Monday, June 12, 2006

The Political Question Doctrine: In Violation of International Law? (Part 2)

I now turn to the application of the right of access to a court to the political question doctrine, having set out the basic points about the right in Part 1 of this sequence of posts. I add only very briefly that another case was recently thrown out by the D.C. Circuit, based on the political question doctrine. Much like Schneider v. Kissinger, so also this latest case, Gonzalez-Vera v. Kissinger, concerned US support for General Pinochet (see also Julian Ku’s post on the case at Opinio Juris).

But first, some more detail on the doctrine itself is in order. The leading case on the doctrine is Baker v. Carr, 369 U.S. 186 (1962), and, as the Court later said when quoting from the Baker Court’s analysis, ‘[t]he synthesis of that effort is found in the following passage in the Court’s opinion’ (Davis v. Bandemer, 478 U.S. 109, 121 (1986), quoting from Baker v. Carr, 369 U.S. 186, 217 the passage I  now set out here):

‘Prominent on the surface of any case held to involve a political question is found [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 the 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 from multifarious pronouncements by various departments on one question.
Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question's presence.’

I have (like the Circuit Court in Gonzalez-Vera v. Kissinger, supra, at p. 6 of the PDF file) added the numbers to show more clearly the distinct ‘Baker factors’ (INS v. Chadha, 462 U.S. 919, 942-43 (1983)). While these may, at first sight, seem easy enough to apply, it has been recognized that ‘the contours of the doctrine are murky and unsettled’ (Bancoult v. McNamara, quoting Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 803 n.8 (D.C. Cir. 1984) (opinion of Bork, J.); Julian Ku’s blog post on Bancoult is entitled ‘The Ever Murky Political Question Doctrine’).
Nor is it entirely clear quite what the consequences are of an application of the political question doctrine: while Baker v. Carr had insisted that the doctrine went to justiciability and not to jurisdiction (at 198-204), the lower court in Schneider v. Kissinger and Bancoult v. McNamara put the matter under the heading of jurisdiction. This may be supported by later Supreme Court cases (Flast v. Cohen, 392 U.S. 83, 94-5 (1968); Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 215 (1974)) but I prefer not to express a view on this. It is sufficient to note, for present purposes, that the doctrine puts an end to a case, one way or the other.

So, returning now to international human rights law, is the right of access to a court infringed by a dismissal on the basis of the political question doctrine?

I already stated in the introductory post to this topic that the doctrine does not rest upon public international law and that even if it did, this would not make the right of access to a court inapplicable.

But there is another point on which the applicability of the right of access to a court, and the infringement of that right, may be open to doubt: it has been held that political questions do not present a ‘case or controversy’ within the meaning of Article III of the US Constitution, circumscribing the extent of the judicial task (Flast v. Cohen, supra; Schlesinger v. Reservists to Stop the War, supra). If this definition were accepted as valid, then it might be said that the operation of the doctrine does not infringe the right of access to a court, but merely defines what it is that courts can be called upon to do.
It should be noted in this regard that there is an infringement of the right of access to a court if ‘rights and obligations’ (Article 14 (1) (2) ICCPR) cannot be brought before a court. The right of access to a court therefore demands (absent justification) that all disputes involving such ‘rights and obligations’ be capable of judicial settlement. The above question must therefore be rephrased: the question under Article 14 ICCPR is not whether the courts are recognised as institutionally competent in relation to a given question. The question is only whether ‘rights and obligations’ are at issue; if they are, then the dismissal of such a case would be an infringement of the article.
There must therefore be a legal question, and this must concern the ‘rights and obligations’ of a person. This can clearly be the case, even if the questions raised are of keen political interest. As, for example, the International Court of Justice has stressed time and again, there is a marked difference between legal questions, which may be of political interest, and purely political questions. While courts cannot decide the latter variety of questions, the former category does present legal questions, and therefore falls within the purview of a court of law (see Christian Tomuschat, in Andreas Zimmermann/Christian Tomuschat/Karin Oellers-Frahm (eds.), The Statute of the International Court of Justice. A Commentary (Oxford: Oxford University Press, 2006), Art. 36 MN 12-14 – or pp. 598-99, for those readers unfamiliar with the citation of commentaries by marginal numbers).
This means that only one category of cases falling under the political question doctrine does not disclose an infringement of the right of access to a court: if there is ‘a lack of judicially discoverable and manageable standards’ (Baker v. Carr, supra, at 217), then there is no legal question, and no ‘rights and obligations’ are concerned (compare Japan Whaling Assn. v. American Cetacean Soc., 478 U.S. 221, 230 (1986):  ‘The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch. The Judiciary is particularly ill suited to make such decisions, as “courts are fundamentally underequipped to formulate national policies or develop standards for matters not legal in nature.”’ The Court went on to hold (ibid.) that the case at bar ‘calls for applying no more than the traditional rules of statutory construction, and then applying this analysis to the particular set of facts presented below.’)
But Baker also established other categories, each of which would give rise to non-justiciability (see Gonzalez-Vera v. Kissinger, supra, at p. 6 of the PDF file). If a court refuses to hear a case, for instance, because of its ‘respect due coordinate branches of government’ or ‘the potentiality of embarrassment from multifarious pronouncements by various departments on one question’, there is a legal question, and if this concerns someone’s ‘rights obligations’ in the sense of Article 14 (1) (2) ICCPR, the dismissal infringes the right of access to a court.

This leaves the somewhat thornier issue of justification. The right of access to a court is an implied right, and the ECtHR has, with its considerable experience in the application of this right, allowed quite a number of exceptions.

It is clear that no justification on the grounds of general international law is available. The ECtHR held in Al-Adsani v. United Kingdom, and again in Kalogeropoulou and Others v. Germany and Greece, that the limitation of the right of access to a court on the grounds of sovereign immunity was permissible so long as public international law really did impose such a duty of judicial abstention on the forum state. However, it has already been stated that the political question doctrine is not based on rules of international law.

There therefore remains the question whether the considerations of domestic law relevant to the doctrines may serve as a justification for their limits on the access to a court.
While it is clear that domestic law, of whatever status, can never conclusively determine a question of international law (see Articles 3, 32 of the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10, pp. 74, 231), the right of access to a court may be limited by domestic law, if such limitations pursue a legitimate aim and there is ‘a reasonable relationship of proportionality between the means employed and the aims sought to be achieved’ (Tinnelly and Sons Ltd and Others and McElduff and Others v. United Kingdom (ECtHR), at para. 72). These limitations must not ‘restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired’ (ibid.).

I have already said that even cases involving political questions, in the sense of the political question doctrine, may raise legal questions, and that the right of access to a court demands that all disputes involving the ‘rights and obligations’ of a private person be capable of judicial settlement. In my opinion, this puts paid to most of the arguments in favour of the American doctrine, in that international human rights law specifically rejects the notion that political questions must always fall outside the ‘institutional competence’ (Bancoult v. McNamara, supra) of the courts.
Thus, in effect, the right of access to a court determines a part of the separation of powers by requiring that legal disputes involving the ‘rights and obligations’ of a private person come within the institutional competence of the courts. The fact that the US Constitution does not conform to this, prescribing as it does a different boundary between the judicial branch and the other branches of government, accordingly cannot be taken as a justification. It is no more than the fact of the (potential) violation.
Therefore, while the political question doctrine stands firm in US constitutional law, it frequently cannot be squared with the present state of international law. It has, one might say, been overtaken by events.

Now what does all this amount to? The answer is: not much. US courts regard the ICCPR as non-self-executing (Flores v. Southern Peru Copper Corp., 343 F.3d 140, 163-165, n. 35 (2nd Cir. 2003)), so they are in no position to apply it (this raises some interesting, and similarly heretic, questions in itself, but since the ICCPR does not require that it is incorporated into domestic law and applied by domestic courts (compare Silver v. United Kingdom [ECtHR], at para. 113 [d]), these questions relate not to international law, but to the US Constitution. I therefore, for my part, abstain from pronouncing on this). So, even if my analysis was correct, nothing is even remotely likely to change.
However, there remains the point (albeit only of academic interest at most) that the United States will in many cases violate international law through the application of the political question doctrine.

It is on this basis that I will address the state secrets doctrine and the act of state doctrine in subsequent posts.        
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