Appendix — Tel-Oren ex rel. Tel-Oren v. Libyan Arab Republic
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83-2052
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Office - Supreme Court, U.S.
rib ese B
JUN 14 1994
ALEXANDER L. STEVAS.
a TS RL
IN THE
Supreme Court of the United States
OCTOBER TERM, 1983
HANOCH TEL-OREN, in his capacity as father,
on behalf of the deceased, IMRY TEL-OREN, et al.,
. Petitioners,
LIBYAN ARAB REPUBLIC, et al.,
Respondents.
HANOCH TEL-OREN, et al.,
Petitioners,
v.
LIBYAN ARAB REPUBLIC, et al.,
Respondents.
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Of Counsel:
JOSEF LIVNE
16 Iben Sina Street
Haifa, Israel
GEORGE B. DRIESEN
1000 Potomac Street, N.W.
Suite 204
Washington, D.C. 20007
MICHAEL S. MARCus *
GLENN M. ENGELMANN
CLIFFORD J. ZATZ
JEFFREY J. PECK
SEIFMAN, SEMO, SLEVIN
& MARCUs, P.C.
1000 Potomac Street, N.W.
Suite 204
Washington, D.C. 20007
(202) 298-8686
Counsel for Petitioners
* Counsel of Record
WILSON - EPES PRINTING Co., INC.
- 789-0096 - WASHINGTON, D.C. 20001
TABLE OF CONTENTS
APPENDIX A—
Memorandum Opinion of the United States Court
of Appeals for the District of Columbia Circuit _.....
APPENDIX B—
Memorandum Opinion and Order of the United
States District Court for the District of Columbia..
APPENDIX C—
Amicus Curiae Brief for the United States in
Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.
BEI INA Ne Svea Dipe ee Pcey eee RP OS Oe RR
APPENDIX D—
1937 League of Nations Convention for the Pre-
vention and Punishment of Terrorism, Articles
OE asinine casei ankadnanaleicomt asada antaciomians
1970 Inter-American Juridical Committee
(O.A.S.): Draft Convention on Terrorism and
Kidnapping of Persons for Purposes of Extortion..
1970 O.A.S. Statement of Reasons for the Draft
Convention on Terrorism and Kidnapping of Per-
sons for Purposes of Extortion, Articles I, VIII....
1974 Council of Europe Committee of Ministers
Resolution 74 (3) on Internationa! Terrorism _.....
1976 European Convention on the Suppression of
Terrorism, Preamble, Article 1 ..........00......0000000.....
1979 International Convention Against the Taking
of Hostages, Preamble, Articles 1, 2 ....0.000000002.000..
1949 Geneva Convention Relative to the Protection
of Civilian Persons in Time of War, Articles 1-3....
Page
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APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 81-1870
HANOCH TEL-OREN, in his capacity as father,
on behalf of the deceased, IMRY TEL-OREN, et al.,
Appellants
v.
LIBYAN ARAB REPUBLIC, et al.
No. 81-1871
HANOCH TEL-OREN, et al.,
Appellants
V.
LIBYAN ARAB REPUBLIC, et al.
Appeals from the United States District Court
for the District of Columbia
(D.C. Civil Action Nos. 81-0563 & 81-0564)
Argued March 24, 1982
Decided February 3, 1984
2a
Michael S. Marcus, with whom Oren R. Lewis, Jr., and
Richard H. Jones were on the brief, for appellants.
Karla J. Letsche for appellee, National Association of
Arab Americans. Cherif Sedky and Lawrence Coe Lan-
pher were on the brief, for appellee, National Association
of Arab Americans.
Michael Kennedy was on the brief, for appellee, Pales-
tine Information Office.
Michael E. Tigar entered an appearance for appellee,
Palestine Congress of North America.
Before: EDWARDS and Bork, Circuit Judges, and Ross,
Senior Circuit Judge.
Concurring opinions filed by Circuit Judge EDWARDS,
Circuit Judge Bork, and Senior Circuit Judge Ross.
PER CURIAM: Plaintiffs in this action, mostly Israeli
citizens, are survivors and representatives of persons
murdered in an armed attack on a civilian bus in Israel
in March 1978. They filed suit for compensatory and
punitive damages in the District Court, naming as de-
fendants the Libyan Arab Republic, the Palestine Libera-
tion Organization, the Palestine Information Office, the
National Association of Arab Americans, and the Pales-
tine Congress of North America.'
In their complaint, plaintiffs alleged that defendants
were responsible for multiple tortious acts in violation of
the law of nations, treaties of the United States, and
criminal laws of the United States, as well as the com-
mon law. Jurisdiction was claimed under four separate
statutes: 28 U.S.C. § 1331 (federal question jurisdic-
tion); 28 U.S.C. § 1332 (diversity jurisdiction); 28
U.S.C. § 1350 (providing jurisdiction over actions by an
alien alleging a tort committed in violation of the law
1 Plaintiffs do not pursue their claim against the Palestine Con-
gress of North America on appeal.
iittala
3a
of nations or a treaty of the United States); and the
Foreign Sovereign Immunities Act of 1976, 28 U.S.C.
§§ 1330, 1602-1611. For purposes of our jurisdictional
analysis, we assume plaintiffs’ allegations to be true.
The District Court dismissed the action both for lack
of subject matter jurisdiction and as barred by the ap-
plicable statute of limitations. Hanoch Tel-Oren v. Libyan
Arab Republic, 517 F. Supp. 542 (D.D.C. 1981). Plain-
tiffs appeal the District Court’s rulings on two of their
claimed jurisdictional bases, 28 U.S.C. §§ 1331, 1350, and
on the statute of limitations issue.
We affirm the dismissal of this action. Set out below
are separate concurring statements of Judge Edwards,
Judge Bork, and Senior Judge Robb, indicating different.
reasons for affirming the result reached by the District
Court.
4a
Epwarps, Circuit Judge, concurring: This case deals
with an area of the law that cries out for clarification
by the Supreme Court. We confront at every turn broad
and novel questions about the definition and application
of the “law of nations.” As is obvious from the laborious
efforts of opinion writing, the questions posed defy easy
answers.
At issue in this case is an aged but little-noticed pro-
vision of the First Judiciary Act of 1789, which gives
federal courts jurisdiction over a minute class of cases
implicating the law of nations. Thus, it is not startling
that the central controversy of this action has now pro-
duced divided opinions between and within the circuits.
The opinions of Judge Bork and Judge Robb are funda-
mentally at odds with the decision of the Second Circuit
in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980),
which, to my mind, is more faithful to the pertinent
statutory language and to existing precedent. Although I
cannot concur in the opinions of my colleagues, I do agree
with them that the decision of the District Court should
be affirmed. I write separately to underscore the ration-
ale for my decision; I do this because, as will be appar-
ent, there are sharp differences of viewpoint among the
judges who have grappled with these cases over the
meaning and application of 28 U.S.C. § 1350 (1976).
1 That I confine my remarks to issues directly related to the con-
struction of § 1350 should in no respect be read as an endorsement
of other aspects of my colleagues’ opinions. Indeed, I disagree with
much of the peripheral discussion they contain.
My analysis also is limited to the allegations against the Pales-
tine Liberation Organization. I agree with the District Court that
the complainants’ allegations against the Palestine Information
Office and the National Association of Arab Americans are too
insubstantial to satisfy the § 1350 requirement that a violation of
the law of nations be stated. Hanoch Tel-Oren v. Libyan Arab
Republic, 517 F. Supp. 542, 549 (D.D.C. 1981). Jurisdiction over
Libya is barred by the Foreign Sovereign Immunities Act, 28
U.S.C. §$§ 1830, 1602-1611 (1976), which preserves immunity for
ee a eT
5a
I. BACKGROUND
On March 11, 1978, thirteen heavily armed members
of the Palestine Liberation Organization (hereinafter
“the PLO’) turned a day trip into a nightmare for 121
civilian men, women and children. The PLO terrorists
landed by boat in Israel and set out on a barbaric ram-
page along the main highway between Haifa and Tel
Aviv. They seized a civilian bus, a taxi, a passing car,
and later a second civilian bus. They took the passengers
hostage. They tortured them, shot them, wounded them
and murdered them. Before the Israeli police could stop
the massacre, 22 adults and 12 children were killed, and
73 adults and 14 children were seriously wounded. Most
of the victims were Israeli citizens; a few were American
and Dutch citizens. They turned to our courts for legal
redress and brought this action for damages asserting
jurisdiction under 28 U.S.C. §§ 1331 and 1350 (1976).
The District Court dismissed the action for lack of sub-
ject matter jurisdiction. The critical issue on appeal is
whether plaintiffs alleged sufficient facts to meet the
jurisdictional elements of those sections.
II. THE FILARTIGA DECISION
My inquiry into the sufficiency of plaintiffs’ allegations
is guided by the Second Circuit’s decision in Filartiga.
For reasons set out below, I adhere to the legal principles
established in Filartiga but find that factual distinctions
preclude reliance on that case to find subject matter ju-
risdiction in the matter now before us. Specifically, I do
not believe the law of nations imposes the same respon-
sibility or liability on non-state actors, such as the PLO,
as it does on states and persons acting under color of
state law. Absent direction from the Supreme Court on
the proper scope of the obscure section 1350, I am there-
tort claims unless injury or death occurs in the United States. 28
U.S.C. §§ 1604, 1605 (a) (5) (1976).
6a
fore not prepared to extend Filartiga’s construction of
section 1350 to encompass this case.
The pertinent allegations in Filartiga are as follows.
Dr. Joel Filartiga, 4 Paraguayan known to oppose the
Paraguayan Stroessner regime, and his daughter, Dolly,
alleged that, in 1976, the defendant Pena-Irala, a Para-
guayan police official, had kidnapped and tortured to
death Dr. Filartiga’s 17-year-old son, Joelito. They
claimed he was killed in retaliation for his father’s
political activities. On the day of the murder, Dolly
Filartiga was taken to Pena’s home and confronted with
her brother’s body, which bore marks of severe torture.
Thereafter, Filartiga commenced a murder action against
Pena in a Paraguayan court. The action was still pend-
ing at the time of the Second Circuit opinion.
Pena entered the United States in 1978 on a visitor’s
visa and remained beyond the term of the visa, living in
Brooklyn, New York. Dolly Filartiga, living in Washing-
ton, D.C., learned of his presence and notified the Im-
migration and Naturalization Service. She also filed a
civil complaint against him, alleging that he had wrong-
fully caused her brother’s death by torture and seeking
compensatory and punitive damages of ten million dollars.
Jurisdiction was claimed under the general federal ques-
tion provision, 28 U.S.C. § 1831 (1976), and under the
Alien Tort Statute, 28 U.S.C. § 1850 (1976). The Dis-
trict Court dismissed the complaint on jurisdictional
grounds. In so doing, the trial court relied on prior cases
in which the Second Circuit had defined the “law of na-
tions” to encompass only relationships between states,
or an individual and a foreign state, and not a state’s
treatment of its own citizens. E.g., Dreyfus v. von Finck,
534 F.2d 24, 30-31 (2d Cir.), cert. denied, 429 U.S. 835
(1976); IIT [sic] v. Vencap, Ltd., 519 F.2d 1001, 1015
(2d Cir. 1975). It concluded that a Paraguayan plain-
tiff’s suit against a Paraguayan defendant did not impli-
cate the law of nations and, therefore, did not fit within
re le I Ot 2
i, naa bcp 5 oa
ARNIS iene hein sh Bei ta < Prt PC WIS see iA AeA
7a
the jurisdictional limits of section 1850. The Second Cir-
cuit reversed the district court and remanded for further
proceedings.
Section 1350 provides that a district court shall have
original jurisdiction over civil actions “by an alien for
a tort only, committed in violation of the law of nations
or a treaty of the United States.” In the absence of an
allegation of a treaty violation, the critical issue in
Filartiga was whether torture constitutes a violation of
the law of nations. In determining that it does, Judge
Kaufman reviewed the accepted sources of international
law—the usage of nations, judicial opinions and the
works of jurists—and concluded that official torture of
both aliens and citizens is prohibited by the law of na-
tions. 630 F.2d at 884. That section 1350 was enacted in
the Judiciary Act of 1789, ch. 20, §9, 1 Stat. 73, 77,
when world perceptions both of the role of internationat
law and its substantive provisions differed considerably
from perceptions of today, did not preclude this result.
Judge Kaufman took guidance from The Paquete Ha-
bana, 175 U.S. 677 (1900) (holding that the traditional
prohibition against seizure of an enemy’s coastal fishing
vessels had ripened from a standard of comity into a
settled rule of international law), and observed that
“courts must interpret international law not as it was in
1789, but as it has evolved and exists among the nations
of the world today.” 630 F.2d at 881.
The opinion thus established several propositions.
First, the “law of nations” is not stagnant and should be
construed as it exists today among the nations of the
world. Jd. Second, one source of that law is the customs
and usages of civilized nations, as articulated by jurists
and commentators. Jd. at 884. Third, international law
today places limits on a state’s power to torture persons
held in custody, and confers “fundamental rights upon all
people” to be free from torture. Jd. at 885. Fourth, sec-
tion 1350 opens the federal courts for adjudication of the
8a
rights already recognized by international law. Id. at
887.
Because I am substantially in accord with these four
propositions, and Judge Bork and Judge Robb apparently
are not, I am unable to join in their opinions.
III. SECTION 1350 AS THE SOURCE OF THE
“RIGHT TO SUE”
First, and most fundamentally, I diverge from the
views of my colleague Judge Bork regarding the neces-
sary elements of this court’s jurisdiction. The Second
Circuit did not require plaintiffs to point to a specific
right to sue under the law of nations in order to establish
jurisdiction under section 1350; rather, the Second Cir-
cuit required only a showing that the defendant’s actions
violated the substantive law of nations. In contrast,
Judge Bork would deny jurisdiction to any plaintiff—pre-
sumably including those in Filartiga—who could not al-
lege a specific right to sue apart from the language of
section 1350 itself. In Part A, below, I outline the Second
Circuit’s formulation of section 1350 and summarize my
reasons for endorsing it. In Part B, I offer an alternative
formulation of section 1350 under which domestic tort
law, not the law of nations, provides plaintiffs with the
substantive right needed to trigger application of section
1350. I am less comfortable with the alternative formula-
tion; however, in the face of the obscure history of section
1350, I would be remiss were I to ignore a tenable con-
struction of this difficult statutory provision.
A. Section 1350 Provides a Right of Action and a
Forum: The Filartiga Formulation
Judge Bork’s suggestion that section 1350 requires
plaintiffs to allege a right to sue granted by the law of
nations is seriously flawed. Initially, it assumes that the
“law of nations” could provide a specific, articulated right
9a
to sue in a form other than a treaty or executive agree-
ment. Yet no evidence is offered to indicate that jurists
or commentators have ever looked to the law of nations
to determine when a wrongful deed is actionable. This
absence of evidence is not surprising, because it is clear
that “[i]nternational law itself, finally, does not require
any particular reaction to violations of law .... Whether
and how the United States wished to react to such vio-
lations are domestic questions... .” L. HENKIN, FOREIGN
AFFAIRS AND THE CONSTITUTION 224 (1972) (footnote
omitted).
The law of nations thus permits countries to meet their
international duties as they will, see L. HENKIN, R.
PuGH, O. SCHACHTER & H. SMIT, INTERNATIONAL LAW
116 (1980); cf. 1 C. HyDE, INTERNATIONAL LAW 729 n.5
(2d rev. ed. 1945). In some cases, states have under-
taken to carry out their obligations in agreed-upon ways,
as in a United Nations Genocide Convention, which com-
mits states to make genocide a crime, L. HENKIN, R.
PUGH, O. SCHACHTER & H. SMIT, supra, or in bilateral or
multilateral treaties. Otherwise, states may make avail-
able their municipal laws in the manner they consider
appropriate. See RESTATEMENT (SECOND) OF FOREIGN
RELATIONS LAW § 3 comment h & illustration 5 (1965)
(domestic law of a state may provide a remedy to a
person injured by a violation of a rule of international
law). As a result, the law of nations never has been per-
ceived to create or define the civil actions to be made
available by each member of the community of nations;
by consensus, the states leave that determination to their
respective municipal laws. Indeed, given the existing
array of legal systems within the world, a consensus
would be virtually impossible to reach—particularly on
the technical accoutrements to an action—and it is hard
even to imagine that harmony ever would characterize
this issue.
10a
In consequence, to require international accord on a
right to sue, when in fact the law of nations relegates de-
cisions on such questions to the states themselves, would
be to effectively nullify the “law of nations” portion
of section 1350. There is a fundamental principle of
statutory construction that a statute should not be con-
strued so as to render any part of it “inoperative or su-
perfluous, void or insignificant,” 2A C. SANDS, STATUTES
AND STATUTORY CONSTRUCTION § 46.06 (4th ed. 1973),
and there exists a presumption against a construction
yielding that result. See Federal Trade Commission v.
Manager, Retail Credit Co., Miami Branch Office, 515
F.2d 988, 994 (D.C. Cir. 1975). Yet, the construction of-
fered by Judge Bork would have the effect of voiding a
significant segment of section 1350.”
2In obvious contrast is a treaty, which may create judicially
enforceable obligations when that is the will of the parties to it.
See People of Saipan v. Department of Interior, 502 F.2d 90, 97
(9th Cir. 1974) (elaborating criteria to be used to determine
whether international agreement establishes affirmative and judi-
cially enforceable obligations without implementing legislation),
cert. denied, 420 U.S. 1003 (1975). Unlike the law of nations,
which enables each state to make an independent judgment as to
the extent and method of enforcing internationally recognized
norms, treaties establish both obligations and the extent to which
they shall be enforceable.
We therefore must interpret section 1350 in keeping with the
fact, well-known to the framers of section 1350, that a treaty and
the law of nations are entirely different animals. As Judge Bork
states, for two hundred years it has been established that treaties
by their terms and context may create enforceable obligations.
Similarly, for two hundred years, it has been established that the
law of nations leaves up to municipal law whether to provide a
right of action to enforce obligations created by the law of nations.
Section 1350 opened federal courts to aliens to challenge violations
of treaties insofar as treaty terms expressly or impliedly estab-
lished affirmative and judicially enforceable obligations. Congress
also opened courts to aliens to challenge violations of the law of
nations, to the extent that the law of nations established a binding
obligation. Section 1350 thus provides a forum for actions brought
to enforce obligations binding on parties, whether as a result of
— ee ee a
lla
Judge Bork argues that the statute retains meaning
under his interpretation because he recognizes that the
drafters of Section 1350 perceived of certain offenses
against the law of nations. He enumerates three offenses
recognized by Blackstone—violation of safe-conducts, in-
fringement of the rights of ambassadors, and piracy—
and insists that these were the offenses that the drafters
of section 1350 had in mind. This explanation is specious,
not responsive. Judge Bork does nothing more than con-~-
cede that, in 1789, the law of nations clause covered three
substantive offenses. However, under his construction of
section 1350, this concession is meaningless unless it is
also shown that the law of nations created a private right
of action to avenge the three law of nations violations to
which Blackstone averted—a showing that would require
considerable skill since the law of nations simply does not
create rights to sue. Indeed, in the very passage quoted
by Judge Bork, Blackstone makes clear that it was the
municipal laws of England, not the law of nations, that
made the cited crimes offenses: “The principal offenses
against the law of nations, animadverted on as such by
the municipal laws of England, are of three kinds:
1. Violation of safeconducts; 2. Infringement of the
rights of embassadors; and, 3. Piracy.” 4 BLACKSTONE’S
COMMENTARIES 67 (Welsby ed. 1854) (emphasis added).
In short, under Judge Bork’s construction of the statute,
section 1350 would lose virtually all meaning.
Equally basic, to require an express right to sue is
directly at odds with the language of the statute, which
grants jurisdiction over civil actions for a tort “com-
mitted in violation of the law of nations.” Unlike sec-
tion 1331, which requires that an action “arise under”
the laws of the United States, section 1350 does not re-
treaties or the law of nations. To argue that § 1350, under any
formulation, could create a right to sue or somehow make all
treaties self-executing, when parties to the treaties intend other-
wise, is to thoroughly misconstrue the nature of treaty law.
12a
quire that the action “arise under” the law of nations,
but only mandates a “violation of the law of nations” in
order to create a cause of action. The language of the
statute is explicit on this issue: by its express terms,
nothing more than a violation of the law of nations is
required to invoke section 1350. Judge Bork nevertheless
would propose to write into section 1350 an additional
restriction that is not even suggested by the statutory
language. Congress, of course, knew full well that it
could draft section 1350 with “arising under” language,
or the equivalent, to require a “cause of action” or “right
to sue,” but it chose not to do so.* There simply is no
basis in the language of the statute, its legislative history
or relevant precedent to read section 1350 as though
Congress had required that a right to sue must be found
in the law of nations.*
3It might be argued that in 1789 Congress had not enacted gen-
eral federal question jurisdiction, with its “arising under’ provi-
sion, and could not have used that phraseology as a reference
point. Not until 1875 did Congress give federal courts general
original jurisdiction over federal question cases. Act of Mar. 3,
1875, ch. 137, § 1, 18 Stat. 470. However, in its original form, the
predecessor to § 1350 did not contain the word “committed.” The
pertinent part of the clause granted jurisdiction “where an alien
sues for a tort only in violation of the law of nations.” The word
“committed” appears in a 1948 recodification of the Judicial Code,
Act of June 25, 1948, ch. 646, § 1350, 62 Stat. 869, 934, but was
absent in earlier recodifications. See, e.g., Act of Mar. 3, 1911, ch.
231, § 24, par. 17, 36 Stat. 1087, 1093. By 1948 the term “arising
under” was a well-established element of federal question jurisdic-
tion, see American Well Works Co. v. Layne & Bowler Co., 241
U.S. 257, 260 (1916) (a suit “arises under” the law that creates
the action), and would have been the obvious choice of wording
had Congress wished to make explicit that, in order to invoke
§ 1350, a right to sue must be found in the law of nations.
4I disagree both with Judge Bork and with plaintiffs in this
action that for purposes of the issues raised in this case, the juris-
dictional requirements of § 1331 and § 1350 are the same.
{ Continued }
ee ed
13a
Indeed, a 1907 opinion of the United States Attorney
General suggests just the opposite. It asserts that section
1350 provides both a right to sue and a forum. Respond-
* [Continued ]
However, for several reasons I believe plaintiffs’ claim under
§ 13831 fails as well. My analysis on that issue proceeds on two
paths, depending on whether the plaintiff is a citizen or an alien.
As to aliens, most of the plaintiffs here, jurisdiction under
§ 1331 is available at least to the extent that § 1350 applies. If it
does, their action “arises under” § 1350 and, therefore, under a law
of the United States, as required by § 1331.
Citizens of the United States, in this action the Tel-Oren plain-
tiffs, do not meet the alienage requirement of § 1350 and must seek
other law under which their action might arise. The only plausible
candidate is the law of nations itself.
Assuming, without deciding, that the law of nations constitutes
a law of the United States for § 1331 jurisdictional purposes, see
Moore, Federalism and Foreign Relations, 1965 DUKE L.J. 248, 291-
97 (arguing that § 1331 includes cases arising under a federal
decisional law of foreign relations); cf. L. HENKIN, FOREIGN AF-
FAIRS AND THE CONSTITUTION 222-23 (1972) (federal courts de
termine international law and apply it as though it were federal
law), the language of § 1331, unlike § 1350, suggests that plaintiffs
must identify a remedy granted by the law of nations or argue
successfully for one to be implied. Plaintiffs here are not able to
point to a right to sue in international law and I decline to imply
one, given my belief, set out supra, that the law of nations con-
sciously leaves the provision of rights of action up to the states.
As an alternative basis for declining § 1331 jurisdiction, I note
that the law of nations quite tenably does not provide these plain-
tiffs wit: any substantive right that has been violated. As I discuss
at length in Section VI of this opinion, I do not believe that the
law of nations, as currently developed and construed, holds in-
dividuals responsible for most private acts; it follows logically that
the law of nations provides no substantive right to be free from
the private acts of individuals, and persons harmed by such acts
have no right, under the law of nations, to assert in federal court.
Thus, even if the law of nations constitutes a law of the United
States, and even if § 1331 did not require that a right to sue be
granted by the relevant law of the United States, plaintiffs still
would have no § 1331 jurisdiction because no legal right has been
violated.
l4a
ing to an inquiry about the remedies available to Mexican
citizens harmed by the actions of an American irrigation
company along the Rio Grande River, the Attorney Gen-
eral wrote,
As to indemnity for injuries which may have been
caused to citizens of Mexico, I am of opinion that
existing statutes provide a right of action and a
forum. Section 563, Revised Statutes, clause 16,
gives to district courts of the United States juris-
diction “of all suits brought by any alien for a tort
only in violation of the law of nations or of a treaty
of the United States.” ...I repeat that the statutes
thus provide a forum and a right of action. I can
not, of course, undertake to say whether or not a
suit under either of the foregoing statutes would
be successful. That would depend upon whether the
diversion of the water was an injury to substantial
rights of citizens of Mexico under the principles of
international law or by treaty, and could only be
determined by judicial decision.
26 Op. Att’y Gen; 250, 252-53 (1907) (emphasis added).
The opinion bolsters the view of the Second Circuit,®
which I endorse, that section 1350 itself provides a right
to sue for alleged violations of the law of nations.®
5 The Second Circuit read § 1350 “not as granting new rights to
aliens, but simply as opening the federal courts for adjudication
of the rights already recognized by international law.” Filartiga,
630 F.2d at 887. I construe this phrase to mean that aliens granted
substantive rights under international law may assert them under
§ 1350. This conclusion as to the meaning of this crucial yet ob-
scure phrase results in part from the noticeable absence of any
discussion in Filartiga on the question whether international law
granted a right of action.
6 While opinions of the Attorney General of course are not bind-
ing, they are entitled to some deference, especially where judicial
decisions construing a statute are lacking. See, e.g., Oloteo v. INS,
643 F.2d 679, 683 (9th Cir. 1981) (opinion deserves some defer-
ence); Montana Wilderness Ass’n v. United States Forest Serv.,
ee oe
oa ANS ALE pl PLONE TTL 8 sl ABI
9 hl wtp hh enon Kb
15a
Judge Bork, in his rejection of Filartiga, reasons as
follows: (a) international law grants plaintiffs no ex-
press right to sue in a municipal court; (b) for numerous
reasons, primarily related to separation of powers, it
would be inappropriate to imply one; (c) since section
1350 requires that international law give plaintiffs a
cause of action, and it does not, we cannot find jurisdic-
tion. In my view, the first two steps in the analysis are
irrelevant and the third step is erroneous. The decision
in Filartiga did not hold that, under section 1350, the law
of nations must provide a cause of action—that is, a
right to sue—in order to find jurisdiction. The existence
of an express or implied cause of action was immaterial
to the jurisdictional analysis of the Second Circuit. By
focusing on this issue, Judge Bork has skirted the thresh-
old question whether the statute even requires that the
law ef nations grant a cause of action. I do not believe
that the statute requires such a finding, or that the de-
cision in Filartiga may be lightly ignored.
At this point, it is appropriate to pause to emphasize
the extremely narrow scope of section 1350 jurisdiction
under the Filartiga formulation. Judge Kaufman charac-
terized the torturer in Filartiga as follows: “Indeed, for
purposes of civil liability, the torturer has become—like
the pirate and slave trader before him—hostis humani
generis, an enemy of all mankind.” Filartiga, 630 F.2d
at 890. The reference to piracy and slave-trading is not
fortuitous. Historically these offenses held a special place
in the law of nations: their perpetrators, dubbed enemies
496 F. Supp. 880, 884 (D. Mont. 1980) (opinions are given great
weight although not binding), aff'd in part, 655 F.2d 951 (9th Cir.
1981), cert. denied, 455 U.S. 989 (1982) ; Pueblo of Taos v. Andrus,
475 F. Supp. 359, 365 n. 4 (D.D.C. 1979); ef. Blake v. Kline, 612
F.2d 718, 724 n. 13 (3d C.s. 1979) (state attorney general opinions
are entitled to great respect and should be followed where judicial
decisions construing statute are lacking) (citing Jn re Jackson,
268 F. Supp. 434, 443 (E.D. Mo.), aff'd, 385 F.2d 775 (8th Cir.
1967) ), cert. denied, 447 U.S. 921 (1980).
16a
of all mankind, were susceptible to prosecution by any
nation capturing them. As one writer has explained,
Before International Law in the modern sense of the
term was in existence, a pirate was already con-
sidered an outlaw, a ‘hostis humani generis.’ Ac-
cording to the Law of Nations the act of piracy
makes the pirate lose the protection of his home
State, and thereby his national character .
Piracy is a so-called ‘international crime’; the pirate
is considered the enemy of every State, and can be
brought to justice anywhere.
1 L. OPPENHEIM, INTERNATIONAL LAW § 272, at 609 (H.
Lauterpacht 8th ed. 1955) (footnote omitted); see also
id. § 151, at 339 (every state can punish crimes like pi-
racy or slave trade on capture of the criminal, whatever
his nationality) ; Dickinson, Js the Crime of Piracy Ob-
solete?, 38 Harv. L. REv. 334, 335 (1925). Judge Kauf-
man did not argue that the torturer is like a pirate for
criminal prosecution purposes, but only for civil actions.
The inference is that persons may be susceptible to civil
liability if they commit either a crime traditionally war-
ranting universal jurisdiction or an offense that compar-
ably violates current norms of international law. To
identify such crimes, I look for guidance to the RESTATE-
MENT OF THE LAW OF FOREIGN RELATIONS (REVISED)
§ 702 (Tent. Draft No. 3, 1982), which enumerates as
violations of international law state-practiced, -encour-
aged or -condoned (a) genocide; (b) slavery or slave
trade; (c) the murder or causing the disappearance of
individuals; (d) torture or other cruel, inhuman or de-
grading treatment or punishment; (e) prolonged arbitrary
detention; (f) systematic racial discrimination; (g) con-
sistent patterns of gross violations of internationally recog-
nized human rights. See also Blum & Steinhardt, Federal
Jurisdiction over International Human Rights Claims:
17a
The Alien Tort Claims Act after Filartiga v. Pena-Irala,
22 Harv. INT'L L.J. 53, 90 (1981) (focusing on genocide,
summary execution, torture and slavery as core human
rights violations). I, of course, need not determine
whether each of these offenses in fact amounts to a law
of nations violation for section 1350 purposes. The point
is simply that commentators have begun to identify a
handful of heinous actions—each of which violates defin-
able, universal and obligatory norms, see Blum & Stein-
hardt, supra, at 87-90—and in the process are defining
the limits of section 1350’s reach.’
The Filartiga formulation is not flawless, however.
While its approach is consistent with the language of
section 1350, it places an awesome duty on federal dis-
trict courts to derive from an amorphous entity—+.e., the
“law of nations’”—standards of liability applicable in con-
crete situations. The difficult law of nations questions
animating this particular case suggest the burden that
would attach to each case of this kind. In the 18th cen-
tury this pursuit was no doubt facilitated both by a more
clearly defined and limited body of “international crimes”
than exists today, and by the working familiarity of
jurists with that body of law. Although I am convinced
that it is possible to discover governing standards of
liability, the formidable research task involved gives
pause, and suggests consideration of a quite plausible
alternative construction of section 1350.
7 Indeed, international law itself imposes limits on the extra-
territorial jurisdiction that a domestic court may exercise. It
generally recognizes five theories of jurisdiction, the objective
territorial, national, passive, protective and universal. RE-
STATEMENT OF THE LAW OF FOREIGN RELATIONS (REVISED) § 402
(Tent. Draft No. 2, 1981); see also United States v. James-
Robinson, 515 F. Supp. 1340, 1344 n. 6 (S.D. Fla. 1981). The prem-
ise of universal jurisdiction is that a state “may exercise jurisdic-
tion to define and punish certain offenses recognized by the com-
munity of nations as of universa] concern,’ RESTATEMENT OF THE
LAW OF FOREIGN RELATIONS (REVISED), supra, § 404, even where
no other recognized basis of jurisdiction is present.
18a
B. An Alternative Approach: Municipal Law as the
Standard of Liability
Under an alternative formulation, section 1350 may be
read to enable an alien to bring a common law tort ac-
tion in federal court without worrying about jurisdic-
tional amount or diversity, as long as a violation of in-
ternational law is also alleged. Unlike the first ap-
proach, set out above, the substantive right on which this
action is based must be found in the domestic tort law
of the United States. The text of the 1789 Judiciary
Act, coupled with the concerns of 18th century legal
scholars for a single judicial voice on foreign affairs, as
expressed in the Federalist Papers and elsewhere, pro-
vide some support for this interpretation of the statute.*
However, the formulation also raises a h®st of complex
problems of its own. |
1. Historical Underpinnings
I begin by tracing the historical setting in which the
original section 1350 was drafted. The First Judiciary
Act granted to circuit courts
original cognizance, concurrent with the courts of
the several States, of all suits of a civil nature at
common law or in equity, where the matter in dis-
pute exceeds, exclusive of costs, the sum or value of
five hundred dollars, and the United States are plain-
tiffs, or petitioners; or an alien is a party, or the
suit is between a citizen of the State where the suit
is brought, and a citizen of another State.
Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 73, 78. This
early grant of diversity jurisdiction opened federal courts
®One § 1350 case, discussed at length, infra, has adopted this
framework, see Adra v. Clift, 195 F. Supp. 857 (D. Md. 1961), and
one law review note has endorsed the approach. See Note, A Legal
Lohengrin: Federal Jurisdiction Under the Alien Tort Claims Act
of 1789, 14 U.S.F.L. REv. 105, 123 (1979).
RRA BAG A acts OTA LS RTA
Pane
19a
to civil suits by aliens, provided they were able to meet
the requisite jurisdictional amount.® Not content to treat
aliens like citizens of a non-forum state, the drafters also
gave district courts concurrent original jurisdiction with
both state courts and circuit courts, “as the case may be,
of all causes where an alien sues for a tort only in viola-
tion of the law of nations or a treaty of the United
States.” Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 73,
77. There is evidence, set out infra, that the intent of
this section was to assure aliens access to federal courts
to vindicate any incident which, if mishandled by a state
court, might blossom into an international crisis. If left
with diversity jurisdiction alone, aliens would have to
turn to state courts to bring actions below the jurisdic-
tional amount. Concern that state courts might deny jus-
tice to aliens, thereby evoking a belligerent response from
the alien’s country of origin, might have led the drafters
to conclude that aliens should have the option of bringing
suit in federal court, whatever the amount in contro-
versy.’°
® Despite confusion in an early case, Mason v. The Ship Blaireau,
6 U.S. (2 Cranch) 240, 264 (1804), by 1809 it was clear that the
Constitution bars extending diversity jurisdiction to suits be-
tween aliens. See Hodgson & Thompson v. Bowerbank, 9 U.S. (5
Cranch) 303 (1809).
10It might also be argued that § 13850 addressed actions for
tortious violations only of the law of nations, not domestic law,
and that the 1789 Act’s grant of diversity jurisdiction covered
domestic torts only. However, when the 1789 Judiciary Act was
drafted, lawyers had no doubt that the law of nations was a part
of the common law encompassed by the diversity jurisdiction
statute. See Dickinson, The Law of Nations as part of the Na-
tional Law of the United States (pt. 1), 101 U. PA. L. REv. 26, 27
(1952) ; 4 BLACKSTONE’S COMMENTARIES 66-67 (Welsby ed. 1854) ;
see also Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111, 116-17
(1784) (common law criminal prosecution for violation of law of
nations); cf. Warren, New Light on the History of the Federal
Judiciary Act of 1789, 37 Harv. L. Rev. 49, 73 (1923) (arguing
that federal courts were intended to assert both statutory and com-
mon law criminal jurisdiction, including over law of nations of-
20a
The Federalist Papers demonstrate unequivocally the
“importance of national power in all matters relating to
foreign affairs and the inherent danger of state action
in this field... .” Hines v. Davidowitz, 312 U.S. 52, 62
n. 9 (1941) (citing THE FEDERALIST Nos. 3, 4, 5, 42 &
80). The Constitution reflects this concern with an array
of techniques for centralizing foreign relations, including
Article III, § 2, which extends judicial power, inter alia,
to controversies between a state or its citizens and for-
eign states, citizens or subjects.
This interest in the rights of aliens is hardly surpris-
ing when considered in the context of early American
history and traditional precepts of the law of nations.
Under the law of nations, states are obliged to make civil
courts of justice accessible for claims of foreign subjects
against individuals within the state’s territory. 1 L.
OPPENHEIM, INTERNATIONAL LAW § 165a, at 366 (H.
Lauterpacht 8th ed. 1955). If the court’s decision con-
stitutes a denial of justice," or if it appears to condone
the original wrongful act, under the law of nations the
United States would become responsible for the failure
of its courts and be answerable not to the injured alien
but to his home state. A private act, committed by an
individual against an individual, might thereby escalate
into an international confrontation. See J. BRIERLY, THE
LAW OF NATIONS 284-91 (6th ed. 1963). The focus of
attention, then, was on actions occurring within the ter-
fenses). Section 1350 therefore offered to aliens who could meet
the diversity jurisdiction criteria, and therefore bring an action
in the circuit court, an alternative forum, under some circum-
stances. For aliens unable to meet those criteria, § 1350 opened
the district courts for assertion of their claims.
11 Brierly enumerates “corruption, threats, unwarrantable de-
lay, flagrant abuse of judicial procedure, a judgment dictated by
the executive, or so manifestly unjust that no court which was
both competent and honest could have given it” as instances of a
denial of justice. J. BRIERLY, THE LAW OF NATIONS 287 (6th ed.
1963).
ee
a A NN 5 kl RN RAL TE CARED FA EIR ct oe cll i a aR
ad Rite Cece tre iB
2la
ritory of the United States, or perpetrated by a U.S.
citizen, against an alien. For these acts, the United
States was responsible.
Alexander Hamilton outlined precisely this fear as jus-
tification for the Constitution’s grant of federal jurisdic-
tion for all cases involving aliens:
The union will undoubtedly be answerable to foreign
powers for the conduct of its members. And the re-
sponsibility for an injury ought ever to be accom-
panied with the faculty of preventing it. As the
denial or perversion of justice by the sentences of
courts, as well as in any other manner, is with rea-
son classed among the just causes of war, it will fol-
low that the federal judiciary ought to have cog-
nizance of all causes in which the citizens of other
countries are concerned. This is not less essential to
the preservation of the public faith, than to the
security of the public tranquility.
THE FEDERALIST No. 80, at 536 (A. Hamilton) (J. Cooke
ed. 1961)."* Having raised the specter of war to con-
vince his readers that “the peace of the whole ought not
to be left at the disposal of a part,” id. at 585 (emphasis
in original), Hamilton considered whether he should dis-
tinguish between “cases arising upon treaties and the
laws of nations, and those which may stand merely on
the footing of the municipal law.” Jd. at 5386. He wrote,
12 Similarly, at the Virginia Convention James Madison said,
“We well know, sir, that foreigners cannot get justice done them in
these courts, and this has prevented many wealthy gentiemen from
trading or residing among us.” 3 ELLIOTT’s DEBATES 583 (1888).
See also P. BATOoR, P. MISHKIN, D. SHAPIRO & M. WECHSLER, HART
AND WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL SYSTEM
17 (2d ed. 1973) (concluding that “the need for a grant [of fed-
eral judicial power] going beyond cases involving treaties and
foreign representatives seems to have been undisputed’). But see
Warren, supra note 10, at 56 & n.19 (1923) (among the proposed
amendments to the Constitution was “the elimination of all juris-
diction based on diverse citizenship and status as a foreigner’’).
———
22a
The former kind may be supposed proper for the fed-
eral jurisdiction, the latter for that of the states.
But it is at least problematical whether an unjust
sentence against a foreigner, where the subject of
controversy was wholly relative to the lex loci, would
not, if unredressed, be an aggression upon his sov-
ereign, as well as one which violated the stipula-
tions in a treaty or the general laws of nations. And
a still greater objection to the distinction would re-
sult from the immense difficulty, if not impossibility,
of a practical discrimination between the cases of
one complection and those of the other. So great a
proportion of the cases in which foreigners are
parties involve national questions, that it is by far
most safe and most expedient to refer all those in
which they are concerned to the national tribunals.
Id. See also Note, A Legal Lohengrin: Federal Juris-
diction Under the Alien Tort Claims Act of 1789, 14
U.S.F.L. Rev. 105, 113-15 & nn.62-65 (1979). Cf. THE
FEDERALIST No. 3 (J. Jay), No. 42 (J. Madison).
The First Judiciary Act clearly did not go as far as
Hamilton might have hoped. It withheld much of the
judicial power that constitutionally might have been
138 This formulation of § 1350’s underlying intent casts doubt on
the appropriateness of federal jurisdiction over suits between two
aliens. The United States might be less concerned about the ap-
pearance of condoning a wrongful act if its own citizen were not
the perpetrator, because the state of the wrong-doer should provide
the forum for relief, or suffer the consequences. However, let us
assume a tort is committed by an alien against an alien of differ-
ent nationality, and the injured alien sues the offender under a
state’s tort law. No diversity jurisdiction exists. See Hodgson &
Thompson v. Bowerbank, 9 U.S. (5 Cranch) 303 (1809). A denial
of justice might create the perception that the United States is
siding with one party, thereby affronting the state of the other.
While the potential for retribution is not direct, it would seem
to be present, particularly when the tort occurs on United States
soil.
23a
granted—for example, federal courts did not have com-
plete federal question jurisdiction until 1875 *—and enu-
merated relatively narrow criteria for subject matter ju-
risdiction. In particular, diversity jurisdiction under the
Act kept out of federal court aliens who could not plead
the jurisdictional amount or complete diversity. Given
the fears articulated by Hamilton and others, it is easy
to speculate that the drafters were worried about pos-
sible repercussions from a state’s denial of justice to an
alien in any action, no matter how slight in monetary
value. Recall, in this regard, Hamilton’s concerns about
any incident, even one “wholly relative to the lex loci.”
THE FEDERALIST No. 80 (A. Hamilton). As Hamilton
noted, whatever the fears attaching to “merely” local
actions, civil suits also implicating the law of nations
were surely fit for federal adjudication. Since the five
hundred dollar limit created the potential for mischief by
state courts, it would have been logical to place under
federal jurisdiction at least the local actions most likely
to create international tension. Recalling that each addi-
tional statutory grant of federal jurisdiction to lower
courts was the product of struggle and compromise, cf.
Warren, supra note 10, at 53-54, it would hardly be sur-
prising that the section 1350 grant, too, reflects a com-
promise between, on the one hand, placing all actions in-
volving aliens in federal courts and, on the other hand,
reserving to state courts exclusive jurisdiction over all
civil actions at common law and in equity.
Curiously, the language of the original section 1350, as
well as its location in the Judiciary Act, can be con-
strued to support either the Filartiga or the alternative
formulation for the application of section 1350. As it
appeared in section 9 of the 1789 Judiciary Act, the
predecessor to section 1350 granted district courts juris-
diction, “concurrent with the courts of the several States,
14 Act of Mar. 3, 1875, ch. 137, § 1, 18 Stat. 470.
24a
or the circuit courts, as the casé may be.” A logical
inference is that some actions cognizable in the circuit
courts also were cognizable under section 1350. The care-
fully delimited diversity jurisdiction of the circuit courts
was set out in section 11; that section included the grant
of jurisdiction, “of all suits of a civil nature at common
law or in equity,” in which an alien is a party, and no
other grant of civil jurisdiction in actions involving
15JIn the First Judiciary Act, district courts were granted
original jurisdiction over a mixture of actions. The complete
authorization was as follows:
Sec. 9. And be it further enacted, That the district courts
shall have, exclusively of the courts of the several States,
cognizance of all crimes and offences that shall be cognizable
under the authority of the United states [sic], committed within
their respective districts, or upon the high seas; where no
other punishment than whipping, not exceeding thirty stripes,
a fine not exceeding one hundred dollars, or a term of im-
prisonment not exceeding six months, is to be inflicted; and
shall also have exclusive original cognizance of all civil causes
of admiralty and maritime jurisdiction, including all seizures
under laws of impost, navigation or trade of the United States,
where the seizures are made, on waters which are navigable
from the sea by vessels of ten or more tons burthen, within
their respective districts as well as upon the high seas;
saving to suitors, in all cases, the right of a common law
remedy, where the common law is competent to give it; and
shall also have exclusive original cognizance for all seizures
on land, or other waters than as aforesaid, made, and of all
suits for penalties and forfeitures incurred, under the laws
of the United States. And shall also have cognizance, con-
current with the courts of the several States, or the circuit
courts, as the case may be, of all causes where an alien sues
for a tort only in violation of the law of nations or a treaty
of the United States. And shall also have cognizance, con-
current as last mentioned, of all suits at common law where
the United States sue, and the matter in dispute amounts,
exclusive of costs, to the sum or value of one hundred doilars.
And shall also have jurisdiction exclusively of the courts of the
several States, of all suite against consuls or vice-consuls except
for offences above the description aforesaid. And the trial of
issues in fact, in the district courts, in all causes except civil
Dente
25a
aliens.** The section 9 reference to concurrent jurisdic-
tion with the circuit courts therefore might reasonably
have referred to actions by an alien “at common law
or in equity,” for a tort, involving more than five hun-
dred dollars—in other words, to domestic torts cogni-
zable under diversity jurisdiction. However, the reference
to concurrent circuit court jurisdiction might also refer
to actions implicating the law of nations; both courts
causes of admiralty and maritime jurisdiction, shall be by
jury.
1 Stat. 73, 76-77 (footnotes omitted) (emphasis added).
16 The circuit courts received much broader original jurisdiction
than the district courts. The authorization was as follows:
Sec. 11. And be it further enacted, That the circuit courts
shall have original cognizance, concurrent with the courts of
the several States, of all suits of a civil nature at common law
or in equity, where the matter in dispute exceeds, exclusive of
costs, the sum or value of five hundred dollars, and the United
States are plaintiffs, or petitioners; or an alien is a party,
or the suit is between a citizen of the State where the suit is
brought, and a citizen of another State. And shall have ex-
clusive cognizance of all crimes and offences cognizable under
the authority of the United States, except where this act other-
wise provides, or the laws of the United States shall otherwise
direct, and concurrent jurisdiction with the district courts of
the crimes and offences cognizable therein. But no person
shall be arrested in one district for trial in another, in any
civil action before a circuit or district court. And no civil suit
shall be brought before either of said courts against an in-
habitant of the United States, by any original process in any
other district than that whereof he is an inhabitant, or in
which he shall be found at the time of serving the writ, nor
shall any district or circuit court have cognizance of any suit
to recover the contents of any promissory note or other chose
in action in favour of an assignee, unless a suit might have
been prosecuted in such court to recover the said contents
if no assignment had been made, except in cases of foreign
bills of exchange. And the circuit courts shall also have appel-
late jurisdiction from the district courts under the regulations
and restrictions herein after provided.
1 Stat. 73, 78-79 (footnotes omitted) (emphasis added).
26a
would have had jurisdiction over such actions, circuit
courts as an element of their common law jurisdiction,
and district courts directly. In that case, the mention of
concurrent jurisdiction would support the Filartiga for-
mulation for the application of section 1350.
The structure of the Act also provides support for both
the Filartiga and the alternative formulations. A com-
parison of district and circuit court jurisdiction discloses
that while each had its own classes of cases, the circuit
courts were the more significant courts of general origi-
nal jurisdiction. See notes 15 and 16, supra. The dis-
trict court was viewed, “primarily as [a] court[] of
special jurisdiction,” 1 J. GOEBEL, HISTORY OF THE SU-
PREME COURT OF THE UNITED STATES: ANTECEDENTS
AND BEGINNINGS TO 1801, at 475 (1971), and “as a
very inferior court indeed.” Jd. at 473. The district
court judge was to be “the resident expert” on his state’s
jurisprudence, id., and actions placed in district courts
were in essence local. Moreover, district court actions
were in some respects minor versions of actions eligible
to be brought in the circuit courts. Thus while the cir-
cuit courts—staffed by a district court judge and two
Supreme Court Justices, pursuant to section 4 of the
Act—had exclusive jurisdiction of “all crimes and of-
fenses cognizable under the authority of the United
States,” with some exceptions, the district courts also had
jurisdiction over less serious crimes. Similarly, the dis-
trict courts could hear actions that did not meet the
amount in controversy necessary for circuit court di-
versity jurisdiction.”
While the parallel between greater and lesser punish-
ments and greater and lesser amounts in controversy
might be persuasive, the district courts also had ad-
miralty and maritime jurisdiction. That power suggests
17To be sure, the parallel is not perfect, since district courts
could hear actions for any amount in controversy if they met
the former § 1350’s requirements.
27a
these courts were not merely local petty action tribunals
but important forces in the enforcement of maritime law.
The drafters’ decision to. grant district courts admiralty
jurisdiction suggests perhaps that the district courts were
perceived as appropriate tribunals to handle matters
affecting foreign states. It is perhaps anomalous that
drafters concerned that decentralized courts might spark
international conflict would place in a local court complete
control over actions implicating the laws of nations, rather
than using that court solely as a diversity jurisdiction
catch-all. However, because district courts were located
in each state, while circuit courts were scattered more
sparsely, Judiciary Act of 1789, ch. 20, §§ 2-5, 1 Stat. 73,
73-75, district court jurisdiction also made federal courts
more accessible to aliens, and thereby facilitated their
actions.
2. A Paradigm of the Alternative Formulation:
Adra v. Clift
To probe the mechanics of the alternative formulation
for the application of section 1350, I turn to the single
case in which it has been adopted. In Adra v. Clift, 195
F. Supp. 857 (D. Md. 1961), a Lebanese plaintiff, then
Ambassador to Iran, sued his former wife, a Turkish-
born Iraqi national resident in the United States, and her
American husband under section 1350. The plaintiff con-
tended that he was legally entitled to custody of his
daughter by his former wife, that the daughter was
wrongfully being withheld from him, and that defendants
had concealed the child’s name and nationality by falsify-
ing her passport, in violation of the law of nations. The
court found jurisdiction to exist by identifying a purely
municipal tort—‘“[t]he unlawful taking or withholding
of a minor child from the custody of the parent or
parents entitled to such custody.” 195 F. Supp. at 862.
The court then determined that the defendant had misused
her Iragi passport by including her Lebanese child on it,
in order to conceal the child’s name and nationality. The
28a
misuse of a passport was found to constitute a violation
of the law of nations, and jurisdiction was established.
If we change the facts slightly in Adra v. Clift, and
assume both defendants are American citizens, the case
becomes a paradigm of the alternative formulation for
the application of section 1350.1* Diversity jurisdiction is
unavailable if the amount in controversy is not met. The
action is grounded directly on a domestic tort but impli-
cates an international law violation. If plaintiff were
denied justice, that denial might be perceived in Lebanon,
plaintiff’s home state, as an affront by the United States
itself.
At this juncture it is worthwhile to observe that the
second formulation is not susceptible of the same criti-
cism as the first—that the district court would have
difficulty parsing the law of nations for an applicable
legal standard. It is apparent that because domestic law
provides the standard, the burden of discovering that
standard is removed. However, the Adra case suggests
that this formulation raises some thorny questions of its
own.
Under the alternative approach suggested by Adra,
the law of nations violation is only one aspect of a multi-
faceted jurisdictional test and apparently need not be so
rigidly defined as under the first approach adopted by
Filartiga. The Filartiga formulation posits a violation of
the law of nations as the trigger for section 1350 juris-
diction. The Adra formulation adopts a two-step juris-
dictional test, requiring what would appear to be a looser
allegation of a law of nations offense, coupled with a mu-
nicipal tort.° That Adra eschewed the analysis that
18 As noted earlier, I have some misgivings about the propriety
of § 1350 actions between two aliens under this formulation. See
note 13, supra.
19 Because even under this approach the Hanoch plaintiffs do not
allege a law of nations violation, it is unnecessary to consider
See yee TT eee ee ee ee ee
29a
would have been required under the Filartiga approach,
and instead spoke only in general terms about the law of
nations, suggests a less rigorous showing under the law
of nations would be mandated under the Adra approach.
The court in Adra might convincingly have argued
that passport abuse amounts to a serious law of nations
violation. The argument would be that countries are en-
titled, under the law of nations, to rely on passports as
evidence of fact, see Kent v. Dulles, 357 U.S. 116, 120-21
(1958) (quoting Urtetiqui v. D’Arbel, 34 U.S. (9 Pet.)
692 (1835)), and that nations that do rely are responsible,
also under that law, for the safe passage of the passport
holder. See 4 BLACKSTONE’S COMMENTARIES 68-69 (Welsby
ed. 1854). Fraudulent use by an individual might there-
fore disrupt states’ recognized duties, which are grounded
in reliance on a passport’s authenticity. Misuse by a per-
son entrusted to abide by international norms would
amount to a law of nations violation.
The Adra court made no effort to tease out of interna-
tional law an explicit duty, placed on individuals, that
had been violated. Instead, it merely identified the im-
portant role that passports play in the international arena,
implicitly concluded that the defendants were obliged by
the law of nations to adhere to international norms re-
Article III implications of the formulation. It would appear, how-
ever, that there are no serious Article Ili problems associated with
the Adra-type application of § 1350.
If § 1350 is limited to actions by aliens against citizens, see note
13, supra, then constitutional diversity jurisdiction exists.
If § 1350 is read more broadly to cover alien versus alien suits,
it might still be possible to find that the action arises under the
laws of the United States. This is so because the law of nations
is “an ingredient” of this action, Osborn v. Bank of the United
States, 22 U.S. (9 Wheat.) 738 (1824), and is also an integral part
of the laws of this country, see The Paquete Habana, 175 U.S. 677,
700 (1900). Therefore, since any action under the Adra formula-
tion would involve as a threshold issue the law of nations, it would
“arise under” the laws of the United States for Article III purposes.
80a
garding passports, and determined that their failure to
do so constituted the requisite violation.
That section 1350 jurisdiction might be triggered by
offenses less severe than are required under the Filartiga
formulation gives rise to a new question: how much less
severe? No doubt the law of nations condemns passport
violations; whether they reach the level of international
crimes is another matter entirely. Perhaps the two ap-
proaches focus on different segments of the spectrum of
international offenses. In the range from the petty to the
heinous, the first formulation might look to the upper
range only—to those acts that are recognized as interna-
tional crimes—while the second might encompass a wider
scope. It might, for example, refer to a violation of any
of the many duties imposed on nations by international
law, as set out in detail in the Restatement (Second) of
Foreign Relations Law. That is an issue with which any
future court accepting the Adra-type formulation must
grapple, however. I need not test the limits of each
standard, for while I have no doubt that the official
torture cited in Filartiga violated the law of nations by
any definition, I am not convinced that the unofficial acts
at issue in this case in any way implicated the law of
nations.
I note, however, that it is thoroughly inconsistent with
the impetus behind section 1350 under the Adra formula-
tion—to keep the United States out of international con-
frontations—to construe the statute to enable courts to
burrow into disputes wholly involving foreign states. I
therefore believe the Adra formulation makes sense only
if construed to cover actions by aliens for domestic torts
that occur in the territory of the United States and injure
“substantial rights” under international law, see 26 Op.
Att’y Gen. 250, 252-53 (1907), or for universal crimes,
as under the first formulation, or for torts committed by
American citizens abroad, where redress in American
courts might preclude international repercussions.
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Not surprisingly, these limits are consistent with the
basic parameters that international law establishes for a
domestic court’s exercise of jurisdiction over extraterri-
torial activities. See RESTATEMENT OF THE LAW OF For-
EIGN RELATIONS (REVISED) §§ 402-404 (Tent. Draft No.
2, 1981) (enumerating permissible bases of “jurisdiction
to prescribe,” applicable both to criminal and civil law).
They are not, contrary to Judge Bork’s assertion, my own
“unguided policy judgments,” but rather the well-estab-
lished, prudential judgments of the law of nations. Of
course, other municipal law doctrines pertaining to a
court’s exercise of jurisdiction, such as forum non con-
veniens and attainment of personal jurisdiction, must be
met as well.
A second difficult question raised by the facts in Adra
involves the requisite nexus between the domestic and the
international tort. The Adra court applied, at best, a
“but for” causation test to determine whether the inter-
national and domestic torts were sufficiently related to
establish jurisdiction. “But for” the passport abuse, de-
fendants could not have concealed the daughter’s entry
into the United States, and therefore could not have re-
tained custody. This framework opens the courts to a
potential deluge of actions. In this case, for example,
plaintiffs might have alleged that the PLO violated Israeli
immigration laws by landing in Israel without passports,
perhaps skirting the problem, addressed infra, of indi-
vidual liability for torture. The formulation poses the
difficult question of the necessary degree of convergence
between the domestic and international tort. Had I to
address the issue, I would recall my basic premise—that
the intent of the statute was to avoid or mitigate inter-
national conflict—and determine what degree of overlap
would be required to achieve that goal. However, since
the Hanoch plaintiffs focus on one event alone, the issue
is not directly presented.
32a
C. A Summary Comparison of the Filartiga and Adra
Formulations
From the foregoing analysis it is clear that the Filartiga
and Adra formulations might produce radically different
results. Adra v. Clift itself is an example. Under its
facts, jurisdiction would fail under the Filartiga formula-
tion, because the law of nations violation, even if suffi-
ciently severe, caused plaintiff no harm, and plaintiff
could not sue under section 1350 for the domestic tort.
In contrast, the facts of Filartiga would likely produce a
finding of jurisd.ction under either the Filartiga or Adra
formulation. Whatever the difference in the formulations,
however, they do have in common one crucial charac-
teristic: under neither one must plaintiffs identify and
plead a right to sue granted by the law of nations. On
that point, I espy no reason in the statutory language,
history, or case law to conclude otherwise.
IV. MEANING OF THE “LAW OF NATIONS”
In addition to our disagreement over the “right to
sue” issue, I also have great difficulty in understanding
Judge Bork’s effort to restrict the scope of section 1350
to the principal offenses against the law of nations recog-
nized centuries ago by Blackstone, see text at notes 2-3,
supra, instead of construing it in accord with the current
definition of the law of nations. While conceding that the
legislative history offers no hint of congressional intent in
passing the statute, my colleague infers Congress’ intent
from the law of nations at the time of the passage of sec-
tion 1350. The result of this analytical approach is to
avoid the dictates of The Paquete Habana and to limit
the “law of nations” language to its 18th century defini-
tion. In The Paquete Habana, the Supreme Court noted
that, in construing the “law of nations,”
where there is no treaty, and no controlling execu-
tive or legislative act or judicial decision, resort
must be had to the customs and usages of civilized
re
33a
nations, and, as evidence of these, to the works of
jurists and commentators, who by years of labor,
research and experience, have made themselves p2-
culiarly well acquainted with the subjects of which
they treat. Such works are resorted to by judicial
tribunals, not for the speculations of their authors
concerning what the law ought to be, but for trust-
worthy evidence of what the law really is.
175 U.S. at 700. As was pointed out in Filartiga,
Habana is particularly instructive for present pur-
poses, for it held that the traditional prohibition
against seizure of an enemy’s coastal fishing vessels
during wartime, a standard that began as one of
comity only, had ripened over the preceding century
into “a settled rule of international law” by “the gen-
eral assent of civilized nations.” Jd. at 694, 20 S.Ct.
at 297; accord, id. at 686, 20 S.Ct. at 297. Thus it
is clear that courts must interpret international law
not as it was in 1789, but as it has evolved and
exists among the nations of the world today. See
Ware v. Hylton, 3 U.S. (3 Dall.) 198, 1 L.Ed. 568
(1796) (distinguishing between “ancient” and “mod-
ern” law of nations).
630 F.2d at 881.
In light of the evidence at hand, it seems clear beyond
cavil that violations of the “law of nations” under section
1350 are not limitel to Blackstone’s enumerated offenses.
Indeed, the Supreme Court stated as much almost a cen-
tury ago, when it announced that counterfeiting of for-
eign securities constitutes an offense against the law of
nations. See United States v. Arjuna, 120 U.S. 479
(1887).
VY. THE DUTY TO EXERCISE JURISDICTION
To the extent that Judge Bork rejects the Filartiga
construction of section 1350 because it is contrary to his
perception of the appropriate role of courts, I believe he
84a
is making a determination better left to Congress. It
simply is not the role of a judge to construe a statutory
clause out of existence merely on the belief that Congress
was ill-advised in passing the statute. If Congress de-
termined that aliens should be permitted to bring actions
in federal courts, only Congress is authorized to decide
that those actions “exacerbate tensions” and should not be
heard.
To be sure, certain judge-made abstention rules, such
as the Act of State Doctrine, require courts to decline to
reach certain issues in certain instances, notwithstanding
a statutory grant of jurisdiction. Where the Act of State
Doctrine applies, the Supreme Court has directed the
courts not to inquire into the validity of the public acts
of a recognized foreign sovereign committed within its
own territory. Banco Nacional de Cuba v. Sabbatino,
376 U.S. 398, 401 (1964). The doctrine does not require
courts to decline jurisdiction, as does the Foreign Sov-
ereign Immunities Act, but only not to reach the merits
of certain issues. As Judge Bork admits, the doctrine is
not controlling here. Indeed, to apply it at this stage of
the case would be to grossly distort the doctrine, first by
considering it as a jurisdictional issue, and second, by
extending it beyond its carefully limited confines. Uniess
and until the Supreme Court reconsiders the Act of State
Doctrine and applies it as a jurisdictional matter to acts
by non-recognized entities committed in the territory of a
recognized state, it simply is not relevant to this case.
While not claiming that the Act of State Doctrine con-
trols, Judge Bork looks for guidance toward the concerns
that he believes animate it. To ignore the Supreme
Court’s cautious delineation of the doctrine in Banco
Nacional de Cuba v. Sabbatino and its progeny, and to
cite the doctrine’s rationale as broad justification for
effectively nullifying a statutory grant of jurisdiction, is,
to my view, an inappropriate exercise of lower federal
court power. It is particularly so in this case, given the
35a
considerable disagreement among the Justices regarding
the rationale, scope, and flexibility of the doctrine, see
First National City Bank v. Banco Nacional de Cuba, 406
U.S. 759, 773-76 (1972) (Powell, J., concurring in judg-
ment), and congressional efforts to override judicial ab-
dication of the kind directed by the Act of State Doctrine.
See 22 U.S.C. § 2370(e) (1976) (barring judicial invoca-
tion of Act of State Doctrine in certain expropriation
actions).
My troubles with Judge Bork’s efforts to limit the
reach of section 1350 go even deeper. Contrary to my col-
league’s intimations, I do recognize that there are sepa-
rate branches of Government. In fact, that is precisely
my point. I am the first to admit that section 1350 pre-
sents difficulties in implementation, but to construe it out
of existence on that ground is to usurp Congress’ role and
contravene its will.
Judge Bork virtually concedes that he is interposing a
requirement that the law of nations provide a right to sue
simply to void a statute of which he does not approve—
and to avoid having to extend and distort existing doc-
trine on nonjusticiability to reach the same result. As a
first step, he sets forth an interpretation of the statute
that completely writes out of the statute the clause at
issue. The law of nations provides no private right to sue
for the only offenses against the law of nations that he
recognizes. Under his view, therefore, the clause in the
statute had no meaning when passed by Congress and
none today. To enforce a construction that yields that
result is not only to insult Congress, but inappropriately
to place judicial power substantially above that of the
legislature.
Logically, of course, under Judge Bork’s formulation,
were the law of nations ever to provide a right to sue,
federal courts would have to hear the cases. To avoid this
36a
contingency, Judge Bork adds yet another obstacle, stat-
ing that “considerations of justiciability” would, neces-
sarily, come into play in that event. With this remark,
Judge Bork virtually concedes that he would keep these
cases out of court under any circumstance, and he places
himself squarely beside Judge Robb, who advocates dis-
missal of this action on political question grounds. Vigor-
ously waving in one hand a separation of powers banner,
ironically, with the other he rewrites Congress’ words and
renounces the task that Congress has placed before him.
Most surprisingly, Judge Bork’s analysis—and his cri-
tique of my own—completely overlooks the existence of
state courts. Subject to the same constraints that face
federal courts, such as personal jurisdiction, and perhaps
in some instances to other limitations, such as preemp-
tion, state courts could hear many of the common law
civil cases, brought by aliens, that Judge Bork believes
should not be heard at all. As best we can tell, the aim
of section 1350 was to place in federal court actions
potentially implicating foreign affairs. The intent was
not to provide a forum that otherwise would not exist—
as Judge Bork assumes—but to provide an alternative
forum to state courts. Indeed, the Supreme Court has at
least twice cited section 1350 as a statutory example of
congressional intent to make questions likely to effect for-
eign relations originally cognizable in federal courts. See
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427
& n.25 (1964); Ex Parte Quirin, 317 U.S. 1, 27-30 & n.6
(1942). Not only is it patently indefensible to ignore this
mandate. It is also erroneous to assume that the trouble-
some cases will disappear altogether from state courts,
as well as federal, if section 1850 becomes mere historical
trivia. In that event, no doubt, my colleagues would
either assert nonjusticiability generally or turn the issue
on its head and argue, precisely as the section 1350
drafters recognized, that state courts are inappropriate
fora for resolution of issues implicating foreign affairs.
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37a
VI. LIABILITY OF THE NON-STATE ACTOR UNDER THE
LAW OF NATIONS
While I endorse the legal principles set forth in Filar-
tiga, I also believe the factual distinctions between this
case and the one faced by the Second Circuit mitigate its
precedential value in this case. To be sure, the parallels
between the two cases are compelling. Here, as in Filar-
tiga, plaintiffs and defendants are both aliens. Plaintiffs
here allege torture in their complaint, as did plaintiffs in
Filartiga.” Here, as in Filartiga, the action at issue
undoubtedly violated the law of the nation in which it
occurred (in this case, the law of Israel). See Filartiga,
630 F.2d at 889.
The two fact patterns diverge, however, on the issue of
official torture. The Palestine Liberation Organization is
not a recognized state, and it does not act under color
of any recognized state’s law. In contrast, the Paraguayan
20 On the basis of international covenants, agreements and decla-
rations, commentators have identified at least four acts that are
now subject to unequivocal international condemnation: torture,
summary execution, genocide and slavery. See Blum & Steinhardt,
Federal Jurisdiction over International Human Rights Claims:
The Alien Tort Claims Act after Filartiga v. Pena-Irala, 22 HARV.
INT'L L.J. 53, 90 (1981); see also P. SIEGHART, THE INTERNATIONAL
LAW OF HUMAN RIGHTS 48 (1983) (cataloguing as recognized
international] crimes certain war crimes, crimes against humanity,
genocide, apartheid and, increasingly, torture). Plaintiffs in this
action allege both torture and murder that amounts to summary
execution. Filartiga accepted the view that official torture in fact
amounts to a law of nations violation. Analysis along the same
lines would likely yield the conclusion that state-sponsored summary
executions are violations as well. However, by definition, summary
execution is “murder conducted in uniform,” as opposed to lawful,
state-imposed violence, Blum & Steinhardt, supra, at 95, and would
be inapplicable here. See id. at 95-96. Therefore, for purposes
of this concurrence, I focus on torture and assume, arguendo, that
torture amounts to a violation of the law of nations when per-
petrated by a state officer. I consider only whether non-state actors
may be held to the same behavorial norms as states.
38a
official in Filartiga acted under color of state law, al-
though in violation of it. The Second Circuit surveyed
the law of nations and concluded that official torture
constituted a violation. Plaintiffs in the case before us do
not allege facts to show that official or state-initiated
torture is implicated in this action. Nor do I think they
could, so long as the PLO is not a recognized member of
the community of nations.”!
*1 Our courts have in the past looked to the foreign policy of
this nation, in particular to the recognition or non-recognition
of a foreign government, to determine the applicability of a given
legal doctrine. For example, in Banco Nacional de Cuba v. Sab-
batino, 376 U.S. 398 (1964), the Supreme Court explicitly tied the
application of the Act of State Doctrine to whether the foreign
state was recognized by the United States. See 376 U.S. at 401, 428.
See also Oetjen v. Central Leather Co., 246 U.S. 297 (1918) (Su-
preme Court takes judicial notice of Washington’s recognition of
Mexican government, applies Act of State Doctrine retroactively
to pre-recognition incidents). Indeed, the Court has made clear
that the judiciary is not to second guess the determination of the
other branches as to “[wJho is the sovereign, de jurc or de facto,
of a territory.” Oecetjen, 246 U.S. at 302. We therefore are bound
by the decision of the Executive not to recognize the PLO, and we
must apply international law principles accordingly.
I note, however, that it is conceivable that a state not recognized
by the United States is a state as defined by international law and
therefore bound by international law responsibilities. To qualify
as a state under international law, there must be a people, a ter-
ritory, a government and a capacity to enter into relations with
other states. See 3 U.N. SCOR (383d Mtg.) at 9-12, U.N. Doc.
S/P.V. 383, pp. 21-35 (1948) (remarks of Professor Philip C.
Jessup advocating Israeli membership in the United Nations),
quoted in Liang, Notes on Legal Questions Concerning the United
Nations, 43 AM. J. INT'L L. 288, 300 (1949). Jurisdiction over the
territory must be exclusive. G. VON GLAHN, LAW AMONG NATIONS
62 (4th ed. 1981). Even assuming, arguendo, that the law of na-
tions obligates unrecognized states that meet this standard, and
that § 1350’s intent was to hold liable even those states the U.S.
does not recognize, there is no allegation here that the PLO does
or could meet this standard.
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89a
A. The Lack of Consensus on Individual Responsibility
The question therefore arises whether to stretch Filar-
tiga’s reasoning to incorporate torture perpetrated by a
party other than a recognized state or one of its officials
acting under color of state law. The extension would re-
quire this court to venture out of the comfortable realm
of established international law—within which Filartiga
firmly sat—in which states are the actors.” It would
require an assessment of the extent to which international
law imposes not only rights but also obligations on indi-
viduals. It would require a determination of where to
draw a line between persons or groups who are or are
not bound by dictates of international law, and what the
groups look like. Would terrorists be liable, because
numerous international documents recognize their exist-
ence and proscribe their acts? See generally R. LILLICH,
TRANSNATIONAL TERRORISMS: CONVENTIONS AND COM-
MENTARY (1982) (reprinting numerous international
anti-terrorism accords); see also Lauterpacht, The Sub-
jects of the Law of Nations (pt. 1), 63 L.Q. REv. 438,
444-45 (discussing international obligations of insurg-
22 Ciassical international law was predominantly statist. The law
of nations traditionally was defined as “the body of rules and prin-
ciples of action which are binding upon civilized states in their
relations with one another.” J. BRIERLY, supra note 11, at 1 (em-
phasis added); see also G. VON GLAHN, supra note 21, at 61-62;
1 C. HYDE, INTERNATIONAL LAW CHIEFLY AS INTERPRETED AND
APPLIED BY THE UNITED STATES § 2A, at 4 (2d ed. rev. 1945).
Non-state actors could assert their rights against another state
only to the extent that their cwn state adopted their claims, and as
a rule they had no recourse against their own government for
failure to assist or to turn over any proceeds. 1 C. HYDE, supra,
§ 11B, at 36. See also Sohn, The New International Law: Protec-
tion of the Rights of Individuals Rather than States, 32 AM. U.L.
REV. 1, 9 (1982). That the International Court of Justice permits
only party-states to appear in cases before the court highlights this
outlook. Article 34(1), Statute of the International Court of Jus-
tice, done June 26, 1945, 59 Stat. 1055, T.S. No. 993, 3 Bevans 1153
(entered into force for United States October 24, 1945).
40a
ents). Would all organized political entities be obliged
to abide by the law of nations? Would everybody be
liable? As firmly established as is the core principle
binding states to customary international obligations,
these fringe areas are only gradually emerging and offer,
as of now, no obvious stopping point. Therefore, heeding
the warning of the Supreme Court in Sabdatino, to wit,
“the greater the degree of codification or consensus con-
cerning a particular area of international law, the more
appropriate it is for the judiciary to render decisions
regarding it,” 376 U.S. at 428. I am not prepared to
extend the definition of the “law of nations” absent di-
rection from the Supreme Court. The degree of “codifica-
tion or consensus” is simply too slight.
While I do not believe that international harmony exists
on the liability of private individuals, it is worth noting
that a number of jurists and commentators either have
assumed or urged that the individual is a subject of
international law. See Lopes v. Reederei Richard
Schroder, 225 F. Supp. 292, 297 (E.D. Pa. 1963) (viola-
tion of law of nations, in section 1350, means, “at least a
violation by one or more individuals”) ; Adra v. Clift, 195
F. Supp. 857 (D. Md. 1961) (individual violation of law
of nations); Judgment of the International Military
Tribunal, 22 Trial of the Major War Criminals Before
the International Military Tribunal, Proceedings, 411,
465-66 (1948), 41 Am. J. INTL L. 172, 220-21 (1947)
(international law “imposes duties and liabilities upon
individuals as well as upon States”), reprinted in The
Nuremberg Trial 1946, 6 F.R.D. 69, 110-11 (1947) ; G.A.
Res. 95, U.N. Doc. A/64/Add. 1, at 188 (1947) (affirm-
ing Nuremberg principles) ; see also Sohn, supra note 22,
at 9-11 (summarizing shift since 1945 in individual
rights and duties under international law); Note, The
Law of Nations in the District Courts: Federal Jurisdic-
tion Over Tort Claims by Aliens Under 28 U.S.C. § 1850,
1 B.C. INTL & Comp. L.J. 71, 82 (1977). Confusion
4la
arises because the term “individual liability” denotes two
distinct forms of liability. The first, now well-implanted
in the law of nations, refers to individuals acting under
color of state law. Commentators routinely place the ori-
gin of this development at the Nuremberg Trials, see, e.g.,
Sohn, supra note 22, at 9-11, and it was in this context
that the International Military Tribunal wrote of indi-
vidual responsibility for war crimes.“ The second, cur-
rently less-established meaning addresses the responsibility
of individuals acting separate from any state’s authority
or direction. That the defendant in Filartiga was an
official, not the state itself, placed him squarely within the
first meaning. In contrast, in the case before us, the
second formulation of individual liability is at issue.
Even in the truly private arena there is support for the
concept of individual responsibility. Inferences from case
law suggests that courts over the years have toyed with
the notion of truly individual liability both under section
1350 and more generally. Section 1350 case law, un-
fortunately, is sparse. Other than Filartiga, only two
cases brought under section 1350 have established juris-
diction. Both involved private-party defendants. In one,
Bolchos v. Darrell, 3 Fed. Cas. 810 (D.S.C. 1795) (No.
1607), a predecessor to section 1850 provided jurisdiction
for an action, grounded on a treaty violation, involving a
title dispute concerning neutral property on a captured
enemy vessel. It is worthwhile to note that, although
Bolchos involved a treaty obligation, at the time of the
Bolchos case individual defendants were in fact found to
violate the law of nations, although not necessarily in
actions based on section 1350. See, e.g., United States v.
*3 For example, responding to a “following orders” defense, the
court cited Article 8 of the Charter annexed to the agreement
establishing the Nuremberg Tribunal, which declared, “The fact
that the defendant acts pursuant to orders of his Government or
a superior shall not free him from responsibility, but may be con-
sidered in mitigation of punishment.” 6 F.R.D. at 110-11.
42a
Smith, 18 U.S. (5 Wheat.) 153 (1820) (indictment for
crime of piracy, as defined by the law of nations). In a
more recent case, Adra v. Clift, 195 F. Supp. 857 (D.
Md. 1961), an individual was in fact found to have vio-
lated the law of nations, and section 1350 jurisdiction
was thereby established. The action, discussed extensively,
supra, involved a child custody suit between two aliens;
the court found that defendant’s wrongful withholding of
custody was a tort and that her misuse of passports to
bring the child into the United States violated interna-
tional law. To reach this conclusion on individual re-
sponsibility, the court relied primarily on one commen-
tator, who asserted that some acts violate the law of
nations and may be prosecuted when committed by a
private offender, Adra, 195 F. Supp. at 863-64 (citing
1 C. HYDE, supra note 22, § 11A, at 33-34); it then leapt
to a conclusion that passport violations are among such
acts. Id. at 864-65. As I shall demonstrate, infra, Hyde’s
position, while certainly compelling, is not so widely
accepted doctrinally or practically as to represent the
consensus among nations.”
24 Three other cases have suggested jurisdiction might be avail-
able under § 1350. Of these, two implicated private defendants.
In Nguyen Da Yen v. Kissinger, 528 F.2d 1194 (9th Cir. 1975),
an action against the Immigration and Naturalization Service and
others alleging the illegal seizure and removal of Vietnamese babies
from Vietnam in the final hours of U.S. involvement there, the
court noted in dicta that jurisdiction might be available under
§ 1350, and that, if it were, private adoption agencies that par-
ticipated in the “babylift” might be joined as jo‘nt tortfeasors. Id.
at 1201 n.i3. In a 1907 Opinion, 26 Op. Att’y Gen. 250 (1907),
the Attorney General indicated that a predecessor to § 1350 might
provide a forum to Mexican citizens seeking redress for damages
suffered when an American irrigation company altered the channel
of the Rio Grande River. The third case, O'Reilly de Camara v.
Brooke, 209 U.S. 45 (1908), suggests that a United States officer’s
seizure of an alien’s property in a foreign country might fall within
§ 1350.
Numerous other § 1350 actions have been dismissed on juris-
dictional grounds for failure to allege a violation of the law of
43a
B. Historical Evolution of the Role of the Individual in
International Law
That the individual’s status in international law has
been in flux since section 1350 was drafted explains in
part the current mix of views about private party li-
ability. Through the 18th century and into the 19th,
writers and jurists believed that rules of international
law bound individuals as well as states. See, e.g., United
States v. Smith, 18 U.S. (5 Wheat.) 153 (1820) (piracy
violates law of nations; individual liable) ; Respublica v.
DeLongchamps, 1 U.S. (1 Dall.) 111 (1784) (assault on
French consul-general violates law of nations; individual
liable) ; 4 BLACKSTONE’S COMMENTARIES 66-73 (Welsby
ed. 1854) (recounting various offenses against law of na-
tions, committed by private persons, punishable under
English statutory law); see generally Dickinson, supra
note 10, at 26-27, 29-30; Dickinson, The Law of Nations as
Part of the National Law of the United States (pt. 2), 101
U. Pa. L. REv. 792, 792-95 (1953) ; Korowicz, The Prob-
lem of the International Personality of Individuals, 50
AM. J. INT’L L. 533, 534 (1956). In the 19th century, the
view emerged that states alone were subjects of interna-
tional law, and they alone were able to assert rights and
be held to duties devolved from the law of nations. Un-
der that view—which became firmly entrenched both in
doctrine and in practice, see Korowicz, supra, 50 Am. J.
INTL L. at 535, 541—individual rights existed only as
rights of the state, see Lauterpacht, The Subjects of the
Law of Nations (pt. 1), 68 L.Q. REv. 438, 4389-40
(1947), and could be asserted, defended or withdrawn by
nations, see generally Annot., 34 A.L.R. FED. 388 (1977) (review-
ing cases). The most common shortcoming of these actions is in
the allegation of a municipally recognized tort, such as fraud,
Trans-Continental Inv. Corp., S.A. v. Bank of Commonwealth, 500
F. Supp. 565 (C.D. Cal. 1980), or libel, Akbar v. New York Maga-
zine Co., 490 F. Supp. 60 (D.D.C. 1980), that does not have the
stature of a law of nations violation.
_ 44a
the state. See P. REMEC, THE POSITION OF THE INDIVID-
UAL IN INTERNATIONAL LAW ACCORDING TO GROTIUS AND
VATTEL 38 (1960) ; see also note 22, supra.
In this century, once again writers have argued that
both the rights and duties of international law should
be applied to private parties. See P. REMEC, supra, at
8-18; Hill, International Affairs: The Individual in In-
ternational Organization, 28 AM. PoL. Sci. REv. 276,
282 & nn.20-23 (1934) (describing shift from statism
and emergence of view that individual is subject of in-
ternational law) ; Korowicz, supra, 50 Am. J. INT'L L.
at 537-39 (observing trend toward recognition of inter-
national personality of individuals, especially in their
assertion of rights). However, their discussions are more
prescriptive than descriptive; they recognize shifts in
firmly entrenched doctrine but are unable to define a
clear new consensus. And for each article sounding the
arrival of individual rights and duties under the law of
nations, another surveys the terrain and concludes that
there is a long distance to go. See, e.g., Brownlie, The
Place of the Individual in International Law, 50 VA. L.
REV. 435 (1964).
C. Whether Torture, Like Piracy, Is an Exception to
the Rule
One strand of individual liability apparently survived
the 19th century swing toward statism—private respon-
sibility for piracy. It remained, with only a handful of
other private acts, such as slave trading, as a confuta-
tion of the general principle of statism. See Korowicz,
supra, 50 Am. J. INT’L L. at 545, 558; cf. Lauterpacht,
The Subjects of the Law of Nations (pt. 2), 63 L.Q.
REV. 438, 441-42. Explanations of the basis for this con-
tinued recognition of individual responsibility vary. In
one view, these acts are private violations of the law of
nations, e.g., United States v. Smith, 18 U.S. (5 Wheat.)
153, 161-62 (1820). In another view, international law
OO ee Penne ee) ide
eae Te
45a
merely authorizes states to apply sanctions of their mu-
nicipal law, whatever the nationality of the offender.
“The state of the offender is not authorized to apply
normal consular or diplomatic protection. International
provisions against [acts such as piracy] .. . allow the
state which captures the offenders to proceed according
to its own internal law.” Korowicz, supra, 50 Am. J.
INT'L L. at 545. See also Harvard Research in Inter-
national Law, Piracy, 26 AM. J. INT’L L. Supp. 739, 754,
759-60 (1932) (piracy a special ground of state juris-
diction) ; see generally Dickinson, Is the Crime of Pi-
racy Obsolete?, 38 Harv. L. REv. 334 (1925) (discussing
doctrinal confusion about piracy as an international or
municipal crime).
It is worthwhile to consider, therefore, whether torture
today is among the handful of crimes to which the law of
nations attributes individual responsibility. Definitions
of torture set out in international documents suggest it
is not. For example, torture is defined in the Draft Con-
vention on the Elimination of Torture in part as any
act “by which severe pain or suffering” is inflicted,
“when such pain or suffering is inflicted by or at the in-
stigation of or with the consent or acquiescence of a pub-
lic official or other person acting in an official capacity.”
Report of the Working Group on a Draft Convention
against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (E/CN.4/L 1576) of 6 March
1981, reprinted in P. SIEGHART, supra note 20, § 14.3.5, at
162. Similarly, the United Nations General Assembly
definition requires that the actor be “a public official.”
See Declaration on the Protection of All Persons from
Being Subjected to Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, G.A. Res. 3452, 30
U.N. GAOR Supp. (No. 34) at 91-92, U.N. Doc.
A/10034 (1975), reprinted in P. SIEGHART, supra note
20, § 14.3.5, at 162. See also Blum & Steinhardt, supra
note 20, at 93, 95-96. Against this background, I do
46a
not believe the consensus on non-official torture war-
rants an extension of Filartiga. While I have little doubt
that the trend in international law is toward a more ex-
pansive allocation of rights and obligations to entities
other than states, I decline to read section 1350 to cover
torture by non-state actors, absent guidance from the
Supreme Court on the statute’s usage of the term “law of
nations.”
VII. TERRORISM AS A LAW OF NATIONS VIOLATION
I turn next to consider whether terrorism is itself a
law of nations violation. While this nation unequiv-
ocally condemns all terrorist attacks, that sentiment is
not universal. Indeed, the nations of the world are so
divisively split on the legitimacy of such aggression as to
make it impossible to pinpoint an area of harmony or
consensus. Unlike the issue of individual responsibility,
which much of the world has never even reached, ter-
rorism has evoked strident reactions and sparked strong
alliances among numerous states. Given this division,
I do not believe that under current law terrorist attacks
amount to law of nations violations.
To witness the split one need only look at documents
of the United Nations. They demonstrate that to some
states acts of terrorism, in particular those with po-
litical motives, are legitimate acts of aggression and
therefore immune from condemnation. For example, a
resolution entitled “Basic principles of the legal status of
the combatants struggling against colonial and alien
domination and racist regimes,” G.A. Res. 3108, 28 U.N.
GAOR at 512, U.N. Doc. A/9102 (1973), declared:
The struggle of peoples under colonial and alien
domination and racist regimes for the implementa-
25 At least one law review note has suggested that we decide
this case in favor of plaintiffs by identifying terrorism as a law
of nations violation. See Note, Terrorism as a Tort in Violation
of the Law of Nations, 6 ForDHAM INT'L L.J. 236 (1982).
47a
tion of their right to self-determination and inde-
pendence is legitimate and in full accordance with
the principles of international law.
It continued that armed conflicts involving such struggles
have the full legal status of international armed con-
flicts, and that violation of that status “entails full re-
sponsibility in accordance with norms of international
law.” Jd. at 518. See also Definition of Aggression, G.A.
Res. 3314, 29 GAOR Supp. (No. 31) at 142-44, U.N. Doe.
A/9631 (1974) (nothing in definition of term “aggres-
sion” should prejudice right of self-determination or
struggle, particularly of peoples under “colonial and ra-
cist regimes or other forms of alien domination”). In
contrast, there is of course authority in various docu-
ments and international conventions for the view that
terrorism is an international crime. Many Western na-
tions condemn terrorist acts, either generally, as in the
Convention to Prevent and Punish the Acts of Terrorism
Taking the Forms of Crime Against Persons and Related
Extortion That Are of International Significance, or
with reference to particular terrorist acts, as in the In-
ternational Convention Against the Taking of Hoy .ages,*"
or the Hague Convention on the Suppression of Unlaw-
ful Seizure of Aircraft.** See also R. FRIEDLANDER,
TERROR-VIOLENCE: ASPECTS OF SOCIAL CONTROL 38
(1983) (describing the international division on the le-
gitimacy of terrorist acts); see generally R. LILLICH,
TRANSNATIONAL TERRORISM : CONVENTIONS AND COMMEN-
TARY (1982).
26 Signed Feb. 2, 1971, 27 U.S.T. 3949, T.I.A.S. No. 8413 (entered
into force for United States Oct. 20, 1976).
27 Adopted Dec. 17, 1979, G.A. Res. 34/146, 34 U.N. GAOR Supp.
(No. 39), U.N. Doc. A/34/819 (1979).
28 Signed Dec. 16, 1970, 22 U.S.T. 1641, T.I.A.S. No. 7192, 860
U.N.T.S. 105 (entered into force for United States Oct. 18, 1971).
48a
The divergence as to basic norms of course reflects a
basic disagreement as to legitimate political goals and
the proper method of attainment. Given such dis-
harmony, I cannot conclude that the law of nations—
which, we must recall, is defined as the principles and
rules that states feel themselves bound to observe, and do
commonly observe *—outlaws politically motivated ter-
rorism, no matter how repugnant it might be to our
own legal system.
VIII. My COLLEAGUES’ OPINIONS
My colleague Judge Robb argues that this case is a
nonjusticiable “political question” and that it therefore
was properly dismissed. With all due respect, I disagree
with this approach to appellate adjudication. A judge
should not retreat under facile labels of abstention or
nonjusticiability, such as the “political question doctrine,”
merely because a statute is ambiguous. In the words of
one eminent jurist, “[o] bscurity of statute or of precedent
or of customs or of morais, or collision between some or
all of them, may leave the law unsettled, and cast a duty
upon the courts to declare it retrospectively in the exer-
cise of a power frankly legislative in function.” B. CarR-
pozO, THE NATURE OF THE JUDICIAL PROCESS 128 (1921)
(emphasis added). Or, as another jurist framed the is-
sue, “The intrinsic difficulties of language and the emer-
gence after enactment of situations not anticipated by the
most gifted legislative imagination, reveal doubts and
ambiguities in statutes that compel judicial construction.”
Frankfurter, Some Reflections on the Reading of Statutes,
47 CoLum. L. REv. 527, 529 (1947).
Nonjusticiability based upon “political question” is at
best a limited doctrine, and it is wholly inapposite to this
case. In Baker v. Carr, 369 U.S. 186 (1962), the Supreme
Court held that the question whether a state legislative
28 1 C. HYDE, supra note 22, at 1.
49a
district apportionment plan violates the Constitution is
not a political question and therefore not nonjusticiable.
In so doing, the Court rejected the notion that the doc-
trine rendered nonjusticiable all “poiitical cases”’—a doc-
trine advanced by Justice Frankfurter writing for a
plurality of the Court in Coleyrove v. Green, 328 U.S. 549
(1946). Instead, it observed, the nonjusticiability of a
question is “essentially a function of the separation of
powers.” 369 U.S. at 217. The Court then identified sev-
eral categories of political questions:
Prominent on the surface of any case held to involve
a political question is found a textually demonstrable
constitutional commitment of the issue to a coordi-
nate political department; or lack of judicially dis-
coverable and manageable standards for resolving it;
or the impossibility of deciding without an initial
policy determination of a kind clearly for nonjudiciat
discretion; or the impossibility of a court’s undertak-
ing independent resolution without expressing lack of
the respect due ccordinate branches of government;
or an unusual need for unquestioning adherence to
a political decision already made; or the potentiality
of embarrassment from multifarious pronouncements
by various departments on one question.
Id. The opinion also observed that the doctrine in no re-
spect requires that all questions implicating foreign af-
fairs be ruled political questions. 7d. at 211.
Subsequently Justice Brennan, the author of Baker v.
Carr, emphasized the narrowness of the political question
doctrine as it applies to matters of foreign relations. Dis-
senting in Goldwater v. Carter, 444 U.S. 996, 1006
(1979)—in which only four Justices agreed that a Con-
gressman’s challenge to the President’s Taiwan treaty
termination presented a nonjusticiable political question—
Justice Brennan explained, “Properly understood, the
political-question doctrine restrains courts from reviewing
50a
an exercise of foreign policy judgment by the coordinate
pulitical branch to which authority to make that judg-
ment has been ‘constitutional[ly] commit[ted].’” Jd. at
1006 (quoting Baker v. Carr, 369 U.S. 186, 211-13
(1962) (brackets in original). I simply do not believe
that the doctrine in either of these narrow formulations
counsels a finding of nonjudiciability in this case.
Initially, the action before us does not implicate sepa-
ration of powers principles, and therefore is not even
related to the central concern of the political question
doctrine. See Baker v. Carr, 369 U.S. at 210, 217. We
have here no clash between two branches of government
that requires us to resolve the apportionment of power
between them. Nor do we potentially transgress by re-
viewing any exercise of authority by another branch of
government, much less one committed to another branch
by the Constitution. Far from it, in fact; in implement-
ing section 1350, courts merely carry out the existing
view of the legislature that federal courts should entertain
certain actions that implicate the law of nations.*® More-
30 To the extent that Judge Robb’s reliance on political question
principles arises from his concern about court intervention in
foreign affairs, the Act of State Doctrine delineates the bounds of
proper judicial restraint. The doctrine arises in cases which,
uncer Judge Robb’s formula, would be deemed political question
cases. Yet, we cannot ignore the fact that they are not treated
as political question cases and ruled nonjusticiable.
The doctrine applies only to judicial review of the acts of
recognized foreign governments committed within their own ter-
ritory. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398,
428 (1964). It is, in effect, a doctrine of deference, requiring that
courts not second-guess the judgments of such sovereigns in a
category of contexts. When a § 1350 action implicates such action
by a recognized sovereign, the Act of State Doctrine might bar
further inquiry. Such is not the case here. Similarly, the Foreign
Sovereign Immunities Act restrains courts from asserting juris-
diction, but again, only to the extent Congress has deemed appro-
priate. Considering that the Supreme Court—in the Act of State
Doctrine—and the Congress—in the Foreign Sovereign Immunities
5la
over, none of the categories identified in Baker is appli-
cable here. We do not lack judicially discoverable and
manageable standards. The parties do not invoke consti-
tutional or statutory provisions that resist judicial appli-
cation. The Supreme Court, in The Paquete Habana, ex-
plicitly acceded to the task of applying the law of nations
and instructed lower courts on how to approach the task
of discovering it. I therefore can hardly conclude that
courts lack the means of determining what standards to
apply. That the task might be difficult should in no way
lead to the conclusion that it should not be accomplished.
Nor do I believe either that any of the other concerns in
Baker arise here.**
I note, in addition, that to expand the doctrine at this
juncture would be to counter the movement of courts and
scholars in the opposite direction. Indeed, commentators
have noted the “judicial indifference and scathing schol-
Act—have each delimited the scope of necessary judicial restraint
in cases involving foreign affairs, I am not inclined to fashion
yet another doctrine of nonjusticiability simply because this case,
and the intricacies of the law of nations, are not of easy resolu-
tion or implicate foreign affairs generally.
31 This case therefore is distinguishable “rom Crockett v. Reagan,
720 F.2d 1355 (D.C. Cir. 1983), in whic a panel of this court
recently affirmed the dismissal of an action on political question
grounds. In Crockett, we held that the inquiry into whether United
States advisers stationed in El Salvador were in a situation of
imminent hostilities was beyond the fact-finding power of this court
and hence constituted a political question. That case, unlike this
one, involved the apportionment of power between the executive
and legislative branches. The case was brought by a group of
Congressmen challenging the President’s failure to report té Con-
gress under the War Powers Resolution. Our opinion adopted that
of the District Court, which had articulated an extremely narrow
view of the political question doctrine. Even within that narrow
view, it was apparent that Baker v. Carr’s category of “judicially
discoverable and manageable standards” would bar judicial inter-
ference in the dispute between the two branches. Here we have no
such dispute and no such fact-finding problems and, therefore, no
legitimate grounds for a finding of nonjusticiability.
52a
arly attack” recently directed at the political question
doctrine, see McGowan, Congressmen in Court, 15 GA. L.
REv. 241, 256 (1981). As Judge McGowan has noted,
other than the Taiwan treaty case, Goldwater v. Carter,
444 U.S. 996 (1979), the last Supreme Court case to cite
the doctrine in any meaningful way was Gilligan v. Mor-
gan, 413 U.S. 1 (1973), and the last Supreme Court case
to rely squarely on it was Colegrove v. Green, 328 U.S.
549 (1946). See McGowan, supra, at 256-57.
It is therefore clear that the political question doctrine
is a very limited basis for nonjusticiability. It certainly
does not provide the judiciary with a carte blanche license
‘to block the adjudication of difficult or controversial cases.
And the doctrine surely may not be employed here to
vitiate section 1350.
I decline to address further Judge Bork’s critique of
my opinion. He has completely misread my opinion to say
that the primary purpose of section 1350 was to authorize
courts to “regulate the conduct of other nations and in-
dividuals abroad, conduct without an effect upon the in-
terests of the United States.” I only wish the issues posed
were so simple. Judge Bork seriously distorts my basic
premises and ignores my expressed reservations. Accord-
ingly, I prefer to let this opinion speak for itself, in the
belief that it belies my colleague’s mischaracterizations,
and that any further exposition would be redundant.
IX. CONCLUSION
In light of the foregoing, I conclude that the appel-
lants have not, and could not, allege facts sufficient to re-
main in court under existing precedent. I therefore vote
to affirm the District Court’s dismissal for lack of sub-
ject matter jurisdiction.
53a
Bork, Circuit Judge, concurring: This case grows out
of an armed attack on a civilian bus in Israel on March
11, 1978. Appellants (plaintiffs below) are sixty-five of the
persons seriously injured in the attack and the survivors
of twenty-nine of the persons killed. Appellees (defendants
below) are the Libyan Arab Republic (“Libya”), the
Palestine Liberation Organization (‘“‘PLO’’), the Palestine
Information Office (“PIO”), and the National Associa-
tion of Arab Americans (““NAAA”).' Appellants alleged
in their complaint that appellees were responsible for the
1978 attack, and they sought compensatory and punitive
damages. Specifically, appellants charged appellees with
torts committed in violation of international law and of
some treaties and statutes of the United States as well as
with commission of and conspiracy to commit various in-
tentional common law torts. Jurisdiction over the com-
mon law tort counts is pendent and will fail if the other
counts fail.
The district cour: dismissed the action for lack of sub-
ject matter jurisdiction.2 Hanoch Tel-Oren v. Libyan Arab
Republic, 517 F.Supp. 542 (D.D.C. 1981). We agree that
the complaint must be dismissed, although our reasons for
agreement differ. I believe, as did the district court, that,
in the circumstances presented here, appellants have failed
to state a cause of action sufficient to support jurisdiction
1 Appellants have not pursued the appeal against a fifth defend-
ant named in the complaint, the Palestine Congress of North
America (“PCNA”).
2 The district court dismissed the action against all defendants
on the alternative ground that it was barred by the local one-year
statute of limitations for certain torts. D.C. Code Ann. § 12-301(4)
(1981). Hanoch Tel-Oren vy. Libyan Arab Republic, 517 F. Supp.
542, 550-51 (D.D.C. 1981). Because we agree that the complaint
was properly dismissed on other grounds, we need not reach this
ground. Nor need we reach the district court’s dismissal of the
action against the NAAA and PIO (as well as the PCNA) on the
ground that the allegations of the complaint were insufficiently
specific. See note 4 infra.
54a
under either of the statutes on which they rely. 28 U.S.C.
§$§ 1331, 1350 (1976 & Supp. V 1981).* Neither the law
of nations nor any of the relevant treaties provides a
cause of action that appellants may assert in courts of
the United States. Furthermore, we should not, in an
area such as this, infer a cause of action not explicitly
given. In reaching this latter conclusion, I am guided
chiefly by separation of powers principles, which caution
courts to avoid potential interference with the political
branches’ conduct of foreign relations.
I.
According to the complaint, on March 8, 1978, thir-
teen heavily armed members of the PLO left Lebanon for
Israel. They were under instructions from the PLO to
seize and hold Israeli civilians in ransom for the release
of PLO members incarcerated in Israel jails. If their
plans broke down, the terrorists were to kill their
hostages.
The complaint’s allegations of what happened upon
the terrorists’ arrival in Israel constitute a tale of horror.
Since my analysis does not turn upon the particulars of
those events, they need not be described in detail. The
thirteen terrorists landed by boat and, after killing an
American photographer they encountered on the beach,
made their way to the main highway betwen Haifa and
Tel Aviv. There they stopped and seized a civilian bus,
a taxi, a passing car, and, later, a second civilian bus,
taking the passengers hostage. While proceeding toward
Tel Aviv with their many hostages gathered in the first
bus, the terrorists fired on and killed numerous occu-
pants of passing cars as well as some of their own pas-
sengers. They also tortured some of their hostages.
3In tne district court, appellants also argued that jurisdiction
rested on 28 U.S.C. § 1830 (1976) (Foreign Sovereign Immunities
Act) and on 28 U.S.C. § 1332 (1976) (diversity). The district
court rejected both grounds of jurisdiction, 517 F. Supp. at 549
n.3, and appellants have abandoned them on appeal.
55a
The police finally brought the terrorist-controlled bus
to a halt by shooting at the tires and engine of the bus
as it passed through a police barricade. The terrorists
reacted by shooting a number of their hostages and,
eventually. by blowing up the bus with grenades. As a
result of the terrorists’ actions, twenty-two adults and
twelve children were killed, and sixty-three adults and
fourteen children were seriously wounded.
Appellants in this case are most of those wounded and
the survivors of most of those killed, as well as the
guardians and next friends of those wounded minors
who may not sue in their own capacity. Appellants al-
leged their complaint that appellees are responsible for
the deaths and injuries. According to the complaint’s
allegations, the PLO not only recruited and trained the
thirteen terrorists but also planned, financed, supplied,
and “claimed responsibility” for the operation. Libya,
plaintiffs alleged, trained the PLO instructors who
trained the thirteen terrorists, planned, supplied, fi-
nanced, and “claimed responsibility” for the operation,
and gave an official “hero’s welcome” to the ship that
carried the terrorists to Israel. As for the PIO and the
NAAA, the complaint contains only the general allega-
tions that the PIO is an agent and the instrumentality of
the PLO and that both the PIO and the NAAA helped
plan, finance, outfit, and direct the terrorist operation.*
Though the complaint sought recovery under five
theories of liability, only two need be considered to de-
cide this appeal. Count II charges defendants with tor-
tious actions in violation of the law of nations. Count
III charges defendants with tortious actions in violation
*The district court found the complaint’s allegations against
the PIO and the NAAA (and against the PCNA) insubstantial,
vague, and devoid of any factual detail. It therefore held those
allegations insufficient to support a tort action for damages. 517
F. Supp. at 549.
564 |
of various treaties of the United States.. The district
court granted the NAAA’s motion to dismiss for lack
of jurisdiction. The portion of the district court’s in-
quiry that is relevant here is whether the allegations of
Counts II and III sufficed to support jurisdiction under
sections 1331 or 1350.
Section 1331 provides: “The district courts shall have
original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United States.”
Section 1350 provides: “The district courts shall have
original jurisdiction of any civil action by an alien for
a tort only, committed in violation of the law of nations
or a treaty of the United States.” With respect to Count
III’s allegation of treaty violations, the district court
found jurisdiction lacking on the ground that none of
the treaties alleged to be violated either expressly or im-
pliedly gave rise to a private right of action. 517 F.
Supp. at 545-48. With respect to Count II’s allegation
that appellees violated the law of nations, the district
court held that neither section 1331 nor section 1350
provided jurisdiction. Section 1331 jurisdiction is lack-
ing, the court held, because federal common law, which
incorporates the law of nations, cannot be constituted to
grant a cause of action without “judicial interference
5 Count I charges defendants with the torts of assault, battery,
false imprisonment, and intentional infliction of mental distress;
it also charges defendants with a tort it describes as the intentional
infliction of cruel, inhuman, and degrading treatment. Count IV
charyes defendants with tortious actions in violation of various
criminal laws of the United States. Count V charges defendants
with conspiracy to commit the torts specified in Counts I through
IV.
The district court dismissed Count IV on tlie ground that none
of the federal statutes relied on by plaintiffs, 18 U.S.C. §§ 371, 956-
957, 960, 1651-1652, 1654, 1661 (1976), provides a private right of
action for damages. 517 F. Supp. at 545. Appellants have not
appealed this ruling. Counts I and V provide no independent basis
for federal jurisdiction under the two statutes alleged to vest the
district court with jurisdiction. 28 U.S.C. §§ 1331, 1350 (1976 &
Supp. V 1981).
57a
with foreign and international relations.” 517 F. Supp.
at 548. Section 1350 jurisdiction is lacking, the district
court held, for the same reason: International human
rights law grants no private right of action, and section
1350, like section 1331, must be interpreted narrowly
to require such a right in suits for violation of interna-
tional law. 517 F. Supp. at 549-50.
In this appeal, appellants agree with the district court
that, for purposes of the issues raised in this case, the
jurisdictional requirements of sections 1331 and 1350
are the same. See Brief for Appellants at 35-36; 517
F. Supp. at 549 n.2 (“[P]laintiffs themselves recognize
that the jurisdictional bases of § 1331 and § 1350 are
identical as to the role of the law of nations.’’). Con-
trary to the holding of the district court, however, they
contend that at least some of the treaties they cite in
their complaint impliedly provide private rights of ac-
tion for the claims in Count III and that federal com-
mon law provides private rights of action for the claims
in Count II. Thus, appellants argue, section 1350 gives
jurisdiction over the claims of the alien plaintiffs and
section 1331 gives jurisdiction over the claims of all the
plaintiffs, including those who are United States citizens.®
For the reasons given below, appellants’ contentions
must be rejected. I first consider separation of powers
principles that counsel courts, in a case like this, not to
infer any cause of action not expressly granted. I then
show that the treaties on which appellants rely create
no private causes of action. Turning next to appellants’
claim under general principles of international law, I
conclude that federal common law does not automatically
accord appellants a cause of action and that appellants
have not been granted a cause of action by federal stat-
ute or by international law itself. Finally, in order to
® The Tel-Oren plaintiffs are citizens of the United States, and
the Drory plaintiffs are citizens of the Netherlands. The other
plaintiffs are citizens of Israel. All the plaintiffs reside in Israel.
58a
clarify what I believe we should and should not have
decided, I discuss the recent decision of the Second Cir-
cuit in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.
1980), a case having some similarities to this one.
Il.
The question in this case is whether appellants have
a cause of action in courts of the United States for in-
juries they suffered in Israel. Judge Edwards contends,
and the Second Circuit in Filartiga assumed, that Con-
gress’ grant of jurisdiction also created a cause of ac-
tion. That seems to me fundamentally wrong and cer-
tain to produce pernicious results. For reasons I will
develop, it is essential that there be an explicit grant of
a cause of action before a private plaintiff be allowed to
enforce principles of international law in a federal tri-
bunal. It will be seen below, however, that no body of
law expressly grants appellants a cause of action; the
relevant inquiry, therefore, is whether a cause of action
is to be inferred. That inquiry is guided by general
principles that apply whenever a court of the United
States is asked to act in a field in which its judgment
would necessarily affect the foreign policy interests of
the nation.
The Supreme Court explained in Davis v. Passman,
442 U.S. 228 (1979), that to ask whether a particular
plaintiff has a cause of action is to ask whether he “is
a member of the class of litigants that may, as a matter
of law, appropriately invoke the power of the court.”
Id. at 240 n.18. The Court said that the “question of
who may enforce a statutory right is fundamentally dif-
ferent from the question of who may enforce a right
that is protected by the Constitution.” Jd. at 241 (em-
phasis in original). In addressing the question, as the
Davis opinion itself makes clear, the focus may be at
least as much on the character of the issues presented
for decision as on the character of the class of litigants
59a
‘seeking an adjudication, and the result of the inquiry
might well be that certain claims cannot be litigated at
all in certain forums.
This case presents a question not covered by the anal-
yses described by the Davis court for statutory and con-
stitutional causes of action. An analysis of the appropri-
ateness of providing appellants with a cause of action
must take into account the concerns that are inherent
in and peculiar to the field of international relations.
My assessment of those concerns leads me to a conclusion
different from that reached in Davis, for here there ap-
pear to be “special factors counselling hesitation in the
absence of affirmative action by Congress.” Bivens Vv.
Six Unknown Named Agents of Federal Bureau of Nar-
cotics, 403 U.S. 388, 396 (1971). The factors counselling
hesitation are constitutional; they derive from principles
of separation of powers.
The crucial element of the doctrine of separation of
powers in this case is the principle that “[t]he conduct
of the foreign relations of our Government is committed
by the Constitution to the Executive and Legislative—
‘the political’—Departments.” Oe¢etjen v. Central Leather
Co., 246 U.S. 297, 302 (1918). That principle has been
translated into a limitation on judicial power in the
international law area principally through the act of
state and political question doctrines. Whether or not
this case falls within one of these categories, the con-
cerns that underlie them are present and demand recogni-
tion here.
“The act of state doctrine in its traditional formula-
tion precludes the courts from inquiring into the validity
of the public acts a recognized foreign sovereign power
committed within its own territory.” Banco Nacional de
Cuba v. Sabbatino, 376 U.S. 398, 401 (1964). Origi-
nally, the doctrine rested primarily on notions of sover-
eignty and comity. See Underhill v. Hernandez, 168
60a
U.S. 250, 252 (1897). In more recent formulations, there
has been “a shift in focus from the notions of sovereignty
and the dignity of independent nations . . . to concerns
for preserving the ‘basic relationships between branches
of government in a system of separation of powers,’ and
not hindering the executive’s conduct of foreign policy
by judicial review or oversight of foreign acts.” Mann-
ington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287,
1292 (3d Cir. 1979) (quoting Sabbatino, 376 U.S. at
423).
The Sabbatino Court explained that, although the Con-
stitution does not compel the act of state doctrine, the
doctrine has “ ‘constitutional’ underpinnings. It arises
out of the basic relationships between branches of gov-
ernment in a system of separation of powers. It concerns
the competency of dissimilar institutions to make and
implement particular kinds of decisions in the area of
international relations.” 376 U.S. at 423. The Court em-
phasized the separation of powers basis for the doctrine
when it observed that the doctrine’s “continuing vitality
depends on its capacity to reflect the proper distribution
of functions between the judicial and political branches
of the Government on matters bearing upon foreign af-
fairs.” Jd. at 427-28. In its principal post-Sabbatino
act of state case, the Supreme Court again stressed the
centrality of separation of powers concerns: “The major
underpinning of the act of state doctrine is the policy
of foreclosing court adjudications involving the legality
of acts of foreign states on their own soil that might
embarrass the Executive Branch of our Government in
the conduct of our foreign relations.” Alfred Dunhill
of London, Inc. v. Cuba, 425 U.S. 682, 697 (1976).’
7™The Supreme Court also discussed the act of state doctrine
in First National City Bank v. Banco Nacional de Cuba, 406 U.S.
759 (1972), but the case produced no majority opinion. Nonethe-
less, all of the Justices except Justice Douglas, who scarcely ad-
dressed the act of state doctrine, stated that judicial abstention
6la
The cuurts of appeals have likewise emphasized the de-
cisive role played, in applying the doctrine, by the two
relevant aspects of separation of powers: the potential
for interference with the political branches’ functions
and the fitness of an issue for judicial resolution. See,
e.g., International Association of Machinists & Aero-
space Workers v. OPEC, 649 F.2d 1854, 1858-61 (9th
Cir. 1981), cert. denied, 454 U.S. 1163 (1982); Mann-
ington Mills, Inc. v. Congoleum Corp., 595 F.2d at 1292-
93; Hunt v. Mobil Oil Corp., 550 F.2d 68, 77-79 (2d
Cir.), cert. denied, 484 U.S. 984 (1977); Timberlane
from pronouncing judgment on the validity of a foreign act of state
turns on separation of powers concerns.
Four Justices said that application of the act of state doctrine
depends chiefly on the potential for interference with, or usurpa-
tion of, the political branches’ primary role in foreign affairs.
Justice Rehnquist, joined by Chief Justice Burger and Justice
White, stated: “The line of cases from this Court establishing the
act of state doctrine justifies its existence primarily on the basis
that juridical review of acts of state of a foreign power could
embarrass the conduct of foreign relations by the political branches
of the government.” 406 U.S. at 765 (Opinion of Rehnquist, J.).
He also stated: “The act of state doctrine is grounded on judicial
concern that application of customary principles of law to judge
the acts of a foreign sovereign might frustrate the conduct of
foreign relations by the political branches of the government.” /d.
at 767-68. Justice Powell, writing separately, echoed these views.
The act of state doctrine, he said, bars adjudication when and only
when “it appears that an exercise of jurisdiction would interfere
with delicate foreign relations conducted by the political branches.”
Id. at 775-76 (Powell, J., concurring in the judgment).
Justice Brennan, joined by Justices Stewart, Marshall, and
Blackmun, disagreed with the view that the act of state doctrine
was exclusively concerned with interference with other branches’
conduct of foreign relations. Rather, he wrote, the act of state
doctrine is one part of the political question doctrine and therefore
depends for its application on a variety of considerations, no one
of which—not even the Executive’s declaration that adjudication
will not interfere with foreign relations—can be conclusive on the
ultimate determination whether an issue is fit for judicial resolu-
tion. 406 U.S. at 785-98 (Brennan, J., dissenting).
62a
Lumber Co. v. Bank of America, N.T. & S.A., 549 F.2d
597, 605-08 (9th Cir. 1976).
The same separation of powers principles are reflected
in the political question doctrine. The Supreme Court
gave that doctrine its modern formulation in Baker V.
Carr, 369 U.S. 186, 217 (1962):
Prominent on the surface of any case held to in-
volve a political question is found a textually demon-
strable constitutional commitment of the issue to
a coordinate political department; or a lack of ju-
dicially discoverable and manageable standards for
resolving it; or the impossibility of deciding without
an initial policy determination of a kind clearly for
nonjudicial discretion; or the impossibility of a
court’s undertaking independent resolution without
expressing lack of the respect due coordinate branches
of government; or an unusual need for unquestion-
ing adherence to a political decision already made;
or the potentiality of embarrassment from multi-
farious pronouncements by various departments on
one question.
Questions touching on the foreign relations of the United
States make up what is likely the largest class of ques-
tions to which the political question doctrine has been
applied. See id. at 211-14. If it were necessary, I might
well hold that the political question doctrine bars this
lawsuit, since it is arguable, as much of the remainder
of this opinion will show, that this case fits several of
the categories listed in Baker v. Carr. Such a determina-
tion is not necessary, however, because many of the same
considerations that govern application of the political
question doctrine also govern the question of the ap-
propriateness of providing appellants with a cause of
action.®
8 A plaintiff who has no cause of action is, according to Davis v.
Passman, 442 U.S. at 240 n.18, not entitled to “invoke the power
63a
Neither is there a need to consider whether the act of
state doctrine applies to bar this case from going for-
ward. Although the act of state doctrine might well ap-
ply to Libya’s alleged role in the 1978 bus attack, it
would seem not to apply, in its current formulation, to
the alleged acts of the PLO, the PIO, and the NAAA,
none of which would seem to be a state under interna-
tional law. See Kassim, The Palestine Liberation Or-
ganization’s Claim to Status: A Juridical Analysis Un-
of the court.” He is not entitled to a pronouncement on the legal
merits of his claim. In that respect he is more like a plaintiff who
lacks standing than he is like a plaintiff facing a motion to dismiss
for failure to state a claim. That is especially true in a case like
this, where judicial consideration of the legal merits is of consti-
tutional concern, so that parties should not be able to waive the
claim that no cause of action exists. In these circumstances,
whether a cause of action exists is a threshold issue that involves
a question of the limits of judicial powers.
I do not conceive that, in a case like this, the political question
doctrine must be considered first because it is jurisdictional. The
jurisdictional aspect of that doctrine extends no further than its
rationale: to prevent courts from reaching the merits of issues
that, for a variety of reasons, are not theirs to decide. Baker v.
Carr, 369 U.S. at 217. By deciding that there is no private cause
of action here we do not reach substantive issues that are best
decided by the political branches. It may be, moreover, that while
the existence of a cause of action is not a jurisdictional issue in
the ordinary case, it is, or is closely akin, to a jurisdictional issue
when its decision implicates, as here, considerations linked to the
proper exercise of the judicial power granted by Article IU of the
Constitution. It is probably better not to invoke the political ques-
tion doctrine in this case. That the contours of the doctrine are
murky and unsettled is shown by the lack of consensus about its
meaning among the members of the Supreme Court, see Goldwater
v. Carter, 444 U.S. 996 (1979), and among scholars, see, é.g.,
Henkin, Js There A “Political Question” Doctrine?, 85 Yale LJ.
597, 622-28 (1976). Given this situation, I would rather not decide
whether a political question is involved in a case where that issue
has not been briefed and argued. By contrast, the grounds upon
which I do decide were thoroughly explored through vigorous ad-
versarial presentations.
64a
der International Law, 9 Den. J. Int’! L. & Pol’y 1, 2-3
(1980) .° Nevertheless, to the extent the act of state doc-
trine is based predominantly, if not exclusively, on sep-
aration of powers concerns (as it has increasingly come
to be), its own rationale might justify extending it to
cover the acts of such entities as the PLO where ad-
judication of the validity of those acts would present
problems of judicial competence and of judicial inter-
ference with foreign relations. Such an extension would
bring the act of state doctrine closer, especially in its
flexibility, to the political question doctrine. Cf. First
National City Bank v. Banco Nacional de Cuba, 406 U.S.
759, 785-93 (1972) (Brennan, J., dissenting) (act of
state doctrine as elaborated in Sabbatino equivalent to
political question doctrine). Whether the two doctrines
should be merged and how, if merged, they would apply to
the allegations of appellants’ complaint are issues beyond
the scope of our inquiry. Instead, those doctrines are
drawn upon for what they say about the separation of
powers principles that must inform a determination of
the appropriateness of appellants’ litigating their claims
in federal court.
Those principles counsel against recognition of a cause
of action for appellants if adjudication of their claims
would raise substantial problems of judicial interference
with nonjudicial functions, such as the conduct of foreign
relations. Appellants’ complaint requires a determination,
either at the jurisdictional stage or at the stage of defin-
®“The state as a person of international law should possess
the following qualifications: a) a permanent population; b) a de-
fined territory; c) government; and d) capacity to enter into rela-
tions with the other states.” Convention on Rights and Duties of
States, Dec. 26, 1933, art. 1, 49 Stat. 3097, T.S. No. 881, 165 L.N.T:S.
19. See also Restatement (Second) of the Foreign Relations Law
of the United States § 4 (1965). Furthermore, the act of state
doctrine would still not apply, even if the PLO is said to have been
the agent of Libya, since the attack did not take place “within
[Libya’s] own territory.” Sabbatino, 376 U.S. at 401.
65a
ing and applying a rule of decision, whether international
law has been violated.” I am therefore guided in large
measure by the Supreme Court’s observation in Sabbatino
that
the greater the degree of codification or consensus
concerning a particular area of international law,
the more appropriate it is for the judiciary to render
decisions regarding it, since the courts can then focus
on the application of an agreed principle to circum-
stances of fact rather than on the sensitive task of
establishing a principle not inconsistent with the na-
tional interest or with international justice. It is also
evident that some aspects of international law touch
more sharply on national nerves than do others; the
less important the implications of an issue are for
our foreign relations, the weaker the justification for
exclusivity in the political branches.
376 U.S. at 428. There is no need to decide here under
what circumstances considerations such as these might
deprive an individual of a cause of action clearly given
by a state, by Congress, by a treaty, or by international
10Tf jurisdiction rested on section 1331, at least one necessary
rule of decision would have to be supplied by international law, the
federal law under which the case arose. See Francise Tax Board
v. Construction Laborers Vacation Trust for Southern California,
103 S. Ct. 2841, 2846-48 (1983). If jurisdiction rested on section
1350, there are three arguable theories about what law would
supply the rule of decision. The rule of decision might be the inter-
national law (treaty or customary international law) violated; it
might be a federal common law of torts; or it might be the tort
law of whatever jurisdiction applicable choice of law principles
would point to. Cf. Blum & Steinhardt, Federal Jurisdiction over
International Human Rights Claims: The Alien Tort Claims Act
after Filartiga v. Pena-Irala, 22 Harv. Int'l L.J. 53, 99-100 (1981).
Under the latter two constructions, of course, whether international
law was violated would have to be decided as a jurisdictional
prerequisite.
66a
law.'' In the absence of such a cause of action, they lead
to the conclusion that adjudication of appellants’ claims
would present grave separation of powers problems. It is
therefore inappropriate to recognize a cause of action
allowing appellants to bring this suit.”
Most important, perhaps, even appellants concede that
the incidents described in appellants’ complaint are prop-
erly understood only when viewed in the context of the
continuing conflicts in the Middle East. Indeed, appel-
lants point out that “[o]ne of the primary purposes of
the March 11 attack was to sabotage the foreign rela-
tions of the United States and its negotiations by destroy-
ing the positive efforts made in the Camp David accords.”
Brief for Appellants at 15. The Camp David Accords, of
course, were but one of the major efforts made by the
United States to resolve the myriad problems behind the
series of military and political conflicts that have kept
the Middle East at or near the center of American foreign
relations for at least the last fifteen years. A judicial
pronouncement on the PLO’s responsibility for the 1978
bus attack would likely interfere with American diplo-
macy, which is as actively concerned with the Middle East
today as it has ever been.”
11 A state-court suit that involved a determination of inter-
national law would require consideration of much that I discuss
here as well as the principle that foreign relations are constitu-
tionally relegated to the federal government and not the states.
See Zschernig v. Miller, 389 U.S. 429 (1968).
12The existence of severe separation of powers problems in
adjudicating appellants’ claims reinforces my conclusion, see infra
pp. 99-96, that international law affords appellants no cause of
action. The potential for interference with governments conducting
their foreign relations is central both to separation of powers
limits on jurisdiction and to international law’s general refusal
to grant private rights of action. The existence of such a potential
in any case must count strongly against international law’s pro-
viding a private right of action for that case.
13 Libya must be dismissed from the case because the Foreign
Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602-1611 (1976),
67a
The potential for interference with foreign relations is
not diminished by the PLO’s apparent lack of interna-
tional law status as a state. Nor does it matter whether
the Executive Branch officially recognizes, or has direct
dealings with, the PLO. The fact remains that the PLO
bears significantly upon the foreign relations of the
United States. If any indication of that role is needed, it
is provided by the official “observer” status that the PLO
has been accorded at the United Nations, G.A. Res. 3237,
29 U.N. GAOR Supp. (No. 31) at 4, U.N. Doc. A/9631
(1974), as well as by the diplomatic relations that the
PLO is reported to have with some one hundred countries
around the world, see Kassim, supra, 9 Den. J. Int’] L. &
Pol’y at 19; Friedlander, The PLO and the Rule cf Law:
A Reply to Dr. Anis Kassim, 10 Den. J. Int’] L. & Pol’y
221, 232 (1981).
The nature of appellants’ international law claims pro-
vides a f::rther reason for reluctance to recognize a cause
of action for appellants. Adjudication of those claims
would require the analysis of international legal princi-
ples that are anything but clearly defined and that are
the subject of controversy touching “sharply on national
nerves.” Banco Nacional de Cuba v. Sabbatino, 376 U.S.
at 428. The Sabbatino Court warned against adjudica-
tion of such international law issues. Id. Because I
plainly deprives us of jurisdiction over Libya. See Verlinden B.V.
v. Central Bank of Nigeria, 103 S. Ct. 1962 (1983) (court must
decide immunity question, which is jurisdictional). Because the
alleged actions of the PIO and the NAAA all involve giving assist-
ance to the PLO’s alleged actions, an adjudication of the claims
against them would require adjudication of the claims against the
PLO. If, as I conclude, the latter presents sufficiently serious prob-
lems that no cause of action can be inferred, so too must the former.
I therefore concern myself only with the PLO. Of course, adjudica-
tion of the complaint against Libya would present many of the
same separation of powers problems as would adjudication of the
complaint against the other defendants.
68a
believe that judicial pronouncements on the merits of this
case should be avoided, I mention only briefly some of the
difficulties raised by some of the claims in appellants’
complaint.
Appellants would have to argue, if their case were
adjudicated, for an exception to the general rule that
international law imposes duties only on states and on
their agents or officials. See L. Henkin, R. Pugh, O.
Schachter & H. Smit, International Law, 246-47 (1980) ;
Restatement of the Foreign Relations Law of the United
States (Revised) § 101, at 21 (Tent. Draft No. 1, 1980)
(“ ‘International law’ . . . deals with the conduct of states
and of international organizations, and with their rela-
tions inter se, as well as some of their relations with
persons, whether natural or juridical.”) ; id. §§ 701-722,
at 137-257 (Tent. Draft No. 3, 1982) (stating interna-
tional law protections of persons solely in terms of state
obligations). If, as would appear, the PLO is not a state,
a finding that it should nonetheless be held to the duties
imposed by the customary rules of international law
governing the conduct of belligerent nations, e.g., Geneva
Convention for the Protection of Civilian Persons in Time
of War, Aug. 12, 1949, art. 3, 6 U.S.T. 3516, T.LA.S. No.
3365, 75 U.N.T.S. 287; Protocols I and II of the Geneva
Convention of 12 August 1949, June 7, 1977, Diplomatic
Conference on Reaffirmation and Development of Inter-
national Humanitarian Law Applicable to Armed Con-
flicts, reprinted in 16 I.L.M. 1891, 1443 (1977), would
not entail merely the application of an agreed principle
to new facts. Rather, a finding that because of its gov-
ernmental aspirations and because of the role it has
played in the Middle East conflicts the PLO should be
subject to such rules would establish a new principle of
international law. Likewise, to interpret various human
rights documents as imposing legal duties on nonstates
like the PLO would require both entering a new and
69a
unsettled area of international law and finding there an
exception to international law’s general rule.”
Another difficulty presented by appellants’ complaint is
that some of the documents on which they rely as state-
ments of customary principles of international law ex-
pressly make the purposes of an action relevant to its un-
lawfulness. For example, appellants allege that appellees
violated the proscription, in article 51 of the Protocol I
of the Geneva Conventions of 12 August 1949, on “[a]cts
or threats of violence the primary purpose of which is to
spread terror among the civilian population.” They also
allege that appellees violated the proscription on genocide,
defined in the Convention on the Prevention and Punish-
ment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S.
277, to mean acts calculated to bring about the physical
destruction, in whole or in part, of a national, ethnic,
racial, or religious group. Adjudication of these claims
would require inquiry into the PLO’s intention in plan-
ning the 1978 bus attack (assuming the PLO’s involve-
ment) and into the organizational goals of the PLO. The
dangers of such inquiry into the intentions of the PLO
are similar to those attending an inquiry into the inten-
tions of a state. See Hunt v. Mobil Oil Corp., 550 F.2d
at 77 (act of state doctrine bars inquiry into Libya’s
motivation for actions: “Inquiry could only be fissiparous,
hindering or embarrassing the conduct of foreign rela-
tions which is the very reason underlying the policy of
judicial abstention. . . .”).
14 One aspect of this problem is the apparent assumption of state
action in the definition of certain international legal principles.
Thus, ize United Nations General Assembly has defined torture as
“any act by which severe pain or suffering is intentionally inflicted
by or at the instigation of a public official.” G.A. Res. 3452, art. 1,
30 U.N. GAOR Supp. (No. 34) at 91, U.N. Doc. A/10034 (1975).
This assumption of state action is one reason why it is by no means
utterly obvious that the torture alleged in appellants’ complaint
would be prohibited by international law.
70a
In addition, appellants’ principal claim, that appellees
violated customary principles of international law against
terrorism, concerns an area of international law in which
there is little or no consensus and in which the disagree-
ments concern politically sensitive issues that are espe-
cially prominent in the foreign relations problems of the
Middle East. Some aspects of terrorism have been the
subject of several international conventions, such as those
concerning hijacking, e.g., Convention for the Suppression
of Unlawful Acts Against the Safety of Civil Aviation
(Montreal Convention), Sept. 28, 1971, 24 U.S.T. 564,
T.LA.S. No. 7570; Convention on the Suppression of Un-
lawful Seizure of Aircraft (Hague Convention), Dec. 16,
1970, 22 U.S.T. 1641, T.LA.S. No. 7192, 860 U.N.T.S.
105; Convention on Offenses and Certain Other Acts Com-
mitted on Board Aircraft (Tokyo Convention), Sept. 14,
1963, 20 U.S.T. 2941, T.LA.S. No. 6768, 704 U.N.T.S.
219, and attacks on internationally protected persons such
as diplomats, e.g., Convention on the Prevention and
Funishment of Crimes Against Internationally Protected
Persons, Including Diplomatic Agents (New York Con-
vention), Dec. 14, 1973, 28 U.S.T. 1975, T.I.A.S. No.
8532. But no conseusus has developed on how properly
to define “terrorism’ generally. G. von Glahn, Law
Among Nations 303 (4th ed. 1981). As a consequence,
“<Ti}]nternational law and the rules of warfare as they
now exist are inadequate to cope with this new mode of
conflict.’ Transnational Terrorism: Conventions and
Commentary xv (R. Lillich ed. 1982) (quoting Jenkins,
International Terrorism: A New Mode of Conflict 16
(California Seminar on Arms Control and Foreign Policy,
Research Paper No. 48, 1975)). “The dismal truth is
that the international community has dealt with terrorism
ambivalently and ineffectually.” Shestack, Of Private
and State Terror—Some Preliminary Observations, 13
Rutgers L.J. 453, 463 (1982).
V1la
Customary international law may well forbid states
from aiding terrorist attacks on neighboring states. See
Lillich & Paxman, State Responsibility for Injuries to
Aliens Occasioned by Terrorist Activities, 26 Am. U.L.
Rev. 217, 251-76 (1977). Although that principle might
apply in a case like this to a state such as Libya (which
is not a proper party here, see supra note 13), it does
not, at least on its face, apply to a nonstate like the PLO.
More important, there is less than universal consensus
about whether PLO-sponsored attacks on Israel ‘are lawful.
One important sign of the lack of consensus about ter-
rorism generally, and about PLO activities in particular,
is that accusations of terrorism are often met not by
denial of the fact of responsibility but by a justification
for the challenged actions. See Blum & Steinhardt, supra
note 10, 22 Harv. Int’l] L.J. at 92. Indeed, one of the key
documents relied on as evidence of an international law
proscription on terrorism, the Declaration on Principles
of International Law Concerning Friendly Relations and
Co-operation Among States in Accordance with the
Charter of the United Nations, G.A. Res. 2625, 25 U.N.
GAOR Supp. (No. 28) at 121, U.N. Doc. A/8028 (1970),
was said by at least one state at the time of its promul-
gation not to be applicable to Palestinian terrorist raids
into Israel supported by Arab states. 24 U.N. GAOR
297, U.N. Doc. A/C.6/SR. 1160 (1969) (remarks of Mr.
KE] Attrash of Syria), discussed in Lillich & Paxman,
supra, 26 Am. U.L. Rev. at 272 (qualification is signifi-
cant). Attempts to secure greater consensus on terrorism
have foundered on just such issues as the lawfulness of
violent action by groups like the PLO fighting what some
states view as “wars of national liberation.” * See Franck
15It is worth noting that even the 1972 United States Draft
Convention for the Prevention and Punishment of Certain Acts of
International Terrorism, 67 Dep’t St. Bull. 431 (1972), would
present some problems to appellants. First, it makes motive a key
to violation. Second, like the European Convention on the Sup-
pression of Terrorism, Jan. 27, 1977, 15 I.L.M. 1272 (1976), the
72a
& Lockwood, Preliminary Thoughts Towards an Inter-
national Convention on Terrorism, 68 Am. J. Int’] L. 69
(1974); Paust, “Nonprotected” Persons or Things, in
Legal Aspects of International Terrorism 341, 355-56 (A.
Evans & J. Murphy eds. 1978); cf. Verwey, The Inter-
national Hostages Convention and National Liberation
Movemenis, 75 Am. J. Int’] L. 69 (1981) (obligations of
national liberation movements were major problem in
drafting and promulgating International Convention
against the Taking of Hostages).
There is, of course, no occasion here to state what in-
ternational law should be. Nor is there a need to con-
sider whether an extended and discriminating analysis
might plausibly maintain that customary international
law prohibits the actions alleged in the complaint. It is
enough to observe that there is sufficient controversy of a
politically sensitive nature about the content of any rele-
vant international legal principles that litigation of ap-
pellants’ claims would present, in acute form, many of
the problems that the separation of powers principles in-
herent in the act of state and political question doctrines
caution courts to avoid. The lack of clarity in, and
absence of consensus about, the legal principles invoked
by appellants, together with the political context of the
challenged actions and the PLO’s impingement upon
American foreign relations, lead to the conclusion that
appellants’ case is not the sort that is appropriate for
federal-court adjudication, at least not without an express:
grant of a cause of action.
I turn next to examine treaties, common law, congres-
sional enactments, and customary international law to
determine whether any of these sources of law provides a
1972 Draft Convention relies on criminal remedies for the vindica-
tion of the rights specified, thus leaving the power to invoke reme-
dies in the hands of states. Third, the 1972 Draft Convention does
not protect citizens of a state against attack within the state.
73a
cause of action for appellants. In light of what has been
said, it would require a very clear showing that these
other bodies of law grant appellants a cause of action
before my concerns about the principles of separation of
powers could be overcome. But, as will be seen, there is
no clear grant of a cause of action to be found. In truth,
the law concerning treaties and customary international
law of its own force appears actually to deny appellants
any cause of action.
III.
Treaties of the United States, though the law of the
land, do not generally create rights that are privately
enforceable in courts. Foster v. Neilson, 27 U.S. (2 Pet.)
253, 314 (1829), overruled on other grounds, United
States v. Percheman, 32 U.S. (7 Pet.) 51 (1883) ; Cana-
dian Transport Co. v. United States, 663 F.2d 1081,
1092 (D.C. Cir. 1980) ; Dreyfus v. Von Finck, 534 F.2d
24, 29-30 (2d Cir.), cert. denied, 429 U.S. 835 (1976).
Absent authorizing legislation, an individual has access
to courts for enforcement of a treaty’s provisions only
when the treaty is self-executing, that is, when it ex-
pressly or impliedly provides a private right of action.
Head Money Cases, 112 U.S. 580, 598-99 (1884); Z& F
Assets Realization Corp v. Hull, 114 F.2d 464, 470-71
(D.C. Cir. 1940), aff'd on other grounds, 311 U.S. 470,
489 (1941); Mannington Mills, Inc. v. Congoleum Corp.,
595 F.2d at 1298. When no right is explicitly stated,
courts look to the treaty as a whole to determine whether
it evidences an intent to provide a private right of ac-
tion. See Diggs v. Richardson, 555 F.2d 848, 851 (D.C.
Cir. 1976).
In Count III of the complaint, appellants alleged that
defendants violated the following “treaties of the United
States” :
—Geneva Convention Relative to the Protection of
Civilian Persons in Time of War, Aug. 12, 1949, 6
U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287;
"4a
—Articles 1 and 2 of the Charter of the United
Nations, June 26, 1945, 59 Stat. 1031, T.S. 993;
—Convention With Respect to the Laws and Cus-
toms of War on Land, July 29, 1899, 32 Stat. 1803,
T.S. No. 403; Convention Respecting the Laws and
Customs of War on Land, Oct. 18, 1907, 36 Stat.
2277, T.S. No. 589 (Hague Conventions) ;
—Geneva Convention Relative to the Treatment of
Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316,
T.LA.S. 3364, 75 U.N.T.S. 135;
—cConvention to Prevent and Punish the Acts of
Terrorism Taking the Forms of Crime Against Per-
sons and Related Extortion That Are of Interna-
tional Significance, Feb. 2, 1971, 27 U.S.T. 3949,
T.I.A.S. No. 8413 (Organization of American States
(OAS) Convention) ;
—Protocols I and II to the Geneva Conventions of
12 August 1949, June 7, 1977, Diplomatic Confer-
ence on Reaffirmation and Development of Interna-
tional Humanitarian Law Applicable in Armed Con-
flict, reprinted in 16 I.L.M. 1391, 1442 (1977) ;
—Declaration on Principles of International Law
Concerning Friendly Relations and Co-operation
Among States in Accordance with the Charter of
the United Nations, G.A. Res. 2625, 25 U.N. GAOR
Supp. (No. 28) at 121, U.N. Doc. A/8028 (1970) ;
—Universal Declaration of Human Rights, G.A.
Res. 217, U.N. 3 GAOR, U.N. Doc. 1/777 (1948) ;
—International Covenant on Civil and Political
Rights, Annex to G.A. Res. 2200, 21 U.N. GAOR
Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966) ;
—Basic Principles for the Protection of Civilian
Populations in Armed Conflicts, G.A. Res. 2675, 25
75a
U.N. GAOR Supp. (No. 28) at 76, U.N. Doc. A/
8028 (1970) ;
— Convention on the Prevention and Punishment of
the Crime and [sic] Genocide, Dec. 9, 1948, 78
U.N.T.S. 277;
— Declaration of the Rights of the Child, G.A. Res.
1386, 14 U.N. GAOR Supp. (No. 16) at 19, U.N.
Doc. A/4854 (1959) ; and
— American Convention on Human Rights, Nov. 22,
1969, O.A.S. Official Records OFA/Ser. K/XVI/1.1,
Doc. 65, Rev. 1, Corr. 1, reprinted in 9 I.L.M. 101
(1970), 65 Am. J. Int’] L. 679 (1971).
Only the first five of these alleged treaties are treaties
currently binding on the United States. See Treaties
Affairs Staff, Office of the Legal Adviser, Department
of State, Treaties in Force (1983). Even if the re-
maining eight are relevant to Count II of the complaint
as evidence of principles of international law, they are
not treaties of the United States. Since Count III (tor-
tious actions in violation of the treaties of the United
States) purports to state a cause of action distinct from
that stated in Count II (tortious actions in violation of
the law of nations), the last eight of the thirteen al-
leged treaties of the United States can provide no basis
for jurisdiction over the claims in Count III under the
treaty components of sections 1331 and 1350.
Of the five treaties in force, none provides a private
right of action. Three of them—the Geneva Convention
for the Protection of Civilian Persons in Time of War,
the Geneva Convention Relative to the Treatment of
Prisoners of War, and the OAS Convention to Prevent
and Punish Acts of Terrorism—expressly call for im-
plementing legislation. A treaty that provides that party
states will take measures through their own laws to
enforce its proscriptions evidences its intent not to be
self-executing. See Foster v. Neilson, 27 U.S. (2 Pet.)
76a
at 311-14; United States v. Postal, 589 F.2d 862, 876-77
(5th Cir.), cert. denied, 444 U.S. 832 (1979). These
three treaties are therefore not self-executing. Indeed,
with respect to the first Geneva Convention, one court
has already so held. Huynh Thi Anh v. Levi, 586 F.2d
625, 629 (6th Cir. 1978).
Articles 1 and 2 of the United Nations Charter are
likewise not self-executing. They do not speak in terms
of individual rights but impose obligations on nations
and on the United Nations itself. They address states,
calling on them to fulfill in good faith their obligations
as members of the United Nations. Sanctions under ar-
ticle 41, the penultimate bulwark of the Charter, are to
be taken by states against other states. Articles 1 and
2, moreover, contain general “purposes and principles,”
some of which state mere aspirations and none of which
can sensibly be thought to have been intended to be ju-
dicially enforceable at the behest o
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