# Appendix — Tel-Oren ex rel. Tel-Oren v. Libyan Arab Republic > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2978%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1985 - **Citation:** 470 U.S. 1003 ## Text 83-2052 No. 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 la 115a 13la 152a 155a 158a 159a 16la 163a 165a la 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. ee eee eo hee el ae Aci Ne i CEE RR AN Wie been ABT sla 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. een tee a Aahtteh, Cuda By hed, SV) vesteita gata eatatd 7 ctseedly Sh Ba PB AEA PR ASS EMR Got DOE Lik nea Piri tantitp apsrlaciaedie Stiga 2 banat hi staan Se aeons OR 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. eit cate hbo, Saale nae” 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2978%3A2. Public record. Not legal advice.