Federal Circuit finds that
Korean citizens lack standing to enforce U.S. agreement with Korea to
compensate Korean veterans of Vietnam conflict and that case involves
“political question”
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 cannot 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 cases have determined that treaties can provide a right of
action. The Court, however, points out that the cases referred to by the
appellants did not involve the enforcement of a political promise. Instead,
they dealt with a court’s jurisdiction over a foreign defendant in extradition
proceedings, or the application of property and inheritance treaties.
Finally, appellants suggest that
the Brown Commitment be read as a contract with the Korean plaintiffs as third
party beneficiaries. The Court explains that “¼the
appellants cite no authority, and we know of none, whereby an individual has
been found entitled to judicial enforcement of a government-to-government
agreement on the legal theory that they are third party beneficiaries of the
agreement. The district court ruled that ‘the commitment by Ambassador Brown
was made on behalf of the United States to the government of the Republic of
Korea and not to the individuals¼.”
[Slip op. 8-9].
The payment made to the Korean
Ministry further shows that the Brown Commitment was intended to be a
government-to-government agreement. Thus, the matter does not implicate
fundamental liberty interests and personal rights.
Finally, the Court reviews the
appellants’ standing. The determination of standing depends on whether Korea
formally protested a violation of the individuals’ rights under the Brown
Commitment. The Court notes that the appellants presented a letter from Korea
to the U.S. State Department that raised the issue of additional compensation
for Agent Orange injuries. The district court, however, did not consider this
letter an “official protest.”
Compliance with the Brown
Commitment is therefore a matter of foreign policy and foreign relations, and
not a matter for the courts to decide.
Citation: Kwan v. U.S.,
272 F.3d 1360 (Fed. Cir. 2001).
