laws: A Comparative Study, 30-69 (1958); Ehrenzweig, Conflict of Laws, 607-633 (1962); Rest. (2d ed.) Conflict of Laws § 254a (Tent.Draft No. 5 (1959)); Baade, Indonesian Nationalization Measures Before Foreign Courts-A Reply, 54 Am.J.Int'l L. 801 (1960); Re, Foreign Confiscations in Anglo-American Law-A Study of the 'Rule of Decision' Principle, 49 50 (1951).
5. See generally, Kaplan and Katzenbach, The Political Foundations of International Law, 135-172 (1961); Herz, International Politics in the Atomic Age 58-62 (1959).
6. Anglo-Iranian Oil Co. v. Idemitsu Kosan Kabushiki Kaisha, (1953) Int'l L.Rep. 305 (Dist.Ct. of Tokyo), aff'd, (1953) Int'l L.Rep. 312 (High Ct. of Tokyo); Anglo-Iranian Oil Co. v. S.U.P.O.R. Co., (1955) Int'l L.Rep. 19 (Ct. of Venice (1953)); Anglo-Iranian Oil Co. v. S.U.P.O.R. Co., (1955) Int'l L.Rep. 23, 39-43 (Civ.Ct. of Rome); compare N. V. Verenigde Deli-Maatschapijen v. Deutsch-Indonesische Tabak-Handelsgesellschaft m.b. H. (Bremen Ct.App.), excerpts reprinted in Domke, Indonesian Nationalization Measures Before Foreign Courts, 54 Am.J.Int'l L. 305, 313-314 (1960), with Confiscation of Property of Sudeten Germans Case, (1948) Ann.Dig. 24, 25 (No. 12) (Amtsgericht of Dingolfing) (discriminatory confiscatory decrees). See also West Rand Central Gold Mining Co. v. The King, (1905) 2 K.B. 391.
7. Moscow Fire Ins. Co. v. Bank of New York, 280 N.Y. 286, 20 N.E.2d 758 (1939), aff'd, sub nom. United States v. Moscow Fire Ins. Co., 309 U.S. 624, 60 S.Ct. 725, 84 L.Ed. 986; Vladikavkazsky R. Co. v. New York Trust Co., 263 N.Y. 369, 189 N.E. 456, 91 A.L.R. 1426; Plesch v. Banque Nationale de la Republique D'Haiti, 273 App.Div. 224, 77 N.Y.S.2d 43, aff'd, 298 N.Y. 573, 81 N.E.2d 106; Bollack v. Societe Generale, 263 App.Div. 601, 33 N.Y.S.2d 986; Latvian State Cargo & Passenger S.S. Line v. McGrath, 88 U.S.App.D.C. 226, 188 F.2d 1000.
8. Second Russian Ins. Co. v. Miller, 297 F. 404 (C.A.2d Cir.); James & Co. v. Second Russian Ins. Co., 239 N.Y. 248, 146 N.E. 369, 37 A.L.R. 720; Sokoloff v. National City Bank, 239 N.Y. 158, 145 N.E. 917, 37 A.L.R. 712; A/S Merilaid & Co. v. Chase Nat'l Bank, 189 Misc. 285, 71 N.Y.S.2d 377 (Sup.Ct.N.Y.). See also Compania Ron Bacardi v. Bank of Nova Scotia, 193 F.Supp. 814 (D.C.S.D.N.Y.) (normal conflict of laws rule superseded by a national policy against recognition of Cuban confiscatory decrees).
9. See the recent affirmation of this doctrine in Banco do Brasil, S.A., v. Israel Commodity Co., holding that an action by Brazil against a New York coffee importer for fraudulently circumventing Brazilian foreign exchange regulations by forging documents in New York was contrary to New York public policy, notwithstanding that the Bretton Woods agreement, to which both the United States and Brazil are parties, expresses a policy favorable to such exchange laws, 12 N.Y.2d 371, 239 N.Y.S.2d 872, 190 N.E.2d 235, cert. denied, 376 U.S. 906, 84 S.Ct. 657, 11 L.Ed.2d 605. See also The Antelope, 10 Wheat. 66, 123, 6 L.Ed. 268; Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 36 L.Ed. 1123; Moore v. Mitchell, 2 Cir., 30 F.2d 600, aff'd on other grounds, 281 U.S. 18, 50 S.Ct. 175, 74 L.Ed. 673; Dicey, Conflict of Laws (Morris ed., 7th ed. 1958), 667; Wolff, Private International Law (2d ed. 1950), 525.
10. Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95 (lack of reciprocity in the foreign state renders the judgment only prima facie evidence of the justice of the plaintiff's claim); cf. Venezuelan Meat Export Co. v. United States, 12 F.Supp. 379 (D.C.D.Md.); The W. Talbot Dodge, 15 F.2d 459 (D.C.S.D.N.Y.) (fraud is a defense to the enforcement of foreign judgments); Title Ins. & Trust Co. v. California Development Co., 171 Cal. 173, 152 P. 542 (fraud); Banco Minero v. Ross, 106 Tex. 522, 172 S.W. 711 (procedure of Mexican court offensive to natural justice); De Brimont v. Penniman, 7 Fed.Cas. p. 309, No. 3,715 (C.C.S.D.N.Y.) (judgment founded on a cause of action contrary to the 'policy of our law, and does violence to what we deem the rights of our own citizen'); other cases indicate that American courts will refuse enforcement where protection of American citizens or institutions requires re-examination. Williams v. Armroyd, 7 Cranch 423, 3 L.Ed. 392; MacDonald v. Grand Trunk R. Co., 71 N.H. 448, 52 A. 982, 59 L.R.A. 448; Caruso v. Caruso, 106 N.J.Eq. 130, 148 A. 882; Hohner v. Gratz, 50 F. 369 (C.C.S.D.N.Y.) (alternative holding). See generally Reese, The Status In This Country of Judgments Rendered Abroad, 50 Col.L.Rev. 783 (1950).
11. The Court attempts to distinguish between these foreign acts on the ground that all foreign penal and revenue and perhaps other public laws are irrebuttably presumed invalid to avoid the embarrassment stemming from examination of some acts and that all foreign expropriations are presumed valid for the same reason. This distinction fails to explain why it may be more embarrassing to refuse recognition to an extraterritorial confiscatory law directed at nationals of the confiscating state than it would be to refuse effect to a territorial confiscatory law. From the viewpoint of the confiscating state, the need to affect property beyond its borders may be as significant as the need to take title to property within its borders. And it would appear more offensive to notions of sovereignty for an American court to deny enforcement of a foreign law because it is deemed contrary to justice, morals, or public policy, than to deny enforcement because of principles of international law. It will not do to say that the foreign state has no jurisdiction to affect title to property beyond its borders, since other jurisdictional bases, such as citizenship, are invariably present. But for the policy of the forum state, doubtless the foreign law would be given effect under ordinary conflict of laws principles. Compare Sokoloff v. National City Bank, 239 N.Y. 158, 145 N.E. 917, 37 A.L.R. 712; Second Russian Ins. Co. v. Miller, 297 F. 404 (C.A.2d Cir.) with Werfel v. Zivnostenska Banka, 260 App.Div. 747, 23 N.Y.S.2d 1001.
12. For the extent to which the Framers contemplated the application of international law in American courts and their concern that this body of law be administered uniformly in the federal courts, see The Federalist: No. 3, at 22, by John Jay (Bourne ed. 1947, Book I); No. 80, at 112 and 114; No. 83, at 144, and No. 82, by Alexander Hamilton (Bourne ed. 1947, Book II); No. 42, by James Madison (Bourne ed. 1947, Book I).
13. This intention was reflected and implemented in the Articles of the Constitution. Article I, § 8, empowers the Congress '(t)o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.' Article III, § 2, extends the judicial power 'to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public Ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;-between a State and Citizens of another State;-between Citizens of different States;-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.'
14. As early as 1793, Chief Justice Jay stated in Chisholm v. Georgia that 'Prior * * * to that period (the date of the Constitution), the United States had, by taking a place among the nations of the earth, become amenable to the law of nations.' 2 Dall. 419, at 474, 1 L.Ed. 440. And in 1796, Justice Wilson stated in Ware v. Hylton: 'When the United States declared their independence, they were bound to receive the law of nations, in its modern state of purity and refinement.' 3 Dall. 199, at 281, 1 L.Ed. 568. Chief Justice Marshall was even more explicit in The Nereide, when he said:
15. Among others, international law has been relied upon in cases concerning the acquisition and control of territory, Jones v. United States, 137 U.S. 202, 11 S.Ct. 80, 34 L.Ed. 691; Mormon Church v. United States, 136 U.S. 1, 10 S.Ct. 792, 34 L.Ed. 481; Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128; the resolution of boundary disputes State of Iowa v. State o Illinois, 147 U.S. 1, 13 S.Ct. 239, 37 L.Ed. 55; State of Arkansas v. State of Tennessee, 246 U.S. 158, 38 S.Ct. 301, 62 L.Ed. 638; questions of nationality, United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890; Inglis v. The Trustees of the Sailor's Snug Harbour, 3 Pet. 99, 7 L.Ed. 617; principles of war and neutrality and their effect on private rights, The Steamship Appam, 243 U.S. 124, 37 S.Ct. 337, 61 L.Ed. 633; Dow v. Johnson, 100 U.S. 158, 25 L.Ed. 632; Ford v. Surget, 97 U.S. 594, 24 L.Ed. 1018; and private property rights generally, The Schooner Exchange v. McFaddon, 7 Cranch 116, 3 L.Ed. 287; United States v. Percheman, 7 Pet. 51, 8 L.Ed. 604.
16. '(D)iscriminatory laws enacted out of hatred, against aliens or against persons of any particular race or category or against persons belonging to specified social or political groups * * * run counter to the internationally accepted principle of the equality of individuals before the law.' Anglo-Iranian Oil Co. v. S.U.P.O.R. Co., (1955) Int'l L.Rep. 23, 40 (Civ.Ct. of Rome); see also Friedman, Expropriation in International Law (1953), 189-192; Wortley, Expropriation In Public International Law 120-121, (1959); Cheng, The Rationale of Compensation for Expropriation, 44 Grotius Society 267, 281, 289 (1959); Seidl-Hohenveldern, Title to Confiscated Foreign Property and Public International Law, 56 Am.J.Int'l L. 507, 509-510 (1962).
17. In the only reference in the Court's opinion to fairness between the litigants, and a court's obligation to resolve disputes justly, ante, p. 435, the court quickly disposes of this consideration by assuming that the typical act of state case is between an original owner and an 'innocent' purchaser, so that it is not unjust to leave the purchaser's title undisturbed by applying the act of state doctrine. Beside the obvious fact that this assumption is wholly inapplicable to the case where the foreign sovereign itself or its agent seeks to have its title validated in our courts-the case at bar-it is far from apparent that most cases represent suits between the original owner and an innocent purchaser. The 'innocence' of a purchaser who buys goods from a government with knowledge that possession or apparent title was derived from an act patently in violation of international law is highly questionable. More fundamentally, doctrines of commercial law designed to protect the title of a bona fide purchaser can serve to resolve this question without reliance upon a broad irrebuttable presumption of validity.
18. Another situation was also presented by the Nazi decrees challenged in the Bernstein litigation; these racial and religious expropriations, while involving nationals of the foreign state and therefore customarily not cognizable under international law, had been condemned in multinational agreemnts and declarations as crimes against humanity. The acts could thus be measured in local courts against widely held principle rather than judged by the parochial views of the forum.
19. The Court argues that an international law exception to the act of state doctrine would fail to deter violations of international law, since judicial intervention would at best be sporadic. At the same time, proceeding on a contradictory assumption as to the impact of such an exception, the Court argues that the exception would render titles uncertain and upset the flow of international trade. The Court attempts to reconcile these conclusions by distinguishing between 'direct' and 'indirect' impacts of a declaration of invalidity, and by assuming that the exporting nation need only find other buyers for its products at the same price. From the point of view of the exporting nation, the distinction between indirect and direct impact is meaningless, and the facile assumption that other buyers at the same price are available and the further unstated assumption that purchase price is the only pertinent consideration to the exporting country are based on an oversimplified view of international trade.
20. These issues include whether a foreign state exists or is recognized by the United States, Gelston v. Hoyt, 3 Wheat. 246, 4 L.Ed. 381; The Sapphire, 11 Wall. 164, 168, 20 L.Ed. 127; the status that a foreign state or its representatives shall have in this country (sovereign immuntiy), Ex parte Muir, 254 U.S. 522, 41 S.Ct. 185, 65 L.Ed. 383; Ex parte Peru, 318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. 1014; the territorial boundaries of a foreign state, Jones v. United States, 137 U.S. 202, 11 S.Ct. 80, 34 L.Ed. 691; and the authorization of its representatives for state-to-state negotiation, Ex parte Hitz, 111 U.S. 766, 4 S.Ct. 698, 28 L.Ed. 592; In re Baiz, 135 U.S. 403, 10 S.Ct. 854, 34 L.Ed. 222.
21. '(T)he Government of the United States considers this law to be manifestly in violation of those principles of international law which have long been accepted by the free countries of the West. It is in its essence discriminatory, arbitrary and confiscatory.' Press Release No. 397, Dept. of State, July 16, 1960.
22. The Court disclaims saying that there is no governing international standard in this area, but only that the matter is not meet for adjudication. Ante, p. 429, n. 26. But since the Court's view is that there are only the divergent views of nations that subscribe to different ideologies and practical goals on 'expropriations,' the matter is not meet for adjudication, according to the Court, because of the lac of any agreement among nations on standards governing expropriations, i.e., there is no international law in this area, but only the political views of the political branches of the various nations.
23. There is another implication in the Court's opinion: the act of state doctrine applies to all expropriations, not only because of the lack of a consensus among nations on any standards but because the issue of validity under international law 'touches * * * the practical and ideological goals of the various members of the community of nations.' If this statement means something other than that there is no agreement on international standards governing expropriations, it must mean that the doctrine applies because the issue is important politically to the foreign state. If this is what the Court means, the act of state doctrine has been expanded to unprecedented scope. No foreign act is subject to challenge where the foreign nation demonstrates that the act is in furtherance of its practical or ideological goals. What foreign acts would not be so characterized?
24. 'A refusal of courts to consider foreign acts of State in the light of the law of nations is not * * * merely a neutral doctrine of abstention. On the contrary the effect of such a doctrine is to lend the full protection of the United States courts, police and governmental agencies to commercial property transactions which are contrary to the minimum standard of civilized conduct * * *.' The Association of the Bar of the City of New York, Committee on International Law, A Reconsideration of the Act of State Doctrine In United States Courts (1959), 8.
25. That embarrassment results from a rigid rule of act of state immunity is well demonstrated by the judicial enforcement of German racial decrees after the war. The pronouncements by United States courts that these decrees vest title beyond question was wholly at odds with the executive's official policy, embodied in representations to other governments, t at property taken through racial decrees by the Nazi Government should be returned to the original owners and thus not be subject to reparation claims. Compare statements by Secretary of State Marshall, reprinted in 16 Dept. State Bull. 653, 793 (1947), with Bernstein v. Van Heyghen Freres Societe Anonyme, 163 F.2d 246 (C.A.2d Cir.). This embarrassing divergence of governmental opinion was eliminated only after the executive intervened and requested the courts to adjudicate the matter on the merits. Bernstein v. Nederlandsche-Amerikaansche Stoomvaart-Maatschappij, 210 F.2d 375 (C.A.2d Cir.).
26. It is difficult to reconcile the Court's statement that rules pertaining to expropriations are unsettled or unclear with the Court's pronounced desire to avoid making any statements on the proper or accepted principles of international law, lest it embarrass the executive, who may have a different view in respect to this particular expropriation or this particular expropriating country. Is not the Court's limitation of the act of state doctrine to the area of expropriations-based upon the uncertainty and fluidity of the governing law in this area-an admission that may prove to be embarrassing to the executive at some later date? And the very line drawing that the Court stresses as potentially disruptive of the executive's conduct of foreign affairs is inevitable under the Court's approach, since subsequent cases not involving expropriations will require us to determine if the act of state doctrine applies and the Court's standard is the strength and clarity of the principles of international law thought to govern the issue. Again our view of the clarity of these principles and the extent to which they are really rules of international law may not be identical with the views of the Department of State. These are some of the inherent difficulties of establishing a rule of law on the basis of speculations about possible but unidentified embarrassment to the executive at some unknown and unknowable future date.
27. The procedure was instituted as far back as The Schooner Exchange v. McFaddon, 7 Cranch 116, 3 L.Ed. 287 (1812), when a United States Attorney, on the initiative of the Executive Branch, entered an appearance in a case involving the immunity of a foreign vessel, and was further defined in Ex parte Muir, 254 U.S. 522, 533, 41 S.Ct. 185, 187, 65 L.Ed. 383 (1921), when the Court stated that the request by the foreign suitor to the executive department was an acceptable and well-established manner of interposing a claim of immunity. Under the procedure outlined in Muir each of the contesting parties may raise the immunity issue by obtaining an official statement from the State Department, or by encouraging the executive to set forth appropriate suggestions to the Court through the Attorney General. See Compania Espanola de Navegacion Maritima, S.A., v. The Navemar, 303 U.S. 68, 74, 58 S.Ct. 432, 434, 82 L.Ed. 667. See generally Dickinson, The Law of Nations As National Law: 'Political Questions,' 104 U. of Pa.L.Rev. 451, 470-475 (1956).