OPINION: The brink of war: how courts avoid injudicious aggravation of tension between nations

Last Updated on Monday, 5 August 2024, 21:00 by Writer

By: Dr. Vivian M. Williams

It was a few dreadful months ago that Guyana, one of the world’s recently minted petro-states, was desperately scrambling to mobilize the international community to avert war with Venezuela. The conflict heightened the risk of instability in the Caribbean and Latin America over a decades-old border controversy between two former colonies, squabbling over territory.

When tension flared in November 2023, Guyana rushed to the International Court of Justice (ICJ) with an emergency application to maintain the status quo, raising the matter also with the UN Security Council. For now, a fragile agreement called the Argyle Declaration, brokered by the Caribbean Community (CARICOM) and the Community of Latin American and Caribbean States (CELAC), is softening the trumpet of aggression though in the background, the drums of war still beat. Skip a beat while Venezuela is marking time, and the tempo could change.

Amid fragile peace, courts often play a pivotal role in preventing nations that are on the edge, from descending into armed conflict. The burden falls not only upon the ICJ that adjudicates conflict between nations, but also local courts that rule on matters that touch upon and impact foreign affairs. Commercial matters and human rights claims are two lines of cases that could aggravate tension between nations. Therefore, it is imperative for courts in weak states that lack the military might to defend themselves, to be on alert and recognize that sometimes, providence requires judicial independence to defer to considerations by the executive branch.

How courts avoid escalating tension between nations

The judiciary is one of three co-equal branches—the other two being the executive and the legislative—of government. It is vested with exclusive power to interpret laws, and rule on matters properly before it. However, judges are careful not to exercise their authority with childish arrogance. Courts in some of the most powerful nations like the United States, recognize instances when it is imperative that judicial wisdom bows to the more robust and nuanced considerations of the executive. This is rooted in the doctrines of judicial deference and comity.

For comity and judicial deference to be effective, co-equal branches of government must recognize the importance of working together instead of fighting for turf. There must be sobriety and mutual respect even in a standoff. Comity for instance, urges courts to forego their authority to hear and decide matters that could affect relations with other countries [i]. Judicial deference occurs when a court declines to stamp its authority and rely on its own judgment, opting instead to be guided by assessments made by the executive branch. These doctrines flow from the common sense understanding that there are instances when a nation’s interest compels courts to stand down.

In 2004 when the US State Department urged a US District court not to adjudicate a matter involving the People’s Republic of China because it would distract from or interfere with the executive branch conduct of foreign policy, the court noted that “the views of the State Department, while not ‘conclusive,’ are entitled to respectful consideration” [ii].

However, the value of comity and judicial deference in preventing injudicious aggravation of tension between nations may not be sufficiently appreciated by weak states like Guyana. One of the flaws of dysfunctional states is an executive branch that operates with omnipotence that irritates. Consequently, every opportunity to diminish the executive is relished. However, as Guyana stands on the brink of war, the joy of humbling the executive should not be celebrated to the detriment of a nation poised for greatness.

Comity and an unnecessary feud between the executive and the judiciary

Comity does not require a determination that a court lacks jurisdiction to hear a matter. To the contrary, it is only triggered after the court’s authority is conceded. When comity is invoked, the court weighs whether considerations of the conduct of another foreign state, warrants the court’s refusal to pass or enforce judgment. Sophisticated judges have recognized that the executive, not the judiciary, is best suited to make that determination [iii]. This is the position commonly taken by courts around the world, including the United States.

Therefore, when the US oil giant ConocoPhillips sought enforcement in Guyana of an arbitration award against Guyana’s nemesis, Venezuela, it must have expected comity and judicial deference to be huge obstacles. ConocoPhillips’ dispute with Venezuela arises from Venezuela’s nationalization of its assets. An adjudication in favor of ConocoPhillips would drag the government of Guyana into the dispute, requiring it to turn over funds owed to Venezuela and its state-owned oil company PDVSA, to ConocoPhillips. As the court observed was done in Jamaica, a receiver could be appointed for disposition of the assets of a nation that is threatening to annex about two-thirds of Guyana.

It should be evident, even for a layman, that the executive branch should not be subject to an order from the judicial branch for which compliance could aggravate tensions with a hostile neighbor. Such an adjudication comes at a time when Guyana’s regional, hemispheric, and other international partners are trying to quiet the trumpets of war. It also comes at a time when the ICJ has ordered Guyana and Venezuela to desist from aggravating each other.

Whether adjudicating the matter would aggravate tension between Guyana and Venezuela is a question of probability. Courts around the world have concluded that the executive, not a single judge aided by a judicial clerk, is better equipped to estimate the risk and likely consequence to the nation. It is therefore well established that courts give judicial deference to the executive on matters pertaining to international relations.

In adjudicating the ConocoPhillips case, Justice Gino Persaud demonstrated why the executive – not the judiciary, should make the call on matters that touch upon and impact foreign affairs. In rejecting Attorney General, Anil Nandlall’s request for the court to decline adjudication of the matter, Justice Persaud outlined considerations that are contrary to factors that usually guide courts. This sparked an unnecessary feud between the executive and the Judiciary instead of respectful consideration.

Reasons that the court’s ruling in the ConocoPhillips matter is troubling

1. The court went on a foreign policy excursion

In declining to give deference to the executive, Justice Persaud considered the action taken by other countries. He was persuaded by the fact that the United Kingdom, United States, Jamaica, Trinidad and other countries have recognized the arbitral award. This consideration unwittingly veered the court into the foreign policy arena. Here, the court is using what was done by other countries to assess the prudence of Guyana’s foreign policy.

Justice Persaud fails to appreciate that what other countries do or do not do in their relations with Venezuela, cannot form the basis to assess the prudence of Guyana’s foreign policy. Even if it could, Justice Persaud’s peers in other countries have recognized that a judge is not the appropriate person to make that call. The United States District Court for the Northern District of California cautioned that “the limited institutional competence of the judiciary to assess the impact upon its rulings upon foreign relations makes second guessing judgments made by the State Department hazardous” [iv].

Moreover, Justice Persuad’s reasoning lacks the sophistication necessary for judicious foreign relations. It fails to recognize that none of the countries whose actions were considered are on the brink of war with Venezuela and lack the military might to defend themselves. It does not even appear that the executive in any of those countries raised the issue of comity and judicial deference with their court. Justice Persaud’s approach substitutes the judgment of a single judge for that of the robust machinery the executive devotes to foreign policy assessments.

Justice Persaud’s decision has the feel of an inquiry that begins and ends with one question: does the court have the authority to grant the relief requested? Having checked the box next to ‘yes’, there is no adequate interrogation of the more salient question: should the court decline to exercise authority on account of comity and judicial deference?

2. The court improvidently weighed policy issues

Justice Persaud gave more weight to signaling to “international corporate titans” that Guyana will recognize and honor international arbitral wards. He buttresses this reasoning by pointing out that Guyana is now a premier destination for investment as the world’s fastest growing economy. However, this kind of policy consideration is the forte of the executive. In jumping into this policy arena, Justice Persaud again demonstrates why courts are hesitant to substitute their judgment for that of the executive.

First, international corporate titans are more attracted to countries that recognize and uphold the doctrines of comity and judicial deference. These doctrines shield them from the risk of litigation in multiple jurisdictions that have little or no connection to the conduct being litigated. Without comity and judicial deference, a company could find itself defending conduct that is legal where it operates but illegal in another jurisdiction. This is one of the reasons that there is a renaissance of generous application of comity in developed countries and emerging markets in commercial matters. In any event, the executive is more equipped with the data and experts to determine what blend of policies it will deploy in furtherance of commerce.

Secondly, Justice Persaud failed to appreciate that what is involved in the ConocoPhillips case is a dispute between a private company and a state party. Clearly, Guyana would not be better served by signaling a willingness to jump in the middle of conflicts between private companies and powerful state parties. That is in effect, the interest Justice Persaud claim to be furthering with his decision. There is no rational basis to conclude that application of comity and judicial deference in this case would impact how Guyana is perceived in the handling of disputes between non-state parties.

Thirdly, the government’s need to avoid the escalation of conflict with neighboring Venezuela, far outweighs any benefit Guyana may hope to attain by charming international corporate titans. Justice Persaud cannot be unaware of the tenuous relations between Guyana and Venezuela, and Venezuela and the United States. It is difficult to see how the appointment of a receiver in Guyana to round up Venezuela’s assets and hand them over to a US company would not intensify the conflict between Guyana and Venezuela.

When a US District Court was asked to issue an order that would compel banks to transfer or convey assets in direct contravention of Swiss freeze orders, it noted that the prospect of “insult to the OPEC states and of interference with the efforts of the political branches to seek favorable relations with them is apparent from the very nature of this action and the remedy sought” [v].

Separation of powers is NOT a one-way street

Over time, courts have come to recognize that separation of powers does not mean that the three branches of government—executive, judicial and legislative—must operate in silos and as combatants. There are areas of overlap that require one branch yielding to another. Modern courts are aware that comity and judicial deference are not affronts to the separation of powers. They are the embodiment of it.

Through these doctrines, courts recognize that some matters before them invite the judiciary to trespass into domains reserved for the executive. Courts around the world are aware that when they substitute their opinions and findings for that of the executive in areas reserved for the executive, they could undermine the foundation of their existence.

If courts gratuitously accept invitations to venture into domains the constitution reserves for the executive, their decisions may be rightfully condemned. Without preservation of the republic there would be no judiciary, no executive, and no legislature to engage in unnecessary feuds. While an omnipotent executive might be deserving of some restraint from the judiciary, when it comes to relations between countries that are on the brink of war, local courts are duty-bound to avoid injudicious aggravation of tension.

[i] 767 Third Ave. Assocs. v. Consulate Gen. of the Socialist Fed. Republic of Yugo., 60 F. Supp. 2d 267, 269

[ii] Doe I v. Liu Qi, 349 F. Supp. 2d 1258, 1296

[iii] Freund v. Republic of France, 592 F. Supp. 2d 540, 544

[iv] Doe I v. Liu Qi, 349 F. Supp. 2d 1258, 1296

[v] Credit Suisse v. United States Dist. Court, 130 F.3d 1342, 1343