Hanoch Tel-Oren, in His Capacity as Father, on Behalf of the Deceased, Imry Tel-Oren v. Libyan Arab Republic Hanoch Tel-Oren v. Libyan Arab Republic

favorably present responds this court

request. clearly circumstances necessitate a

These

reopening clearly, of the matter. Just as could not have been foreseen Gal- period pre- the normal time for

lup during rehearing.18 for We petition

sentation petition file its for Gallup

thus will allow Gallup’s Group will reinstate

rehearing, and will, however, petition

III for review. We Circuit, to the Tenth petition

transfer that litigation

wherein the remainder of the

now the administrative record pending,19 filed,20 juris-

has and exclusive been ordered

diction to review will reside.21 accordingly.

Order TEL-OREN, capacity

Hanoch his

father, deceased, behalf

Imry Tel-Oren, al., Appellants, et

v. REPUBLIC,

LIBYAN ARAB et al. TEL-OREN, al., Appellants,

Hanoch et REPUBLIC, LIBYAN ARAB et al. Marcus, Va., Arlington, Michael S. 81-1870, Nos. 81-1871. Lewis, Jr., whom Oren R. and Richard H. Jones, Va., brief, Appeals, Arlington, United States Court of were on District of Columbia Circuit. appellants. Letsche, D.C., J. Washington, Karla

Argued March 1982. appellee, Association National of Arab Decided Feb. Sedky Americans. and Lawrence Cherif D.C., were Lanpher, Washington, Coe brief, for National Association of appellee, Arab Americans. Kennedy, City,

Michael New York was on brief, Palestine Information appellee, Office. supra Fed.R.App.P. 40(a). 20. See text at note 15.

18. See 8251(b) (1982). 2112(a) (1976). 21. See 16 U.S.C. § 19. See U.S.C. en- Tigar, Washington, D.C., 1981). appeal Michael E. Plaintiffs the District Court’s on appellee, rulings jurisdiction- Palestine two of their claimed tered an for appearance bases, 1331,1350, al America. U.S.C. and on the Congress of North §§ statute of issue. limitations BORK, Before and Circuit EDWARDS affirm this We the dismissal of action. ROBB, Judge. Circuit Judges, and Senior separate concurring Set out below are Edwards, Judge Bork, statements of Judge opinions filed Concurring by Circuit Robb, Judge indicating and Senior different EDWARDS, T. Judge HARRY Circuit affirming reasons for reached by result BORK, Judge Judge and Circuit Senior the District Court. ROBB. PER CURIAM: EDWARDS, Judge, HARRY T. Circuit action, in mostly concurring: Plaintiffs Israeli citizens, representatives are survivors and case an of the This deals with area persons murdered an armed attack out that cries for clarification the Su- They a civilian in Israel in March 1978. bus Court. preme every We confront at turn compensatory punitive filed suit for and and novel questions broad about defini- Court, naming as damages in District of the application and “law of nations.” Libyan Republic, defendants the Arab As is obvious from the laborious efforts of Palestine Pal- Organization, Liberation opinion writing, questions posed defy Office, estine Information As- National answers. easy Americans, sociation of Arab and the Pales- At issue in is an aged this case but little- tine Congress of North America.1 provision Judiciary noticed First Act complaint, plaintiffs alleged their jurisdic- which gives federal courts responsible multiple defendants were tion over minute class of cases implicating of the na- tortious acts violation law of Thus, the law nations. it is not startling tions, States, treaties the United and controversy the central of this action States, criminal laws of the well produced has opinions now divided between as the common law. Jurisdiction was and opinions within circuits. The separate claimed under four statutes: Bork Judge and Robb are fundamen- (federal U.S.C. question jurisdic- § at odds tally with the decision of Second tion); 28 (diversity jurisdic- U.S.C. § Pena-Irala, v. Filartiga Circuit 630 F.2d tion); jurisdic- 1350 (providing U.S.C. § which, (2d Cir.1980), mind, my tion over alleging actions an alien a tort more faithful pertinent statutory committed in violation law of nations language existing precedent, Al- or a treaty States); of the United I though opinions cannot concur in the Foreign Sovereign Immunities Act of colleagues, my agree I do with them that 28 U.S.C. 1602-1611. For pur- §§ the decision of the District Court should be poses jurisdictional analysis, our as-we affirmed. I separately write to underscore plaintiffs’ sume allegations be true. decision; the rationale I my do this because,

The District Court dismissed the action apparent, as will be there are subject both for lack of matter sharp among differences of viewpoint and as applicable barred statute who judges grappled with these cases Libyan limitations. Hanoch Tel-Oren meaning application over the of 28 Republic, F.Supp. (D.D.C. Arab (1976).1 § U.S.C. pursue against aspects my colleagues’ Indeed, opinions.

1. Plaintiffs do not their claim I Congress the Palestine of North disagree peripheral America much discus- appeal. sion contain. My analysis, allegations also is limited to the my directly 1. That I confine remarks issues Organization. the Palestine Liberation related to the construction of 1350 should in agree with the District Court the com- respect read as an endorsement of other Background Filartiga allegations pertinent I. Paraguay- Filartiga, Dr. Joel follows. heavily thirteen arm- On March Paraguayan oppose known Liberation Or- ed members of the Palestine daughter, Dolly, regime, his Stroessner PLO”) (hereinafter “the turned ganization that, alleged the defendant Pena- civilian day trip nightmare into a official, Irala, police had kid- Paraguayan ter- men, PLO women children. tortured to death Dr. Filarti- napped and Israel and set out rorists landed boat in son, ga’s They Joelito. claimed 17-year-old the along high- main rampage on a barbaric he was in retaliation for his father’s killed They and Tel Aviv. way between Haifa the day On the mur- political activities. taxi, ear, bus, a passing seized a civilian a der, Filartiga taken to Pena’s Dolly was a bus. took They and later second civilian home confronted her brother’s and They tortured passengers hostage. the body, bore marks severe torture. which them, them, shot wounded them and mur- Thereafter, Filartiga a murder commenced police them. Before the Israeli could dered Pena in a against Paraguayan action court. massacre, and 12 stop the 22 adults children The the time pending action was still killed, 14 and 73 adults and children were opinion. the Second Circuit seriously Most of the vic- were wounded. citizens; a tims were Israeli few were Pena the entered United States 1978 They American Dutch citizens. turned beyond and on a visa and remained visitor’s and legal brought visa, to our courts for redress living Brooklyn, term New asserting jurisdic- for damages Filartiga, living this action York. Dolly Wash- 1331 1350 D.C., tion under and presence U.S.C. learned his and ington, §§ 28. (1976). The District Court dismissed the Immigration notified the and Naturaliza- subject jurisdic- action for lack of matter also tion Service. filed a civil com- She appeal him, tion. The critical issue on is wheth- he plaint against alleging that had alleged facts meet plaintiffs er sufficient caused her death wrongfully brother’s jurisdictional elements of those sections. seeking compensatory puni- torture and tive ten damages of million dollars. Juris- Filartiga II. Decision diction general was claimed under the fed- sufficiency question provision, into eral 28 U.S.C. 1331 My inquiry plain- § Statute, allegations (1976), 28 guided by tiffs’ Second and under Alien Tort Filartiga. decision For reasons U.S.C. 1350 The District Court Circuit’s § below, legal complaint jurisdictional I princi- set out adhere to the dismissed the Filartiga grounds. doing, established but In so the trial court relied ples find prior reliance on on cases in which the Circuit preclude factual distinctions Second jurisdiction had the “law of to encom- subject that case to find matter defined nations” states, pass relationships now us. I or Specifically, in the matter before between state, a and not of nations an individual and imposes do not believe the law liability E.g., state’s of its citizens. same or on non- treatment own responsibility PLO, Finck, (2d actors, Dreyfus as it von 30-31 state such as the does on 534 F.2d cert, denied, Cir.), persons acting under color of states (1976); Vencap, Ltd., from IIT v. state law. Absent direction the Su- L.Ed.2d (2d Cir.1975). It con- scope F.2d preme proper Court Paraguayan plaintiff’s I am cluded that a suit obscure section therefore Paraguayan did not Filartiga’s construction defendant prepared extend and, therefore, encompass implicate case. the law nations of section 1350 to (D.D.C.1981). Libya allegations against plainants’ over Palestine In Jurisdiction Foreign Sovereign Immunities Office the National barred Act, formation Association §§ too 28 U.S.C. of Arab Americans are insubstantial immunity preserves satisfy requirement for tort claims un- that a which violation injury less death in the United States. stated. Hanoch Tel- occurs of the law nations be 1605(a)(5) (1976). Libyan F.Supp. Republic, U.S.C. §§ Oren v. Arab jurisdictional did not fit within limits of Because I substantially am in accord with Second Circuit reversed these four propositions, Judge Bork and Judge not, the district apparently court remanded further Robb amI unable proceedings. join opinions. in their III. provides Section 1350 that a district court Section as the Source “Right original jurisdiction shall have over civil to Sue” actions alien “by only, an for a tort commit- First, and most fundamentally, diverge ted in violation of the law of nations or a from the of my colleague Judge views Bork treaty of the United In the States.” ab- regarding necessary elements of this allegation violation, sence of treaty jurisdiction. court’s The Second Circuit did in Filartiga critical issue was whether not require plaintiffs point specific torture constitutes violation the law of to sue under the law of nations in does, nations. determining order to establish under section accepted Kaufman reviewed the sources of 1350; rather, required the Second Circuit nations, law—the of usage ju- international only a that the showing defendant’s actions jurists— dicial and the of opinions works violated the substantive law of nations. In and concluded that of official torture both contrast, jurisdic- Bork Judge deny aliens prohibited by and citizens is the law tion to any plaintiff presumably including — 630 nations. F.2d at That section 884. those in Filartiga not allege could a —who Judiciary was enacted Act of specific sue right apart to from the lan- ch. Stat. when world § guage of A, section 1350 In Part itself. perceptions both role of international below, I outline formu- Circuit’s Second law and its substantive provisions differed lation of section my summarize from considerably perceptions today, did B, endorsing reasons for it. I In Part offer preclude Judge this result. Kaufman an alternative formulation of section 1350 took guidance Habana, from The Paquete law, under which domestic tort not the law L.Ed. 320 nations, provides plaintiffs sub- (1900) (holding that the prohibi- traditional right stantive needed to trigger application tion seizure enemy’s of an coastal section 1350. am less comfortable with fishing ripened vessels had from a standard formulation; however, the alternative of comity into a settled rule of international the face of the obscure history section law), and observed that “courts must inter- 1350, I ignore Would be remiss were I to pret was in international law not as it tenable construction of difficult statu- but as it has evolved among and exists tory provision. nations of the world today.” F.2d at 881. A. Section 1350 Provides a Right Action and a Forum: The Filartiga Formula- opinion thus several prop- established First, ositions. the “law nations” is not stagnant and should be construed as it ex- suggestion Bork’s that section 1350 among ists today requires plaintiffs nations world. to allege right to sue Second, Id. one source granted of that law is the by the law of seriously nations is usages nations, customs civilized flawed. it Initially, assumes that “law by jurists articulated provide commentators. nations” could a specific, articu- Third, Id. at 884. today right law lated to in a sue form other than a places on a power limits state’s to torture or treaty agreement. executive Yet no evi- persons held in custody, jurists and confers “funda- dence is to offered indicate that or rights upon mental all to be people” free commentators have ever looked Fourth, from Id. at torture. 885. section of nations to wrongful determine when a opens adjudica- the federal deed is actionable. This absence evi- tion of already recognized by surprising, dence is not it is because clear itself, law. Id. at “[¡International finally, 887. does accoutrements on the technical ticularly viola reaction to require any particular imagine even to it is hard and how an action —and Whether tions of law.... characterize this viola ever would harmony to react to such wished United States ” ... L. questions. tions are domestic issue. Hen Foreign kin, and the Constitution Affairs require international consequence, omitted). (1972) (footnote sue, when in fact the on a accord countries permits nations thus The law of on such decisions relegates nations law of they duties their international to meet themselves, would be the states questions Henkin, Pugh, O. will, see R. L. Schachter “law of nations” effectively nullify (1980); Law Smit, International & H. There is a funda- portion 729 n. 5 Hyde, cf. 1 C. International Law construction statutory principle mental cases, 1945). In some states (2d ed. rev. so as should not be construed that a statute obliga- out their carry undertaken to “inoperative any part render as in a United agreed-upon ways, tions in 2A C. insignificant,” void or superfluous, Convention, com- which Nations Genocide Statutory Sands, Construc- Statutes crime, L. genocide to make mits states (4th 1973), and there exists 46.06 ed. tion Pugh, Smit, Henkin, & H. O. R. Schachter yield- against a construction presumption multilateral trea- in bilateral or supra, or Trade Com- Federal ing that result. See Otherwise, may make available ties. states Co., Mia- Manager, Retail Credit mission v. in the manner municipal their laws (D.C. Office, 515 F.2d mi Branch appropriate. consider Restatement Yet, offered Cir.1975). the construction Foreign Law (Second) Relations' § effect of void- Bork would have the Judge (1965) (domestic h illustration 5 comment & of section 1350.2 segment a ing significant remedy to a may provide a law of a state that the statute re- Judge argues Bork of a rule of injured by a violation person be- interpretation his meaning tains under result, law of law). As a the the drafters of recognizes that cause he to create perceived never has been nations of certain offenses perceived section to be made or define the civil actions availa- He enumerates the law of nations. against community of member of the by ble each Blackstone— recognized by three offenses nations; consensus, the states leave that by safe-conducts, infringement violation of municipal respective to their determination ambassadors, piracy rights the Indeed, existing array the given laws. —and that the were the offenses insists that these world, the a consensus legal systems within 1350 had in mind. This of section par- to drafters virtually impossible would be reach — years, Similarly, treaty, may it has for two hundred is a which tions. 2. In obvious contrast obligations judicially leaves when that the law of nations create enforceable been established People parties provide right municipal the of the to it. up that is will whether to a law Interior, Saipan Department 502 F.2d by obligations to enforce created of action Cir.1974) (elaborating (9th criteria to be opened federal law of nations. Section agree- to determine whether used challenge trea- violations of courts to aliens judicially en- ment affirmative and establishes expressly treaty or im- as terms ties insofar leg- obligations implementing forceable without judicially pliedly affirmative established cert, denied, islation), opened obligations. Congress also enforceable (1975). Unlike the law of 43 L.Ed.2d 761 challenge violations of the aliens to courts to nations, each state to make an which enables nations, law of to the extent that law of judgment independent extent and as to the obligation. binding Sec- a nations established internationally recognized enforcing method of provides a forum for actions thus tion 1350 norms, obligations and both treaties establish binding par- obligations brought to enforce be enforceable. to which shall the extent ties, law a result of treaties or the whether interpret 1350 in must section We therefore argue that § To of nations. fact, keeping to the fram- well-known formulation, right to sue or could create treaty law of that a and the ers of section self-executing, all treaties somehow make entirely As different animals. nations are otherwise, parties is treaties intend when states, years Judge hundred it has Bork for two treaty throughly the nature of misconstrue by terms treaties their been established that law. obliga- enforceable create and context specious, basic, not explanation responsive. Equally to require express right to sue is directly odds with language concede Judge nothing Bork does more than statute, of the which grants that, law clause of nations over actions civil for a tort “committed in How- covered three substantive offenses. violation of law of nations.” Unlike ever, under his construction of section which requires an action meaningless this it is concession is unless States, “arise under” laws of the United also shown law of nations created a that the section 1350 does not that the require action private action to the three right avenge nations, “arise under” the law of but only law of nations violations to which Black- mandates “violation of the of na- stone showing averted —a that would re- tions” in order to create a cause of action. quire considerable skill since the law of The language explicit statute nations not simply rights does create to sue. terms, its express issue: nothing Indeed, more than a violation of very passage in the of nations quoted required invoke section 1350. Judge Bork, Blackstone makes clear that it Bork nevertheless would propose to write was the laws of municipal England, into section 1350 an additional restriction nations, law of that made the crimes cited is not even suggested statutory principal offenses: “The offenses language. Congress, course, knew full nations, law of animadverted on such well it could draft section 1350 with by the laws of are of municipal England, “arising language, equivalent, under” safeconducts; three kinds: 1. Violation require “cause of action” or “right Infringement 2. of embassa- sue,” but chose not to do so.3 There dors; and, Piracy.” 3. Blackstone’s Com- is no basis in simply language (Welsby 1854) (emphasis ed. mentaries statute, legislative history its or relevant short, added). under Judge Bork’s con- to read precedent section 1350 as though statute, struction of the section 1350 would had Congress required to sue lose virtually meaning. all must be found in the law of nations.4 argued Congress case, jurisdictional that in had in this issues raised quirements re- jurisdic-. general enacted federal 1331 and § the same. tion, “arising provision, with its under” However, plain- for I several reasons believe phraseology could not have used that as a ref- My tiffs’ claim under analysis 1331 as § fails well. point. Congress give erence until Not general 1875 did proceeds paths, on that issue on two original jurisdiction federal courts over depending plaintiff on whether the is a citizen question 3, 1875, federal Act cases. of Mar. ch. or an alien. 137, 1, However, original 470. in § Stat. its aliens, here, juris- plaintiffs As to most of the form, predecessor the to contain § did not diction under 1331 is § available least to the pertinent part the word “committed.” The of does, applies. extent that If it § their jurisdiction granted the clause an “where alien and, therefore, action “arises under” § only . sues for in a tort violation of the law of States, required by under law of the a United appears nations.” The “committed” in a word 1331. § Code, 1948 recodification of the Judicial Act of States, of the in Citizens United this action 25, 1948, 646, 1350, 869, June ch. § Stat. plaintiffs, alienage the Tel-Oren do not meet 934, in but was absent earlier recodifications. requirement of 1350 and seek § must other law See, 3, e.g., 1911, 231, 24, par. Act of Mar. ch. § only under their action which arise. The 1087, By 36 Stat. 1093. 1948 the term plausible candidate is the of law nations itself. “arising a under” was well-established element Assuming, deciding, without that the law of jurisdiction, question of federal see American constitutes nations a of the United law States Co., Layne Well Works & Co. Bowler jurisdictional Moore, purposes, for § see 257, 260, 36 S.Ct. 60 L.Ed. 987 Relations, Foreign Federalism and 1965 Duke (1916) (a suit “arises under” the law that cre- (arguing L.J. 291-97 § that includes action), ates the and would obvi- have been the arising cases under a federal decisional law of wording Congress ous choice of had to wished Foreign foreign relations); cf. L. Henkin, Affairs that, explicit in make order to invoke § (1972) (federal 222-23 and the Constitution right to sue must be found in of na- the law apply courts determine international law it tions. though law), language it were federal disagree Judge plaintiffs 4. I suggests both with Bork and with unlike that § § plaintiffs purposes identify remedy by granted in that for this action must the law of only could by treaty, tional law or of the United Indeed, opinion a 1907 judicial decision. suggests just determined General Attorney States pro- that It asserts section opposite. (1907) (em- Att’y Gen. Op. a forum. to sue and right vides both a added). bolsters opinion phasis reme- about inquiry to an Responding Circuit,5 which I en- view of the Second harmed Mexican citizens dies available to provides a dorse, section 1350 itself irrigation American the actions of an of the law alleged violations right to sue River, the Rio Grande company along of nations.6 wrote, Attorney General Filartiga, Bork, rejection in his may. injuries which indemnity As to law (a) international reasons as follows: Mexico, I to citizens of have been caused in a express right to sue grants plaintiffs pro- existing statutes opinion am of reasons, court; (b) for numerous municipal and a forum. Sec- right vide a of action powers, to primarily separation related Statutes, clause Revised one; imply (c) to- inappropriate would be of the United gives to district internation- requires section 1350 since brought “of all suits States action, and plaintiffs a cause of give al law in violation of alien for a tort any not, jurisdiction. it does we cannot find treaty or of a the law of nations view, analysis steps the first two my repeat I ... States.” errone- step and the third are irrelevant right and a provide statutes thus a forum Filartiga not hold did ous. decision course, not, undertake action. I can of nations that, law under either to whether or not a suit say is, a a cause of action —that provide must would be suc- foregoing of the statutes jurisdiction. find to sue —in to right wheth- order depend upon That would cessful. implied express The existence of an of the was er the diversion water juris- of action was immaterial to cause rights of citizens injury substantial By Circuit. analysis interna- dictional Second principles Mexico under granted successfully- phrase sub- argue that aliens for one to be mean nations or point implied. rights under international as- Plaintiffs here are not able stantive right law and I decline This conclusion as to to sue sert them under § one, belief, supra, given my yet imply meaning phrase out set of this crucial obscure consciously nations leaves part that the law of provision from the noticeable absence of results up the states. of action any Filartiga on the discussion declining As an alternative basis granted right whether quite jurisdiction, of nations I note that the law action. plaintiffs tenably provide these does not violated. that has been substantive Attorney opinions General 6. While length VI of this As I discuss at in Section binding, -are entitled to course are opinion, not believe that the law na- do deference, especially where deci- some tions, construed, currently developed as See, lacking. construing sions a statute private responsible holds individuals acts; for most INS, 679, (9th e.g., F.2d 683 Oloteo v. 643 logically nations it follows that the law of deference); Cir.1981) (opinion deserves some right provides free from no to be substantive Ass’n v. United States Montana Wilderness individuals, persons private the acts of Serv., 880, (D.Mont. F.Supp. 884 Forest 496 right, such acts have no harmed given great weight although 1980) (opinions are Thus, nations, in court. law of to assert federal aff’d, (9th binding), part, 951 in 655 F.2d constitutes a law of even if the law of nations cert, (1982); denied, Cir.1981), 455 U.S. 989 States, if 1331 did not the United and even § 359, Andrus, F.Supp. 365 Taos v. 475 Pueblo of granted require that a to sue be Kline, (D.D.C.1979); F.2d cf. Blake v. n. 4 States, plaintiffs still law of relevant Cir.1979) (state attorney (3d 724 n. 13 jurisdiction no because § would have great respect general opinions to are entitled legal right has been violated. where decisions and should be followed lacking) (citing construing In re statute are read 1350 “not as § 5. The Second Circuit aff’d, (E.D.Mo.), Jackson, F.Supp. aliens, rights simply granting to but as new Co., (8th F.2d 775 Trust Zuke v. Mercantile Cir.1967)) adjudication opening courts of the federal for cert, denied, 100 S.Ct. already recognized by (1980). 65 L.Ed.2d Filartiga, I 630 F.2d at 887. construe law.” issue, Judge focusing may susceptible on this Bork has skirt- be to liability civil if ed the threshold whether stat- commit either a crime traditionally war- requires ute even that the law of nations or ranting jurisdiction universal an offense I grant a cause of action. do not believe that comparably violates current of norms requires finding, the statute such a or crimes, To law. such identify Filartiga lightly decision be op guidance look to for the Restatement ignored. op Foreign (Revised) Law Relations (TentDraft 3, 1982), At this it is point, appropriate pause to No. § which enu- scope narrow emphasize extremely as merates violations of international Filartiga section 1350 under the state-practiced, -encouraged or -condoned formulation. Kaufman characteriz- (a) genocide; (b) slavery trade; (c) or slave ed the Filartiga torturer follows: “In- or causing disappearance murder deed, purposes liability, civil tor- individuals; (d) cruel, torture or other inhu- pirate turer has become—like the and slave man degrading punish- or treatment or generis, before trader him —hostis humani ment; (e) detention; prolonged arbitrary an enemy Filartiga, of all mankind.” discrimination; (f) systematic (g) racial con- F.2d at 890. The to piracy and reference patterns gross sistent violations of inter- slave-trading is not fortuitous. Historically nationally recognized rights. human special place these offenses held a in the Steinhardt, also Blum & Federal Jurisdic- nations: their perpetrators, dubbed tion over International Rights Human mankind, were susceptible enemies all Claims: The Alien Tort Claims Act after prosecution capturing nation them. Pena-Irala, Filartiga v. 22 Harv.Int’l L.J. explained, As one writer has (1981) (focusing on genocide, summa- Before Law International in the modern execution, ry slavery torture and core existence, sense of term was rights violations). I, human course, need pirate outlaw, was already considered an not determine whether of- each these generis.’ According a ‘hostis humani fenses in fact amounts a law of nations Law of Nations act of piracy violation for 1350 purposes. section the pirate protection makes lose the of his point simply that commentators have be- State, home and thereby his national gun identify a handful of heinous ac- character.... is a so-called ‘in- Piracy definable, tions^—each which violates uni- crime’; ternational pirate is con- norms, versal obligatory see Blum & State, sidered the enemy every and can Steinhardt, supra, at 87-90—and the pro- brought justice anywhere. cess are the limits of section defining 1350’s L. Oppenheim, Law § International reach.7 (H. Lauterpacht 1955) (foot- at 609 8th ed. Filartiga flawless, formulation is omitted); note see also id. at 339 however. While approach its consistent (every punish state piracy can crimes like language with the it places capture criminal, slave trade on district duty awesome on federal Dickinson, whatever his nationality); Is the to derive from an amorphous entity i.e., Obsolete?, Crime of Piracy 38 Harv.L.Rev. — liability the “law nations” —standards Judge Kaufman did not applicable concrete The diffi- argue the torturer is like a situations. pirate prosecution questions criminal cult law purposes, animating but of nations persons civil particular actions. The inference is that case the burden suggest son, Indeed, 1340, imposes F.Supp. (S.D.Fla.1981). 7. law itself limits 1344 515 n. 6 jurisdiction premise jurisdiction on the extraterritorial that a The of is a universal that may generally “may jurisdiction domestic court exercise. rec- state to define and exercise ognizes jurisdiction, objec- punish by recognized five theories of certain offenses com- territorial, national, passive, protective munity concern,” tive of as nations of universal Foreign universal. See Restatement (Re- of the Law of For- of the Law of Relations Restatement eign vised), supra, (Tent.Draft 2, 404, recog- 402 No. even no other § (Revised) where § Relations 1981); see also United States James-Robin- jurisdiction present. v. nized basis of 782 with the original cognizance, of this kind. In concurrent attach each case of century States, was no doubt several of all suits pursuit

the 18th this courts of the clearly more defined by facilitated both a equity, at common law or in a civil nature crimes” body and limited of “international exceeds, ex- matter in dispute where the by working fa- today, than exists costs, the value of five clusive of sum or jurists body of of law. miliarity dollars, and the United States hundred Although possible I am that it convinced or an alien plaintiffs, petitioners; governing liability, to discover standards a citizen party, is a or the suit between task gives the formidable research involved brought, where suit is the State suggests pause, quite consideration of a another and citizen of State. a construction of section plausible alternative 11, ch. 1 Act of Stat. Judiciary § 1350. diversity juris- early grant 78. This to civil suits opened diction federal courts Approach: An Alternative Municipal B. meet aliens, they were able to by provided Law as the of Liability Standard Not jurisdictional amount.9 requisite formulation, an Under alternative content treat aliens like citizens may 1350 an alien to read enable state, gave the drafters also dis- non-forum bring a tort action common law in federal original jurisdiction trict courts concurrent jurisdictional worrying court without about courts, with both state courts and circuit a long amount or as violation diversity, be, an “as the of all causes where case alleged. of international law is also Unlike only alien sues for a tort in violation above, approach, the first set out the sub- law of a the United treaty nations or stantive this action is based on which ch. Judiciary States.” Act § found must be in the domestic tort law of evidence, 1 There is set out Stat. 77. the United States. The text the 1789 infra, the intent of was to this section Act, Judiciary coupled with concerns of assure courts to aliens access federal legal century single judi- 18th scholars for which, if mishandled vindicate incident affairs, expressed cial voice on court, might blossom into elsewhere, state Papers pro- Federalist If support diversity vide international crisis. left with interpretation some for this However, alone, to turn the statute.8 formulation aliens would have complex problems also raises a host of of its bring to state courts to actions below own. jurisdictional amount. that state Concern aliens, justice thereby courts might deny

1. Historical Underpinnings response from the al- evoking belligerent origin, ien’s led the country might have 1 begin tracing setting the historical original drafters to conclude aliens should which the section 1350was drafted. court, option bringing in federal Judiciary granted The First Act to circuit suit in controversy.10 whatever the amount case, infra, length, argued 8. One discussed at 10. It also be 1350 ad § framework, Clitt, adopted has see Adra v. dressed actions tortious violations nations, law, F.Supp. (D.Md.1961), re- and that one law law of domestic approach. diversity jurisdiction grant has view note endorsed See 1789 Act’s However, Note, Legal Lohengrin: only. A when Federal Jurisdiction torts covered domestic drafted, lawyers Judiciary Under the Alien Act Act was Tort Claims part (1979). U.S.F.L.Rev. had that the law of nations was no doubt encompassed the diver of the common law Dickinson, sity jurisdiction case, statute. See Despite early confusion in an Mason v. Law as Part of the National Law Ship Blaireau, (2 Cranch) 240, 264, of Nations 6 U.S. 1), (pt. States 101 U.Pa.L.Rev. (1804), by L.Ed. 266 it was clear that the (1952); 4 Blackstone’s extending jurisdic- diversity Commentaries Constitution bars 1854); (Welsby Respublica De see ed. also Hodgson to suits between aliens. & 111, 116-17, (1 Dall.) Longchamps, Bowerbank, (5 Cranch) Thompson v. (1784) (common prosecu- L.Ed. criminal 3 L.Ed. 108

783 Papers The un- Federalist demonstrate was on actions occurring the within territo- equivocally “importance of national States, ry of the or perpetrated by United in power relating foreign all matters to citizen, against an U.S. alien. For these danger affairs and inherent of state acts, the United States was responsible. ” action this field.... Hines v. Davi- Alexander Hamilton outlined precisely dowitz, 399,401 62 61 n. justification this fear as for the Constitu- (1941) (citing n. 85 L.Ed. 581 The Feder- grant tion’s jurisdiction federal for all 80). The Nos. & Constitu- alist involving cases aliens: tion reflects concern with an array union The will undoubtedly be answera- techniques centralizing foreign rela- to foreign ble powers for the conduct of tions, III, including Article ex- which § its members. And the responsibility for alia, judicial power, tends inter to contro- injury ought an ever to accompanied be versies between a state its and or citizens with the faculty of it. preventing As the states, subjects. citizens or or perversion justice denial by the sen- This interest aliens courts, tences of as well as in other hardly when surprising considered in the manner, is with reason among classed context of early history American tra- war, just causes of it will follow that the precepts ditional the law of nations. Un- ought federal judiciary to have cogni- nations, der the law of are obliged states to of all zance causes which the citizens of make civil of justice courts accessible other countries are concerned. This is foreign subjects against claims of individu- less not essential to the preservation of Oppen- als within the state’s territory. L. faith, public than to the security of 165a, (H. at 366 heim, § International Law public tranquility. Lauterpacht 1955). 8th ed. If the court’s (A. decision Hamil- justice,11 constitutes a denial of or The Federalist No. ton) (J. 1961).12 Cooke Having ed. appears if to condone raised original wrong- act, specter ful war convince under law of nations the his readers peace that “the ought would become whole responsible States for the failure of left disposal part,” its and be id. at answerable injured (emphasis original), alien but his home state. Hamilton considered private act, A committed an whether he should distinguish individual between individual, thereby arising upon esca- “cases treaties and the laws of nations, late into an confrontation. those which may merely stand J. See Brierly, Law of Nations on the footing municipal law.” Id. at (6th 1963). then, ed. attention, wrote, focus of 536. He nations); tion (6th violation law of cf. J. War- tice. ed. Brierly, The Law of Nations ren, History Light 1963). New on the of the Federal Judiciary Act 37 Harv.L.Rev. (1923) (arguing that federal courts were intend- Similarly, Virginia 12. at the Convention James státutory ed to assert both and common law said, know, sir, foreign Madison “We well jurisdiction, including criminal over na- law of get justice ers cannot done them these offenses). tions Section courts, therefore offered prevented many wealthy and this has diversity jurisdic- aliens could who meet the gentlemen trading among residing from us.” criteria, bring and therefore an action in 3 Elliot’s Debates also P. Ba court, forum, the circuit an alternative Shapiro P. & M. tor, Mishkin, Wechsler, D. Hart some circumstances. For aliens unable meet Federal Wechsler’s The Courts and the Fed criteria, opened those the district courts (2d 1973) (concluding System ed. eral for assertion their claims. grant judicial power] “the need for a [of federal beyond going involving cases treaties for Brierly “corruption, threats, representatives eign enumerates un- seems to have been undis delay, flagrant Warren, puted”). supra warrantable abuse of But see note at 56 procedure, judgment (1923) (among proposed dictated & execu- n. tive, manifestly unjust or so that no court amendments “the elim Constitution was competent which was both and honest could ination of all based on diverse citi given zenship jus- foreigner”). it” as instances of denial of status as the drafters were worried proper speculate that may supposed kind be

The former the latter for from a state’s jurisdiction, repercussions the federal possible about But it is at least action, of the states. any alien in justice denial of an unjust sentence whether problematical monetary value. slight matter how subject where the against foreigner, Recall, Hamilton’s concerns regard, in this relative to the lex controversy wholly was incident, rela- “wholly even one about unredressed, not, ag- be an loci, if would tive the lex loci.” The Federalist No. sovereign, his as well as gression upon noted, Hamilton). As Hamilton (A. in a stipulations violated the one which attaching “merely” whatever the fears laws of nations. general or the treaty actions, implicating civil suits also local to the dis- greater objection a still And surely were fit for federal law of nations result from the immense tinction would five hundred dollar adjudication. Since impossibility, practi- if not difficulty, by for mischief potential limit created the between the cases of cal discrimination courts, logical it would have been state of the other. complection one and those jurisdiction at least the under federal place of the cases in great proportion So interna- likely most to create local actions involve na- foreigners parties which are Recalling that each addi- tional tension. far most it is questions, tional jurisdiction federal statutory grant tional those expedient most to refer all safe and product struggle was the to lower courts concerned to the na- in which Warren, note compromise, supra cf. tional tribunals. 53-54, hardly surprising be it would Note, Legal Lohengrin: A Id. See also too, a com- grant, section 1350 reflects Alien Tort Jurisdiction Under the Federal hand, between, placing on the one promise Claims Act U.S.F.L.Rev. involving actions aliens federal courts all (1979). Cf. The Feder- 113-15 & nn. 62-65 and, hand, reserving the other to state (J. Madison).13 (J. Jay), No. alist No. jurisdiction over all civil courts exclusive Judiciary clearly go First Act did not equity. at common law and in actions might hoped. as far as Hamilton have Curiously, language original judicial power withheld much 1350, well as its location in the section constitutionally might granted— have been Act, support can be construed to Judiciary example, federal courts did not Filartiga either the or the alternative for- jurisdiction until complete federal 1350. application mulation for the relatively 187514—and enumerated narrow in section 9 of the 1789 appeared As it subject jurisdiction. criteria matter Act, to section Judiciary predecessor under the particular, diversity jurisdiction jurisdiction, district courts granted court aliens who kept Act out of federal with the courts of the several “concurrent amount or plead jurisdictional could not courts, States, circuit as the case or the the fears articu- complete diversity. Given others, logical inference is that some easy it is to be.”15 A lated Hamilton and thereby underlying siding party, in- States is with one affront- This formulation of 1350’s § 13. potential appropriateness ing on the of fed- the other. While the tent casts doubt the state of jurisdiction direct, suits between two aliens. eral over is not seem to for retribution might The United States be less concerned present, particularly the tort occurs on when condoning wrongful appearance about soil. United States perpetrator, not the act if its own citizen were wrong-doer should the state of the because 1, 18 Stat. Mar. ch. 14. Act of relief, provide the forum for or suffer the con- 470. However, sequences. let us assume a tort an alien an alien of dif- committed Act, Judiciary district In the First injured nationality, and the alien sues ferent original granted a mix- over were diver-, law. No the offender under a state’s tort complete authorization ture of actions. Hodgson & sity jurisdiction exists. follows: was as Bowerbank, Thompson (5 Cranch) enacted, be it further Sec. 9. And That justice (1809). A 3 L.Ed. 108 denial have, exclusively of district courts shall might perception that the United create the cognizable actions in the circuit courts also reference to concurrent circuit juris- court cognizable were under section 1350. The diction also refer to actions implicat- delimited carefully diversity jurisdiction of nations; ing the law of both courts would 11; the circuit courts was set out in section jurisdiction have had over actions, such cir- grant jurisdic- section included the cuit courts as an element of their common tion, “of all suits of a civil nature at com- jurisdiction, and district courts directly. mon law or in in which equity,” an alien is a case, In that the mention of concurrent party, grant jurisdic- and no other of civil jurisdiction would support the Filartiga for- tion in actions involving aliens.16 The sec- mulation for application of section 1350. tion 9 reference to concurrent jurisdiction The structure of the Act also provides with the circuit courts therefore might rea- support for both the Filartiga and the alter- sonably have referred to actions an alien native comparison formulations. A “at of dis- tort, common law or in equity,” for a trict and circuit involving jurisdiction court more than five hundred dollars— discloses words, in other cognizable to domestic torts while each had its own cases, classes of under diversity jurisdiction. However, the circuit courts were the significant more States, cognizance the courts of the several 16. The circuit courts received much broader cogni- of all crimes and offences that shall be original jurisdiction than the district courts. authority zable under the of the United The authorization was as follows: states, respective committed within their dis- enacted, Sec. 11. And be it further That tricts, upon seas; high or where no other original cogni- the circuit courts shall have punishment thirty stripes, whipping, exceeding than zance, concurrent with the courts of the sev- exceeding a fine not one hun- States, eral suits all of a civil nature at dollars, imprisonment dred exceeding or a term of equity, common law or in where the matter months, inflicted; six is to be and exceeds, dispute costs, in exclusive of original cognizance shall also have exclusive of all civil causes of dollars, sum or value of five hundred and the admiralty and maritime plaintiffs, petitioners; United States are or jurisdiction, including all seizures under laws party, an alien is a or the suit is between a impost, navigation of States, or trade of the United citizen brought, of the State where the suit is made, where the seizures are and a citizen of another State. navigable And shall waters which are vessels of ten or their high from the sea cognizance burthen, have exclusive all crimes more tons within respective cognizable upon authority offences districts as well as seas; saving suitors, cases, States, except in all the where the where this act oth- remedy, of á provides, common law erwise or the laws of the United it; competent give common law is shall direct, States shall otherwise and concurrent original cognizance also have exclusive jurisdiction with the district courts of the land, for all seizures on or other waters than cognizable crimes and offences therein. But aforesaid, made, penal- and of all suits for person shall be arrested in one district for incurred, ties and forfeitures under the laws another, any trial civil action before a of the United States. And shall also have circuit or district court. And no civil suit cognizance, concurrent with the courts of the brought shall be against before either of said courts States, courts, several case or the circuit as the an inhabitant of the United States may be, of all causes where an alien any original process any other district than sues for a tort in violation of the law of inhabitant, that whereof he is an or in which treaty nations or a of the United States. And serving he shall be found at the time of cognizance, shall also have concurrent as last writ, any nor shall cognizance district or circuit court mentioned, of all suits at common law where suit have contents to recover the sue, the United States and the matter in dis- any promissory note or other pute amounts, costs, exclusive of to the sum assignee, chose action in favour of an or value of one hundred dollars. And shall ¡unless prosecuted a suit have been jurisdiction exclusively also have courts of the several such court to recover the said contents if no States, of all suits assignment made, except had been in cases except consuls or vice-consuls exchange. bills of description And the circuit offences above the aforesaid. fact, appellate jurisdiction And the trial of courts, admiralty courts shall also have issues in in the district except regulations in all causes civil causes of from district courts under the and restrictions herein after jurisdiction, and maritime shall provided. by jury. (footnotes omitted) (emphasis 1 Stat. 78-79 (footnotes omitted) (emphasis Stat. added).

added). made general original jurisdiction. See court also federal courts of court supra. aliens, 15 and The district placed in district courts were in essence Clift, 195 has been In Adra v. adopted. Moreover, were local. district court actions (D.Md.1961), plain- a F.Supp. Lebanese respects in some minor versions of actions tiff, Iran, his for- then Ambassador sued in the courts. eligible brought to be circuit wife, res- mer a Turkish-born national Iraqi aby Thus the circuit courts—staffed while States, Ameri- in the her ident United two judge Supreme district court Court plain- The can husband under section 1350. Justices, pursuant the Act— to section of he was entitled legally tiff contended that jurisdiction had exclusive of “all crimes and former custody daughter of his his cognizable authority offenses under the wife, be- daughter wrongfully that the was States,” exceptions, the United some him, ing withheld from and that defendants jurisdiction had over the district courts also child’s and nation- had concealed the name less serious crimes. the district Similarly, passport, her in violation ality falsifying could actions not meet courts hear that did found of nations. The court for controversy necessary the amount in purely jurisdiction by identifying to exist diversity jurisdiction.17 circuit court taking or municipal unlawful “[t]he tort — parallel greater While between cus- withholding of a minor child from the punishments greater lesser and lesser parents entitled tody parent controversy per- in might amounts be custody.” F.Supp. such at 862. suasive, the district courts had admiral- also then that court determined the defendant power That ty jurisdiction. and maritime including Iraqi passport by had misused her suggests merely courts were local these not it, her Lebanese in to conceal petty action tribunals but forces child order important in the enforcement of maritime law. nationality. child’s The mis- name and grant drafters’ decision to district courts use of a was found to constitute passport admiralty suggests perhaps nations, jurisdic- violation of law of perceived appro- the district courts were tion was established. affecting tribunals to handle priate matters n Ifwe slightly the facts in Adra change perhaps states. is anomalous Clift, are and assume both defendants that drafters concerned that decentralized citizens, para- American the case becomes a might conflict spark courts for the digm of the alternative formulation place a local con- complete in court Diversity jur- 1350.18 application of section trol over actions the laws of implicating is if amount in isdiction unavailable nations, using solely rather than that court controversy is not met. The action How- diversity jurisdiction as a catch-all. but directly on a domestic tort grounded ever, because courts located district were an international law violation. implicates state, circuit were scat- each while plaintiff justice, If were denied that denial more sparsely, Judiciary tered Act 2-5, 73-75, Lebanon, might perceived plaintiff’s ch. district Stat. §§ earlier, sure, parallel misgivings perfect, To be since 18. As noted I have some propriety could hear about the of 1350 between § district courts actions actions controversy if the former aliens See note amount met two under this formulation. supra. requirements. 1350’s state, affront (1835)), home as an L.Ed. 276 and that nations that do States itself. responsible, rely law, also under that passage safe of the passport holder. At it is to ob- juncture worthwhile Blackstone’s Commentaries serve that is not second formulation 1854). ed. (Welsby Fraudulent use by an susceptible of the same as the criticism disrupt individual therefore states’ first —that the district court would have duties, recognized grounded which are difficulty parsing law of an nations on a passport’s reliance authenticity. Mis- applicable legal standard. It is apparent by person use abide by entrusted to inter- provides because domestic law national norms would amount a law of standard, discovering burden nations violation. However, standard is removed. the Adra case suggests that this raises formulation The Adra court made effort to tease some of its thorny questions own. out of international law explicit duty, individuals, placed on that had been violat- suggest- Under the alternative approach Instead, merely ed. impor- identified the Adra, ed by the law of nations violation tant passports role play interna- only one aspect jurisdic- of multifaceted arena, tional implicitly concluded that the tional apparently test and need be so defendants were thé obliged by law of na- rigidly defined as under the approach first tions adhere to to international norms re- adopted by Filartiga. The formu- Filartiga garding passports, and lation determined that posits a violation of the of na- their failure to do so constituted the requi- tions as the trigger for section jurisdic- site violation. tion. The adopts Adra formulation two- test, step jurisdictional requiring what That section 1350 jurisdiction might be appear would to be looser allegation triggered by offenses less severe than are offense, law of nations a mu- coupled with required Filartiga under the formulation nicipal That Adra tort.19 eschewed the to gives rise a new question: how much less analysis that would have been required un- severe? No doubt of the law nations con- der the Filartiga approach, instead violations; demns passport whether they spoke general terms about the reach the level of international crimes is nations, of suggests a less rigorous showing another matter entirely. Perhaps the two under the law of nations would mandat- be approaches focus segments on different of ed under approach. the Adra the spectrum of international offenses. from the the range petty heinous, might court in Adra convincingly first argued might have formulation look to the passport upper that abuse amounts range only to a serious law nations those acts that are recog- violation. The —to argument would that nized as international countries are enti- crimes—while the tled, nations, rely encompass the law on second a wider scope. passports fact, might, example, as evidence see Kent for v. refer to violation of Dulles, 116, 120-21, any many U.S. S.Ct. duties imposed nations 1115-16, 2 (1958) law, (quoting by L.Ed.2d Ur- international out in as set detail in D’Arbel, tetiqui (9 v. Pet.) (Second) the Restatement Foreign Rela- approach 19. Because even under this the Ha- find that the action arises under the laws of the noch plaintiffs allege not do a law of nations United States. This is so because the law of violation, unnecessary ingredient” action, it is Article consider nations is “an this Os implications States, III of the formulation. It would born Bank of the (9 22 U.S. however, appear, there that are no serious Arti- Wheat.) (1824), 6 L.Ed. 204 and is also an problems -type cle III the Adra associated part integral country, see laws of application of Habana, Paquete 677, 700, § Therefore, L.Ed. 320 by If is limited to actions aliens any supra, under the Adra formulation against citizens, since action see note then consti- diversity jurisdiction involve as a issue threshold the law of tutional exists. nations, broadly If it would “arise § 1350 is read more alien under” laws cover suits, might possible purposes. versus alien still be United States Article III domestic any That is with which whether Law. an issue tions .and sufficiently to establish for- torts were related accepting Adra-type court future abuse, passport “But for” the jurisdiction. however. I need grapple, mulation must standard, for concealed the the limits of each defendants could have not test States, entry official into the United daughter’s while I have doubt violated the law of could not have retained cus- Filartiga torture cited and therefore definition, I am con- by any framework the courts to a tody. opens nations This case, acts at issue in vinced that unofficial In this potential deluge actions. implicated the law way this case example, plaintiffs might alleged immigration nations. violated Israeli the PLO landing passports, in Israel without laws note, however, thoroughly it is problem, addressed in- perhaps skirting sec- impetus with the behind inconsistent fra, liability for torture. The of individual formulation —to 1350 under the Adra poses formulation difficult the United States out keep convergence necessary degree be- the statute to confrontations—to construe international tort. tween the domestic and whol- disputes courts to burrow into enable issue, I would Had I address recall ly involving foreign states. I therefore be- the intent my premise basic Adra formulation makes sense lieve the —that mitigate to avoid or interna- statute was construed to cover actions aliens only if what degree tional conflict—and determine torts occur in territo- for domestic required would be to achieve overlap injure “sub- ry of the United States However, since Hanoch goal. law, see rights” under international stantial that. alone, focus on one event the is- plaintiffs Att’y Gen. Op. directly presented. sue is not crimes, the first formula- universal as under tion, or for torts committed American Comparison A of the Filarti- Summary C. abroad, redress in American

citizens where ga Adra Formulations and preclude might reper- cussions. foregoing analysis it is clear From the Filartiga Adra formulations the and are surprisingly, these limits consist-

Not radically different results. produce parameters ent with the basic interna- is example. Adra itself Under v. Clift law establishes for a domestic court’s tional facts, its fail under the jurisdiction would of over exercise extraterritorial formulation, the of because law Filartiga activities. See of the Law of Restatement violation, severe, sufficiently Foreign even nations if §§ (Revised). Relations harm, plaintiff no and plaintiff caused (Tent.Draft 1981) No. (enumerating per- could sue under 1350 for the section prescribe,” of to “jurisdiction missible bases contrast, In the domestic tort. facts of law). to and both criminal civil applicable likely finding of not, Filartiga produce Judge to Bork’s as- They contrary Filartiga the or jurisdiction under either sertion, judg- own my “unguided policy Adra the differ- formulation. Whatever well-established, ments,” the but rather however, formulations, they ence do in the of prudential judgments of the law nations. one have in common crucial characteristic: course, law municipal Of other doctrines plaintiffs identify one must neither of pertaining jurisdic- to a court’s exercise to sue the law plead right granted and tion, such as forum non conveniens point, espy I no of nations. On reason be personal jurisdiction, attainment of must history, statutory language, the case met as well. law otherwise. to conclude A difficult raised the second requisite in Adra the nexus facts involves Meaning IV. the “Law of of Nations” between the domestic and over the best, disagreement In to our Adra addition applied, tort. The court issue, great have “right also diffi- test to determine to sue” “but for” causation Judge culty understanding (1796) Bork’s effort L.Ed. 568 (distinguishing between “ancient” and nations). “modern” law of to to the scope restrict principal against offenses of na- law F.2d at ago by tions centuries Black- recognized light hand, of the evidence at it seems stone, 2-3, supra, see text at notes instead beyond clear cavil that violations of the construing in accord with the current “law of nations” under section 1350 are not of the definition nations. While limited to Blackstone’s enumerated of- Indeed, Supreme fenses. conceding legislative history offers Court stated as much almost a century ago, when it congressional no hint intent passing that counterfeiting announced of foreign statute, my colleague Congress’ infers securities constitutes an offense intent from law of nations the time law of nations. Arjo- See United States v. passage section 1350. The result na, 30 L.Ed. 728 analytical of this is approach to avoid the dictates of The Paquete Habana limit the “law of language nations” its Duty V. to Exercise Jurisdiction century Paquete 18th definition. In The To rejects the extent that Bork Habana, that, Court Supreme noted Filartiga construction of section 1350 be- nations,” construing “law of cause it contrary to his perception treaty, where there is no control- courts, role appropriate I believe he is ling legislative executive or act or making a determination better left Con- decision, resort be had must cus- gress. simply not the role a judge nations, usages and, toms and of civilized construe clause statutory out exist- these, as evidence of works ence on the merely belief that Congress was commentators, jurists by years who ill-advised in If passing the statute. Con- labor, experience, research gress per- determined that aliens should be

made themselves well peculiarly ac- bring courts, mitted to actions federal quainted subjects with the which Congress authorized to decide that those actions treat. works are “exacerbate tensions” and Such resorted should not heard. judicial tribunals, speculations concerning their authors what sure, To be judge-made certain absten- be, ought to but for trustworthy evidence rules, such as Act Doc- State really what the law is. trine, require courts to decline to reach instances, certain in issues certain notwith- at at 299. As U.S. S.Ct. was standing a statutory grant jurisdiction. pointed out Filartiga, Where the Act of applies, Doctrine State is particularly Habana instructive for Supreme the Court has directed the courts present it held the purposes, for that tra not to into inquire the validity public prohibition against ditional seizure of an recognized acts of a foreign sovereign com- enemy’s fishing coastal during vessels mitted within its territory. own Na- Banco wartime, a began standard that as one of Sabbatino, v. cional de Cuba only, comity ripened preced had over the 923, 926,11 S.Ct. L.Ed.2d 804 ing century into “a settled rule inter The require doctrine does not to courts de- general national law” by “the assent of jurisdiction, cline the Foreign does Sov- civilized nations.” at Id. 20 S.Ct. at Act, ereign Immunities but not only to 297; accord, id. at S.Ct. reach the merits of certain issues. As Thus it is clear interpret that courts must admits, Judge Bork doctrine is not con- as it not was trolling Indeed, here. to apply it this but as it has and among evolved exists stage of case to would be distort grossly today. nations the world doctrine, See first it by considering as a (3 Dall.) 198, Hylton, issue, second, Ware v. 1 jurisdictional and by extend- private right only confines. no to sue for provides its limited ing beyond carefully it nations that recon- the law of he Supreme until the Court offenses Unless and therefore, view, applies and recognizes. the Act of Doctrine Under his siders State meaning acts non- when it matter to the statute had jurisdictional as a clause in territo- today. none recognized by Congress entities committed and To passed state, that ry recognized simply yields that re- enforce a construction case. Congress, relevant to this to but inap- is not insult sult power place judicial to substan- propriately claiming Act of that the State While legislature. that of the tially above controls, Bork looks Judge Doctrine he be- guidance that toward concerns course, Judge under Bork’s Logically, Supreme To ignore lieves animate it. formulation, of nations were the law ever of the doctrine Court’s cautious delineation sue, federal to courts provide and de v. in Banco Nacional Cuba Sabbatino avoid have to hear the cases. To this would ra- doctrine’s progeny, its cite the contingency, Judge yet Bork adds another justification effectively tionale as broad obstacle, stating jus- “considerations of that jurisdiction, statutory grant nullifying would, necessarily, come into ticiability” is, view, exercise of my inappropriate remark, this in that event. With play power. particular- It is federal court lower Judge virtually Bork concedes he case, ly given considerable so in this these out of court keep cases among regarding disagreement the Justices circumstance, places he himself rationale, scope, flexibility of the Robb, who squarely Judge beside advocates doctrine, Bank City see First National political question dismissal of action 759, 773- Cuba, 406 U.S. de Banco Nacional waving in one grounds. Vigorously hand 1808, 1816-17, 32 L.Ed.2d banner, powers separation ironically, J., (1972) (Powell, concurring judgment), he Congress’ with the other rewrites words judi- to override congressional efforts Congress and renounces task has cial abdication of the directed kind him. before placed Act of Doctrine. U.S.C. State Bork’s surprisingly, Judge analy- Most 2370(e) (1976) judicial invocation (barring complete- critique my sis—and his own — expro- of Act of Doctrine in certain State state overlooks existence of courts. ly actions). priation Subject to the same constraints that face Judge troubles with Bork’s efforts My courts, jurisdiction, such personal federal go even limit the reach to other perhaps some instances limi- Contrary colleague’s intima- deeper. my tations, such as state preemption, tions, recognize separate I do that there are many hear the common law civil could fact, that branches of Government. cases, aliens, brought by Bork first to admit precisely my point. am the should not heard at all. As believes best in im- presents that section 1350 difficulties tell, can the aim of section 1350 was to we plementation, it out of ex- but construe actions potentially in federal court place ground Congress’ to usurp istence on foreign affairs. The intent was implicating role and contravene its will. a forum that otherwise provide not to Judge is Bork assumes— virtually Bork concedes that he would exist —as to the law of an alternative forum state interposing requirement provide a that but to Indeed, Supreme void Court has at simply nations a to sue to courts. provide as a approve— statutory he cited section 1350 statute of which does not. least twice congressional intent to make' having example and distort and to avoid to extend foreign to likely to affect relations existing nonjusticiability questions doctrine on step, cognizable result. first he in federal courts. originally reach the same As a Sabbatino, statute v. interpretation forth an Banco Nacional de Cuba sets 923, 398, 25, n. n. the statute 427 & 84 S.Ct. & completely writes out of U.S. Quirin, (1964); nations Ex Parte issue. law of 11 L.Ed.2d the clause 1,10-12 n. & & defendants aliens. both Plaintiffs n. 87 L.Ed. 3 Not is only here allege torture in their complaint, as did ignore patently indefensible this man- plaintiffs Here, in Filartiga.20 as in Filarti date. also erroneous assume that ga, the action at issue undoubtedly violated disappear the troublesome will alto- cases the law of the nation in which it occurred courts, federal, gether from state as well as (in case, See Filarti Israel). the law of if section 1350 becomes mere historical triv- ga, 630 F.2d at 889. event, doubt, ia. my colleagues In that diverge, however, The two fact patterns would either assert nonjusticiability gener- official torture. The Pales- on the issue ally or turn its argue, the issue on head and tine Liberation Organization recog- not a precisely as the 1350 drafters recog- state, nized and it does act under color nized, state are inappropriate any recognized contrast, state’s law. fora for implicating resolution of issues for- Filartiga Paraguayan official acted eign affairs. law, under although color of state in viola- Liability tion of it. The Circuit surveyed VI. Second Non-State Actor law of nations and concluded that official

Under the Law Nations torture constituted a violation. Plaintiffs legal principles While I endorse the set in the case before us do not allege facts to Filartiga, forth in I believe the also factual show that official or state-initiated torture distinctions between this case and the one is implicated in this Nor action. do I think mitigate faced Circuit by Second its could, long so as PLO is precedential sure, case. To not a value in this parallels recognized member two cases are community between Filartiga, plaintiffs Here, compelling. as in nations.21 covenants, recognition non-recognition 20. On the basis international of a declarations, agreements government, applicability commentators to determine of a given legal example, have identified four acts at least that are now doctrine. For in Banco subject Sabbatino, unequivocal international condemna- Nacional de Cuba v. 376 U.S. torture, summary execution, genocide tion: 84 S.Ct. 11 L.Ed.2d 804 the Su- preme slavery. Steinhardt, explicitly application See Blum & Court tied the Federal Rights the Act of State Jurisdiction over Human Doctrine whether the for- International eign by recognized state was the United Claims: States. The Alien Claims Act after Filarti- Tort ga Pena-Irala, v. See 376 U.S. at S.Ct. at (1981); 53,90 Harv.Int’l L.J. Oetjen Co., See also Leather Central see also P. Sieghart, The International Law of (1918) (Supreme Rights (1983) (cataloguing 38 S.Ct. recog- L.Ed. Human Washington’s Court takes crimes, notice rec- nized international crimes certain war ognition government, applies against humanity, genocide, Mexican Act of apartheid crimes and, retroactively pre-recognition State Doctrine torture). increasingly, Plaintiffs in this incidents). Indeed, the has allege Court made clear action both torture murder judiciary guess is not to second summary Filartiga amounts to execution. ac- cepted determination of the other branches as to the view that official torture in fact jure facto, sovereign, is the de or de 302, Analy- “[w]ho amounts to a law of nations violation. territory.” Oetjen, 246 U.S. at along S.Ct. at likely yield sis same lines by 311. We therefore are bound the decision summary state-sponsored conclusion that exe- PLO, recognize the Executive not to However, and we cutions are as well. violations apply principles definition, must ingly. international law accord- summary execution is “murder con- uniform,” lawful, opposed ducted in imposed violence, state- Steinhardt, supra, Blum & note, however, that it conceivable that a inapplicable 95, and would be here. See id. at recognized by state not the United States is a Therefore, purposes of this concur- state as defined 95-96. international law and there- rence, assume, arguendo, I focus on torture responsibil- fore bound that torture amounts to violation of the law qualify ities. To as a state perpetrated by of nations when a state law, officer. people, territory, there must be a I consider whether non-state actors government capacity and a to enter into rela- be held to the same behavioral norms as states. tions with other states. See 3 U.N. SCOR (383d 9-12, 383, Mtg.) pp. at U.N. Doc. S/P.V. C, past (1948) (remarks Philip

21. Our courts have in looked to the 21-35 Professor of nation, foreign policy particular Jessup advocating membership in of this Israeli 792 wit, batino, greater degree of to “the of

A. The Lack Consensus Individual concerning a Responsibility par- or consensus codification law, the more ticular area of international arises to The therefore whether to judiciary it is for the render appropriate to Filartiga’s reasoning incorporate stretch it,” 428, at regarding 376 84 decisions U.S. perpetrated by party other than torture to prepared I am not extend S.Ct. at 940. state or of its officials act recognized one of the “law of nations” ab- definition The ing under color state law. extension Supreme sent from the Court. direction require this court to venture out would inter or the comfortable realm of established The of “codification consensus” degree Filartiga firmly national law—within which simply slight. too It sat—in which states are the actors.22 that international While I do believe of the extent require would assessment liability private harmony exists imposes only international law which individuals, noting it is that a num worth also on individuals. rights obligations but and either have jurists ber commentators require determination where individual is a urged assumed or that the or persons groups a line between draw subject Lopes law. of international See or are who are not bound dictates 292, Schroder, F.Supp. Reederei Richard law, what the look groups international and (violation (E.D.Pa.1963) of law of na liable, Would terrorists be because like. tions, 1350, means, “at in section least a recog numerous international documents individuals”); or violation one more proscribe and their nize their existence Clift, (D.Md.1961) F.Supp. Adra v. acts? R. generally See Lillich, Transna (individual nations); violation of law tional Terrorism.- Conventions Judgment Military Tri International Commentary (1982) numerous (reprinting bunal, the Major 22 Trial of War Criminals accords); see international anti-terrorism Tribunal, Military International Before the Subjects of Law Lauterpacht, also The 411, (1948), 41 Proceedings, 465-66 Am.J. 1), 438, L.Q. 444-45 (pt. Nations Rev. 172, (international (1947) Int’l L. 220-21 obligations in (discussing international upon duties liabilities in “imposes political Would en surgents). organized all States”), upon reprinted as dividuals as well obliged tities be law of to abide 69, 1946, Nuremberg The 6 F.R.D. Trial nations? Would As everybody liable? (1947); UN.Doc. 110-11 G.A.Res. core firmly principle established as is the (1947) (affirming at 188 Nu A/64/Add. binding customary states international Sohn, principles); supra see also remberg these areas obligations, fringe only (summarizing shift since now, note at gradually offer, as of emerging and Therefore, rights and duties under stopping point. heeding in individual obvious law); Note, Law of Na- warning Supreme Court in Bab- quoted Nations), Liang, Notes on Chiefly United Hyde, Law Inter- C. International Concerning Legal 2A, Na- Applied by preted Questions § United States tions, (1949). (2d 1945). 43 Am.J.Int’l L. Jurisdic- actors ed. rev. Non-state could territory against must be only tion over exclusive. G. state assert their another Among (4th adopted ed. their own state their Glahn, Law Nations extent Von arguendo, 1981). assuming, Even the law claims, as a rule had no recourse obligates unrecognized of nations states that government own for failure to their standard, meet and that 1350’s intent § any proceeds. 1 Hyde, turn over C. assist or to liable those states was hold even supra, 11B, Sohn, also New at 36. allegation recognize, does not there is no here Rights Law: International Protection does could meet this that the PLO standard. States, Rather than Individuals 32 Am.U.L.Rev. That International Court of predomi- was Classical appear permits party-states Justice traditionally nantly statist. The law of nations highlights this the court outlook. cases before body princi- rules was defined “the 34(1), Statute of the International Court Article binding upon civilized ples of action which are Justice, Stat. done June states their one J. relations with another.” (entered into 3 Bevans 1153 force T.S. No. supra note (emphasis added); at 1 Brierly, 24, 1945). 61-62; supra note for United States October see also G. Von Glahn,

793 violation, tions in the District Courts: Federal Juris- treaty involving dispute a title diction Over Tort Claims Aliens Under concerning neutral on a property captured Comp. 28 1 U.S.C. L.J. § enemy & B.C.Int’l vessel. is worthwhile to note 82 Confusion arises because the that, although Bolchos a treaty involved term liability” “individual denotes two dis- obligation, at the time of the Bolchos case first, tinct forms of liability. now well- individual defendants were in fact found to nations, implanted in the law of refers to nations, violate the although not acting individuals under of state color law. necessarily actions based on section 1350. Commentators routinely place origin of See, e.g., Smith, (5 United States v. 18 U.S. this development Trials, at the Nuremberg Wheat.) 153, L.Ed. (1820) (indictment 5 57 see, e.g., Sohn, supra 9-11, note at and it for crime of piracy, as defined the law of was in this context that the International nations). case, more In a recent Adra v. Military Tribunal wrote of individual re- Clift, (D.Md.1961), 195 857 F.Supp. an indi- war sponsibility second, crimes.23 The vidual in fact was found to have violated currently meaning less-established address- nations, the law of juris- section es the responsibility acting individuals thereby diction was established. The ac- separate authority from state’s or di- tion, discussed extensively, supra, involved rection. That the in Filartiga defendant aliens; child custody suit between two official, itself, was placed state court found that wrongful defendant’s him squarely meaning. within the first In withholding of custody was a tort contrast, us, case before the second passports bring her misuse of the child formulation liability of individual is at is- into the United States violated internation- sue. al law. To reach this conclusion on individ- truly private Even in the arena there is ual responsibility, court relied primarily support concept for the of individual re- commentator, one who asserted that sponsibility. Inferences law sug- from case some acts violate law of nations and gest that over years toyed have may prosecuted be when committed with the of truly liability notion individual offender, Adra, private F.Supp. at 863- both under generally. and more (citing 11A, supra C. note § Hyde, law, Section 1350 case unfortunately, 33-34); it then leapt to a conclusionthat sparse. Other than Filartiga, only two passport violations are such among acts. cases brought under section 1350 have es- Id. at demonstrate, 864-65. As shall in- tablished jurisdiction. pri- Both involved fra, Hyde’s position, certainly compel- while one, vate-party defendants. In Bolchos v. ling, Darrell, widely not so accepted doctrinally (D.S.C.1795) (No. Fed.Cas. 810 1607), predecessor provid- practically represent section 1350 as to the consensus ed jurisdiction action, for an grounded among on a nations.24 example, responding “following 23. For might to a or- dicta that be available under defense, that, ders” were, the court Article 8 of cited private adoption if § agreement establishing Charter annexed agencies participated “babylift” in the Tribunal, declared, Nuremberg which “The might joined joint be tortfeasors. Id. at 1201 pursuant fact that the defendant acts to orders Opinion, Att’y Op. n. 13. In a 1907 Gen. 250 superior of his Government or a shall not free (1907), Attorney General indicated that a responsibility, him from but be considered predecessor might provide forum to § punishment.” mitigation 6 F.R.D. 110— seeking damages Mexican citizens redress 11. irrigation company suffered when an American altered the channel of the Rio Grande River. suggested jurisdic- 24. Three cases other case, O’Reilly Brooke, The third de Camara v. available § 1350. Of 28 S.Ct. 52 L.Ed. these, implicated private two defendants. suggests that a United seizure States officer’s Nguyen Kissinger, Da Yen F.2d property foreign country of an alien’s in a (9th Cir.1975), Immigra- an action might fall § within tion and Naturalization Service and others alleging illegal Numerous other have been seizure and removal of Viet- actions jurisdictional grounds namese from dismissed on babies Vietnam in the final hours for failure there, nations, allege of U.S. involvement noted in court a violation of the law of see 794 Hill, International Affairs: The Individual

B. of the Role of Historical Evolution Law 28 Am.Pol. Organization, Individual in International in International (de 276, (1934) 282 20-23 & nn. Sci.Rev. in interna That the individual’s status emergence from statism and scribing shift law been in flux since section tional has subject of interna view that individual of explains in cur part 1350 was drafted law); Korowicz, supra, 50 Am.J.Int’l tional of liabil private party rent mix views about recog toward (observing at 537-39 trend L. century into the ity. Through the 18th personality of indi nition of international 19th, that rules jurists writers and believed viduals, their assertion of especially in law individuals as of international bound However, are their discussions See, rights). v. e.g., well as states. States they descriptive; than Smith, (5 Wheat.) 153, prescriptive 5 57 18 L.Ed. more U.S. nations; firmly of indi doc (1820) violates law entrenched (piracy recognize shifts Respublica DeLongch liable); vidual v. new unable to define a clear trine but are Dall.) 111, (1784) amps, (1 1 L.Ed. 59 sounding each article consensus. And for (assault consul-general violates French rights individual and duties the arrival of nations; liable); 4 Black of individual nations, surveys of another under (Welsby 66-73 ed. is a and concludes that there the terrain stone’s Commentaries against 1854) (recounting various offenses See, Brownlie, go. e.g., long distance nations, by private per law of committed in International Place of the Individual The statutory sons, English punishable Law, 50 Va.L.Rev. Dickinson, supra note law); generally see 29-30; 10, 26-27, Dickinson, The Law of at Torture, Piracy, Like Is an Whether C. as Law of the Nations Part National Exception to the Rule 2), (pt. United States U.Pa.L.Rev. Korowicz, liability appar- The Problem of of (1953); 792-95 strand individual One Individuals, Personality to- century swing International the 19th ently survived (1956). In 50 Am.J.Int’l L. private responsibility pi- ward statism— emerged century, the view that states remained, 19th only a handful racy. law, subjects alone were of international acts, trading, as as private such slave other were rights alone able assert principle general confutation and be held to duties devolved from law Korowicz, supra, 50 Am.J.Int’l statism. See be nations. Under that view—which 558; Lauterpacht, cf. The Sub- L. both in firmly came entrenched doctrine L.Q. 2), 63 jects (pt. of the Law of Nations Korowicz, practice, supra, and in see of the basis Explanations 441—42. Rev. rights Am.J.Int’l L. at 541—individual recognition continued of individual for this state, rights existed as see Lau view, vary. In one these acts responsibility terpacht, Subjects the Law of Na nations, violations of the law private 1), 439—40 (pt. tions 63 L.Q.Rev. Smith, (5 e.g., United States asserted, or with could be defended Wheat.) 153, 161-62, (1820). In 5 L.Ed. 57 drawn the state. See Remec, P. view, merely au- another international law Position of the Individual Internation their states to sanctions of apply thorizes According al Law to Grotius Vattel law, municipal nationality whatever the (1960); supra. see also note offender the offender. “The state or normal consular apply not authorized century, again once writers have provi- International argued diplomatic protection. that both the and duties piracy] as ... allow sions such applied pri- international law should be [acts 8-18; P. which the offenders supra, captures vate the state parties. See Remec, Commonwealth, (C.D.Cal. generally Annot., (1977) (re- F.Supp. 34 A.L.R. Fed. Magazine libel, viewing cases). v. New York 1980), Akbar The most common shortcom- allegation Co., ing (D.D.C.1980), in the F.Supp. of these actions is that does fraud, tort, municipally recognized such of a law of nations violation. have the stature Corp., S.A. v. Bank of Trans-Continental Inv. proceed according Supreme to its own internal law.” Court on the usage statute’s Korowicz, “law 50 Am.J.Int’l L. at 545. the term supra, nations.” also Harvard Research in International L.Supp. VII. Terrorism Law, Law of 26 Am.J.Int’l Piracy, Nations Violation (1932) special ground (piracy jurisdiction); generally Diekinson, turn next to consider state see whether terrorism is itself a law of Obsolete?, Is of nations violation.25 While Piracy the Crime Harv. (1925) (discussing unequivocally L.Rev. nation condemns all doctrinal con ter- attacks, rorist that sentiment is not fusion about univer- piracy as international or Indeed, sal. the nations of the crime). world are so municipal split divisively on the of legitimacy such consider, therefore, is worthwhile to aggression as impossible to make it to pin- is among whether torture today handful point harmony an area of or consensus. of crimes to which the of nations attrib Unlike the issue of individual responsibility, utes individual responsibility. Definitions which much of world has never even of out torture set in international docu reached, terrorism has evoked strident reac- suggest ments it is example, not. For tor sparked tions and strong among alliances ture is defined in the Draft Convention division, numerous states. Given this I do part Elimination of Torture in not believe that under current law terrorist act “by pain suffering” which severe or is attacks amount lawto of nations violations. inflicted, pain suffering “when such or To split witness the one need look at inflicted at instigation or of with or of documents the United Nations. They acquiescence the consent or a public offi demonstrate that to some states acts of cial person acting or other in an official terrorism, in particular political those with capacity.” Report the Working Group motives, are legitimate acts of aggression on a Draft against Convention Torture and and therefore immune from condemnation. Cruel, Other or Degrading Inhuman Treat example, For a resolution entitled “Basic or (E/CN.4/L 1576) ment Punishment of 6 principles legal status of the combat- March reprinted P. supra Sieghart, struggling ants colonial and alien 14.3.5, note at 162. Similarly, § regimes,” domination and racist G.A.Res. United Nations General Assembly defini 28 U.N. GAOR at U.N.Doc. requires tion the actor be “a public (1973), A/9102 declared: official.” See Declaration the Protection The struggle peoples under colonial of All Being Subjected Persons from regimes and alien domination and racist Cruel, Torture and Other Inhuman De or implementation right of their grading Punishment, Treatment or G.A. self-determination independence (No. 34) Res. 30 U.N.GAOR at Supp. legitimate and in full accordance with the 91-92, U.N.Doc. reprinted A/10034 principles of international law. 14.3.5, supra P. note at Sieghart, Steinhardt, supra See also Blum & It continued that armed conflicts involving note Against 95-96. struggles this back such have the legal full status of ground, I do not conflicts, believe the consensus on international armed and that vio- non-official torture warrants an extension responsi- lation of status “entails full of Filartiga. While I have little bility doubt that in accordance with norms of interna- the trend in international law is toward a tional law.” Id. at 513. also Definition expansive more allocation of Aggression, and ob G.A.Res. 29 GAOR states, ligations 31) to entities other I Supp. (No. 142-44, than U.N.Doc. A/9631 decline to section 1350 cover (1974) (nothing read torture “ag- definition term actors, guidance non-state absent from should gression” prejudice of self-de- Note, suggested 25. At least one law review has note tion. See as a Tort in Viola- Terrorism plaintiffs by Nations, we that identifying decide this case favor of tion the Law L.J. Int’l Fordham terrorism a law of nations viola- one eminent jurist, the words of peo- or struggle, particularly ]bscuri- “[o termination customs precedent or of or of statute regimes ty racist “colonial and ples under morals, some or or of or collision between domination”). In con- forms alien other unsettled, them, leave the law all of trast, authority in various there of course declare it upon the courts to duty and east a conventions documents and international power in the exercise of retrospectively is an interna- for the view that terrorism B. frankly in function.” legislative con- Western nations Many tional crime. Cardo- zo, as in acts, generally, either demn terrorist Process Judicial The Nature Or, added). as another (1921) (emphasis Prevent and Punish the Convention to issue, diffi- “The intrinsic jurist Taking the Forms of framed Acts of Terrorism after emergence and the language culties and Related Extor- Against Persons Crime anticipated by situations not enactment of Signifi- That International Are of re- imagination, legislative the cance,26 particular gifted ter- most or reference that ambiguities in statutes acts, veal doubts and as in the International Conven- rorist Frankfurter, construction.” compel judicial or Taking Hostages,27 of Against the the of Reading Stat- Reflections Suppression Convention on the Some Hague the utes, 527, (1947). 529 also 47 Colum.L.Rev. of Aircraft.28 See of Unlawful Seizure Aspects R. Friedlander, Terror-Violence: “political upon based Nonjusticiability the (1983) (describing of Social Control doctrine, and is at best a limited question” of legitimacy division on the In case. inapposite it is to this wholly acts); Lillich, generally terrorist see R. 691, Carr, 186, Baker v. 369 U.S. S.Ct. Terrorism: Conventions Transnational held Supreme the Court L.Ed.2d Commentary (1982). legislative whether state question that the divergence basic as to norms plan violates apportionment district disagreement as to course reflects a basic political question not a Constitution is and the legitimate political goals proper doing, nonjusticiable. In so therefore not Given such dishar- method attainment. the doc- rejected the notion that Court I conclude the law mony, cannot nonjusticiable “political all trine rendered recall, which, defined we must is Justice by cases” —a doctrine advanced nations — rules that states feel principles writing plurality for a Frankfurter observe, and com- themselves bound to do 549, Green, Colegrove Court in politically moti- monly observe29—outlaws In- 1198, (1946). 90 L.Ed. 1432 S.Ct. terrorism, repugnant vated no matter how observed, stead, nonjusticiability it legal system. our own function of question “essentially 217, 82 at separation powers.” My Colleagues’ Opinions VIII. identified The Court then S.Ct. at 710. political questions: categories several colleague Judge argues Robb My any case on the surface of nonjusticiable “political ques- this case is a Prominent political question held involve a properly tion” and it therefore was constitu- textually demonstrable respect, disagree due found a dismissed. With all coor- issue to a commitment approach appellate adjudica- with this tional lack of department; or a political not retreat under dinate judge tion. A should manageable justiciabili- judicially non discoverable and facile labels or abstention it; resolving impossi- doctrine,” or question as the standards ty, “political such policy initial bility deciding without an ambiguous. merely because a statute 16, 1970, 1641, T.I. Signed Signed Dec. U.S.T. 26. Feb. 27 U.S.T. T.I.A.S. 28. (entered (entered into States No. 8413 into force A.S. U.N.T.S. 105 No. 20, 1976). 18, 1971). Oct. States force for United Oct. 34/146, Adopted 27. G.A.Res. Dec. Hyde, supra note 1. 29. at C. 39), (No. Supp. U.N. Doc. U.N. GAOR A/34/819 kind clearly nonju- determination of a these narrow formulations counsels a find- discretion; impossibility dicial ing justiciability non in this case. undertaking independent court’s resolu- Initially, action before us does not lack expressing tion without re- separation implicate of powers principles, spect govern- due coordinate branches of is not' therefore even related to the ment; or an unusual need for unquestion- central political concern of the question doc- political adherence to a ing decision al- Carr, trine. Baker v. 369 U.S. at made; or ready potentiality em- 710. We have here no pro- barrassment from multifarious clash between government two branches of departments nouncements various question. requires one us resolve apportion- power ment of between them. Nor do we Id. opinion also observed that the doc- potentially transgress by reviewing any ex- respect requires ques- trine that all implicating foreign tions affairs be ruled ercise authority another branch of political questions. Id. 82 S.Ct. at government, much less one committed another branch Constitution. Far Brennan, it, fact;

Subsequently Justice implementing author from Carr, emphasized of Baker v. the narrow- 1350, courts out merely carry existing ness of the political doctrine as it legislature view of the that federal courts applies to matters of foreign relations. Dis- should entertain certain actions that impli- senting Carter, in Goldwater v. 444 U.S. Moreover, cate the of nations.30 none 996,1006,100 533, 538, S.Ct. 62 L.Ed.2d 428 of the in categories identified Baker ap- (1979) which agreed four Justices —in plicable here. do judicially We not. lack that Congressman’s challenge to the Pres- discoverable and manageable standards. treaty present- ident’s Taiwan termination parties do not invoke constitutional or ed a nonjusticiable political question—-Jus- statutory provisions that resist judicial ap- tice explained, Brennan “Properly under- plication. Court, Supreme in The Pa- stood, the political-question doctrine re- Habana, quete explicitly acceded to the task reviewing strains courts from an exercise of the law of applying nations and instruct- policy foreign judgment the coordinate ed approach lower courts on how to the task political branch to which authority make I discovering it. therefore hardly can that judgment has been ‘constitutionalQy] ” conclude that courts lack the means of de- 1006,100 Id. at S.Ct. committed].’ termining what to apply. standards That Carr, (quoting Baker v. 211- U.S. the task might be difficult should in no way 706-08, 7 82 S.Ct L.Ed.2d 663 (brackets lead to the conclusion that it (1962)) original). in I should not simply do not believe that the doctrine in either of accomplished. Nor do I believe either that Judge 30. To the implicates extent that Robb’s reliance on' contexts. When §a 1350 action political question principles recognized arises from his sovereign, such action the Act concern about court intervention in af- inquiry. of State Doctrine bar further fairs, the Act State Doctrine delineates the Similarly, Such is case here. the For- proper judicial bounds of restraint. The doc- Sovereign eign Act Immunities restrains courts which, Judge trine arises in cases Robb’s asserting jurisdiction, but, again, only from formula, political would be deemed Congress appropriate. the extent has deemed Yet, ignore we cases. cannot the fact that Considering Supreme that Court —in the political question are not treated as cases and Congress Act State Doctrine —and —in nonjusticiable. ruled Foreign Sovereign Immunities Act —have applies only The doctrine review scope necessary judicial each delimited the recognized foreign governments of the acts of affairs, involving foreign restraint in cases I am territory. committed within their own See yet to fashion inclined another doctrine of Sabbatino, Banco Nacional de v. Cuba U.S. nonjusticiability simply case, because this 923, 940, 84 S.Ct. 11 L.Ed.2d 804 nations, the intricacies of are not of is, effect, (1964). deference, in It a doctrine of easy implicate foreign gen- resolution or affairs requiring second-guess courts not erally. judgments sovereigns category in of such seriously Bork simple. Judge in arise were so posed Baker any of the other concerns premises ignores my my basic here.31 distorts Accordingly, pre- reservations. I expressed addition, expand note, I itself, in the opinion speak to let this fer coun juncture would be to doctrine at my colleague’s mischar- belief that it belies the movement of courts and scholars ter acterizations, exposi- further and that Indeed, commenta direction. opposite tion would be redundant. “judicial tors noted the indifference have di recently attack” scathing scholarly IX. Conclusion doctrine, see political question rected at the Court, McGowan, Congressmen in 15 Ga.L. light foregoing, conclude (1981). As McGowan not, not, al- Rev. and could appellants noted, treaty the Taiwan has other than un- facts sufficient to remain court lege Carter, 996,100 case, v. 444 U.S. Goldwater I therefore vote existing precedent. der (1979), the last 533, 62 L.Ed.2d 428 District dismissal affirm the Court’s cite the Supreme ease to doctrine Court subject jurisdiction. matter lack v. Mor any meaningful way Gilligan was 2440, 37 L.Ed.2d gan, BORK, 93 S.Ct. Judge, concurring: Circuit case Supreme and the last Court out an armed attack grows This ease rely Colegrove on it was squarely 11,1978. March on a civilian bus Israel on Green, 1198, L.Ed. 66 S.Ct. below) Appellants (plaintiffs sixty-five McGowan, at 256- supra, at- persons injured in the seriously twenty-nine tack and the survivors political It is therefore clear (defendants killed. persons Appellees very is a limited basis question doctrine below) Republic (“Lib- Libyan are the Arab nonjusticiability. certainly pro- does not Organization the Palestine Liberation ya”), li- judiciary vide carte blanche Palestine Information Office (“PLO”), the adjudication cense of difficult to block (“PIO”), Association National And the doctrine or controversial cases. (“NAAA”).1 Appellants Arab Americans not be to vitiate surely may employed here that complaint appellees in their alleged section 1350. attack, responsible for and were the and compensatory punitive they sought Judge Bork’s I decline to address further damages. appellants charged Specifically, critique my opinion. completely of He has in tort's violation appellees with committed primary that my opinion say misread the of treaties of international and some was authorize purpose of section 1350 and statutes of the United States as well of other “regulate courts to the conduct conspiracy of and to com- abroad, conduct with commission and individuals nations the intentional common law torts. effect the interests of mit various upon without an tort the issues over the common law only United I wish Jurisdiction States.” distinguishable extremely from which had articulated an narrow 31. This case therefore Reagan, (D.C.Cir. political question 720 F.2d 1355 Crockett 1983), of doctrine. Even view the recently panel view, a of this apparent in which court narrow it was that within that political the dismissal of an action on affirmed question grounds. category “judicially Baker v. of discover- Carr’s Crockett, In held we ju- manageable and standards” would bar able dicial inquiry United advisers the into whether States dispute in the the interference between El were situation of stationed in Salvador a dispute no Here we have such two branches. beyond fact-find- imminent hostilities was the and, problems fact-finding there- no and such ing power a this and hence constituted of court fore, finding grounds legitimate a of for one, case, political question. That unlike this nonjusticiability. power apportionment of between the involved the legislative branches. executive appeal pursued Appellants have not the brought group Congressmen of a case was challenging Congress com- fifth named in the a defendant report the President’s failure Congress plaint, Ameri- Palestine of North the Powers Resolution. under the War (“PCNA”). ca Court, adopted opinion that of the District Our pendent and, and will fail if the killing counts is other boat after photog- an American rapher beach, they counts fail. encountered on the way made their highway the main be- The district court dismissed the action for tween Haifa Tel Aviv. There subject jurisdiction.I. lack Ha of matter stopped bus, taxi, seized a civilian v. Libyan Republic, noeh Tel-Oren Arab car, and, later, bus, passing a second civilian (D.D.C.1981). We F.Supp. agree taking hostage. the passengers pro- While dismissed, complaint although must be ceeding toward Tel many Aviv their believe, our for agreement reasons differ. hostages gathered bus, first ter- court, that, as did the district circum rorists fired and killed occu- numerous here, presented stances appellants have pants passing cars as well as some failed to state cause action sufficient to passengers. They their own also tortured support either hostages. some their statutes which they rely. 28 U.S.C. The police finally brought the terrorist- 1331,1350 (1976 1981).3 Supp. & V Nei §§ to a controlled bus halt shooting at the ther the law of nations nor engine bus tires as it passed provides relevant treaties a cause action through a police barricade. terrorists appellants may assert courts by shooting reacted number their hos- Furthermore, we should States. tages and, up eventually, by blowing not, this, area such as infer a cause of with grenades. bus As a result of ter- reaching action not explicitly given. actions, rorists’ twenty-two. adults conclusion, latter guided chiefly I am killed, twelve children were and sixty-three separation of powers which cau principles, adults and fourteen were seriously children avoid interference potential wounded. with the political branches’ conduct for Appellants in this are case most of those eign relations. wounded and survivors most of those killed, as well as the guardians and next I. friends of those wounded minors who According complaint, to the on March not sue in their own capacity. Appellants 1978, thirteen heavily armed members of alleged complaint their appellees left They PLO Lebanon Israel. responsible injuries. deaths and Ac- were under instructions from the PLO to cording complaint’s allegations, seize and hold Israeli civilians in ransom for PLO not recruited and trained the release PLO members incarcerated in thirteen but also planned, terrorists fi- jails. down, Israel If plans their broke the nanced, supplied, and responsibili- “claimed terrorists were to kill their hostages. ty” Libya, plaintiffs the operation. al- complaint’s The allegations of what hap- leged, trained the PLO instructors who pened upon the terrorists’ arrival in Israel terrorists, planned, trained the thirteen sup- my constitute tale of horror. analy- Since financed, plied, and responsibility” “claimed sis does not turn the upon particulars of for the operation, gave and an official events, those they need be described ship “hero’s welcome” to the that carried detail. The thirteen terrorists landed by the terrorists to Israel. As for the PIO and complaint 2. spe- district court dismissed the insufficiently The action tions of the were against ground all defendants the on alternative cific. See 4 note infra. one-year that it was barred the local statute of for certain torts. Ann. limitations D.C.Code court, argued appellants In the 3. district also 12-301(4) § Hanoch v. Li- Tel-Oren jurisdiction that rested 28 on U.S.C. 1330 § byan Republic, F.Supp. Arab 517 (1976) Sovereign Act) (Foreign Immunities and (D.D.C.1981). agree Because we that the com- (1976) (diversity). on 28 1332 The § U.S.C. plaint properly was dismissed on other rejected grounds jurisdic- district court both of grounds, ground. we need not reach this Nor tion, F.Supp. appellants 517 at 549 n. and need we reach the district court’s of dismissal appeal. them abandoned against (as the action NAAA the and PIO well PCNA) ground allega- as the on the that the 800 neither court held that section NAAA, complaint contains the district

the the jurisdiction. provided is nor Sec- agent that the PIO an section general allegations lacking, that the court instrumentality jurisdiction of the PLO and tion 1331 law, which helped plan, held, the federal common both the PIO and NAAA because finance, outfit, oper- nations, be and direct the terrorist the law of cannot incorporates of with- grant ation.4 to a cause action constituted with out interference “judicial complaint sought recovery Though the F.Supp. at relations.” two liability, only under five theories of lacking, jurisdiction 548. Section to this appeal. need be considered decide held, for the reason: the court same district with tortious charges Count II defendants grants law International human of law of nations. actions in violation the action, private right section charges Count III defendants tortious nar- like must be interpreted section actions in violation of various treaties for right in suits require such rowly The district court the United States.5 F.Supp. law. of international violation for granted the NAAA’s motion dismiss at 549-50. the jurisdiction. portion lack of inquiry district is relevant here court’s that the agree with appeal, appellants allegations of Counts II and whether the that, of the is purposes court district under support jurisdiction III sufficed to case, jurisdictional in this sues raised sections 1331 or 1350. 1331 and 1350 requirements sections at 35- same. Appellants Brief for provides: “The Section 1331 district 36; F.Supp. (“[P]laintiffs at 549 n. original jurisdiction of all courts shall have jurisdictional recognize themselves Constitution, arising civil actions 1350 are identical 1331 and bases laws, § or treaties the United States.” nations.”). Con the role the law “The district courts provides: Section 1350 court, holding of the district trary jurisdiction shall have civil original however, at some of they contend that least only, tort action an alien commit- complaint cite their treaties ted in violation of the law of nations or action provide private rights of treaty respect impliedly United States.” With claims in III and that federal allegation treaty viola- Count Count Ill’s tions, of ac jurisdiction provides private rights the district court found common Thus, ap none in Count II. lacking ground on the tion for claims gives jurisdic pellants argue, treaties violated ex- section 1350 alleged either gave plaintiffs to a of the alien pressly impliedly private rise tion over claims over right F.Supp. gives action. 545-48. including those allegation plaintiffs, to Count II’s claims of all respect With nations, are United citizens.6 appellees violated who States complaint’s district Count IV on the 4. The district court found the alle- court dismissed (and gations against ground the NAAA PIO and none federal relied statutes PCNA) insubstantial, vague, 956-957, by plaintiffs, §§ 18 U.S.C. any factual held 1651-1652, devoid of detail. therefore (1976), provides a allegations support those insufficient a tort damages. private of action for damages. F.Supp. at action for 549. appealed F.Supp. Appellants have not provide ruling. I V no inde- Counts charges I with torts of 5. Count defendants pendent under the basis federal assault, battery, imprisonment, false and inten- alleged court statutes to vest district two distress; of it also tional infliction mental jurisdiction. 28 U.S.C. with §§ charges defendants with a tort it describes (1976 Supp. 1981). V & cruel, inhuman, the intentional infliction of charges degrading treatment. IV de- Count plaintiffs of the are citizens 6. The Tel-Oren tortious in violation of fendants with actions States, Drory plaintiffs are citi- and the laws of the United States. various criminal plaintiffs The of the Netherlands. other zens charges conspiracy Count V defendants plaintiffs of All reside are citizens Israel. specified through I torts in Counts commit the in Israel. IV. below, given appellants’ litigants For the reasons may, law, of that of as a matter rejected. must be I contentions first con- appropriately power invoke of separation powers sider principles that court.” Id. 240 n. 99 S.Ct. at 2274 n. courts, this, in case counsel a like not to 18. The Court said the “question that infer cause of not expressly action may who enforce statutory right is funda- granted. I then show that the treaties on mentally different from the question of rely private which appellants create no may who enforce a protected is Turning causes of action. next appel- by the Constitution.” Id. at 99 S.Ct. at general principles lants’ claim under of in- (emphasis original). in In addressing law, ternational I conclude that federal question, opinion as the Davis itself common law does not automatically accord clear, makes the focus be at least as appellants a cause of action and that appel- much the character of the present- issues granted lants have not been cause of ed for decision as on the character of the action federal statute byor litigants seeking class an adjudication; law itself. Finally, in order to clarify what and the inquiry result well be I believe we should and should not have that certain claims cannot litigated at all decided, I discuss the recent decision of the in certain forums. Second Circuit in Filartiga Pena-Irala, v. presents This a question case not covered (2d 630 F.2d 876 Cir.1980), a case having analyses described Davis some similarities to this one. for statutory Court and constitutional caus-

es An analysis appropri- of action. of providing appellants ateness awith cause II. of action must take into account the con- cerns that are inherent in and peculiar to question in is ap- The this case whether the field of international My relations. as- pellants have a in cause action courts of sessment of those concerns leads me injuries the United they States suffered conclusion different from that reached in contends, Israel. Edwards Davis, for here there appear “special to be assumed, Filartiga Second Circuit in counselling factors hesitation the absence grant of Congress’ jurisdiction also created by Congress.” affirmative action Bivens a cause of action. That seems me funda- Agents Six Unknown Named of Federal mentally wrong to produce per- and certain Narcotics, 388, 396, Bureau of 403 U.S. nicious results. For reasons will develop, 1999, 2004, (1971). S.Ct. L.Ed.2d it is explicit grant essential that there be an counselling factors hesitation are constitu- private cause of action before a plain- tional; principles sepa- derive from tiff be allowed to enforce principles in- of powers. ration ternational law in a federal tribunal. below, however, will be seen body that no The crucial element of the doctrine of expressly grants appellants cause separation powers is this case action; therefore, the relevant inquiry, is principle that conduct of the “[t]he whether a cause of action is to be inferred. relations of our Government committed inquiry guided by general That principles by the Constitution the Executive and apply whenever a court the United Legislative political’ Departments.” —‘the — is asked to States act a field in which its Co., Oetjen v. Leather Central 246 U.S. judgment would.necessarily affect the for- 62 L.Ed. eign policy interests nation. principle That has been translated into a judicial power limitation on in the interna- Supreme Court explained Davis v. Passman, principally through tional law area the act 99 S.Ct. political question L.Ed.2d 846 to ask state and doctrines. whether a particular plaintiff has a cause of action Whether or not this case falls within one of to ask whether he a member of the categories, “is class these the concerns underlie

802 system sep- in a of government branches of recognition and demand present

them are compe- concerns the powers. of aration here. and institutions make tency of dissimilar tradition- “The of state doctrine its act of kinds decisions implement particular from the precludes al formulation courts relations.” 376 area of international the of acts validity public into the the inquiring at at 937. The Court 84 S.Ct. U.S. sovereign com- recognized foreign power powers the of basis emphasized separation its Banco territory.” mitted within own the when it observed that for the doctrine Sabbatino, 376 U.S. Nacional de Cuba v. on “continuing vitality depends doctrine’s 923, 926, 11 804 398, 401, L.Ed.2d 84 S.Ct. proper to reflect the distribu- capacity its pri- (1964). Originally, the doctrine rested judicial the of between functions comi- marily sovereignty notions of on on of the Government branches political Hernandez, v. 168 U.S. ty. See Underhill Id. bearing upon foreign affairs.” matters 250, 252,18 42 L.Ed. 456 S.Ct. at 427-28, princi- 84 939-40. its at S.Ct. formulations, there has been In more recent case, state the act of pal post-Sabbatino of sover- “a shift in focus from the notions centrality the again stressed Supreme Court na- of eignty dignity independent and the ma- powers of concerns: “The separation of the preserving tions ... to concerns of the act of state doctrine jor underpinning of relationships branches ‘basic between adjudica- court policy foreclosing the of is of in a of government system separation of of for- involving legality the acts tions powers,’ hindering and not executive’s their soil that eign states on own foreign by judicial review policy of conduct Branch of our embarrass the Executive Mannington oversight foreign or of acts.” foreign in the conduct of our Government Mills, Corp., 595 F.2d Congoleum Inc. v. London, Inc. Alfred Dunhill of relations.” Sabbatino, (3d Cir.1979) (quoting 1292 Cuba, 682, 697, 96 S.Ct. 937). at 84 at U.S. S.Ct. The (1976).7 L.Ed.2d that, al- explained The Court Sabbatino emphasized likewise the deci- appeals have compel doctrine, though by the Constitution does not role played, applying sive doctrine, has separation aspects the act of state doctrine the two relevant “ It arises interference with underpinnings. potential powers: ‘constitutional’ and the political branches’ functions relationships out of the basic between sovereign might foreign con- Supreme act of frustrate the Court also discussed the of a foreign by political City relations Bank v. duct state doctrine First National 767-68, Cuba, government.” Id. at de 92 S.Ct. branches of Banco Nacional Powell, pro- writing sepa- 1813. Justice L.Ed.2d but the case 92 S.Ct. at Nonetheless, rately, majority state opinion. these views. act of duced all echoed doctrine, said, adjudication Douglas, except he bars when Justice who Justices doctrine, appears juris- scarcely act of “it that an exercise of addressed the state when foreign judicial pronounc- interfere with delicate stated that abstention diction would from validity foreign political ing judgment on act branches.” relations conducted J., separation powers 775-76, (Powell, state on concerns. turns Id. S.Ct. judgment). concurring in the application of the act Four Justices said that Stewart, Brennan, joined by Justice Justices chiefly poten- depends of state doctrine on Blackmun, Marshall, disagreed with the of, with, usurpation tial for interference exclu- the act state doctrine was view that foreign political primary af- role in branches’ sively other with interference with concerned joined Rehnquist, fairs. Jus- Justice Chief Rather, foreign relations. branches’ conduct White, Burger “The tice stated: Justice wrote, part he the act of state doctrine one establishing the line of cases from this Court political doctrine and therefore pri- justifies its act of state doctrine existence variety application depends of con- for its on juridical marily of acts the basis that review on siderations, Ex- even the no one which —not foreign power could embarrass the of state of a adjudication will not foreign ecutive’s declaration political conduct of relations conclu- relations —can be government.” interfere with U.S. at branches of the J.). ultimate determination whether (Opinion Rehnquist, He sive at 1812 judicial U.S. at resolution. issue fit for “The also act of state doctrine stated: J., 785-93, (Brennan, dis- grounded application S.Ct. at 1822-25 concern that senting). customary judge principles the acts of law to judicial ment; fitness of an issue for resolution. or an for unquestion- unusual need See, e.g., ing Association International of Ma- adherence to a political decision al- OPEC, made; chinists v. Aerospace ready & Workers potentiality or the of enu cert, 1354, (9th Cir.1981), F.2d 1358-61 de- barrassment from multifarious pro- nied, 1163, 1036, departments U.S. S.Ct. nouncements by various (1982); Mannington Mills, L.Ed.2d 319 question. Inc. one 1292-93; Congoleum F.2d at Corp., 595 Questions touching on the relations 68, Hunt v. Mobil Oil F.2d 77-79 Corp., up States make what is likely cert, (2d denied, Cir.), 434 U.S. 98 S.Ct. the largest class of questions which the (1977); 54 L.Ed.2d 477 Timberlane political question applied. doctrine has been America, Lumber Co. v. Bank of N.T. & 211-14, id. at 706-08. If it S.A., (9th 549 F.2d Cir.1976). 605-08 were well necessary, might I hold that political question lawsuit, bars this doctrine The separation powers same principles it is arguable, since as much of the remain- political question reflected in the doc- show, der of opinion will that this case trine. Supreme gave Court that doc- fits several of categories listed in Baker trine its modern formulation Baker v. v. Carr. Such a determination is not Carr, neces- 691, 710, 82 S.Ct. sary, however, many of because the same (1962): L.Ed.2d 663 considerations govern application Prominent on the surface of any case political question doctrine also govern held to political question involve a is question of the appropriateness of pro- found a demonstrable textually constitu- viding appellants with a cause of action.8 tional commitment of issue to a coor- political dinate or a department; lack of Neither is there a need consider wheth- judicially discoverable and manageable er the act of applies state doctrine to bar it; resolving standards for impossi- or the this ease from going Although forward. bility deciding without initial the act of policy state doctrine well apply to clearly nonju- determination of a kind Libya’s alleged attack, role in the 1978 bus discretion; dicial impossibility or the would apply, it seem not to in its current court’s undertaking independent formulation, resolu- PLO, acts of alleged PIO, expressing NAAA, without lack of the re- and the none of which spect due coordinate branches of govern- would seem to be a state internation- is, plaintiff 8. A who has no cause of action here we do not reach substantive issues that Passman, according to Davis v. political 442 U.S. at 240 are best decided branches. be; n. n. moreover, S.Ct. at 2274 not entitled to that while existence of a power “invoke the court.” He is not jurisdictional cause of action is not a issue in pronouncement legal entitled to a on the merits case, is, ordinary akin, closely is it to a respect of his claim. In that he is more like a jurisdictional impli- its issue when decision plaintiff standing who lacks than he is like a cates, here, considerations linked to the plaintiff facing a motion dismiss for failure proper power judicial granted exercise of the especially to state is a claim. That true proba- Article III of the It is Constitution. this, case like where consideration of bly political question better not to invoke legal concern, merits of constitutional so doctrine in this case. That contours of the parties should be able to waive the murky doctrine are and unsettled is shown claim that no cause of action exists. these meaning among the lack of its consensus about circumstances, whether a cause of action exists Court, Supreme see Gold- the members of the is a threshold issue involves a Carter, water v. 100 S.Ct. judicial powers. the limits of among scholars, see, L.Ed.2d 428 that, this, I do not conceive a case like e.g., Henkin, Is There A “Political Question" political question doctrine must be considered Doctrine?, 85 Yale L.J. jurisdictional. jurisdic- first because situation, Given this rather not decide aspect tional of that doctrine extends no fur- political question whether involved in a prevent ther than its rationale: courts from case where that issue has not been briefed and that, reaching variety the merits for a of issues contrast, argued. By grounds upon which I reasons, are not theirs to decide. Baker v. explored thoroughly through do decide were Carr, By 369 U.S. at 82 S.Ct. at 710. vigorous presentations. adversarial deciding private that there is no cause of action raise Kassim, of their claims would adjudication Libera al Palestine law. See judicial interference problems of A Ju substantial Organization’s tion Claim Status: functions, Law, nonjudicial such as the con- 9 with Analysis Under International ridical Appellants’ relations. com- 1, (1980).9 foreign 2-3 Ne duct of Pol’y L. & Den.J.Int’l determination, at requires a either vertheless, plaint the act of state to the extent stage or the of jurisdictional stage at if not ex the predominantly, is doctrine based decision, a of defining applying rule concerns powers on of clusively, separation law has been violat- be), its own whether international (as increasingly has come to it large meas- guided I am therefore it to ed.10 extending cov might justify rationale observation in Supreme the Court’s by er such entities as the PLO ure the acts of the of those Sabbatino that adjudication validity where of of present problems acts would of or greater degree the codification the of judicial interference competence particular a area concerning consensus foreign an extension law, with relations. Such it appropriate more international the closer, bring act of state would the doctrine to render decisions judiciary is for the flexibility, political especially its it, the courts can then regarding since City doctrine. Cf. First National agreed application on the focus Cuba, 406 v. de Bank Banco Nacional fact to circumstances of rather principle 1808, 1822-25, 785-93, 759, 92 S.Ct. establishing task than on the sensitive (Brennan, J., (1972) dissenting) L.Ed.2d 466 na- a not inconsistent principle (act elaborated of state doctrine as Sab jus- or tional interest with international doc equivalent political question batino aspects It tice. is also evident some should trine). Whether two doctrines more sharply of international law touch how, merged, they be would merged and if others; on national nerves than do com apply allegations appellants’ important implications of an issue less plaint beyond scope of our issues relations, the weaker are for our Instead, those doctrines are drawn inquiry. exclusivity po- in the justification separa upon for what about the say litical branches. that must inform a powers principles

tion of 428, at There no at 940. 376 U.S. S.Ct. appropriateness ap determination of under what circum- need to decide here pellants’ their claims in litigating federal these might stances considerations such as court. a an individual of cause action deprive state, by Congress, a against recogni- clearly given by principles Those counsel if or international law.11 In appellants treaty, tion of a cause of action 2841, 2846-48, person (1983). 9. S.Ct. 77 L.Ed.2d 420 “The state as of international law 1350, following qualifications: a) possess jurisdiction should rested there are If b) territory; permanent population; arguable a c) a defined law about what would three theories d) government; capacity to enter into supply The rule of deci- the rule of decision. relations with the other states.” Convention (treaty might be the international sion States, Rights and Duties Dec. violated; law) might customary international art. Stat. T.S. No. 165 L.N.T.S. torts; or it common law of be federal (Second) See also Restatement For- 19. jurisdiction applica- of whatever be the tort law eign Relations Law of the United States § point principles would to. Cf. ble choice of Furthermore, (1965). the act of state doctrine Steinhardt, over & Federal Jurisdiction Blum apply, still not even if the PLO said to Rights Alien International Human Claims: The agent Libya, been since the attack Pena-Irala, Filartiga Act after Tort Claims [Libya’s] place own did not take “within terri- Int’l L.J. Under Harv. Sabbatino, tory.” at at course, constructions, of whether latter two 926. would have to international law was violated jurisdictional prerequisite. decided as a 10. on section If rested necessary one of decision would have least rule law, a determina- A state-court suit that involved supplied the federal to be require consid- law would which the case arose. See Franchise law under here well as eration much that discuss Vacation Tax Board v. Construction Laborers California, -, principle foreign relations are constitu- -U.S. for Southern Trust

.805 action, they absence of such a cause of lead PLO. The fact remains that the PLO bears adjudication appel- significantly upon to the conclusion that the foreign relations of present grave lants’ claims would If separa- United States. indication of that needed, powers tion of role is it is problems. provided by therefore the official inappropriate recognize cause action “observer” status that the PLO has been allowing appellants bring Nations, this suit.12 accorded at the United G.A.Res. 3237, 29 Supp. (No. 31) U.N.GAOR Most important, perhaps, appellants even (1974), U.N.Doc. A/9631 as well as by the concede that the incidents in ap- described diplomatic relations that the is report PLO pellants’ complaint are properly understood ed to have with some one hundred countries when only viewed in the context of the world, Kassim, around the see supra, 9 Den. continuing conflicts in the Middle East. In- 19; J.Int’l Pol’y Friedlander, L. & at deed, appellants point out that “[o]ne PLO and the Rule of Law: A Reply to Dr. primary purposes of the March 11 attack Kassim, Anis 221, Den.J.Int’l L. & Pol’y was to sabotage foreign relations of the (1981). negotiations States and its de- stroying the positive efforts made in the appellants’ nature of international Camp David Appellants accords.’’ Brief for law claims provides a further reason for accords, course, at Camp 15. The David recognize reluctance to a cause action were major but one of the efforts made by appellants. Adjudication of those claims the United the myriad States resolve require would the analysis of international problems behind the military series of legal principles that are anything but clear- political kept conflicts that have the Middle ly defined and that subject are the of con- East at near the center of American troversy touching “sharply on national foreign relations for at least the last fifteen nerves.” Banco Nacional de Cuba v. Sabba- years. judicial A pronouncement on the tino, 940. The PLO’s responsibility the 1978 bus attack against Sabbatino Court warned adjudica- likely would interfere with American diplo- tion of such international law issues. Id. which is macy, actively concerned with Because I believe that pronounce- the Middle East today as it has ever been.13 ments on the merits of this case should be avoided, I only mention briefly some of the The potential for interference with for- difficulties raised some of the claims in eign relations is not diminished appellants’ complaint. PLO’s apparent lack of international status as a state. Nor does it matter would Appellants argue, have to if their whether the Executive Branch officially were adjudicated, case for an exception to recognizes, with, or has direct dealings general rule that international law im- tionally relegated government to the federal plainly 28 U.S.C. 1602-1611 §§ Miller, Zschernig and not the states. See deprives jurisdiction Libya. us of over 88 S.Ct. 19 L.Ed.2d 683 Nigeria,- Verlinden B.V. v. Central Bank of U.S.-, (1983) 103 S.Ct. 76 L.Ed.2d 81 (court immunity question, must decide which is separation pow- 12. The existence of severe jurisdictional). alleged Because the actions of problems adjudicating appellants’ ers claims giving the PIO and the NAAA all involve assist- my conclusion, pp. reinforces see infra 816— actions, alleged adjudica- ance to the PLO’s appellants international law affords against require tion of the claims them would potential no cause of action. The for interfer- adjudication against If, of the claims the PLO. governments conducting ence with their for- conclude, presents sufficiently as I the latter eign separation relations is central both to problems serious that no cause of action can be powers limits on interna- inferred, so too must general former. therefore grant private tional law’s refusal myself only course, concern poten- with the PLO. Of action. The existence of such a adjudication strongly against complaint Libya tial case must count of the providing private right present many separation law’s same action for that case. powers problems adjudication as would complaint against the other defendants. Libya must be dismissed from the case be- Foreign Act, Sovereign cause the Immunities duties

poses expressly states on their make the of an action purposes agents Henkin, or officials. See L. R. example, relevant to its unlawfulness. For Smit, Pugh, O. & H. Internation- Schachter appellants allege appellees violated the Law, (1980); al Restatement of the proscription, in article 51 of the Protocol I Foreign Relations Law of the United States 12 August Geneva Conventions of (Revised) (Tent.Draft at 21 No. 1949, on or threats of violence the “[a]cts 1980) (“ law’ ... ‘International deals with of which is ter- primary purpose spread the conduct of states and of international ror the civilian among population.” They organizations, and with their inter relations also allege appellees pro- violated the se, as well as some of their relations with scription genocide, defined in the Con- persons, juridical.”); whether natural or id. vention on the Prevention and Punishment 701-722, (Tent.Draft at 137-257 No. §§ Genocide, Crime of Dec. 1982) (stating protections 277, to mean acts U.N.T.S. calculated to persons solely obliga- terms of state destruction, about bring physical tions). If, appear, as would the PLO is not national, part, ethnic, whole or in ra- state, a finding that it should nonetheless cial, or religious group. Adjudication of be held to the imposed by duties the cus- these require inquiry claims would into the tomary rules of international law governing PLO’s intention in planning 1978 bus nations, conduct of belligerent e.g., Ge- (assuming involvement) attack the PLO’s neva Convention for Protection of Civil- and into the organizational goals of the ian War, Persons in Time of Aug. dangers PLO. The of such inquiry into the 3, art. 6 3516, 3365, U.S.T. T.I.A.S. No. intentions of the are similar PLO to those 287; U.N.T.S. Protocols I II attending an into the inquiry intentions of a Geneva 1949, Convention of 12 August June state. Hunt v. Corp., See Mobil Oil 7, 1977, Diplomatic Conference on Reaffir- (act F.2d at 77 of state doctrine bars in- mation Development of International quiry into Libya’s motivation for actions: Humanitarian Law Applicable to Armed “Inquiry fissiparous, could hinder- Conflicts, reprinted 1391, in 16 I.L.M. or ing embarrassing foreign the conduct of (1977), would merely applica- not entail very relations which is the reason underly- tion of an agreed principle to new facts. ing the policy ”). abstention.... Rather, finding that because gov- of its aspirations ernmental and because addition, claim, appellants’ principal role it has played the Middle East con- that appellees customary principles violated flicts the be subject PLO should to such terrorism, of international law against con- rules would establish a principle new cerns an area of international law in which Likewise, interpret law. there is little or no consensus and in which various human documents impos- the disagreements concern sensi- politically ing legal duties on nonstates like the PLO tive issues especially prominent that are require entering both a new and relations problems the Middle unsettled area of international law and East. aspects Some of terrorism have been finding there ah exception to international subject of several international conven- general law’s rule.14 tions, such as concerning hijacking, those e.g., Suppression

Another Convention for the of Un- difficulty presented by appel- Against lawful Acts complaint Safety lants’ is that some of of Civil the docu- rely (Montreal Convention), 23, ments on which Aviation Sept. statements of 7570; customary principles 1971, 564, of international No. U.S.T. T.I.A.S. Con- 1, aspect problem apparent 91, Supp. (No. 34) 14. One of this is the art. 30 U.N. GAOR at U.N. assumption of state action in assumption the definition of Doc. A/10034 This of state legal Thus, principles. certain international why by action is reason it is one means Assembly United Nations General has defined utterly alleged ap- obvious that the torture “any by pain torture as act which severe pellants’ complaint prohibited by would be in- suffering intentionally by inflicted or at the ternational law. 3452, instigation public official.” G.A.Res. Suppression on the of Unlawful are One important vention lawful. sign of the lack Convention), (Hague of Aircraft Seizure about generally, consensus terrorism 1970, 1641, 16, Dec. T.I.A.S. No. U.S.T. activities particular, about PLO is that 105; 7192, on 860 U.N.T.S. Convention Of- of terrorism accusations are often met not fenses and Certain Other Acts Committed the fact by denial of but responsibility Convention), (Tokyo on Board Aircraft justification for the challenged actions. 1963, 2941, No. Sept. U.S.T. T.I.A.S. Steinhardt, supra Blum & note on in- 704 U.N.T.S. and attacks Indeed, Harv.Int’l L.J. at 92. one ternationally protected persons dip- such as key documents relied on as of an evidence lomats, e.g., Convention on the Prevention terrorism, law proscription Interna- Against and Punishment Crimes the Declaration on Principles of Interna- Persons, Including Diplo- Protected tionally tional Concerning Friendly Law Relations (New Convention), matic York Dec. Agents and Co-operation Among States in Accord- 1973, U.S.T. No. 8532. T.I.A.S. ance with the Charter of the Na- But no consensus has how developed tions, G.A.Res. Supp. U.N.GAOR to define generally. “terrorism” properly (No. 28) U.N.Doc. A/8028 Glahn, (4th Law Among G. von Nations was said at least one state at the time “ As 1981). consequence, ed. ‘[interna- its promulgation to be applicable and the as they tional law rules of warfare Palestinian terrorist raids sup- into Israel inadequate cope now exist ported Arab states. 24 U.N.GAOR ” new mode conflict.’ Transnational (1969) (remarks U.N.Doc. A/C.6/SR. 1160 Commentary Terrorism: Conventions and of Mr. El Attrash of Syria), discussed in 1982) Jenkins, (quoting ed. (R. Lillich xv Paxman, supra, Lillich & Am.U.L.Rev. International Terrorism: A New Mode of (qualification significant). 272 is Attempts (California on Conflict 16 Arms Seminar greater secure consensus on terrorism Foreign Policy, Paper Control and Research just foundered such issues as the 48, 1975)). is that No. “The dismal truth lawfulness of violent action by like groups community international has dealt fighting PLO what some states view as ambivalently terrorism and ineffectually.” “wars of national liberation.”15 See Shestack, Of Private and Terror- State Lockwood, Thoughts Franck & Preliminary Observations, Preliminary Rutgers Some 13 Towards an International Convention 453, (1982). L.J. 463 Terrorism, 68 (1974); Am.J.Int’l L. 69 Customary international law well Paust, “Nonprotected" Things, Persons or aiding forbid states from terrorist attacks Legal in International Terrorism Aspects on neighboring states. Lillich & Pax- See 341, (A. 355-56 Evans & J. eds. Murphy man, Injuries to Responsibility State 1978); Verwey, cf. The International Hos- Activities, Aliens 26 Occasioned Terrorist tages Convention and National Liberation 217, (1977). Although Am.U.L.Rev. 251-76 Movements, (obli- 75 (1981) Am.J.Int’l L. 69 might that in like' this principle apply a case gations of national liberation movements Libya (which to a state such as is not a problem were major drafting pro- here, 13), it proper party supra see note mulgating against International Convention not, face, does at least on to a apply its the Taking Hostages). important, nonstate like PLO. More is, course, than There no there is less universal consensus about occasion here to on Israel PLO-sponsored whether attacks state what law should be.. noting (1976), United 1972 It is worth even the 1972 Draft Convention relies on States Draft Convention for the Prevention and criminal remedies for the vindication of the Punishment of Certain Acts of International rights specified, leaving power thus to in- Terrorism, Dep’t 67 St.Bull. 431 would Third, voke remedies the hands of states. First, problems present appellants. some it protect the 1972 Draft Convention does not Second, key makes motive a to violation. like state citizens of a attack within European Suppression Convention on the state. Terrorism, 27, 1977, Jan. 15 1272 I.L.M. cert, denied, 102, 835, there a whether an U.S. 97 S.Ct. Nor is need consider authorizing analysis leg- L.Ed.2d 101 Absent discriminating extended and islation, an individual has courts customary interna- access plausibly maintain treaty’s provisions of a enforcement alleged the actions prohibits tional treaty self-executing, only when the enough observe that complaint. is, expressly provides when it impliedly controversy of a political- there is sufficient Cases, Money of action. private right Head any the content of ly sensitive nature about 580, 598-99, 247, 253-54, 5 S.Ct. legal principles relevant Z & F (1884); L.Ed. 798 Assets Realization claims would litigation appellants’ Hull, Corp. 464, (D.C.Cir. 114 F.2d v. form, present, many prob- acute 1940), grounds, 470, aff’d on other powers separation, princi- lems that (1941); 85 L.Ed. 288 politi- of state and ples the act inherent Mills, Corp., Inc. Mannington Congoleum v. cal doctrines caution courts to explicit- at 1298. When F.2d in, clarity avoid. The lack and absence look ly stated, treaty to the about, legal principles of consensus in- it whole to determine whether evidences an by appellants, po- with the together voked private right intent of action. provide challenged litical context actions Richardson, 555 F.2d Diggs upon American for- impingement PLO’s (D.C.Cir.1976). relations, eign lead to the conclusion that case sort that is appellants’ appro- is not the appellants In III of the complaint, Count adjudication, priate federal-court alleged that defendants violated the follow- express grant least not without ing “treaties of United States”: cause of action. Pro-, to the —Geneva Convention Relative tection of Civilian Persons in Time of treaties, I turn next to examine common War, Aug. T.I. U.S.T. law, enactments, congressional and custom- 287; A.S. No. U.N.T.S. ary international law to determine whether —Articles 1 and of the Charter of the provides of these sources of law a cause Nations, June Stat. light of action for of what appellants. 993; said, No. has been T.S. require very clear showing that other these bodies of With Respect —Convention Laws grant appellants a cause action before Land, 29, and July of War on Customs concerns my principles separa- 1803, about 1899, 403; 32 Stat. Conven- T.S. No. But, powers tion of could be overcome. Respecting Laws and Customs of seen, grant clear will be there is no Land, 18,1907, 2277, War on Oct. 36 Stat. truth, cause of action found. to be (Hague Conventions); T.S. No. 539 concerning customary law treaties and in- —Geneva Convention Relative to the force appears ternational of its own War, Aug. 12, of Prisoners of Treatment actually deny appellants cause 3316, 3364, 1949, 75 6 U.S.T. T.I.A.S. U.N. action. 135; T.S.

—Convention Prevent and Punish the III. Terrorism the Forms Taking Acts of Against Crime Persons and Related Ex States, though Treaties of the United Signifi That Are of International tortion land, not generally do create 2, 1971, 3949, cance, Feb. 27 T.I. U.S.T. privately that are enforceable in (Organization 8413 of American A.S. No. Neilson, Pet.) 27 (2 courts. Foster v. U.S. (OAS) Convention); States 253, 314, 7 on L.Ed. 415 overruled Percheman, I and II Con- grounds, other United v. —Protocols to the Geneva States 1949, 7, 1977, 51, (1883); August of 12 June (7 Pet.) 32 8 L.Ed. 604 ventions U.S. States, v. Conference Reaffirmation Transport Diplomatic Canadian Co. United on 1081, (D.C.Cir.1980); Development and International Hu- Dreyfus 663 F.2d 1092 Finck, 24, (2d Cir.), 29-30 Law in Armed Applicable v. Von 534 F.2d manitarian Conflict, 1391, reprinted 16 I.L.M. Count III under the treaty components (1977); sections 1331 and 1350. on Principles

—Declaration Interna- force, Of the five treaties in none pro- Friendly Concerning tional Law Relations private right vides a of action. Three of Co-operation Among and Ac- States them —the Geneva Convention the Pro- cordance with the Charter United tection of War, Civilian Persons in Time of 2625, Nations, 25 U.N.GAOR G.A.Res. the Geneva Convention Relative to the 28) 121, Supp. (No. at War, U.N.Doc. A/8028 Treatment of Prisoners of and the (1970); OAS Convention Prevent and Punish Acts of expressly call for imple- —Universal Declaration of Human Terrorism — menting A legislation. provides treaty 217, GAOR, Rights, G.A.Res. U.N. 3 U.N. party states will take measures Doc. (1948); 1/777 through their own laws to enforce its pro- —International Covenant on Civil and scriptions evidences its intent not to be 2200, Political Rights, Annex to G.A.Res. Neilson, self-executing. See Foster v. (No. 52, at Supp. 16) U.N.GAOR U.N. 311-14, 415; (2 Pet.) U.S. at 7 L.Ed. (1966); Doc. A/6316 Postal, 862, (5th F.2d States Principles —Basic for the Protection of cert, denied, Cir.), 832,100 61, Conflicts, Civilian Populations in Armed (1979). L.Ed.2d 40 These three treaties 2675, (No. Supp. G.A.Res. U.N.GAOR are self-executing. Indeed, therefore not 28) (1970); A/8028 U.N.Doc with respect to the first Geneva Conven- —Convention on the and Pun- Prevention tion, one already court has so Huynh held. Genocide, ishment of the Crime and Dec. Levi, Anh v. (6th Thi 586 F.2d 277; 78 U.N.T.S. Cir.1978). Child, —Declaration of the of the Rights Articles 1 of the United Nations 1386, 14 Supp. (No. G.A.Res. U.N.GAOR Charter are likewise not self-executing. 16) (1959); Doc. U.N. A/4354 do They speak in terms of individual —American Convention on Human rights but impose obligations on nations and Rights, Nov. O.A.S. Official They United Nations itself. address K/XVI/1.1, Records Doc. OEA/Ser. states, them calling good to fulfill Rev. reprinted Corr. I.L.M. 101 faith their obligations members (1970), 65 (1971). Am.J.Int’1 L. 679 United Nations. Sanctions article Only alleged the first five of these treaties penultimate Charter, bulwark currently binding are treaties on the United be taken states (cid:127)to other states. Staff, States. See Treaties Affairs Office 2, moreover, general Articles contain Adviser, Legal State, Department “purposes principles,” some of which Treaties in Force if the Even re- mere aspirations state none which maining eight are relevant Count II sensibly thought can to have been in- complaint principles as evidence of to be at judicially tended enforceable law, they are treaties not behest individuals.16 These considera- the United (tor- States. Since Count III compel tions the conclusion that articles 1 tious actions in violation of the treaties of 2 of the Charter U.N. were intend- States) purports the United to state a cause to give ed individuals the to enforce right of action distinct from that in Count stated courts, in municipal particularly them since (tortious II actions violation of the law of appellants provided have no evidence of a nations), eight the last of the thirteen al- contrary Pauling McElroy, intent. See v. leged aff’d, treaties can pro- 390, (D.D.C.1958), 393 F.Supp. States 164 278 cert, jurisdiction (D.C.Cir.), denied, vide no basis over claims F.2d 252 364 U.S. private example, alleged 16. For enforcement what is world with the claims of victims of perhaps principle aggression (claims extremely the fundamental the Char- that would be 2, nonaggression common) principle seriously ter —the of article and would interfere with throughout diplomacy. section flood 4—would normal 810

835, 61, (1960); Drey- three-quarters otherwise in the more than 5 L.Ed.2d S.Ct. 30; Finck, People fus v. Von 534 F.2d century since the Conventions were Interior, 502 F.2d Saipan Department v. adopted. J., (9th Cir.1974) (Trask, concur- on by None of five treaties relied cert, denied,

ring), U.S. S.Ct. appellants impliedly grants thus even indi- (1975); Fujii v. L.Ed.2d Sel for viola- right damages viduals the to seek State, (1952). 38 Cal.2d P.2d have, provisions. Appellants tion of their Hague similarly Conventions cannot therefore, failed to cause of action state a be construed to afford individuals the any violation of treaties of the United Although enforcement. Con- complaint, III of their conse- States. Count language calling ventions contain no quently, does not come within arising- implementing legislation, they have never jurisdiction of section 1331. Nor does regarded been as law could private parties it this come within because enforce. If were code they regarded, so 1331, merely jur- like section provision, is of behavior the Conventions set out could isdiction-granting statute and not the im- create hundreds of thousands or perhaps legislation required by non-self- plementing millions of lawsuits individu- many executing treaties to enable individuals to als, war, including prisoners might who provisions. Dreyfus enforce their think their Hague under the Conven- Finck, (affirming Von 534 F.2d at 28 dis- large- tions in the course of any violated missal for lack of cause of action under war. might scale Those lawsuits be far treaties in suit alien where beyond capacity any legal system expressly based on sections 1331 and all, accurately resolve at much less and fair- 1350).17 ly; and the courts of a victorious nation might well be less to such suits hospitable that nation or the members of its IV. armed forces than the courts of a defeated Appellants’ argument they may re- might, perforce, Finally, nation have to be. damages cover for violations of internation- the prospect private of innumerable suits at law, al law simple. International end of a war be an obstacle to out, part point the common law of the negotiation resumption and the peace proposition unexcep- United States. This of normal relations between nations. It is See, e.g., Habana, The Paquete tionable. for these reasons Conventions L.Ed. 320 regarded best addressed to interests (1900); Smith, (5 United States v. nations, and honor of belligerent Wheat.) 5 L.Ed. appel- But

raising the of judicially threat awarded lants then contend that federal common law damages Hague war’s end. The Conven- automatically provides a cause of action for self-executing. tions are not The Second violations, as it would for conclusion,. Circuit has the same drawn Finck, Dreyfus v. Von 534 F.2d at violations of other federal common law appellants pointed holding to no case I cannot rights. accept conclusion.18 by appel- rejected general 17. Because none of the treaties cited district court 18. The on the ' action, provides ground predicated lants them a cause of it is “an action on ... unnecessary to decide whether of the trea- norms of international law must have at its imposes parties appellees ties duties on such as specific right private basis a to a claim” found Thus, particular, here. there is no need to F.Supp. in international law itself. 517 at 549. inquire into the contacts with the United States very likely strong, That formulation is too as it appellees inquiry their actions. That deny Congress power would seem to unnecessary also for a decision on Count II of statutory right provide individuals a of action appellants’ complaint, appel- as I conclude that damages to seek for international law viola- lants have no cause of action for that count on tions not actionable under international grounds independent appel- of the closeness of itself. lees’ States contacts. argument reflects a confusion selves even Appellants’ by implication authorize individ- meanings bring of two distinct “common law”. uals such cases. As the Supreme stated, long body Code, That term has referred to the has Court Judicial “[t]he vesting jurisdiction Courts, court-made law whose can be traced origins the District action, It English legal system. medieval does not create causes of only but generally jurisdiction adjudicate has also come to refer to law confers those aris- court-made) not on a statute from (mostly ing based other sources which satisfy its law”, or in limiting provisions.” constitution. “Federal common Montana-Dakota Util- particular, general has been used “to refer ities Co., Co. v. Northwestern Public Service ly 692, 694, to federal rules of decision where the 71 S.Ct. 95 L.Ed. for a authority explicitly Finck, federal rule is not also Dreyfus Von or found in federal or con clearly statutory (neither 534 F.2d at 28 1331 nor grants Bator, stitutional P. action). command.” P. Mish a cause of kin, Wechsler, D. H. Shapiro & Hart and Although jurisdictional statutes relied Wechsler’s Federal Courts and the Fed by appellants cannot be provide read to (2d 1973) (“Hart eral ed. System & action, cause of might those statutes con- Wechsler"). To that international say law ceivably provide evidence of Congress’ rec- part of federal say only common law is to (as ognition creation) opposed of one. that nonstatutory it is and nonconstitution Appellants do not suggest that section 1331 applied, cases, al law to be in appropriate in is evidence any recognition, such as noth- that, municipal say courts. is not to like ing language in its or history support could tort, the common law of contract and for Rather, such a reading. appellants focus on example, itself it affords individuals section which is expressly concerned to ask relief. only (treaties Thus, the step appellants would have us law) and customary international and there- take —from the “common law” to phrase might suggest fore Congress that under- implication stood, of a cause of action —is not when providing jurisdiction thiough a simple and automatic one. Neither is it that some individuals would be advisable. The separation considerations of able to take advantage of that powers provide ample rehearsed because they above had causes of action for' torts reason refusing step to take a committed in violation of the law of na- plunge federal courts into the for- tions.19 eign affairs of the United States. The broadest of section 1350 reading as

Appellants, seeking to recover for viola- evidence of congressional recognition law, tion of might look to such a cause of action is that it merely federal statutes either for grant requires plaintiff that a prove the ac- cause of action or for evidence that a cause tions complained of violated international action exists. These notions be jurisdictional law. If that prerequisite met, quickly plausible dismissed. The can- according appellants, the plaintiff jurisdictional didates are the two statutes damages, has a cause of action for tort appellants, relied on sections 1331 and he would for tort. This approach is 1350 of Title 28 of the United adopted by Filartiga, States Code. Circuit in Second expressly believe, Neither of those statutes either by Judge well as Edwards. nonetheless, impliedly grants a cause of action. Both this construction of sec- statutes merely rejected define a class of cases fed- tion 1350 must for several rea- hear; eral courts can do not sons. them- argue Smit, 685-803, Appellants supra, citizen’s access to Schachter & H. damages federal courts to com- seek a tort and the restriction of section 1350 to aliens mitted in violation of international law should reflect that concern. This need however, since, pursued, be the same as an alien’s access. International not be for reasons special might suggest having nothing appellants’ law’s concern for aliens to do with citizen- see L. Henkin, contrary, Pugh, ship, they R. O. have no cause of action in this case. enacted, in cur-

First, reading broad 1350 was almost its appellants’ Section form, apply equally brought part Judiciary have to to actions rent as of the Act of committed in vio- damages 20,1 recover for torts ch. 77.20 I have discov- Stat. treaties, lation of since treaties stand Congress no direct evidence of what ered the same in section 1350 as exactly position enacting provision. when had in mind customary law principles in the Judiciary The debates over the Act (the nations). application law of Such re- House —the debates were not Senate meaningless, plain- would render for alien not provision, corded —nowhere mention tiffs, the rule that treaties well-established even, aware, indirectly. far we are so provide no cause of action cannot be (J. ed. Cong. See Annals of Gales (express implied) sued on without federal 1789). law supra p. authorization. research has not as dis- yet Historical approach, Edwards’ as well as the was intended to closed what section 1350 analysis Filartiga, Circuit in Second poses special prob- The fact accomplish. would also make all treaties United States original A statute whose lem for courts. self-executing. appellants As effectively which, if meaning yet is hidden from us and here seek evidence of a cause of action to with modern incautiously its words are read vindicate an asserted international mind, plunging assumptions capable is do not assert itself affords conflicts, ought our into foreign nation action, them their claim is private right approached by judiciary great be with indistinguishable, language circumspection. simply will not do from a claim to vindi- brought “law of statutory phrase, assert that the non-self-executing cate set forth in a nations,” may whatever it have meant treaty. today incorporating must read addition, appellants’ construction of all the modern rules of international sweeping. section 1350 is too It would au- aliens causes of action giving private thorize tort suits for the vindication of for violations of those rules. It will not do As legal right. demonstrated because the result contrary only below, that result would be inconsistent general pur- what we know of the framers’ with the severe limitations on individually contrary in this area as well to poses but initiated enforcement inherent in interna- constitutional, appropriate, indeed the itself, tional law and would run counter to respect role of courts with af- constitutional limits on the role of federal fairs. rejection courts. Those reasons demand appellants’ construction section 1350 un- What historical back- little relevant less reading provision a narrow ground now available to us indicates that incompatible congressional intent. those who drafted the Constitution and however, evidence, There is Con- feder- Judiciary open Act of 1789 wanted gress appellants sug- intended the result purpose al courts to aliens for the of avoid- gest. ing, provoking, conflicts with other na- Hamilton). (A. tions. The Federalist No. 80 origins

What is known of the of section A reading broad section 1350 runs direct- 1350 was perhaps by Judge best described to that desire. It is also rele- ly contrary Ltd., Friendly Vencap, in IIT v. 519 F.2d provision vant to a construction of this 1001,1015 (2d Cir.1975): little “This old but nobody until understood it to quite recently legal Lohengrin; used section is a kind of empower ... no one seems to know whence it came.” courts to entertain cases like this zance, Act, 20. Section the Alien Tort Claims was concurrent with the courts of the several States, courts, Congress enacted the First in section 9 of or the circuit as the case be, Judiciary September of all where an alien sues for a tort Act of ch. causes original 1 Stat. 76-77. The statute read: in violation of the law of nations or a cogni- treaty shall of the United States.” district courts ... ... “[T]he

813 Filartiga.21 one or like As Justice Frank- Int’l atL. 19-20. Clearly, cases like this furter said in Romero v. International Ter- Filartiga beyond were the framers’ con- Co., 354, 379, Operating minal 358 79 templation. Id. at problem 24-26. That 468, 483, (1959): 3 L.Ed.2d 368 not avoided by observing that the law of The considerations of history policy nations evolves. It is one thing for a case investigation which has illuminated are Paquete like The Habana to find that a rule by reinforced felt powerfully deeply has evolved so that the United may States and traditional reluctance of this Court to not seize coastal fishing boats of a nation expand jurisdiction of the federal with which we are at war. It is another courts through reading juris- a broad thing entirely, a difference in degree so dictional statutes. A reluctance which enormous as kind, to be a difference in must be even more forcefully felt when find that a against rule has evolved torture the expansion proposed, for the first government by so that our courts must sit time, eighty-three years after the juris- judgment of the conduct of foreign offi- diction has been conferred. cials in their own countries with respect to In the case of section period be- their own citizens. The latter assertion fore the expansion proposed was is more raises prospects interference than twice eighty-three years. with foreign affairs that the former does Though it necessary is not to the decision not. A different question might be case, of this well may suggest what presented if section 1350 had been adopted 1350 have been enacted to ac by a modern Congress that made clear its complish, if only to meet the charge that desire that federal police the behav- my interpretation is plausible because it ior governments. individuals and would drain the statute of meaning. The But section 1350 does not embody legisla- phrase “law of nations” has meant various tive judgment that is either current or clear things over time. is important to re and the statute must be read with that member that in 1789 there was concept mind. rights; international human neither was there, under the traditional version of cus actions, What kinds of alien then, tort tomary law, any recognition might the Congress of 1789 have meant to of private parties to recover. bring into federal courts? According See, e.g., Hassan, International Human Blackstone, a writer certainly familiar Rights and the Alien Tort Statute: Past lawyers, colonial “the offences principal Future, Rights Human Symposium: nations, animadverted on Further Commentary, 5 Hous.J.Int’l L. as such by municipal England, laws of (1982); Oliver, 139 Replication: A Brief kinds; of three 1. Violation of safe- [were] The Big Picture and Mr. Schneebaum’s Re conducts; 2. Infringement of the rights of in Human ply, Rights Symposium: Further embassadors; and 3. Piracy.” W. Black- Commentary, Hous.J.Int’1 L. stone, Commentaries quoted in 1 (1982); 1 L. Oppenheim, International Law Crosskey, W.W. Politics and Constitution in (2d 1912), Hassan, ed. quoted § Pa History (1953) States Mirage? nacea or Domestic Enforcement (“Crosskey”). suppose One International Rights Human Law: Cases, Recent these 4 Hous.J.Int’l L. were the kinds of offenses for which Hassan, supra, See also Congress Hous.J. provide jurisdiction wished to tort nearly years, tort, two hundred and defendant’s falsification of child’s predicated successfully has been passport procure custody under section violated law of Filartiga Pena-Irala, nations); Darrel, (D.S. three times. Bolchos v. F.Cas. (2d Cir.1980) (jurisdiction C.1795) (No. 1607) (suit 630 F.2d 876 over for restitution of three allegation Spanish ship official torture not ratified offi slaves who were on board a state); Clift, F.Supp. war; prize treaty cial’s Adra v. seized as a with France (D.Md.1961) (child custody dispute nations; superseded between law of 1350 alternative aliens; wrongful withholding custody jurisdiction). two basis of courts, over tort suits aliens for viola- to avoid conflicts for suits aliens in order nations.22 with other Judiciary of the law of nations. Act tions 76-77. This ch. 1 Stat. course, Constitution, gave particu- envisaged piracy a tort like may well have piracy lar attention to and 8, I, pi- (a diversity jurisdiction).23 section links citizen could use ambassadors. Article by granting the law of nations racy and original 9 of the The idea section Pira- punish “to define and Congress power 1350, Act, was con- section Judiciary now the high Felonies committed on cies and (and of ambassadors cerned with Seas, the Law of against Na- Offences suggested is representatives) foreign other 2, III, gives section And Article tions.” provision another of the statutes. Sec- by jurisdiction over original Supreme Court Supreme origi- Court such gave tion 13 Ambassadors, affecting other “all Cases jurisdiction over all suits nal and exclusive 9 of Public Ministers and Consuls.” Section against ambassadors “as a court law can (now 1350) section Judiciary Act of 1789 with the law consistently have or exercise courts, to district concur- gave jurisdiction added). (emphasis Judiciary courts and circuit of nations” rent with that of state nations; ency, though three classes left to the 22. That Blackstone refers to these only legislative offenses as violations of the law of them is found in most definition of nations, by municipal municipal but censured as such codes. A definition felonies on England require seas, evidently requisite.”). law of does not the conclusion high Al- types that in America these three of violations Congress, defining piracy though the in in the carry private them a cause of did Federal Act of 1790 confused the con- Crimes gave for which the neces- action sary jurisdiction piracy by cepts of defined the law of nations courts. The former to federal law, piracy by municipal Act of defined picked up England as their colonies the law 112, 30, 1790, 9, 8, 113-14; Apr. ch. 1 Stat. § own. As stated in the Preface to the American 342-49, Piracy Congress see The Crime of Edition of Blackstone: “The common Jaw is as changed in reaction to later the definition birth-right much the Englishman. of an American as of an construing very Supreme sec- first Court case law, It is our as well as the law of Palmer, 8, (3 tion Wheat.) United States v. thence, brought England, having it been 610, (1818). The new L.Ed. here as far forth as it was found established punished piracy, “the crime of as statute fitted to our institutions and the circumstances 3, by defined the law of nations.” Act of Mar. Blackstone, country.” W. Commenta- 5, 510, See The ch. 3 Stat. 513-14. § (1854) (emphasis original). English ries vii Thus, Piracy Justice Sto- Crime of at 342-49. statutes, were, course, part which Smith, (5 ry, in United States v. law, municipal adopted part of were also as Wheat.) wrote that 5 L.Ed. law, that their American common to the extent “whether we advert to writers on common equitable principles “collective and had become law, law, nations, or the law of or the maritime law, so interwoven with the common as to be find, they universally treat of we shall scarcely distinguishable Fitch v. therefrom.” nations, against piracy as an offence the law Brainerd, Jones, (1805), quoted Conn. by that law is rob- and that its true definition Reception Law in the Unit- of the Common Furthermore, bery upon the sea.” a cele- Jones, Kernochan, ed States in H. J. & A. Mur- eight more and one-half brated footnote of than Legal phy, Method: and Text Materials Cases Story “piracy pages, showed that Justice (1980). against And at least some offenses 75-84, by Id. at defined the law nations.” nations, law of such as violations of safe-con- L.Ed. 57. ducts, punishment resulted not criminal Opening federal courts to tort suits based on but in restitution for the alien out of the offend- not, piracy apparently, have involved Blackstone, er’s effects. W. Commentaries 69. was, piracy courts in relations since as Smith, merely rob- stated in United States v. bery piracy crime of was often defined as 23. The high commit- on the seas. It could not be jure —piracy by piracy gentium na the law of nations, by by anyone acting for reasons tions, ted piracy by distinguished from munici According plunder. to Hack- Moore, other than for worth, Digest pal E.g., 2 J. A of Interna law. Dickinson, are commit- “when the acts (1906); at 951-52 tional Law § motive, purely political hardly Obsolete?, it is Piracy ted from 38 Harv.L. Is the Crime regard piracy possible in- (“The them as acts of (1925) of Pira Rev. Crime consequences volving important thought which cy”). piracy all the to be The crime of was upon that crime.” sufficiently follow the commission of G. the law of nations. The defined Hackworth, Digest (J. Madison) (“The Law of International § definition Federalist No. 42 piracies might, perhaps, without inconveni- at 681 ch. These thoughts Act Stat. 80-81. to the possible original section, however, That the Court gave origi- intention underlying section 1350 are admit- but not nal exclusive of “all tedly speculative, and those who enacted ambassadors, brought by or other pub- suits the law may well have had additional torts ministers, consul, lic or in or vice which in mind. possibilities offer these merely consul, (emphasis added). shall be a party” to show that the statute could have served appears grant This to tie in to the of tort a useful if purpose larger even tasks jurisdiction for suits aliens in what assigned by Filartiga Edwards (Section now section 1350. 1350’suse of the rejected. Moreover, if the offenses broader term merely “aliens” indicate the law of nations listed Black- the torts of piracy violations of stone torts constituted the framers safe-conduct, which would plaintiffs involve mind, section 1350 had in then the creation ambassadors, other than were included.) federal for the redress of intent protect An to the of ambas- aliens’ grievances would tend to ease rather plausible sadors is also historically. Accord- than inflame relations with foreign nations. Convention, to ing Crosskey, the in assign- That result comports Hamilton’s ex- to ing Congress power to “define and pressed desire. Whether evidence so slim ... punish against Offences the Law of as to the office of intended the statute mind, Nations” had in aside from piracy, provides materials from which today courts rights of Crosskey ambassadors. at 459. may properly make substantive law is He draws this conclusion from the notoriety jurisprudential with which, issue given the Mansfield, of a case Lord by discussed both grounds upon I would place which our deci- Bench, of the Court of King’s Black- sion, I need not grapple today. But when stone. An ambassador the Czar had courts creditors, and, go beyond been arrested the area in English his which there was, in the process roughed evidence, “somewhat up any historical when they create accomplished.” before arrest was Id. the substantive for topics rules such as that Queen He demanded of the that his assail- taken inup or in Filartiga Judge Edwards’ subjected ants be ‘corporal to “severe Pun- formulations, then law is made with no ” ishment.’ English Id. law at the legislative guidance whatever. When that time, however, did not permit punishment so, it will not insist do to that the judge’s enough severe to satisfy offended am- duty is to construe the statute in order not bassador, protested who to Czar Peter. The to Congress. flout the will of On these Czar demanded put that the offenders be to topics, have, moment, we at the no evidence result, death. As a law was changed, what Congress the intention of was. When Queen’s giving Bench, Chief Justice evidence, courts lack such to “construe” among other members of the “executive” dark, to legislate, to act in the and hence to branch, the power try any offenses do many that, certain, it is things virtually against ambassadors, Czar was pla- Congress Any did not intend. correspon- cated. Id. at 461-62. “slightly This ridicu- dence Congress between the will of in 1789 affair,” lous according Crosskey, was and the decisions courts in 1984 can well-known repeated because of comment then be only accidental. Section 1350 can it. Id. at upon 462. If this was indeed the probably adequately understood only in incident Convention considered in allo- the context premises and assump- cating Congress power “define and legal tions of a that no longer culture ex- punish ... Offences Law of Perhaps ists. historical research that is be- Nations,” it may Congress, be that the First yond capacities appellate judges will sensitive to the international ramifications lift now envelops darkness that redress, of denying ambassadors enacted topic, yet occurred, but that has not and we 1350 to give option ambassadors the bringing attempt anticipate may tort federal should what actions in courts as well as in state may courts. not become visible.

Congress’ understanding .private of the “law of vided a cause of action for viola- in 1789 is relevant to a considera- nations” tions of new international norms which do enacting tion of sec- Congress, by whether contemplate private themselves en- open intended to the federal Then, least, forcement. we would courts to the vindication of the violation of political judgment current about the role any right recognized by international law. for courts in an area appropriate of con- Examining meaning of the “law of na- sensitivity. siderable international not, contrary my tions” at the time does colleague’s charges, “avoid dictates of V. Paquete Habana” and “limit the ‘law Century of nations’ to its 18th definition.” Whether current law itself op. Edwards’ at 29. substantive rules gives appellants requires a cause of action per- of international evolve and more extended discussion. Appellants’ rules, those new haps may apply but claim, in Count II of their complaint, is that problem that does not solve the of the exist- have committed the appellees “torts ter- plaintiffs ence of a cause of action. If were ror, torture, hostage-taking genocide,” explicitly provided with a cause of action by Brief for Appellants at in violation of nations, the law of currently as it is under- various customary principles of internation- stood, this court might subject to consider- — al law. principles Such become law vir- ations of justiciability required by sec- —be “general tue of the assent of civilized na- But, tion 1350 to entertain their claims. as Habana, tions.” The Paquete at below, 816-819, pp. see infra discussed 694, 20 at 297. Unlike S.Ct. treaties and today international law does not provide statutes, authoritatively such law is not plaintiffs with a cause of action.24 pronounced by promulgation in a written Recognition of presenting suits serious document but must be found in the “cus- problems of interference with rela- toms and usages of civilized nations” as tions would conflict the primary pur- evidenced “jurists works of and com- pose adoption of the law of nations 299; mentators.” Id. at at see federal promote law —to America’s Statute of the International Court of Jus- peaceful relations with other nations. See tice, art. Stat. T.S. No. (A. The Federalist Hamilton); No. 80 The 993; Restatement of the Foreign Relations (A. Hamilton). Federalist No. 83 Judge Law of the (Revised) United States 102- §§ Edwards cites this as a reason rationale (Tent. at 1980). Draft No. reading creating section 1350 as a cause of Consequently, any of action that cause private action for parties. inference exist, like precise meaning of the me, however, from that seems to rationale themselves, customary principles must be to run in precisely opposite direction. inferred from the sources that are evidence Adjudication disputes of international of and attempt legal to formulate the rules. courts, this sort disputes federal over found, The district court appellants abroad, international violence occurring have not argued contrary, to the that none be far likely more to exacerbate ten- appellants documents forth put sions with promote other nations than to stating legal principles international peaceful relations. they on which rely expressly state that indi- Under can possible meaning bring municipal I have . viduals suit in courts to sketched, section 1350’s current function enforce the specified rights. See 517 modest, quite Moreover, would be unless a at F.Supp. modern 548-49. we have statute, treaty, or executive agreement pro- pointed been in their nothing language, any significance long recognized right private 24. Nor is there fact that enforce- Paquete That, shown, Habana the court assumed a ment. as will be is not universal- private ly particular- cause of action to exist. That case true of international law and most ly prize involved a branch of the not true of the area in which this case nations — under maritime law —which had falls. structure, or of promulgation States, circumstances international conduct and not suggests any of those documents rule, their citizens. As a the subjects implicitly declaring should be read as rights arising duties from the an individual be able to sue in mu- should Law Nations are States solely and nicipal enforce specified exclusively. event, there is need to rights. Oppenheim, 1 L. International Law: A origins in review those documents and their (H. Treatise 19 Lauterpacht 1955). 8th ed. detail, for, general rule, inter- further Even statements of individuals’ or not provide private national law does norms individual conduct that have action, exception to that earned universal assent of civilized na- rule would have be demonstrated tions do become principles interna- clear evidence civilized had nations tional law unless “used by . .. generally given assent excep- their their good states for common and/or Hassan, tion. L. at supra, Hous.J.Int’l dealings inter se.” v. Lopes Reederei Rich- 26-27. Schroder, ard 225 F.Supp. (E.D.Pa. typically International does not au- 1963) (footnote omitted). See Cohen v. thorize to vindicate rights by individuals Hartman, (5th Cir.1981) F.2d bringing actions either (“The standards by which nations regulate “ municipal ‘Like a trea- general tribunals. their dealings with one another inter se ty, law of has been not to nations held constitute the ‘law ”); of nations.’ IIT v. as to self-executing so vest a plaintiff Ltd., Vencap, (ten at 1015 ” F.2d com- rights.’ with individual legal Dreyfus mandments law for this Finck, Von at 31 Pauling F.2d (quoting reason).25 393). v. McElroy, F.Supp. -“[T]he large If it is in part because “the Law of usual method for an individual to seek re- Nations is primarily States,” is to a law between lief exhaust local remedies and then 1 L. repair Oppenheim, supra, the executive authorities of his that interna- persuade own state to them to champion his tional law generally relies on an enforce- in diplomacy claim or before an internation- ment scheme in which individuals have no al tribunal.” Banco Nacional de Cuba v. role, direct that reliance also recog- reflects Sabbatino, 422-23, at 376 84 at U.S. S.Ct. nition of some other important characteris- 937-38. tics of international that distinguish law it municipal from law. Chief among these is general

This relegation of individuals to a the limited role of law in the international derivative role in the vindication their realm. International plays law a much less rights legal stems from traditional “[t]he pervasive role in ordering view of law states’ international ... that it estab- within conduct the international community lishes substantive principles for determin- than ing municipal whether one an- does law in the country ordering has wronged 422, 376 other.” at 84 individuals’ conduct U.S. S.Ct. at 937. within nations. Unlike nation, scholar explained One role of our primary example, the international states law international as follows: community could not plausibly be described governed by laws rather than Since the Law of Nations is on men. based States, legal disputes the common are consent individual not as “[IJnternational principal subjects separable politics are the of Inter- from are legal States domestic ” national means disputes.. Law. This that the Law .. City First National Bank v. of Nations is a law primarily Cuba, 775, de Banco Nacional 406 U.S. at protection: 25. Further evidence “the Law of possess Nations “if individuals who primarily key abroad, nationality is, rule, wronged law between States” is the role are it as a played by nationality availability in the exclusively to indi- their home State and which legal protection. right redress, viduals 1 L. has a to ask for and these individ- Oppenheim, supra, right.” (foot- at 640. Even nationals uals themselves have no such Id however, generally omitted). cannot themselves invoke note J., (Powell, concurring throughout E.g., in the the world. Universal Dec- at 1816 S.Ct. judgment). of Human Rights, laration G.A.Res. U.N.GAOR, (1948) U.N.Doc. to (right 1/777 law, municipal International unlike life, liberty, security person; right (at States), widely least in the is not detention; arbitrary right resort freedom from regarded frequent as a tool of first or reso legitimate and as the last word in the country; right practice religion; leave rely chiefly lution of conflicts. Nations on assemble; speak right freely tools in their diplomacy political and other government); elected International Cove- other, with each and these means dealings Rights, nant on Civil and Political Annex to with declara frequently incompatible (No. 16) Supp. G.A.Res. U.N.GAOR demands legal rights. Diplomacy tions of (1966) (similar at U.N.Doc. A/6316 list great flexibility primarily and focuses on rights); American on Human Convention often past, the future rather than on Rights, Nov. Official O.A.S. refrain, states to for the sake of requiring K/XVI/1.1, Doc. Records OEA/Ser. relations, pronouncing their future from Rev. in 9 reprinted Corr. I.L.M. conduct. Cf. Internation judgment past (1971) (similar 65 Am.J.Int’l L. 679 Aerospace al Association of Machinists & list rights). key Some documents OPEC, (9th Workers 649 F.2d are meant to be statements of ideals and cert, Cir.1981), denied, are, short, aspirations only; they merely L.Ed.2d Since precatory. Oppenheim, supra, See L. adopt improve states law to 745; St.Bull, (Universal Dep’t (1948) other, hardly their relations with each it is Rights Declaration on Human “is not a surprising they the current world that treaty; is not an international generally agree- should retain for themselves con trol over the to invoke it. Nor is it ability purport ment. is not and does not to be that international surprising is invoked a statement law or of legal obligation.”) adjudica less often to secure authoritative (remarks of representative U.N. negotiating posi tions than it is to bolster Henkin, Assembly) (quoted General in L. R. acquire public support tions or to for for Smit, Pugh, supra, O. H. Schachter & eign-relations policies. “By large, na 808). high define at so a level Some tions have resisted settlement third-party generality or in terms so dependent disputes adjudicative their techniques social, meaning particular their econom- played very limited role in their ic, political circumstances Bilder, relations.” Some Limitations of Ad applied by cannot be construed and judication as an Dispute International Set in a acting adjudicatory manner. traditional 1, Technique, tlement 23 Va.J.Int’l L. E.g., Declaration of Human Universal (1982) (footnote omitted). consequence One work, Rights, supra (rights just to to com- is that law has not been ex international leisure, to pensation, adequate to standard judicial tensively developed through deci education, living, participation to to Henkin, Pugh, sions. L. R. O. Schacht life); Rights cultural Declaration of the Smit, (“The supra, strongly er & H. at 88 Child, G.A.Res. U.N.GAOR character of international is political many Supp. (No. 16) at U.N.Doc. A/4354 paucity sues accounts for the relative (1959) (rights opportunity develop to judicial contemporary decisions in interna manner, grow up atmosphere normal law.”). tional affection and of moral and material se- This remains true even international abilities, develop judgment curity, increasingly law has become concerned with responsibility, sense of moral and social rights. rights speci- individual Some play). expressly oblige Some states by fied in the documents upon appel- relied implementing enact thus im- legislation, stating principles lants as of international action. pliedly denying private cause of are recognizing rights clearly law individual expected judicially E.g., not to be enforced International Covenant on Civil and Rights, supra;26 Political art. American branch of international law does today generally provide private right Rights, supra. Convention on Human art. of action. therefore, Appellants, granted It be doubted that courts should private right of action to bring this lawsuit understand documents of this sort as hav- specific either aby legal ing been assented to as by all civilized impliedly by or parts whole or of inter- nations since principles enforcement of the national law. would revolutionize most socie- enunciated reason, others, ties. For that among VI. long should hesitate before finding viola- Pena-Irala, In Filartiga v. 630 F.2d 876 tions of a “law of pri- nations” evidenced (2d Cir.1980), Circuit, the Second which did marily by the resolutions and declarations not address the issue of the existence of a Note, of multinational bodies. See Custom action, cause of held that section 1350 af and General Principles Sources of Inter- forded over a claim brought by Courts, national Law in American Federal Paraguayan against citizens former Para 751, 772-74, Colum.L.Rev. e guayan official. Th plaintiffs, a father event, In any rights many they de- daughter, alleged defendant clare clearly were not intended for son, brother, had tortured his her in viola enforcement at the behest of individuals. tion of international law’s proscription of express provision in the European Con- official torture. highlight To what be vention Rights for the Protection of Human lieve should be the basis our holding, Freedoms, and Fundamental Nov. is worth pointing significant out several art. of an U.N.T.S. E.T.S. between differences this case and Filartiga. tribunal to which individuals First, unlike case, the defendants in this claims, may bring evidencing thus states’ Filartiga defendant was a state offi- ability provide private rights of action acting cial in his capacity. Second, official so, when wish to do is an extraordina- the actions of the defendant in Filartiga ry exception that highlights general in violation of were the constitution and absence of individual-complaint procedures. laws of his state and were unrati- “wholly moreover, Even that exception, is a far cry fied government.” nation’s from the authorization of ordinary munici- Third, F.2d the international pal-court enforcement. Current interna- rule invoked in was the Filartiga proscrip- law, tional human rights in whatever sense torture, tion of official principle a- “law,” it may be called grow- doubtless embodied in numerous international con- ing. But it remains true declarations, that even that ventions and that is “clear and 26. The noting International Covenant- on Rights Civil Po- is worth the Human Rights provide litical directs states to a forum Committee established article 41 of the Cov- private rights vindication of under the Cov- provides complaints enant about a state’s however, provision, enant. That should not be only brought conduct to be another state suggest grants recog- taken to the Covenant only and then if the “defendant” state consents private right municipal nizes a of action in jurisdiction. Optional to the Committee’s An First, courts in a case like this. the Covenant Protocol, Annex to G.A.Res. 21 U.N. provide directs states to forums for the Supp. (No. 16) GAOR U.N. Doc. A/6316 themselves, vindication of not for (1966), provides complaints. for individuals’ rights against the vindication of other states. signed by thirty states; As of it had been only political, It is the latter that raises all the among the United States is not them. See L. problems relations that lie behind inter- Henkin, Smit, Pugh, R. Schachter & H. O. general against private national law’s rule Supplement Basic Documents to International action; thus, causes of if even the Covenant Sohn, (1980). generally Law 336 The New suggests recognition private cause of ac- Rights International Law: Protection of the former, tion for the it does not do so for the States, Individuals Rather than 32 Am.U.L.Rev. Second, latter.' does Covenant itself sue; rather, say individuals can it leaves to obligation states the fulfillment of an to create private rights of action. alleging facts violations of the “law of application in its to the actions unambiguous” and “treaties nations” id. at and about which Filartiga, of construction can process pry No States.” “in the mod- agreement there is universal law; sources of substantive apart those of nations.” Id. at usage practice ern If, parity. stand in 883. Filartiga Edwards states and as- Judge Thus, was Filartiga the defendant sumes, only juris- section 1350 not confers subject international-law clearly creates a cause of action private diction but duties, were not at- challenged actions nations,” violation of the “law of any for in American for- participant tributed to a private then it also creates a cause of action relations, the relevant internation- eign violation of “treaties of the United any was one whose definition principle al existing all trea- This means that States.” nor sensi- disputed politically was neither became, will ties and all future treaties tive. None of that can be said about become, effect, self-executing when rati- reasons, not all of the case. For these opposi- in flat fied. This conclusion stands analysis employed apply deny here would years to almost two hundred of our in FUarti- plaintiffs a cause of action to the it jurisprudence, simply too late ga. such a effect in this revolutionary discover decision, how- Filartiga I differ with little-noticed statute. This consideration ever, there did not ad- because the court me insuperable alone seems obstacle .to dress the whether international reading Filartiga Judge Edwards pri- law created a cause of action that give to section vate before it could enforce in mu- parties Third, implications Judge Edwards’ nicipal given, courts. For the reasons provides section 1350 itself theory —that essential. inquiry is requisite cause of action —cause him so he difficulty

much is forced to invent Thus, limiting principles. the law enunciat- VII. Filartiga only ed in is said to cover those in this case are too opinions already crimes,” recognized acts as “international me think it long complex appro- which he category supposes to be priate respond Judge in detail Ed- prohibitions broad as the of the law of arguments. wards’ and Robb’s A some, This may allay nations. restriction made, however, few to be points ought all, though by apprehensions no means respect to each of the other concurring . about, what may get themselves and opinions. into, United States but comes out of nothing language in the of section 1350. A. statute, According to that exists First, Judge Edwards to me attributes as to tort in violation of the law of a number of I do not positions that hold. nations. op. example, See Edwards’ 777. For “alternative formulation” col- my he rejecting propositions far from four league espouses requires legisla- even more Filartiga, accept extracts from the first unruly Recogniz- tion to tame its nature. agree three and also with the entirely this “alternative formulation” ing that fourth, but in a more limited form —name- American open disputes courts to ly, opens “section 1350 the federal courts states,” the “wholly involving foreign con- adjudication rights already recog- limiting principles. currence erects a set of law” when only nized but Three kinds of suits are to be allowed: rights is that of individuals to among those (1) by aliens for domestic torts committed municipal enforce substantive rules injure and that territory on United States courts. rights” “substantial Second, law; (no opinion, (2) as noted earlier in this aliens for “universal crimes” (3) aliens committed); for tort matter where and provides jurisdiction section 1350 Americans given torts committed would have been limited to torts abroad, “where redress in American courts only. The concurrence’s response to this preclude repercus- might international is to observation surmise a “compromise” op. sions.” Edwards’ at 788. Aside from for which there is absolutely no historical the unguided policy judgments which these evidence. require, definitions and whatever else may goes But the trouble deeper than this. them, be said it is clear that these Judge Edwards’ reading of the statute limitations are in way prescribed, or gives jurisdiction federal to suits between suggested, even by the of section language aliens for violations of international Rather, upon are imposed that and treaties of the United States. He sug- language reasons indistinguishable from gests is proper that this because denial “[a] legislative ordinary prudence. The neces- justice might create the perception sity for these judicially invented limitations siding United is with party, States one merely highlights the reading error in the thereby affronting the state of the other.” given section 1350. Edwards’ op. 784 n. 13. This turns Finally, such assessing statute argument Hamilton’s on its head. A refus- are, genesis this —one whose and purpose to al a United States court to a dis- hear least, in say the considerable doubt —some pute between aliens is much less offensive perspective required. For a weak young, to the states involved than an would be nation, one anxious to avoid entan- jurisdiction acceptance of and a decision on glements Europe’s embroilment in dis- case, the merits. In the latter state undertake putes, casually and without the losing party would certainly be affront- to regulate debate of other conduct ed, particularly where the United States’ abroad, nations and individuals conduct interests are not involved. The United an effect upon without the interests of the be perceived, so, States would justly States, United would be a of breath- piece not as a nation magnanimously refereeing folly taking breathtaking as render —so disputes but as an officious any reading incredible of the statute that interloper and international busybody. such produces results. Indeed, seems to me that Ed- suggest is anomalous to that such a interpretation wards’ would us to require supported reading by Alexander Hamil- case, hear this thus concern, thrusting the ton’s expressed in The Federalist into this improper States and undesirable grievances No. aliens' be redressa- be argued in federal role. It can here appellants ble courts. Hamilton was de- fending have authority alleged which extended “official” torture: the com- PLO, “to all those plaint alleges which involve that the out carrying [cases] CONFEDERACY, PEACE whether attack, its which the complaint alleges to they relate to the intercourse between torture, have included was acting at nations, United States and foreign or to in conjunction behest of and Libya. that between the States themselves.” way, Viewed this this case is indistinguisha- No. (A. Hamilton). Federalist His con- such, Filartiga, ble from and as Judge Ed- very cerns were largely bymet federal di- wards’ approach would force us to hear it. jurisdiction, and, versity seem, it would entertaining suit, such a one of the issues entirely would be met the relationship be whether between which had the meaning historical Libya PLO constituted that of suggested plausible. above as agent so principal, Libya should be held responsible the PLO’s actions. pro- If section had been designed prospect of federal court dis- place ordering vide aliens with redress in order to issue, covery say nothing all on such an disputes federal courts those about trea- it, is, deciding be, ties little pro- actually ought law that incidents, voke international terrifying. anything likely short of If deny the doctrine would be insufficient the CONFEDERA- the “PEACE of disturb do what Congress if had tried to CY,” this is. Judge apparently Robb Filartiga supposes. con- against needs said the If more to be applies, thinks the constitutional core that the my Filartiga and colleague struction doc- political question invokes the since he 1350, it be give would court the inquiring even whether trine without runs interpretation that observed their to a case like this. applies statute It grain the of the Constitution. by confiding important aspects so does that stating me Judge Robb chides for III judiciary relations to the Article foreign the for- significantly upon the PLO “bears Constitution, in the fact that the despite He of the United States.” eign relations I, respon- places II and Article that Article organization thereby give states I that that Congress. and in the President sibility recognition way “more in the official I ar- the reason have That is fundamental any from gained than has ever before [it] judges it is to infer improper gued government.” the national institution of action not private explicitly cause of it that is not Numer- happens, As correct. granted. dis- the ous officials of United States have PLO for problems posed by cussed the the B. including the Pres- foreign policy, American my Robb Judge misapprehends- position, Judicial Secretary ident the and State.27 it, respects, in with equating many an admirable circumspection certainly I Edwards’. have not read section 1350 need so demure but a court not be quality, the authorizing courts to enter into sensi- what the world cannot even mention quite the con- foreign policy: tive areas of our highest knows officials of trary. suggested, As the statute is, more- government publicly discuss. very was to cover probably only intended over, the case particularly startling to see aliens, by limited set of tort actions none of- prudence made in an extraordinary for such capable affecting for- adversely which implica- clear opinion that itself contains law does eign policy. Since terror- responsibility tions of worldwide not, to, recognize capaci- nor is it likely engage surely self-defeating ism. It is rules in ty private plaintiffs litigate its making speculations such in order to avoid courts, municipal as a matter practical the PLO affects milder observation that Congress treaty negotiated by an act or our relations. by the President ratified Senate decide, mine I would Were the matter create a of action that would could cause core constitutional probably agree courts to cases like this one. direct entertain this bars political question doctrine treaty such an statute or improbable Should action. I am bound similar But existence, to ask come into it will be time prece- Supreme precedent Court core of polit- whether constitutional dent, as it jurisdiction. general particular bears precludes doctrine ical upon component the constitutional inquiry necessarily That constitu- reason, doctrine, most unclear. For that scope, prudential aspect tional PLO, which, See, Labor, say, e.g., Hispanic, group, never Meeting as I was with 27. Press, Weekly Comp.Pres.Doc. people?”); Religious N.Y. elected the Palestinian 10, 1983, A12, (remarks 14, 1983) Times, (President Reag- (Sept. col. 5 1248-49 Nov. Secretary response question: Affairs the rea- of State for Political an’s Under “[Ó]ne And, recently, why negotiate Eagleburger). most we with the Lawrence S. sons would never page PLO, reported they openly front said York Times on its denied New because [is] nation.”); Secretary George Foreign com of State P. Shultz’s of Israel to be a Issues, struggle within “the outcome of the and Domestic ments that Question-and-Answer Weekly Comp.Pres. Organization was cer Reporters, Liberation the Palestine Session 4, 1983) ‘major implications’ (May (President future for the tain to have Doc. American-sponsored peace Reagan’s response question: they go- efforts “[A]re Times, ing being N.Y. Nov. to stand still for their interests ne- Middle East.” A1, glected action basis of an taken col. specified, pp. others I have see bears supra responsibility for the unlawful injury. seems to rest 803 & note it better position Federal courts are not ain to de- upon grounds case I have cho- termine the international status of terrorist The result the same. I would have sen. Edwards, acts. example, for Klintock, of frustra- United States v. overwhelming probability of an nothing ...” is an Wheat.) (1820). of the trial as we know it process (5 L.Ed. 55 noted; compel never step. unwise As courts could “It in happens As seldom Jay John allegedly responsible parties the to attend treaties, whatever the of of negotiations in engage a mean- proceedings much less nature, imme- secrecy perfect and but that process, they ought to avoid ingful judicial dispatch requisite.” are sometimes diate imbroglios beginning. such from the Federalist, Ford, # (Paul L. Jay treaties ed.). was then true about What questions This case that touch involves B. dip- all manner of modern remains true for that diplomacy on sensitive matters of may necessary It lomatic be contacts. uniquely singlevoiced demand a state- with government our to deal on occasion ment of the Government. policy by not, however, for courts terrorists. negotia- as to whether these wonder aloud necessary Bork’s finds it opinion have, are, taking place. or will tions be P.L.O., treat the international status the a displayed Western governments organization suggest and to in much engage near reluctance to uniform on the relations significantly “bears organization opera- and discussion on Opinion Bork at of the United States.” any considerably groups, more in tion of much less on This terrorist way 805. genre recognition organiza- official than this hidden contacts with them.3 When they recently, according cer- did to a considerations were almost least until [PJolitical defector, Sejna government leading tainly paramount un- work leaders Jan General —and Cuba, glove Libya, seige in like hand with countries der who ... wouldn’t talk. training terrorists.”) and South Yemen in the of Ster- Id. at 294. Whatever the merits Adams, silence, and Anti- ling’s See also Lessons Links of of this near uniform criticisms Terrorism, St.J., Aug. Turk government, Wall like that our fact remains Army (The allies, Secret for the Lib- extremely wary col. Armenian those closest of its prime suspect eration of Armenia “remains Commenting publicity re- this area. on the in charge manipulation for the of KGB of interna- openly governments to dis- fusal of Western area, tional terror. But in this one researcher complicity possibility cuss the attempt gressman Soviet advises, in the field ‘You will never find Pope II, Paul Con- to assassinate John Barron, smoking gun’.”); KGB 255-257 Ritter, bipartisan a member of the Barron,KGB Hand, Today: (1974); The Hidden and drawn from both the executive commission legislative 21-22, (1983). charged with branches which is compliance monitoring Ac- with the Helsinki Note, 2. Terrorism as a Tort Violation of the cords, govern- involved “[t]he commented Nations, (1982). Int’l Law of 6 Fordham L.J. away potato stayed hot ments have from this variety Implementation of reasons.” Sterling, repeatedly C. The Terror Network Ster- Accords, Hearing Before the Com- the Helsinki out, criticizes, ling points and often Security Cooperation in Eu- and mission on rope, governments reluctance of Western Pope Attempt John The Assassination cooperation openly detail Sterling’s II, supra, and Both book Paul at 16. girds most activities. She writes: terrorist par- hearings Congressman Ritter in which single explain could the iron No motive reading background ticipated indispensable German, Italy, by West restraint shown all other threatened Western question with such for a confronted court governments in bring texts us. These and other the one before inexorably accumulating evi- the face of by attempt hopelessness home the dence____ Both, all their democratic path of re- trace a court to reliable American allies, compelling reasons state to also had outrage. sponsibility every for almost terrorist Un- avoid a with Soviet showdown intrigue labyrinths will These of international certainly appalled All ion. ... were admit Theseus. rulers____ no thought tangling Arab repeatedly of cases threatens to lead courts adjudication”. “conventional Id. at 851. then speculations, into area such that The court added that the standards that to the signal supplied “foreign general is a courts that have were were wrong taken a turn. The President be experience function of American compelled urgent matters to deal with refusing courts”. Id. to allow the case jimmied the most undesirable men. The courts judicial process, to be into our flexibility to preserve must careful his was fully court aware that its deference did perhaps must hesitate to publicize not abdicate all American participation legitimize ought that which to remain hid- the issues raised the Resolution. Our den and those who deserve the brand diplomatic nation’s involvement in the are- illegitimacy. By jumping po- absolute way by judicial na was circumscribed here, litical threshold col- my circumspection. leagues appear leading just to be us Similarly, issues raised this case opposite direction. regularly by are treated the other branches government. of the national One need Questions C. connected to the activities review the work of the Subcommittee on been historically terrorists have within Security and Terrorism Com- Senate the exclusive domain of the executive mittee on Judiciary recognize the to and legislative branches. dangerous the whole dilemma of terrorism foreign The conduct of affairs has never response States to it are accepted general judicial been as a area of subjects repeated thorough of inquiry. competence. have, Particular of exceptions See, e.g., Historical of Antecedents Soviet course, the question arisen. When is pre- Terrorism Before the Security on Subcomm. defined, cisely when appropri- the facts are Comm, of and Terrorism the Senate on ately clear, judiciary has not hesitated Judiciary, Cong., (1981). 97th 1st 1 Sess. to decide cases connected with American also, See Extradition Reform Act of 1981: foreign policy.4 Hearings on H.R. 5227 Before the Sub- Comm, But cases which would demand close scru- comm. on of House Crime on the tiny beyond of terrorist are far these Judiciary, (1982). acts 97th Cong., 2d 1 Sess. limited exceptions judicial to the traditional The executive branch is also deeply in- reticence of displayed in face volved in the monitoring and attempted affairs That See, cases. traditional deference to control of terrorist activities. e.g., stemmed, the other large branches has of Role Cuba in International Terrorism part, Subversion, from a fear of undue Intelligence interference of Activities state, DGI, the affairs of not only of this nation Security Before the Subcomm. Comm, Mulligan, but of all writing nations. and Terrorism of the Senate in Hunt (2d v. Mobil Corp., Judiciary, Cong., (1982) Oil 550 F.2d 68 97th 2d Sess. cert, Cir.), Ikle, denied 434 U.S. 98 S.Ct. (statement Fred Undersecretary of C. 54 L.Ed.2d 477 warned that a of Policy). “Serbi- Defense for The President has Bog” awaits courts that into the inquire repeatedly demonstrated his concern that policies foreign sovereigns. combated, A Id. 77. terrorism be both in his state- deference, judicial home, model of appropriately ments at and in the declarations that invoked, Richardson, Diggs v. F.2d have accompanied meetings with our his (D.C.Cir.1976). In that Compilation case this court allies. See 18 Weekly Presi- Documents, 35, was asked to enforce a United Nations Se- dential curity (1982). Council Resolution. This court ruled It is thus obvious that even with nonjusticia- in effect nonjusticiability matter was this declaration of by the ble, court, and a part reasoning supporting tracing assessing the work of that conclusion was that the Resolution responsibility did terrorist acts will continue provide not specific standards suitable to those parts government which See, e.g., Haig Agee, rarely proper subjects judicial v. U.S. interven- (1981) (“Mat- tion.); Regan, L.Ed.2d 640 & Dames Moore intimately foreign policy ters to related are 101 S.Ct. 69 L.Ed.2d 918 anticipate are far to the breakdowns that expertise tradition and accumulated proceedings under 28 U.S.C. accompany courts to conduct positioned than the better go if are allowed forward. inquiries. such judicial consideration limits Sound suscepti- one such as this D. Cases are political invocation ability demands handling. judicial ble This com- doctrine here. measure of roles mon sense and a realistic A, prag noted in section As above simply equipped play. are that courts proceedings associated with problems matic bar are designed bring terrorists to the consequences possible E. The note intractable. other numerous and One injurious are to the action in this area ex found it must be added. Courts have national interest. ex apply “political tremely difficult judicial recognition The certain results ception” proceedings doctrine extradition one cases such as this over those concerned proceedings when nation, trans- embarrassment accused of terrorist activ prisoners who are ex- into forums formation trials Adams, F.Supp. ities. Abu Eain v. de- political propaganda, position Immi (N.D.Ill.1980) and McMullen v. accepted notions of commonly basement Service, 658 gration and Naturalization civilized conduct. (9th Cir.1981). difficulty is F.2d 1312 This the ex one pronounced so member easiest are here confronted with the We Congress ecutive branch has testified to thus the most difficult to resist. case and justiciable standard simply that there “no magnet was a similar that drew offense,” when political and that position into its unfortunate Circuit Second situ have confronted with such courts been Filartiga.5 type in But not all cases of this ations, for a tendency “there has been Indeed, easy. so most would be far will be to ability in the of our courts breakdown less attractive. The victims of internation- re with the process questions,” extradition by terrorists are perpetrated al violence question that “tend to the beg sult courts It is globe. implausi- across the not spread Reform of ... ”. Extradition Act of every alleged that victim of violence ble Hearings on on H.R. 5227 Before Subcomm. in as places the counter-revolutionaries such Comm, argue the Judici Nicaraugua Afghanistan Crime the House could (Testimony plaintiffs 97th 2d as the here ary, Cong., just compellingly Sess. as Olson, the Roger Deputy Attorney do, day Asst. are entitled to their General, Division, Dept, The victims Criminal courts United States. could also Justice). If these the recent massacres Lebanon ques courts are vexed Indeed, is no extradi mount such claims. there tions within the limited context of sight. limiting principle there is or subtle proceedings area in which obvious —an recognized have es- easy is Even dissidents who judicial experience considerable —it holding today, giving good inten- effect to I do not doubt for moment the that “[o]ur Judge opinion jurisdictional in Filar- provision tions behind Kauffman’s enacted our First tiga. appears funda- But case to me to be important step the Congress, in the but a small mentally reality the of the interna- odds with peo- ageless dream to free all fulfillment and with the role of United tional structure violence,” id., ple con- he failed to from brutal refus- States that structure. The courts within possibility that ad hoc intervention sider the separate reality most from al to rhetoric may very affairs well courts into international passage “for obvious in which states that disadvantage to rebound the decisive liability, purposes has of civil the torturer victory, plaintiffs A individual if it nation. pirate and before become —like the slave trader embarassing disclosures of this coun- entails enemy generis, of all him —hostis humani an try’s approach the control the terrorist to F.2d at 890. This conclusion mankind.” may phenomenon, in fact be collective’s pirate ignores the distinction crucial question political is de- doctrine defeat. nations, men slave trader were without gam- prevent just judicial signed sort to this terrorist) frequently (and are while torturer appear may bling, apparently noble it however ones, pawns, controlled in internation- and well reading. first politics. concluded al When Kauffman sort, Union caped from Soviet could conceiv- ought this appeal bring Court, suit for ably guidance Supreme violations of internation- but should al with having Congress to do the conditions of instead look and the President. supposed their earlier confinements. Each Should these branches of Government incredibly questions scenario carries it an com- decide with of this sort proper are actors, circumstances, plex subjects calculus of inquiry, they can then geopolitical provide considerations. The courts the courts the guidelines by with resolutely must steer involve- away inquiries proceed. from which such should We ment this is too glib ought manner case. parlay a two hundred years-old simply assert that courts are used to statute an into entree into so sensitive with dealing questions. They difficult are area of policy. We no reliable question. not used to this kind evidence whatsoever purpose what this “legal Lohengrin”, Judge Friendly aspects The more arcane of international it, put was intended to serve. ITT v. Ven law connected to this case are with by dealt Ltd., cap, (2d Cir.1975). 519 F.2d my colleagues. Their reviews sub- We ought not to together cobble it a ject quite specula- are exhaustive and their vague modern mission on the in idea that tions on riddle of 1350 are § innovative. ternational over develops years. But it is all quite unnecessary. Especially evolve, Law may ought but statutes not to inappropriate apparent reliance for their mutate. To allow the opportunity guidance distinguished commenta- to support future actions the sort both agree tors in this field. I senti- countenanced in Filartiga put forward expressed ment Fuller by Chief Justice here is to judicially will that a new statute Habana, his dissent to The Paquete life. Every consideration informs the L.Ed. 320 where application political sound he wrote that it was “needless to review the doctrine militates against this My result. speculations and repetitions of writers on colleagues concede origins pur that the Their law.... lucubrations poses obscure, statute this but it is persuasive, but are not authorita- certainly obvious that it was never intended (Fuller, tive.” Id. at 20 S.Ct. at 307 J. by its drafters to reach kind of ease. dissenting). ought Courts not to serve as Accordingly, concur in the decision to debating clubs for professors willing to ar- affirm the dismissal of this case. gue over what is or what is accepted not an violation the law of Yet nations.

appears to be the clear result if we allow

plaintiffs the opportunity proceed 1350. Plaintiffs troop court

marshalling “experts” their behind them.

Defendants would quickly organize their

own platoons OMMAYA, of authorities. typical Ayub Petitioner, K. judge jury would be swamped cita- distinguished tions to various journals of HEALTH, NATIONAL INSTITUTES OF studies, legal but would be Department of Health Human left little numbing more than a sense Services, Respondents. of how varied is the public world of interna- No. 82-1818. tional “law”. States of Appeals, Court Judge Edwards writes that case “[t]his District Columbia Circuit. deals with an area of that cries out for Supreme clarification Court. We Argued Dec. 1983. at every confront turn broad and novel Decided Feb. questions about applica- the definition and ‘law of nations’.” Edwards Opinion at 775. I disagree. must When a presents

case broad and novel questions notes facili- thereby accessible to more “primarily was viewed court[] [a] their tated actions. History Goebel, 1 J. special jurisdiction,” op op Supreme Court the United For- of the Alternative Paradigm 2. A Beginnings Antecedents States: Adra Clift mulation: “as inferior very at 475 court Id. at The district indeed.” mechanics of the alternative probe To expert” “the judge court was to be resident application of section formulation for id., his state’s and actions jurisprudence, single I turn in which case

Notes

notes has the vir- said this course additional that “the nations of world are so divi- but, bar, to the giving guidance tue sively split on the legitimacy such ag- out, opinions matters have turned the three as to gression make it to impossible pinpoint we have can con- produced add to the an area of harmony consensus.” Ed- subject. fusion this The mean- surrounding Opinion wards at 795. This nation has no ing application section 1350 will have difficulty with in the context to await clarification sec- elsewhere. Since case, course, of this do I nor doubt for a tion 1350 to be an in- appears generating moment that the attack high- on Haifa creasing litigation, amount of it to be in way barbarity amounts to naked and hoped that clarification will long not be unforgivable diplomatic form. No postur- meantime, delayed. In the it is impossible ing represented in sheaves of United say even what the law of is. this circuit Nations documents —no matter how high Though else, we agree nothing on I am sure the pile reach —could convince me my me in re- colleagues join finding that “law”, But otherwise. or the grettable. thereof, absence renders even the search for the least common denominators of civilized ROBB, Judge: Senior Circuit in conduct this area an impossible-to-accom- result, I concur in the but must withhold plish ought task. Courts approval of the reasoning my colleagues. engage it when search takes us Both have written well-researched and a consideration place towards of terrorism’s scholarly opinions that stand as testaments Indeed, the international order. when this difficulty presents. which case such a review forces us dignify by judi- agree Both case must be dismissed cial notice the most outrageous of the diplo- though their vary reasons Both greatly. attempt matic charades that to dignify the Pena-Irala, Filartiga look backward to atrocities, violence of terrorist we corrupt (2d Cir.1980), 630 F.2d 876 and forward to our understanding own of evil. the future efforts of others mur- maimed or problematic Even more would be the sin- at the of thugs dered hands clothed gle court’s search responsibili- for individual power who are unfortunately present ty any given outrage. terrorist Interna- numbers in the great international order. tional terrorism But both consists of web that Judges Bork and fail to Edwards positioned reflect on the courts are not inability inherent of federal unweave. To courts to deal with cases such as this one. to discover attempt the reach of its network It seems to the political question me that origins design and the its result in doctrine This case controls. is noni'usticia- imperiling unintended disclosures sensitive ble. diplomacy. attempts This case to focus on the so-called which P.L.O. But P.L.O.? This defy A. case involves standards that Habash’s, Arafat’s, or Syria’s? And can we judicial application. attempt conceive successful to sort out Tort law both on ultimate these requires agreement responsibility crimes? action which Many constitutes the tort and the believe that most roads run East in means which can be it determined who this Are courts prepared area.1 travel See, e.g. Implementation support Ac- many Helsinki from the Soviet Union and its cords, Hearing surrogates on Before Commission Se- around the world. do not think curity Cooperation Europe, The Assassi- there be much about should doubt the matter. II, Attempt Pope nation John 97th Paul The Russians train terrorists in the PLO Soviet Cong., (Statement Union, supervise training 2d Sess. 20 A. Michael terrorists from Ledeen) (“[M]any get organizations terrorist all over the world in Czechoslovakia —or at insti- gained any before from they equipped Are to do has ever highways? these I am government. student tution of the national It is one for a note-writ- thing so? authority to comment with accept challenges not in urge position er to matter matters. There has been entirely different of these involved.2 group, to conduct such of this recognition for a court be asked executive dangers are obvi- an or- hearing successfully. ought all our to remain purposes face grant To the initial access we know ganization ous. “of whose existence

Case Details

Case Name: Hanoch Tel-Oren, in His Capacity as Father, on Behalf of the Deceased, Imry Tel-Oren v. Libyan Arab Republic Hanoch Tel-Oren v. Libyan Arab Republic

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Feb 3, 1984

Citation: 726 F.2d 774

Docket Number: 08-5110

Court Abbreviation: D.C. Cir.