Treaty Interpretation Equals a Political Question? DC Circuit Dismisses "Comfort Women" Suit Against Japan

In an important decision on treaty interpretation and the political question doctrine, the D.C. Circuit yesterday affirmed the dismissal of a lawsuit brought by a number of Korean, Taiwanese, and Filipino women who alleged rape, torture, and other abuse at the hands of Japanese soldiers during World War II. The lawsuit was brought under the Alien Tort Statute and had been originally dismissed by the district court on sovereign immunity grounds. The Supreme Court remanded, however, for reconsideration and the D.C. Circuit has a new reason for dismissal: “the case presents a nonjusticiable political question: namely, whether the
governments of the appellants’ countries foreclosed the appellants’ claims in the peace treaties they signed with Japan.”

As I’ve noted earlier, Japan is still facing serious fallout in Asia from its WWII behavior, especially in S. Korea and China. And my own belief is that Japan is still responsible in some way for the serious crimes their army committed in the WWII. But, as a legal matter, both Korea and China (and Taiwan and the Philippines) may have waived any claims by their nationals via peace treaties with Japan.

What is interesting here is that the D.C. Circuit refused to resolve whether or not the claims have in fact been waived by the treaties. Instead, it has invoked the always murky “political question” doctrine to dismiss the case on the theory that interpretation of the treaties here would interfere with the executive’s conduct of foreign affairs. Usually, the question of treaty interpretation is a matter of deference to the executive branch’s interpretation, at most, but here the D.C. Circuit went farther. It noted that if it adopted an interpretation of a treaty between two other countries like a treaty between Japan and Korea, it might unduly upset foreign relations with one or both of those countries. Here is the key graf from the decision by Chief Judge Ginsburg:

Is it the province of a court in the United States to decide whether Korea’s or Japan’s reading of the treaty between them is correct, when the Executive has determined that choosing between the interests of two foreign states in order to adjudicate a private claim against one of them would adversely affect the foreign relations of the United States? Decidedly not.

I’m sympathetic to this approach, although I wonder how far the court or future courts will push this application of the political question doctrine. Why shouldn’t any treaty interpretation by courts which the “Executive has determined … would adversely affect the foreign relations of the United States” become a political question? The answer, I think, is that treaties the U.S. has signed are “Laws of the United States” under the Constitution and therefore different. I suppose this is the distinction, but it is not an entirely satisfying. If I were the U.S. government, I would definitely invoke the political question to try to limit the use of the Geneva Conventions in the Guantanamo cases currently being appealed to this same court.