Political Question

• Author: International Law Group

In 1966, through a letter from the then-Ambassador to Korea, Winthrop B. Brown, to the Korean Minister of Foreign Affairs, the U.S. allegedly agreed to provide military and economic assistance to Korea, as well as compensation for death and disability for Korean casualties suffered in Vietnam. Pursuant to this commitment transmitted through Ambassador Brown, the U.S. allegedly paid death and disability payments to the Republic of Korea, through the Minister of National Defense, of $10.5 million. Two individuals, Kang Joo Kwan, as representative of Korean veterans of the Vietnam conflict, and Se Jeik Park, for 270 members of the Korean National Assembly, claim moneys due under that commitment. Their claims are seemingly based on Agent Orange exposure and late-developing illnesses.

The district court dismissed the Republic of Korea as a party, and found that the plaintiffs lacked standing to enforce the Brown commitment, and that their claims involve non-justiciable political questions. The plaintiffs appealed. The U.S. Court of Appeals for the Federal Circuit finds that Kwan and Park lack standing to enforce a government-to-government obligation, and that their claims encompass non-justiciable political questions.

First, the Court explains that "[w]hen the foundation document is an agreement between governments, non-governmental entities can not ordinarily challenge either their interpretation or their implementation, in the absence of express authorization for such private action. ... 'A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and give no redress.'" [Slip op. 5] Since the Brown Commitment was informal and not legislatively implemented, it cannot be judicially enforced.

In particular, the appellants argued that prior...