Chevronizing Foreign Relations Law
Last week the Court of Appeals for the Eleventh Circuit ruled that the act of state doctrine prevents former owners of property in Cuba from recovering damages from Club Med, which operated a resort on that property with the permission of the Cuban government. Cuba had expropriated the property from the family in 1959. Florida law would ordinarily permit plaintiffs to recover on theories of trespass and unjust enrichment, but under the act of state doctrine Cuba’s expropriation of the property must be considered valid for purposes of the dispute. (A brief discussion is here.)
The act of state doctrine is just one member of a menagerie of international relations doctrines and laws that require courts to defer to the interests of foreign sovereigns, including their agents and instrumentalities. The presumption against extraterritoriality, the Charming Betsy canon (which requires courts to interpret ambiguous laws so as not to violate international law), and the Foreign Sovereign Immunities Act (which generally prohibits suits against foreign sovereigns) are others. These pro-comity doctrines sit uneasily with a host of anti-comity doctrines, which in some cases require courts not to defer to the interests of foreign sovereigns. Adding to the confusion, courts often, but not always, allow the executive to direct them as to when to defer to the interests of foreign sovereigns, and when not.
In a recent paper, Cass Sunstein and I try to make sense of this confusion. We argue that when the executive does not express an opinion about an ambiguous statute, courts should defer to the interests of foreign sovereigns (1) when doing so is likely to result in reciprocal deference to American interests by the sovereign or its courts (or to avoid retaliation), and (2) when the benefit from such reciprocal deference (or avoided retaliation) exceeds the costs to American interests and values. When the executive does express an opinion about whether a court should defer to the interests of a foreign sovereign, the court should generally act consistently with that opinion, barring conflict with a clear statute. Although it's not clear that the outcome in the case above can be defended on these grounds, the act of state doctrine in general makes good sense. Our argument rests on a claim that the principles underlying Chevron can be extended to foreign relations law. The working paper can be found here.