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tion.” 32


B. Standing

Before a litigant can argue the merits of his case, he must establish that he has standing to sue. In this respect, the central question is not whether the issue itself is justiciable, but whether the plaintiff is the proper party to request an adjudication of it. As the Supreme Court has expressed it, “the question of standing is whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolu

The Court has evolved several interrelated standing requirements. The first is that of injury in fact. This supposedly guarantees that the complainants will have sufficient personal interest in the controversy to insure concrete adverseness in the presentation of the issue. Injury in fact has been rather broadly defined; the Supreme Court has held that the interest harmed may be aesthetic, conservational, environmental, or recreational, as well as economic.33 The second requirement is that the claim be arguably within the zone of interest sought to be protected by the law in question. Finally, there is the notion that standing requires a “logical nexus between the status asserted, and the claim sought to be adjudicated." 34 The law of standing, which the Supreme Court has called a “complicated specialty of federal jurisdiction," is quite amorphous. 35 In any particular situation, it can be extremely difficult to apply the standing rules precisely. Nevertheless, it is possible to identify one main characteristic underlying the vague terms of injury in fact and logical nexus. In general, federal courts have demanded that plaintiffs demonstrate a causal relationship between their claimed injuries and the action which they challenge. For instance, in Association of Data Processing Service Örganizations, Inc. v. Camp, the Court stated that "the first question is whether the plaintiff alleges that the challenged action has caused him injury in fact.” 36 In a case a year earlier the Court observed that:

[A]ppellant has alleged that the Act's administration was the direct cause of sufficient injury. ... We are not presented with a case in which an injury to appellant is merely a collateral consequence of the actions of the investigative

body.37 In essence, analysis of the controlling case law "makes it clear that the requisite 'injury in fact is not present when “injury is not direct but is attenuated at best. Johnson v. Morton, 456 F.2d 68 (5th Cir. 1972)." 38

IV. THE LOWER COURT DECISION The passage of the Byrd Amendment and the subsequent issuance of a General License led a group of plaintiffs headed by Congressman Charles Diggs to bring an action in the District Court for Washington,

82 Flast v. Cohen, 392 U.S. 83, 101 (1968).

83 Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152 (1969).

84 Flast v. Cohen, 392, U.S. at 104.
85 United States ex rei. Chapman v. FPC, 345 U.S. 153, 156 (1953).
80 397 U.S. at 153 (emphasis supplied).
87 Jenkins v. McKeithen, 395 U.S. 411, 424 (1969) (emphasis supplied).

88 Brief for defendant (Union Carbide Corp.) at 24, Civil No. 773–71 (D.D.C. Aled June 9, 1972) (emphasis supplied).

D.C. Congressman Diggs alleged that the Byrd Amendment did not and could

not authorize the issuance of such a license, for it would be contrary to United States treaty obligations. Diggs requested a permanent injunction preventing the importation of metallurgical chromite and other materials from Southern Rhodesia. Plaintiffs also sought a permanent mandatory order directing government officials to seize and impound items illegally imported into the United States. Finally, they asked for a declaratory judgment holding the General License null and void.39

The court first considered whether standing had been established. Plaintiffs argued that the illegal Rhodesian government might not have been able to continue if the Byrd Amendment had not been passed. Accordingly they argued that they had been directly injured by the Congressional action. However, the court stated that the injury to the plaintiffs had stemmed" originally and wholly from the fact that the white minority government still reigned in Rhodesia.”' 40 Therefore, it concluded that the Congressional action did not suffice to create either injury in fact or a federal nexus to the injury suffered by plaintiffs. As a result, the court granted the defendant's motion for summary judgment. The court also stressed that the issues raised were not justiciable. It stated that, “Congress has the Constitutional authority to abrogate, in whole or in part, the treaty obligations of the United States.” 41




On appeal, the Circuit Court first considered the question of standing, a hurdle which the appellants had found insuperable below. After surveying the allegations of various personal injuries, the court ruled that the “injury in fact” test had been amply satisfied.42 In doing so, the court recognized injuries which were both indirect and speculative. Obviously, the Byrd Amendment could not be said to directly affect the continuing injury suffered by the appellants, for that would depend as well on the United Nations sanctions apparatus and Rhodesian politics. There was also no guarantee that American participation in the sanctions would have any ameliorative effect whatsoever on the appellants' injuries. Presumably, they would continue so long as the Ian Smith government remained in power. Since the rebel government had persevered even while the embargo was being observed, it was not clear that the United States' withdrawal had strengthened the regime. In sum, the nature and extent of any injury remained speculative.

The court also held that the claim was arguably within the zone of interests sought to be protected by the law in question. The court reasoned that Security Council Resolution 232 “was—and is—an attempt by means of concerted international pressure to turn the Rhodesian government away from the course of action which had resulted in the adverse circumstances experienced by appellants." 43 Thus, it

30 Brief for plaintiffs at 1, Civil No. 773–71 (D.D.C., filed June 9, 1972). The numerous plaintiffs claimed a wide variety of injuries. They ranged from those suffered by United States Representatives and Rhodesian citizens who were denied entry into Southern Rhodesia, to those of a class of authors, led by Gore Vidal, whose books were banned by the Rhodesian government. 40 Civil No. 773–71 at 9. a Id. at 12. 42 470 F. 2d at 464. 43 Id.

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concluded that the appellants were among the resolution's intended beneficiaries.

Finally, the court reviewed the notion that standing requires a "logical nexus between the status asserted and the claim sought to be adjudicated.” 44 This requirement presumes that it is appropriate for the court to view the substantive issues to determine whether the proper party is before it; but, the court questioned whether it added anything to the other two elements of standing—the formulation could be more closely related to the merits of the claim than to the existence of standing to assert it.45 Following its characterization of the logical nexus requirement, the court disputed the District Court's finding that "the causal relationship of the appellants' claim to the challenged acts was too tenuous to confer standing." 46 The District Court believed that the appellants' quarrel was with the Rhodesian government. The Circuit Court stated that the appellants were complaining about “illegal present action by the United States” which undermines the effectiveness of the United Nations sanctions.47 As a result, appellants' quarrel was with the United States and not with the Rhodesian government. The Circuit Court recognized the possibility that economic sanctions would prove ineffective, but noted that the United Nations action constituted the appellants' "only hope. And so, despite the fact that “appellants' plight stems initially from acts done by Southern Rhodesia," the court found that the standing requirements had been satisfied.49

After determining that at least some of the appellants had standing to bring the action, the Circuit Court examined the lower court's conclusion that non-justiciability would require dismissal. In characterizing the Byrd Amendment as an effort to abrogate "one aspect of our treaty obligation under the U.N. Charter," the District Court had emphasized that Congress could nullify a treaty in whole or in part.50

The Circuit Court observed that the appellants did not seriously dispute "the Constitutional power of Congress to set treaty obligations at naught." 51 Rather, they argued that the United States commitment to the United Nations was stronger than an ordinary treaty, and that, as a result, a United Nations Security Resolution could be overridden only if the United States were willing to withdraw entirely from the world body. The Court dismissed this argument by stating that there was no evidence that membership was "intended to be on the all-or-nothing basis suggested by the appellants.

Appellants also attempted to demonstrate that Congress had not intended to compel the President to violate the Security Council's Resolution. The Byrd Amendment states that the President may not ban importation of critical and strategic materials so long as importation from Communist countries is allowed. Appellants construed the language as leaving the President two alternatives other than vio

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4 Flast v. Cohen, 392 U.S. at 102. 45 470 F. 2d at 464. 40 Id. 47 Id. 48 Id. at 465. 49 Id. 60 Civil No. 773–71 at 12. 61 470 F.2d at 466.

lating the resolutions. The President could ban importation of these materials from Communist countries, or he could have the materials removed from the roster of strategic and critical materials.

Appellants then cited the canon of construction that a statute should be construed, if possible, as being compatible with a treaty, and argued that the Byrd Amendment should not be construed as compelling the President to take either of the alternative steps. The court responded :

But these alternatives raise questions of foreign policy and national defense as sensitive as those involved in a decision to honor or abrogate treaty obligations. To attempt to decide whether the President chose properly among the three alternatives confronting him “would be not to decide a political controversy, but to assume a position of authority over the governmental acts of another and co-equal department, an authority which plainly we do not possess. Frothingham

v. Mellon, 262 U.S. 427, 489 (1923).” 53 The court further stated "that there can be no blinking the purpose and effect of the Byrd Amendment. It was to detach this country from the U.N. boycott of Southern Rhodesia in blatant disregard of our treaty undertakings.” 54 Thus, the court concluded that the Amendment had not provided the President with any options, and, even if it had, it would not have been appropriate for the court to intervene. As they summarized the situation:

Under our Constitutional system, Congress can denounce treaties if it sees fit to do so, and there is nothing the other branches of government can do about it. We consider that this is exactly what Congress has done in this case....55


Diggs v. Shultz reaffirmed and expanded the doctrine that Congress has the power to abrogate the domestic effect of a treaty. In the past, this doctrine has been most often invoked to justify Congressional action in areas covered by treaties dealing with alien rights. The treaties abrogated by Congress were often quite old. In the instant case, the court was faced with nullification of an unprecedentedly substantial, and very recent, commitment. Not surprisingly, appellants strongly urged that a rule conceived and formulated to deal with conflicts between a statutes and alien treaties could not appropriately be applied to a conflict between a statute and the United Nations Charter. However, the doctrine of Congressional abrogation is too firmly rooted in precedent and the theory of separation of power to be radically narrowed. As a result, a court will only look for a principled manner in which to avoid application of the doctrine.

Over the years the courts have often used construction to mitigate the effect of the rule. As previously noted, the canon that a statute should be construed, if possible, to be consistent with a treaty has been pressed upon the courts with varying degrees of success. In Diggs, the court declined to resort to the canon, for it felt that the legislative history was clear and conclusive. The Congress fully intended to end full United States participation in the sanctions program, and the court was not inclined to frustrate the Congress' aim. Appellants proffered a series of possible constructions, but they were patently tortured and the court was well advised to reject them.

Bid. at 467.

54 Id. 66 Id.

Perhaps the most exceptional aspect of the Circuit Court's decision concerns standing. To begin with, the decision is partly based on a Security Council Resolution, for the court stated that the appellants were the intended beneficiaries of Resolution 232.56 Curiously, the court provided no further explanation for this statement. It may have assumed that the Resolution became part of United States law pursuant to the United Nations Participation Act; or it may have deemed the Resolution a self-executing treaty commitment. Significantly, acceptance by the Supreme Court of the theory that beneficiaries of international law can assert federal standing rights could open the federal system to a whole new range of cases.

a In any event, it is beyond dispute that the Circuit Court applied the standing requirements in an exceedingly lenient manner. Certainly a trend towards liberalization of standing can be discerned in recent Supreme Court decisions, but analysis of the evolving law does not reveal that standing requirements have become as flexible as the Diggs decision might lead us to believe.57 In fact, if the court's interpretation of the standing requirements was adopted, a virtually limitless array of appellants could successfully establish injury in fact and the requisite nexus. It is well to remember that the Supreme Court has required a causal relationship between the claimant's injury and the allegedly illegal action. The Circuit Court's acceptance of a speculative and indirect injury in Diggs does not seem justifiable. In fact, the District Court decision seems to rest on much sounder ground.

Why did Diggs depart from generally accepted standing requirements? In reflecting upon this question one cannot avoid observing that the decision is suffused with concern and even frustration over its result. The court obviously did not relish applying the doctrine of Congressional abrogation so as to uphold a clear violation of international law. Under American law, however, it had little alternative.

Given this, the Court may have stretched the standing rules in order to gain the opportunity to discuss the issues. Realizing that it could not reverse the course chosen by Congress, it may have wanted to emphasize the international legal effect of the Congressional action. Applying the standing rules strictly might have necessitated dismissing the case without further discussion. As it was, the court was able to state that the purpose of the Byrd Amendment was "to detach his country from the U.N. boycott of Southern Rhodesia in blatant disregard of our treaty obligations.” 58 Later on, it called the United States a “certain treaty violator.” 59

Another justification for the court's interpretation of the standing requirements could center on a theory of allowing greater court access to elected nublic representatives, such as the Congressmen plaintiffs in


* Id. at 465. 87 Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152 (1969). See also Flast v. Cohen, 392 U.S. 83 (1968).

69 470 F.2d at 466. 60 Id. at 467

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