Vanderbilt Journal of Transnational Law

First Page



When the Constitution established three branches of government, it did not create three hermetically sealed areas of responsibility. The executive, legislative and judicial branches are required to govern through a certain degree of accommodation. One area in which the need for accommodation between the judicial branch and the other two branches was recognized at an early stage is cases containing questions bearing on foreign relations.' Under the Constitution it appears that the conduct of the foreign relations is vested in the Executive with a secondary role for the Congress, but that the courts have no role to play in this area. Litigation brought to the courts, however, has been found to demand decisions affecting foreign relations. To avoid breaching the constitutionally required separation of powers in these instances, the Supreme Court has determined that the judiciary should move away from its role as a neutral decision maker . In these instances the courts are either to decide the cases consistent with the wishes of the executive branch or to refuse to decide, thus effectively sanctioning the status quo...

It is apparent from the district court's treatment of the deference question that it doubted the appropriateness of judicial restraint in submerged lands cases and that it did not understand the injunction of the Supreme Court. This error is primarily the product of the Supreme Court's failure to identify the factors that require judicial restraint for foreign relations reasons and to test the submerged lands cases against those factors. If the Supreme Court would conduct this examination, this writer submits that it would probably find judicial restraint inappropriate in the submerged lands cases.

Part one of this article undertakes that review by delineating the primary subject matter areas in which judicial restraint has been exercised for foreign relations purposes. These areas are: recognition, sovereign immunity, act of state, treaty interpretation and territorial questions. Each area involves a different combination of factors that lead to judicial restraint. By isolating those factors we are able to create a rough yardstick with which other cases, including the submerged lands cases, might be measured.