Friday, June 09, 2006

The Political Question Doctrine et al.: In Violation of International Law? (Part 1)

US courts have recently dismissed quite a few cases as non-justiciable. While these cases may not have a great deal in common otherwise, it is clear that the dismissals prevented the plaintiffs from obtaining judicial relief. It is this aspect that has got me thinking about the compatibility of the various doctrines with international human rights law, and, specifically, with Article 14 (1) (2) of the International Covenant on Civil and Political Rights (ICCPR), which the United States have, of course, ratified (unlike, obviously enough, the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR), to which I will nevertheless refer for guidance, the two instruments being very similar).

But first, a very quick summary of the latest cases: a claim in relation to US support for General Pinochet’s coup d’état in 1970 was dismissed as presenting a political question (Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005); see also the blog post on this case by Roger Alford at Opinio Juris), as was a case by the former inhabitants of the island of Diego Garcia, which is now used as a US military base and from which the inhabitants were, prior to the installation of that base, expelled (Bancoult v. McNamara, available here; see also the blog post by Julian Ku at Opinio Juris – I am obviously indebted to Opinio Juris for information on all these cases).
Most recently, a case against the Club Med relating to the use of land expropriated by Cuba in 1960 was thrown out by the 11th Circuit under the act of state doctrine (Glen v. Club Mediterranée, available here; see also, again, Julian Ku at Opinio Juris).
Similarly, a law suit by a German citizen who claimed to have been subjected to the programme of ‘extraordinary rendition’ allegedly pursued by the US administration (i.e., to have been kidnapped and removed for interrogation) was thrown out by a US District Court because it would otherwise have led to a disclosure of state secrets (El-Masri v. Tenet, available here; Julian Ku has kindly commented also on this case).

I will now elaborate on whether the operation of these doctrines involves a violation of Article 14 (1) ICCPR, dividing the whole subject into five posts: this one will attempt to clear up a few basic human rights issues, the second one will address specifically the political question doctrine, the third the state secrets doctrine, and the fourth post will address the act of state doctrine, while the fifth and final post will briefly consider ways around the legal difficulties identified in the earlier posts.

I realize that some may think of the proposition that these time-honoured doctrines may violate international law as heresy of the highest order, but the idea is not entirely without authority, albeit from the United Kingdom: English law knows of its own limitations on justiciability, one of which generally prevents courts from deciding on the meaning of international treaties, unincorporated into domestic law, and another of which prevents courts from ‘adjudicat[ing] on the transactions of foreign sovereign states’ (see Republic of Ecuador v. Occidental Exploration and Production Co. [2005] EWCA 1116, [2006] 2 WLR 70; the quotation is from Lord Wilberforce’s speech in Buttes Gas Oil Co. v. Hammer [1982] AC 888). When it was submitted to the House of Lords that the operation of these doctrines would violate Article 6 ECHR, Lord Hoffmann said that there seemed to him ‘to be much force in this submission’ (R v. Jones (Margaret) [2006] UKHL 16, [2006] 2 WLR 772, at para. 67; the question did not arise squarely for decision; a submission to the same effect was recorded, but not decided by the Court of Appeal in Republic of Ecuador v. Occidental Exploration and Production Co., supra, at para. 49).
When, similarly, the question was put to the House of Lords whether the possibility of judicial review was to be taken seriously where state secrets limited the court’s power of review, Lord Hutton noted that Article 6 (1) ECHR would require the court to adapt its procedure in order to be able to perform its function of judicial review; the presence of state secrets as such could therefore not be allowed to displace the court’s jurisdiction (R v. Shayler [2002] UKHL 11, [2003] 1 AC 247, at paras. 108-114; see also Tinnelly and Sons Ltd and Others and McElduff and Others v. United Kingdom (European Court of Human Rights [ECtHR]), at paras. 76-79; Devenney v. United Kingdom (ECtHR), at para. 27). (There may be similar sources of authority in US law, but as I don’t know them, I must hope for some comments in this regard)

Article 14 (1) (2) ICCPR provides for the right to a fair trial. This provides, in the first place, for certain minimum guarantees applicable to an already pending court case. These are not violated by the dismissal of a lawsuit as such, unless there is some decisive unfairness in the proceedings leading to the dismissal. Thus, there is no express provision on a right to submit legal disputes to judicial settlement. But it is also well known that the ECtHR held as early as 1975, in Golder v. United Kingdom, that the right to a fair trial encompasses also the right of access to a court. The Court held (at para. 35) that it was ‘inconceivable (…) that Article 6 para. 1 (…) should describe in detail the procedural guarantees afforded to parties in a pending lawsuit and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to a court. The fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings.’
This right is clearly capable of being infringed and violated if a suit is dismissed.

As regards the ICCPR, there is some danger of confusion, due to there being two rights of access to a court. The first is the right of equal access to court, a necessary consequence of the right of equality before the courts provided for in Article 14 (1) (1) ICCPR (see e.g. General Comment No. 13 of the Human Rights Committee, at para. 3). This is patently not concerned where a lawsuit is dismissed on the grounds of a lack of justiciability or jurisdiction under any of the doctrines mentioned, so long as these doctrines are applied without discrimination, which they certainly are.
But the practice of the Human Rights Committee also shows the existence of another, more general right of access to a court, derived from Article 14 (1), read together with Article 2 (3) of the ICCPR (see e.g. Evans v. Trinidad and Tobago, Comm. No. 908/2000, at paras. 6.5, 6.6). There may be some uncertainty as to whether this right applies to all lawsuits or only to those contemplated by Article 2 (3) ICCPR, i.e. suits for alleged violations of the Covenant, but this is irrelevant at least to a number of cases dismissed under the various doctrines; El-Masri springs to mind.
Besides, the reasoning of the ECtHR in Golder, quoted above, is easily transposable to the ICCPR. While it might be argued that the wording of Article 14 (1) (2) ICCPR, ‘rights and obligations in a suit at law’, suggests more of a limitation to an ongoing case than does the phrase ‘civil rights and obligations’ in Article 6 (1) ECHR, the addition of the words ‘in a suit at law’ more likely was intended to convey the application to courts only, as opposed to the determination of certain civil rights by administrative bodies, as well as the notion of civil rights and obligations. The notion of the right of access to a court, developed by the ECtHR nearly 9 years after the adoption of the ICCPR, was certainly not on anyone’s mind. In addition, the reasoning in Golder in no way depended on any permissive wording in the article; it proceeded from the guarantees applicable to an ongoing court case, and held that these implied a right to set these guarantees in motion by instituting a case.
I would therefore think that there is a right of access to a court in the terms of Golder also under the ICCPR.

It remains to be seen how the doctrines on justiciability I mentioned can be reconciled with this right – if at all.

It should first be observed, with regard to all these doctrines, that the right of access to a court is also engaged (i.e. may be interfered with by a dismissal), if the dismissal is on grounds that may be described as external to the court, as, indeed, to the whole state (it is, of course, a commonplace that Article 14 ICCPR places obligations not only on the court concerned, but on the state as a whole: see Article 2 (1) ICCPR and compare Guincho v. Portugal (ECtHR), at para. 38).
In this sense, the ECtHR has held that it infringes the right of access to a court to dismiss a case, even if this dismissal is commanded by sovereign immunity (see Al-Adsani v. United Kingdom, at paras. 46-49; repeated in Kalogeropoulou and Others v. Greece and Germany), i.e. by customary international law which the state has no choice but to follow (this goes to the justification of the infringement).
However, the doctrines applied in the American cases cited do not follow from public international law (see Baker v. Carr, 369 U.S. 186, 210 (1962): ‘The nonjusticiability of a political question is primarily a function of the separation of powers.’; Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 421 (1964): ‘We do not believe that this doctrine is compelled (…) by some principle of international law.’), unlike the rules on sovereign immunity at issue in Al-Adsani, and they can in no way be described as external to the United States.
Still, Al-Adsani and Kalogeropoulou show that the presence even of good reasons for a dismissal does not mean that there is no interference with the right of access to a court.

Some other issues are specific to the various doctrines, and will be considered in the following posts.    


Anonymous Anonymous said...

Thanks for the discussion Tobias. I wish I could help out with the U.S. material but I'm not an expert here (although in the future I'm hoping to do some research on this topic as well). Today at Opinio Juris Julian has another relevant post: Gonzalez-Vera v. Kissenger [Kissinger].

I look forward to reading your future installments on this subject.


12 June, 2006 06:46  
Blogger Tobias Thienel said...

Thank you for your comment. I will have more to say on the subject in due course, and then I will cite Gonzalez-Vera v. Kissinger and Julian's post.

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