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Published online by Cambridge University Press: 27 February 2017
Appellants sued President Reagan and other executive branch officials in the U.S. district court to enjoin U.S. military aid to the Nicaraguán resistance forces (contras), alleging that the aid violated the Fifth Amendment to the Constitution, the United Nations Charter and customary international law. The district court, in an unpublished opinion, dismissed the complaint as presenting nonjusticiable political questions. The Court of Appeals for the District of Columbia Circuit (per Mikva, J.), affirming the dismissal on different grounds, held that (1) the trial court’s blanket invocation of the political question doctrine was inappropriate; (2) the statute funding the contras prevails over any earlier obligations under treaties or customary international law; (3) individuals have no private right of action to enforce decisions of the International Court of Justice; (4) adherence to an ICJ judgment rendered under a disputed assertion of compulsory jurisdiction is not required as a matter of jus cogens; and (5) plaintiffs had failed to show that U.S. government support of the contras caused their injuries or was so arbitrary and unreasonable as to violate their Fifth Amendment rights.
1 Committee of United States Citizens Living in Nicaragua v. Reagan, No. 86-2620 (D.D.C. Feb. 6, 1987). The district court held that “questions involving delicate matters of foreign affairs are the quintessence of the ‘political question,’ ” slip op. at 4, and are justiciable only when “the nub of the controversy” is no more than “tangentially related to the politics of foreign policy,” id. at 5. The district court also appeared to consider aid to the contras a matter of purely “executive discretion.” Id. at 3. That Congress had also approved the aid was merely another factor counseling the court to exercise “prudence.” Id. at 6.
2 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (Judgment of June 27). After unsuccessfully challenging jurisdiction, Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392 (Judgment of Nov. 26), the United States withdrew from the case. Statement on the United States Withdrawal from the Proceedings Initiated by Nicaragua in the International Court of Justice, Jan. 18, 1985, reprinted in 24 ILM 246 (1985).
3 Ramirez de Arrellano v. Weinberger, 745 F.2d 1500, 1514 (DC. Cir. 1984) (en banc), vacated on other grounds, 471 U.S. 1113 (1985).
4 859 F.2d 929, 934–35.
5 Military Construction Appropriations Act for Fiscal Year 1987, Pub. L. No. 99-500, §101(k), 100 Stat. 1783 (1986).
6 112 U.S. 580 (1884).
7 859 F.2d at 936.
8 Moreover, the court said that Article 94 applies only between nations, and was never intended to give individuals a private right of action to challenge violations. Nor can the alleged violation of Article 94 by the Department of State in disbursing funds for the contras be an “agency action … not in accordance with law” that would support a right of action under the Administrative Procedure Act, § 10, 5 U.S.C. §§702, 706 (1982), because the “violation” is not cognizable in domestic courts. 859 F.2d at 942.
9 175 U.S. 677 (1900).
10 267 F.2d 664, 666 (D.C. Cir. 1959), cert, denied, 362 U.S. 904 (1960), in which the D.C.
Circuit said:
Whatever force appellant's argument might have in a situation where there is no applicable treaty, statute, or constitutional provision, it has long been settled in the United States that the federal courts are bound to recognize any one of these three sources of law as superior to canons of international law.
11 859 F.2d at 939.
12 W. at 943.
13 Restatement (Third) of Foreign Relations Law of the United States §115 (1987) [hereinafter Restatement]. The Restatement also instructs the court to give effect to the statute only if the intent of Congress to supersede the treaty or customary rule is clear and the two cannot be harmonized. Id. §§114, 115. The court recognized that on the basis of the jurisdictional dispute, “Congress may well believe that its support for the Contras, while contravening the ICJ judgment, does not violate its treaty obligation under Article 94.” 859 F.2d at 936. Nevertheless, for purposes of the motion to dismiss, the court accepted as true the allegation that the treaty had been violated.
14 See Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and its Progeny, 100 Harv. L. Rev. 853 (1987); Henkin, International Law as Law in the United States, 82 Mich. L. Rev. 1555 (1984). The remaining dispute between the drafters of the Restatement and other commentators appears to be over the extent to which customary international law can supersede prior acts of Congress, not the reverse. See Goldklang, Back on Board the Paquete Habana: Resolving the Conflict Between Statutes and Customary International Law, 25 Va. J. Int'l L. 143(1984).
15 See Finzer v. Barry, 798 F.2d 1450 (D.C. Cir. 1986) (international obligation to protect the “dignity” of foreign diplomats overcomes constitutional right of free speech), aff'd in part and rev'd in part sub nom. Boos v. Barry, 108 S.Ct. 1157 (1988).
16 If it is not a peremptory norm, it is because submitting to jurisdiction is a voluntary undertaking by each nation. As long as a nation may enter into agreements waiving its right to enforce ICJ decisions, the norm cannot be “nonderogable” within the meaning of the Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331, Arts. 53,-64. See also Restatement, supra note 13, §331.
