As discussed in a prior post, the U.S. Supreme Court on June 8, 2015, in Zivotofsky v. Kerry decided that the U.S. President had the exclusive power in the U.S. Government to recognize foreign nations and governments.
In the course of that opinion, the Court discussed two facets of U.S.-Cuba relations. The first related to Cuba’s 1960 expropriation of U.S. property interests in Cuba, which Cuba’s official newspaper, Granma, just commemorated as covered n a prior post. The second related to the U.S. entry in 1898 into Cuba’s war of independence from Spain.
Cuba’s 1960 Expropriation of U.S. Properties
The discussion of Cuba’s expropriation occurred in a significant earlier decision of the Supreme Court, Banco Nacional de Cuba v. Sabbatino , 376 U.S. 398 (1964), which the Court this June asserted stood for the proposition that the Court already had endorsed the practice of U.S. presidents exercising unilateral power to recognize new states.
In Sabbatino the Court decided that the judicially-created act-of-state doctrine prevented U.S. courts from adjudicating a claim that the Cuban expropriation violated international law. According to the Court, ”the Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government, extant and recognized by this country at the time of suit, in the absence of a treaty or other unambiguous agreement regarding controlling legal principles, even if the complaint alleges that the taking violates customary international law.”
Important to that conclusion in Sabbatino was the Court’s opinion that at least in 1964, “There are few if any issues in international law today on which opinion seems to be so divided as the limitations on a state’s power to expropriate the property of aliens. There is, of course, authority, in international judicial and arbitral decisions, in the expressions of national governments, and among commentators for the view that a taking is improper under international law if it is not for a public purpose, is discriminatory, or is without provision for prompt, adequate, and effective compensation.”
However, the Court continued in Sabbatino, “Communist countries, although they have in fact provided a degree of compensation after diplomatic efforts, commonly recognize no obligation on the part of the taking country. Certain representatives of the newly independent and underdeveloped countries have questioned whether rules of state responsibility toward aliens can bind nations that have not consented to them, and it is argued that the traditionally articulated standards governing expropriation of property reflect ‘imperialist’ interests, and are inappropriate to the circumstances of emergent states. The disagreement as to relevant international law standards reflects an even more basic divergence between the national interests of capital importing and capital exporting nations, and between the social ideologies of those countries that favor state control of a considerable portion of the means of production and those that adhere to a free enterprise system. It is difficult to imagine the courts of this country embarking on adjudication in an area which touches more sensitively the practical and ideological goals of the various members of the community of nations.”
For the Court in Zivotofsky, Sabbatino was important because it held that “Political recognition is exclusively a function of the Executive” and because the U.S. “Executive had recognized the Cuban Government, the Court held that it should be treated as sovereign and could benefit from the ‘act of state’ doctrine.”
Congress was very unhappy with the decision in the Sabbatino case and immediately passed the so-called Second Hickenlooper Amendment that stated that the courts are not to apply the Act of State Doctrine as a bar against hearing cases of expropriation by a foreign sovereign unless the President requests the courts to consider the Act of State Doctrine because foreign policy interests may be damaged by judicial interference. This amendment was retroactive and subsequently found constitutional, leading to the dismissal of the Cuban bank’s complaint in Sabbatino. (This reaction to Sabbatino was not mentioned by the Court in Zivotofsky.)
U.S. 1898 Entry into Cuba’s War of Independence
The reference to the U.S. entry in 1898 into Cuba’s war of independence from Spain was raised by the plaintiff in Zivotofsky as purportedly establishing congressional power to recognize a foreign government. The Court disagreed, saying that it merely established that some presidents have chosen to cooperate with Congress, not that Congress has exercised the recognition power.
Here is the Court’s recitation of that history. “In 1898, an insurgency against the Spanish colonial government was raging in Cuba. President [William] McKinley determined to ask Congress for authorization to send armed forces to Cuba to help quell the violence. Although McKinley thought Spain was to blame for the strife, he opposed recognizing either Cuba or its insurgent government.”
“At first, the House proposed a resolution consistent with McKinley’s wishes. The Senate countered with a resolution that authorized the use of force but that did recognize both Cuban independence and the insurgent government. When the Senate’s version reached the House, the House again rejected the language recognizing Cuban independence. The resolution went to Conference, which, after debate, reached a compromise. The final resolution stated “the people of the Island of Cuba are, and of right ought to be, free and independent,” but made no mention of recognizing a new Cuban Government. Accepting the compromise, the President signed the joint resolution.”