Amicus Curiae Brief — Sosa v. Alvarez-Machain

Supreme Court, U.S ~ |

FILED |

JAN 2 3 2004

OFFICE OF THE CLERK

(D

No. 03-339

IN THE

Supreme Court of the United States

JOSE FRANCISCO SOSA,

Petitioner,

V.

HUMBERTO ALVAREZ-MACHAIN ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF WASHINGTON LEGAL

FOUNDATION, NATIONAL FRATERNAL ORDER

OF POLICE, AND ALLIED EDUCATIONAL

FOUNDATION AS AMICI CURIAE IN SUPPORT

OF PETITIONER

DANIEL J. POPEO DONALD B. AYER

RICHARD A. SAmP CHRISTIAN G. VERGONIS

WASHINGTON LEGAL (Counsel of Record)

FOUNDATION JONES DAY

2009 Massachusetts 51 Louisiana Avenue; N.W.

Avenue, N.W. Washington, D.C. 20001

Washington, D.C. 20036 (202) 879-3939

(202) 588-0302 Counsel for Amici Curiae

————_____

TABLE OF CONTENTS

Page

ee ee IE cncnsncernnevemsstssnnsperdsocsesntonssiets il

INTEREST OF ABBE CURIA ....:sssesesescccsessessseessesesseeees l

INTRODUCTION AND SUMMARY OF

_—________RRESESERERE ae nea re ne 2

Se TETIIIIITITET “shih ibehincinieisdibdshaniiiaaiinnininienpibdinbintinedienneneteinmiesesetes 4

I. THE ALIEN TORT STATUTE IS A PURE

JURISDICTIONAL STATUTE THAT DOES

NOT CREATE A PRIVATE RIGHT OF

Fr TD veteivasciieseniiddaniantpeinsiienibinieinminetmnecseicseeen 6

Il. THE ALIEN TORT STATUTE DOES NOT

APPLY TO THE MODERN CONCEPTION

OF INTERNATIONAL HUMAN RIGHTS

Ill. FEDERAL COMMON LAW DOES NOT

BY ITS OWN FORCE GIVE RISE TO A

FEDERAL TORT CLAIM FOR

VIOLATIONS OF INTERNATIONAL

SEE SINE HAEUIT cnccicncntcasercssseeenensesascosoes 13

IV. THE INCORPORATION OF

INTERNATIONAL HUMAN RIGHTS

NORMS INTO FEDERAL LAW WOULD

SERIOUSLY UNDERMINE DOMESTIC

FEDERALISM AND SEPARATION OF

_, _,_.__ ISIE NELS NTO nO TOTO OTT 22

ED scinitniisncunsinccnrennsinnapnasivssentininnsnneseseeese 27

li

TABLE OF AUTHORITIES

Page

Cases

Al Odah v. United States, 321 F.3d 1134

(D.C. Cir.), cert. granted,

vi} Gomi Ty | | ee 1, 18, 26

Alexander v. Sandoval, 532 U.S. 275 (2001)............:. 19, 20

Banco Nacional de Cuba v. Sabbatino,

S76 U.S. FOS (IGG) ccvcceseseccccsosccecsssesennsennnnnna 12, 21

Beazley v. Johnson, 242 F.3d 248 (Sth Cir. 2001) ........... 25

Bergman v. De Sieyes, 170 F.2d 360 (2d Cir. 1948)........ 15

Bivens v. Six Unknown Fed. Narcotics Agents,

GBS U.S. SEB CEGTE) ...0ccccccsccecceessccsnnnseunnieniannann 23

Boyle v. United Techs. Corp., 487 U.S. 500 (1988)......... 20

City of Boerne v. Flores, 521 U.S. 507 (1997)............0008 24

D'Oench, Duhme & Co. v. FDIC,

315 U.S. 467 (1DGZ) ..ccrccsescsiscsoscocsscnteseseniannnnanaa 20

Doe v. Unocal Corp., No. 00-56603,

2002 WL 31063976 (9th Cir. Sept. 18, 2002) ........ 1,4, 5

Eidman v. Martinez, 184 U.S. 578 (1902) wo......ccceeeeeeeeees 18

Erie R.R. Co. v. Tompkins,

CE 3, 17, 18, 19, 20

Filartiga v. Pena-irala,

6350 F.36 S76 (26 Cig. 1DGB)...0.ccrccccccscssesensensssennnien passim

Flores v. Southern Peru Copper Corp.,

343 F.36 140 (26 Cle. BBBB) a ccccccccssossocsensnnsssenneninn 23, 26

Gilbert v. United States, 370 U.S. 650 (1962) «2.0.10 9

TABLE OF AUTHORITIES

(Continued)

Page

Guaranty Trust Co. v. York, 326 U.S. 99 (1945) ............. 19

Hain v. Gibson, 287 F.3d 1224 (10th Cir. 2002),

cert. denied, 537 U.S. 1173 (2003) ............ccccccccceeeeeees 25

Huntington v. Attrill, 146 U.S. 657 (1892) ................. 18, 19

Irving Trust Co. v. Day, 314 U.S. 556 (1942) ...........00006. 19

Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995).......0000000.... 4

Ker v. lilinois, 119 U.S. 436 (1886) .............0...0000000. 14, 15

Kurtz v. Moffitt, 115 U.S. 487 (1885) .................0cccceeeceees 18

Landgraf v. USI Film Products, 511 U.S. 244 (1994)........ 7

Mesa v. California, 489 U.S. 121 (1989)... 7

Montana-Dakota Utils. Co. v. Northwestern

Pub. Serv. Co., 341 U.S. 246 (1951) .......ccccccccccccceeceeeees 7

N.Y. Life Ins. Co. v. Hendren,

Ee 14, 16, 19

O'Melveny & Myers v. FDIC, -

ES 20

Oliver Am. Trading Co. v. Mexico,

a 15

Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980)....... )

Skiriotes v. Florida, 313 U.S. 69, 73 (1941).................... 12

Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842)... 17

Tel-Oren v. Libyan Arab Republic,

726 F.2d 774 (D.C. Cir. }984)......... ie aeettiieeeiaisaetens 10, 26

1V

TABLE OF AUTHORITIES

(Continued)

Page

The Nereide, 13 U.S. (9 Cranch) 388 (1815).............. 16, 17

The Paquete Habana, \75 U.S. 677 (1900)................ 16, 17

The Propeller Genesee Chief v. Fitzhugh,

GS 7,8

Touche Ross & Co. v. Redington,

Ee Ce, SE dennesnterrentsbinaciabiarasitibtpemaiamiainanennminel x

Transportes Maritimos do Estado v. Almeida,

ee 15

United States v. Morrison, 120 S. Ct. 1740 (2000) .......... 24

United States v. Testan, 424 U.S. 392 (1976).................... 8

U.S. Steel Corp. v. Multistate Tax Comm'n,

434 U.S. ITT csnssinin bisessineniadcieeiaisterniahitniiatecemieimasiatnmmeinaad o)

Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834) ............... 17

Wiwa v. Royal Dutch Petroleum Co.,

EE eee 5

Wulfsohn v. Russian Socialist Federated

Soviet Republic, 266 U.S. 580 (1924) ..............0000000 15

Constitutions, Statutes and Executive Materials

FR ES, OEE Se 6, 11

es SR, GR, Ba, Be i Ge Bo cecccccncerrertricennenennenennnniiiii 6

EEE 12

Act of Feb. 26, 1845, ch. 20, 5 Stat. 726,

codified as amended at 28 U.S.C. § 1873 (2000) .......... 7

Vv

TABLE OF AUTHORITIES ©

(Continued)

Page

An Act for the Punishment of certain Crimes

against the United States, ch. IX,

fe eer 11,12

An Act to establish Judicial Courts of the

United States, ch. 20, | Stat. 73 (1789) .............. 2, 12,14

Torture Victim Protection Act of 1991, Pub. L.

No. 102-256, 106 Stat. 73 (1992), reprinted in

RT A Re 6, 22

ie: SF Get inisicarninsiuataintinbianiienseattelisiensaieiethedDasaaiieadie x

eats Ur ID siniteiteicnteehdataieeieiati iii ah inmates 13, 23

FD Wise © CIID cecnsreneermsesniqemnmmmmmmmennetel passim

a eas Ut SITET csiiniiistiaibetieiitiaainmieiiniicepatiatiaaaaiaeiaaaiaiiials 23

eg EE 16

Other Authorities

Elizabeth Amon, Coming to America: Alien

Tort Claims Act Provides a Legal Forum for the

World, Nat’! L.J., Oct. 23, 2001, at Al... 5

William Blackstone, Commentaries ....................c0000+- 10, 18

Curtis A. Bradley, The Juvenile Death

Penalty and International Law,

Sade I ontericibrernieiemmencttniennnmrneniadaaiil 25

Curtis A. Bradley & Jack L. Goldsmith,

Customary International Law as Federai

Common Law: A Critique of the Modern

Position, 110 Harv. L. Rev. 815 (1997) ................. 18, 25

vi

TABLE OF AUTHORITIES

(Continued)

Page

Curtis A. Bradley & Jack L. Goldsmith,

Federal Courts and the Incorporation of

International Law, |11 Harv. L. Rev. 2260 (1998) ..... 18

Brief of Amici Curiae on Behalf of the International

Law Scholars and Human Rights Experts in

Support of Petitioners, United States v. Morrison,

529 U.S. 598 (2000) (Nos. 99-5, 99-29),

Be es Cea erniniiniintatibnncindaceisciieiiiamenainniinninneets 24

Anne-Marie Burley, The Alien Tort Statute and

the Judiciary Act of 1789: A Badge of Honor,

FE ee 10

Mary Ann Case, Reflections on Constitutionalizing

Women's Equality, 90 Calif. L. Rev. 765 (2002)......... 24

William A. Fletcher, The General Common Law

and Section 34 of the Judiciary Act of 1789:

The Example of Marine Insurance,

FF CRG, Ces CR. TFS Qe ccrsnenensserensnnssssonessmscesecses 17

Christopher A. Ford, Adjudicating Jus Cogens,

a re Ce tha CU a cccenenmntecccsmneicsnmmsnmmeien 26

Justice James Iredell, Charge to the Grand Jury for

the District of South Carolina (May 12, 1794),

reprinted in Gazette of the United States

SE Silly FOI ccintistceeseusssinenineiineiectemeneniastmmmenivoments 10

Journals of the Continental Congress

1774-1789 (Gov't Printing Office 1912) ................200+. 11

James Kent, Commentaries ...................000cc0000000eeeeeeeeeeees 10

vil

TABLE OF AUTHORITIES

(Continued)

Page

Harold H. Koh, How Is International Human

Rights Law Enforced?, 74 tnd. L.J. 1397 (1999)....... 5,6

Harold G. Maier, The Authoritative Sources of

Customary International Law in the United

States, 10 Mich. J. Int'l L. 450 (1989)... eee 21

Michael T. Morley, Note, The Law of Nations and

the Offenses Clause of the Constitution:

A Defense of Federalism,

SE PRE Es GR IE cccanccccsscnsesvesssnerensscsses 10, 24, 25

Julian S. Nicholls, Comment, Too Young to Die:

International Law and the Imposition of the

Juvenile Death Penalty in the United States,

5 Emory Int'l L. Rev. 617 (1991)..........cccccceeceeeeeneeees 25

Restatement (Third) Foreign Relations Law

of the United States (1987) .............::sccceeseeesseeeeeeenes 5,21

John M. Rogers, The Alien Tort Statute and How

Individuals Violate’ International Law,

21 Vand. J. Transnat’! L. 47 (1988) ............................ 10

Anthony J. Sebok, Misunderstanding

Positivism, 93 Mich. L. Rev. 2054 (1995)..................... 5

Aric K. Short, /s the Alien Tort Statute Sacrosanct?

Retaining Forum Non Conveniens in Human

Rights Litigation, 33 N.Y.U. J. Int) L.

I Oey ee 12

Joseph M. Sweeney, A Tort Only in Violation

of the Law of Nations, 18 Hastings Int’! &

Cea ©. GABE. SED COD cccesnsscccccsccsscossessasnscsssssevesees 11

vill

TABLE OF AUTHORITIES

(Continued)

Douglas J. Sylvester, /nternational Law As Sword

or Shield? Early American Foreign Policy and

the Law of Nations, 32 N.Y.U. J. Intl L.

Be Ball. 1 CIDP) .ccccccccsccccccsscseccccccccsssessssesssccvsvesees

Emmerich de Vattel, The Law of Nations (Joseph

Chitty ed. & trans., Phila., T. & J.W. Johnson &

a, GE, Fe SEE concncecccsnenesenscsseessnssescesens

Arthur M. Weisburd, The Executive Branch

and International Law, 41 Vand. L. Rev.

DEBS CIGD ceccccceccvcescoscscsecesevessccososossosssssscssooosesoos

Charles A. Wright et al., Federal Practice

and Procedure: Jurisdiction (1996) ...............0006

Page

INTEREST OF AMICI CURIAE'

The Washington Legal Foundation (“WLF”) is a nonprofit

public interest law and policy center with supporters in all 50

states. WLF devotes a substantial portion of its resources to

issues involving national security, civil-justice reform and

federalism ard opposes the expansion of federal-court

jurisdiction beyond appropriate statutory and constitutional

limits. WLF has appeared a» amicus curiae in Al Odah y.

United States, 321 F.3d 1134 (D.C. Cir. 2003), cert. granted,

124 S. Ct. 534 (2003), and Doe v. Unocal Corp., No. 00-

56603 (9th Cir. dec. pending), to discuss its view that an

overly expansive interpretation of 28 U.S.C. § 1350 is

inconsistent with congressional intent and threatens to

undermine American foreign and domestic policy interests.

In addition, WLF has published articles regarding the

propriety of litigating foreign claims in U.S. courts. See,

e.g., Peter J. Nickles et al., Court Properly Limits Scope of

Alien Tort Claims Act, 18 Wash. Legal Found., Legal

Backgrounder 2 (Jan. 17, 2003); Layne E. Kruse, Alien

Attack: Foreign Environmental Claims Invade American

Courts, 12 Wash. Legal Found., Legal Backgrounder 30

(July 25, 1997).

The National Fraternal Order of Police (“FOP”) is the

nation’s largest law enforcement labor organization, with

over 310,000 members. Members of FOP have a strong

interest in ensuring that they not be subject to damage suits

under 28 U.S.C. § 1350 for claimed violations of

‘ Counsel for all parties have consented to the filing of this brief, and

amici have filed those consents with the Clerk of the Court. No counsel

for a party in this case authored this brief in whole or in part, and no

person or entity, other than the undersigned amici and their counsel, has

made a monetary contribution to this brief’s preparation and submission.

2

international human rights norms. The Allied Educational

Foundation (AEF) is a nonprofit charitab!e foundation based

in Englewood, New Jersey. Founded in 1964, AEF 1s

dedicated to promoting education in diverse areas of study,

such as law and public policy, and has appeared as amicus

curiae in the Supreme Court on a number of occasions.

INTRODUCTION AND SUMMARY OF ARGUMENT

This case presents the question whether and how

“customary international law” is to be incorporated into the

domestic law of the United States. Respondent, a Mexican

citizen, contends that he may pursue federal-law tort claims

for kidnapping and arbitrary detention against Petitioner,

also a Mexican citizen, because those acts, at least when

conducted by or in complicity with government officials,

violate currently accepted international human rights norms.

Adopting two differing rationales, several lower courts have

agreed that claims for violations of international human

rights norms may be brought as federal causes of action in

federal court. The Ninth Circuit has sustained such claims,

in this case and others, on the theory that a singular provision

of the Judiciary Act of 1789, which by its terms defines the

jurisdiction of the district courts, was actually ‘meant by

Congress to create a federal private right of action.’ The

Second Circuit has sustained such claims, most notably in

Filartiga v. Pena-lrala, 630 F.3d 876 (2d Cir. 1980), on the

theory that, even in the absence of congressional

authorization, federal courts have the inherent power and

duty to fashion a body of rights and remedies that are based

on international human rights norms and enforceable by

> Amici adopt the nomenclature used by the United States and

Petitioner and refer herein to this untitled provision of the Judiciary Act

of 1789, see An Act to establish the Judicial Courts of the United States,

ch. 20, § 9, | Stat. 73, 76-77 (1789), codified as amended at 28 U.S.C.

§ 1350, as the “Alien Tort Statute.”

3

private parties through tort actions arising under “the

common law of the United States.”

This Court should reject the reasoning of the Second and

Ninth Circuits and reverse the decision below for at least

four reasons.

First, contrary to the ruling of the Ninth Circuit, the Alien

Tort Statute is plainly a mere jurisdictional statute that

creates neither substantive federal rights nor a private right

of action. See infra Part I.

Second, even if the Alien Tort Statute did create a cause of

action, the human rights norms invoked by Petitioner here,

like those invoked in the vast majority of cases brought

under the Alien Tort Statute, are not a part of the “law of

nations” as that term is used in the statute and in the

Constitution’s grant to Congress of the power to define and

punish offenses in violation of the law of nations. To the

contrary, the body of law referred to as the “law of nations”

in the late-eighteenth century applied solely to interstate

relations and therefore did not encompass wrongs

perpetrated on private citizens by their own governments and

countrymen. See infra Part Il.

Third, contrary to the Second Circuit’s holding in

Filartiga, there is not a self-executing “common law of the

United States” pursuant to which the federal courts may

create and enforce private rights of action for torts alleged to

violate the norms of customary international law. As this

Court has repeatedly recognized throughout its history, such

transitory common-law torts are, and always have been,

questions of local, not federal, law. The Second Circuit's

holding to the contrary was premised on that court’s

misreading of several nineteenth-century Supreme Court

cases applying “federal general common law” in a manner

that was famously repudiated by this Court in Erie Railroad

Co. v. Tompkins, 304 U.S. 64, 78 (1938). See infra Part Il.

4

Fourth, the acceptance by this Court of a judicially

enforceable body of international human rights norms would

dramatically alter the balance of authority both between the

state and federal governments and between the courts and the

political branches. In particular, because nothing in the

Alien Tort Statute or in the theories set forth by Respondent

and the lower courts limits the applicability of international

law to foreign actors or foreign conduct, a decision by this

Court endorsing one of those theories will necessarily permit

future plaintiffs to challenge the practices and policies of the

United States, the several States and their respective officers

and agents as violative of the norms of customary

international law. Because such norms are both more

expansive and more indeterminate than the limits on state

action set forth in the United States Constitution, the

potential for federal-court interference with the prerogatives

of the States and the political branches, should the decision

below be affirmed, is substantial. See infra Part IV.

ARGUMENT |

Since the Second Circuit’s decision in Filartiga, the

federal courts, acting in the manner of common-law courts,

have been developing an entire body of federal tort law

relating to human rights abuses, fleshing out the scope of the

federal rights purporting to arise under such law and setting

forth a variety of rules relating to ancillary matters such as

secondary liability and limitations of actions. See, e.g., Doe

v. Unocal Corp., No. 00-56603, 2002 WL 31063976 (9th

Cir. Sept. 18, 2002) (vacated pending rehearing en banc);

Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995). These courts

have applied this new federal law to a wide variety of alleged

human rights abuses occurring all over the world in cases

having no connection at all to the United States. See, e.g.,

Kadic, 70 F.3d at 236-37 (rape, forced prostitution, forced

impregnation, torture, and summary execution, carried out

by Bosnian-Serb military during Bosnian civil war); Doe,

2002 WL 31063976, at *3-*4 (slavery, rape, murder and

5

torture in connection with Burmese pipeline project); Wiwa

v. Royal Dutch Petroleum Co., 226 F.3d 88, 92-93 (2d Cir.

2002) (imprisonment, torture and murder of political

opponents by Nigerian military); cf Elizabeth Amon,

Coming to America: The Alien Tort Claims Act Provides a

Legal Forum for the World, Nat’! L.J., Oct. 23, 2000, at Al,

A1l0 (describing additional cases). In adjudicating these

claims of kidnapping, rape, torture, arbitrary detention and

other human rights abuses, the lower courts have purported

to apply norms derived from “customary international law.”

“Customary international law” refers to an unwritten body

of norms that “results from a general and consistent practice

of states followed by them from a sense of legal obligation.”

Restatement (Third) Foreign Relations Law of the United

States § 102(2) (1987). Traditionally viewed as a tool for the

resolution of disputes between nations, see infra Part II,

international law came to be seen in the wake of the

Holocaust as including norms designed to protect individual

human rights, i.e., the “freedoms, immunities, and benefits

which, according to widely accepted contemporary values,

every human being should enjoy in the society in which he

or she lives.” /d. § 701, cmt. a. As a body of principles

derived from a multitude of sources, including the works of

domestic and foreign jurists and commentators, international

conventions, decisions of national and _ transnational

tribunals, and the practice of nations, see Filartiga, 630 F.2d

at 880-81, “customary international law” is not law in the

positivist sense. See generally Anthony J. Sebok,

Misunderstanding Positivism, 93 Mich. L. Rev. 2054, 2064-

65 (1995) (describing thesis of classical positivism that

“every valid legal norm was promulgated by the legal

system’s sovereign, and the norm’s authority can be traced to

that sovereign”). But it may obtain the status of positive law,

in this nation or others, via what one scholar has called

“legal internalization,” ie., the process by which

“international norm{s] [are] incorporated into the domestic

legal system through executive action, legislative action,

6

judicial interpretation, or some combination of the three.”

Harold H. Koh, How Is International Human Rights Law

Enforced?, 74 Ind. L.J. 1397, 1413 (1999).

In the United States, norms of customary international law

cannot have the force of federal law unless and until they are

“internalized” by a treaty made by the President with the

advice and consent of the Senate, see U.S. Const. art. Il, § 2,

cl. 2, by a statute enacted pursuant to Congress’s power to

“define and punish . . . Offences against the Law of

Nations,” see id. art. I, § 8, cl. 10, or by a judicial decision.

This case presents no question relating to treaties and,

although the Alien Tort Statute is an act of Congress, the

contention that the statute defines substantive rights does not

withstand scrutiny, see infra Part I. Rather, this case is about

the assumption by some lower courts of the power to

incorporate, through judicial fiat, preferred international

human rights norms into federal law. This purported power

is without legal or historical foundation, see infra Parts II-III,

and threatens seriously to undermine the appropriate balance

of power between the States and the federal government and

between the judiciary and the political branches, see infra

Part IV. It should categorically and definitively be rejected

by this Court.

I. THE ALIEN TORT STATUTE IS A_ PURE

JURISDICTIONAL STATUTE THAT DOES NOT

CREATE A PRIVATE RIGHT OF ACTION

Petitioner’s brief persuasively explains how the text and

historical context of the Alien Tort Statute conclusively

demonstrate that 28 U.S.C. § 1350 is a jurisdictional statute

> An example of Congress’s exercise of its Define and Punish Clause

power is the Torture Victim Protection Act of 1991 (“TVPA”), Pub. L.

No. 102-256, 106 Stat. 73 (1992), reprinted in 28 U.S.C. § 1350 note

(1994).

7

that does not create any substantive federal law, let alone a

private right of action. That conclusion is buttressed by this

Court’s numerous statements and holdings on the differences

between jurisdictional statutes and _ statutes creating

substantive rights.

“(Jurisdictional statutes speak to the power of the court

rather than to the rights or obligations of the parties.”

Landgraf v. USI Film Products, 511 U.S. 244, 274 (1994)

(internal quotation marks omitted). Therefore, “pure

jurisdictional statutes,” such as the Alien Tort Statute,

“which seek to do nothing more than grant jurisdiction over

a particular class of cases cannot support Art. III ‘arising

under’ jurisdiction” because they do not create substantive

federal law. Mesa v. California, 489 U.S. 121, 136 (1989)

(internal quotation marks omitted). Indeed, as this Court has

observed, “it would be inconsistent with the plain and

ordinary meaning of words, to call a law defining the

jurisdiction of certain courts of the United States” an

exercise of Congress’s Article I powers to create substantive

rights and liabilities. The Propeller Genesee Chief v.

Fitzhugh, 53 U.S. (12 How.) 443, 452 (1851); see also

Montana-Dakota Utils. Co. v. Northwestern Pub. Serv. Co.,

341 U.S. 246, 249 (1951) (“The Judicial Code, in vesting

jurisdiction in the District Courts, does not create causes of

action, but only confers jurisdiction to adjudicate those

arising from other sources which satisfy its limiting

provisions.”).

This Court has therefore repeatedly and consistently

refused to find substantive federal law lurking: in the confines

of similarly phrased jurisdictional statutes. For example, in

rejecting a claim that an admiralty jurisdiction statute, Act of

Feb. 26, 1845, ch. 20, 5 Stat. 726, codified as amended at 28

U.S.C. § 1873 (2000), represented the congressional creation

of substantive federal law pursuant to the Commerce Clause,

this Court explained:

8

The law . . . contains no regulations of commerce... .

It merely confers a new jurisdiction on the district

courts; and this is its only object and purpose... . It is

evident . . . that Congress, in passing [the law], did not

intend to exercise their power to regulate

commerce.... [T]he jurisdiction to administer the

existing laws upon these subjects is certainly not a

regulation within the meaning of the Constitution.

The Propeller Genesee Chief, 53 U.S. (12 How.) at 451-52.

Similarly, this Court has rejected the argument that

substantive federal law is created by § 27 of the Securities

Exchange Act of 1934, 15 U.S.C. § 78aa, which provides (in

language paralleling that of the Alien Tort Statute) that “[t]he

district courts of the United States . . . shall have exclusive

jurisdiction of violations of” the federal securities laws. The

Court stated:

Section 27 grants jurisdiction to the federal courts and

provides for venue and service of process. It creates no

cause of action of its own force and effect; it imposes

no liabilities. The source of plaintiffs’ rights must be

found, if at all, in the substantive provisions of the

{law! which they seek to enforce, not in the

jurisdictional provision.

Touche Ross & Co. v. Redington, 442 U.S. 560, 577 (1979).

And this Court has held that the similarly worded Tucker

Act, 28 U.S.C. § 1491(a)(1), which gives the Court of

Federal Claims “jurisdiction to render judgment upon any

claim against the United States” is “only a jurisdictional

Statute; it does not create any substantive right enforceable

against the United States for money damages.” United

States v. Testan, 424 U.S. 392, 398 (1976). Rather, the

Tucker Act merely “confers jurisdiction upon [the Court of

Claims] whenever the substantive right exists.” /d.

9

So, too, the Alien Tort Statute grants jurisdiction, but does

not create substantive federal law. Respondent therefore has

no causes of action under the Alien Tort Statute for

kidnapping, arbitrary detention or any other tort.

ll. THE ALIEN TORT STATUTE DOES NOT APPLY

TO THE MODERN CONCEPTION OF

INTERNATIONAL HUMAN RIGHTS LAW

Even if the Alien Tort Statute somehow did create or

authorize the creation of substantive federal law relating to

“the law of nations,” such law would not extend to the

international human rights norms invoked here or in most of

the cases, see supra pp. 4-5, brought under the Alien Tort

Statute.

To determine whether a particular claim falls within the

Alien Tort Statute, the Court must first determine the

meaning that the statutory phrase “law of nations” had when

the statute was enacted in 1789. See Roadway Express, Inc.

v. Piper, 447 U.S. 752, 759 (1980) (in construing the

meaning of a statutory term, Court “look[s}] to the

contemporaneous understanding of the term”); Gilbert v.

United States, 370 U.S. 650, 655 (1962) (“[I]}n the absence of

anything to the contrary it is fair to assume that Congress

use[s a] word in [a] statute in its common-law sense.”).

Unlike the modern conception of international law, which

seeks to protect private individuals from human rights abuses

at the hands of their own governments and countrymen, see

supra p. 5, the body of law referred to as “the law of nations”

in the late-eighteenth century applied solely to interstate

relations. As explained by Emmerich.de Vattel, a natural

law theorist with significant influence on the Founding

generation, see U.S. Steel Corp. v. Multistate Tax Comm'n,

434 U.S. 452, 462 n.12 (1978), “[t}he Law of Nations is the

science which teaches the rights subsisting between nations

or states, and the obligations correspondent to those rights.”

Emmerich de Vattel, The Law of Nations § 3 (Joseph Chitty

10

ed. & trans., Phila., T. & J.W. Johnson & Co. new ed. 1853)

(1758); see also 1 James Kent, Commentaries *| (defining

the law of nations as “that code of public instruction which

defines the rights and prescribes the duties of nations in their

intercourse with each other”); Justice James Iredell, Charge

to the Grand Jury for the Distrc: of South Carolina (May 12,

1794), reprinted in Gaxite of the United States

(Philadelphia), June 12, 1794 (describing the law of nations

as the means “by which alone all controversies between

nation and nation can be determined”), quoted in Douglas J.

Sylvester, /nternational Law As Sword or Shield? Early

American Foreign Policy and the Law of Nations, 32 N.Y.U.

J. Int'l L. & Pol. 1, 58 (1999). See generally Michael T.

Morley, Note, The Law of Nations and the Offenses Clause

of the Constitution: A Defense of Federalism, 112 Yale L.J.

109, 122-31 (2002) (discussing similar views of other

influential Founding-era scholars and writers).

This is not to say that individuals could never have rights

and obligations under the law of nations. Eighteenth-century

courts applied the law of nations (as general common law,

see infra Part Ill) to matters where the conduct of private

citizens touched upon relations between nations, such as

where one nation’s citizens or residents injured or affronted

the dignity of another nation or its officers or citizens. See

Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 813-14

(D.C. Cir. 1984) (Bork, J., concurring); Anne-Marie Burley,

The Alien Tort Statute and the Judiciary Act of 1789: A

Badge of Honor, 83 Am. J. Int'l L. 461, 475-80 (1989); John

M. Rogers, The Alien Tort Statute and How Individuals

‘Violate’ International Law, 21 Vand. J. Transnat’! L. 47,

49-50 (1988). Blackstone provided examples of such

matters, noting that “[t}he principal offences against the law

of nations . . . are of three kinds; |. Violation of safe-

conducts; 2. Infringement of the rights of embassadors; and,

3. Piracy.” 4 William Blackstone, Commentaries *68.

Another area in which the law of nations regulated the

conduct of private individuals was the field of prize,

-———_——-——

——— lI

whereby warring nations (and their citizens) captured enemy

merchant vessels. See Joseph M. Sweeney, A Tort Only in

Violation of the Law of Nations, 18 Hastings Int’! & Comp.

L. Rev. 445, 451-67 (1995). Significantly, however, because

the rights and duties of individuals under international law

stemmed from obligations between nations, violations of the

law of nations could not arise out human rights abuses

perpetrated against an individual by his own government or

countrymen within his own country. .

The United States’ treatment of these issues prior to and

just after the adoption of the Constitution is consistent with

this understanding of the law of nations. In 1781, for

example, the Continental Congress, itself lacking the

necessary regulatory authority, passed a_ resolution

recommending that the States enact laws to punish

“infractions of the laws of nations.” 21 Journals of the

Continental Congress 1774—1789, at 1136 (Gov't Printing

Office 1912). The resolution singled out, as the “most

obvious” subjects of such legislation, violations of safe-

conducts and passports granted by Congress to foreign

subjects in times of war, acts of hostility against those in

amity with the United States, infractions of the immunities of

ambassadors and other public ministers, and treaty

violations. Id. at 1136-37. The resolution also

recommended that the States create civil remedies for

“injur[ies}] done to a foreign power by a citizen.” /d. at 1137.

A decade later, the newly empowered First Congress was

able to rely on the Define and Punish Clause, see supra p. 6

& note 3, to criminalize violations of safe-conducts and

passports and affronts to and assaults on ambassadors and

other public ministers. See An Act for the Punishment of

12

certain Crimes against the United States, ch. IX, §§ 25-28,

1 Stat. 112, 117-18 (1790).

This general understanding that international law did not

govern a nation’s domestic affairs continued, moreover, well

into the twentieth century. See, e.g., Banco Nacional de

Cuba v. Sabbatino, 376 U.S. 398, 422 (1964) (describing the

“peculiar nation-to-nation character” of international law and

noting that “[t}he traditional view of international law is that

it establishes substantive principles for determining whether

one country has wronged another”); Skiriotes v. Florida,

313 U.S. 69, 73 (1941) (explaining that principles of

international law “are concerned with international rights and

duties and not with domestic rights and duties”); c/.

Sabbatino, 376 U.S. at 423 (“the public law of nations can

hardly dictate to a country which is in theory wronged how

to treat that wrong within its domestic borders”).

It is clear, therefore, that when Congress enacted the Alien

Tort Statute in 1789, the statutory phrase “tort only

committed in violation of the law of nations” was understood

to extend only to torts touching upon the United States’

relations with other nations (such as a violation of a safe-

conduct or an assault, by a U.S. citizen or occurring in the

* Historians have pointed to the Marbois Affair of 1784, in which

Counsel General Marbois, a French diplomat, was assaulted in

Philadelphia, as illustrative of the concerns underlying the decision to

vest the federal courts with jurisdiction over civil actions involving

violations of the law of nations. See Aric K. Short, /s the Alien Tort

Statute Sacrosanct? Retaining Forum Non Conveniens in Human Rights

Litigation, 33 N.Y.U. J. Int'l L. & Politics 1001, 1008-09 & n.29 (2001).

The inability of the national government directly to address the Marbois

incident, and others like it, prompted the enactment of both the

Constitution's grant of federal-court jurisdiction over “Cases affecting

Ambassadors [and] other public Ministers and Consuls,” U.S. Const. art.

Ill, § 2, and its statutory complement, the Alien Tort Statute. See Short,

supra, at 1009.

oe a

13

United States, on a foreign diplomat). It did not, however,

apply to human rights abuses perpetrated against individuals

by their own governments or countrymen within their own

nations. Even if it were more than a pure jurisdictional

statue, therefore, the Alien Tort Statute would not reach the

conduct alleged here and in the typical modern lawsuit

brought under the statute.

Ill. FEDERAL COMMON LAW DOES NOT BY ITS

OWN FORCE GIVE RISE TO A FEDERAL TORT

CLAIM FOR VIOLATIONS OF INTERNATIONAL

HUMAN RIGHTS LAW

Even Filartiga, the progenitor of alien-tort litigation,

recognized that the Alien Tort Statute was a pure

jurisdictional statute that did not create a cause of action.

See Filartiga, 630 F.2d at 887 (noting that the Alien Tort

Statute does “not . . . grant{] new rights to aliens” but

provides jurisdiction over “rights already recognized”). In

holding that the plaintiff in that case had nevertheless raised

a federal claim, the Second Circuit concluded that claims for

violations of international human rights norms — even

where those norms had not been codified into a domestic

enactment such as a federal statute or treaty — existed as

part of “the common law of the United States.” 630 F.2d at

885-87. The Alien Tort Statute, in the Second Circuit's

view, was simply a jurisdictional conduit pursuant to which

= claims could be brought in federal court.

e id.

* The Second Circuit las yet to address the logical consequence of its

conclusion: if claimed violations of international human rights law really

do arise under “the common law of the United States,” then reliance on

the Alien Tort Statute jor jurisdiction over such claims is redundant now

that Congress has granted the federal courts general federal-question

jurisdiction, see 28 U.S.C. § 1331.

14

Contrary to Filartiga, however, this Court has held, on

numerous occasions, that a claimed violation of an

international-law norm that has not been codified in a federal

treaty or statute does not present a federal question or arise

under federal law. New York Life Insurance Co. v. Hendren,

92 U.S. 286 (1875), is instructive. There, a Virginia widow

had sued a New York insurance company in state court to

recover the proceeds of a life insurance policy. One of the

issues in the state-court proceeding was the effect, under “the

general laws of war, as recognized by the law of nations

applicable to th{e] case,” of the Civil War upon the life

insurance contract. /d. at 286. This Court dismissed the writ

of error for want of federal-question jurisdiction,’ explaining

that the appeal, although arising under the law of nations,

“present[ed] questions of general law alone” and therefore

did not “show that any Federal question was decided or

necessarily involved in the judgment rendered by the court

below.” /d.

This Court reiterated its holding that claimed violations of

uncodified international law do not present a federal question

in Ker v. Illinois, 119 U.S. 436 (1886), a case involving facts

similar to those at issue here. In Ker, an individual acting as

an agent of the United States government traveled to Peru,

where, without the authorization of the Peruvian

government, he kidnapped, detained and forcibly transferred

a fugitive to Illinois to stand trial. /d. at 438, 442-43. The

state court rejected defendant’s argument that the kidnapping

and detention required dismissal of the indictment, and the

* At the time, this Court's appellate jurisdiction over decisions of state

courts was defined by § 25 of the ‘udiciary Act of 1789 and limited to

federal questions. See An Act to establish the Judicial Courts of the

United States, ch. 20, § 25, | Stat. 73, 85-87 (1789) (as amended);

16B Charles A. Wright et al, Federal Practice and Procedure:

Jurisdiction § 4006 & nn.1-3 (1996).

15

defendant sought a writ error from this Court. /d. at 438-39.

After rejecting on the merits arguments that the forcible

abduction violated the Fourteenth Amendment and a treaty

between the United States and Peru, this Court held that it

otherwise could not review the defendant’s claim that his

forcible extradition from a foreign jurisdiction barred his

trial. /d. at 444. This was so, the Court explained, because

the question was “a question of common law, or of the law

of nations,” that was “within the province of the State court”

and that this Court therefore had “no right to review.” /d.

Even foreign sovereign immunity, a quintessential part of

the law of nations, raised a non-federal question before that

doctrine was codified as federal law by the political

branches. See, e.g., Transportes Maritimos do Estado v.

Almeida, 265 U.S. 104, 105 (1924) (holding that a “claim of

[foreign] sovereign immunity does not present a question of

federal jurisdiction”); Oliver Am. Trading Co. v. Mexico,

264 U.S. 440, 442-43 (1924) (explaining that “[t}he question

of sovereign immunity is such a question of general law,

applicable as fully to suits in the state courts as to those

prosecuted in the courts of the United States” and holding

that the Court therefore lacked federal-question jurisdiction

to review the writ of error); Wulfsohn v. Russian Socialist

Federated Soviet Republic, 266 U.S. 580 (1924) (per curiam)

(dismissing appeal raising issue of foreign sovereign

immunity “for the want of jurisdiction”). Indeed, the view

that international law generally did not raise issues of federal

law prevailed well into the twentieth century. See, e.g.,

Bergman v. De Sieyes, 170 F.2d 360, 361 (2d Cir. 1948)

(L. Hand, C.J.) (“although the courts of [New York] look to

international law as a source of New York law, their

interpretation of international law is controlling upon us, and

we are to follow them so far as they have declared

themselves”).

Moreover, these judicial decisions were in accord with the

formal opinion of Attorney General Levi Lincoln, expressed

16

shortly after the passage of the Alien Tort Statute. Writing

to the Secretary of State about an assault by U.S. citizens on

a Spanish minister, the Attorney General observed that the

act was “an aggravated violation of the law of nations,” but

that there was no federal remedy given the absence of a

congressional “statute recognizing the offence.” 5 Op. Att'y

Gen. 691, 692 (1802). This was so, the Attorney General

explained, because “(t]he law of nations is considered as a

part of the municipal law of each State.” /d.

In short, the historical record is quite clear: from the

Founding until the decision in Filartiga, claimed violations

of international law were treated just as any other transitory

common-law tort claims: as non-federal claims that could

only be litigated in federal court if jurisdiction was otherwise

proper. That Filartiga represented a sharp break from this

historical understanding is highlighted by a comparison of

the reasoning of Filartiga with the dissenting opinion in New

York Life, where Justice Bradley was alone among the

Justices in contending — just as the Second Circuit would

assert more than 100 years later — that claims based on

“unwritten international law” arose under the “laws of the

United States.” 92 U.S. at 288 (Bradley, J., dissenting).

In reaching its conclusion, the Second Circuit, which

failed to cite any of these authorities, made the crucial

analytical mistake of taking out of context statements by this

Court that international law is “part of our law” and “part of

the law of the land.” 630 F.2d at 887 (quoting The Nereide,

13 U.S. (9 Cranch) 388, 422 (1815), and The Paquete

Habana, 175 U.S. 677, 700 (1900)). Respondent echoed this

language in his opposition to the certiorari petition, arguing

that substantive rights under the law of nations “already

existed in American law by virtue of the incorporation of the

law of nations into the common law of the United States”;

that “torts in violation of the law of nations would be

cognizable at common law, just as any other tort would be”;

and that “this Court approved the application of customary

17

international law in U.S. courts even in the absence of

positive Congressional enactment.” Resp. Cert. Opp. at 13-

15 & n8 (citing, inter alia, The Nereide and The Paquete

Habana).

When viewed in their proper context, however, the

Court’s dicta in The Nereide and The Paquete Habana, are

fully consistent with the authorities discussed above. These

cases — both of which were before this Court as part of its

statutory admiralty jurisdiction, see The Paquete Habana,

175 U.S. at 680-85; The Nereide, 13 U.S. (9 Cranch) at 388-

91 — were decided prior to the seminal decision in Erie

Railroad Co. v. Tompkins, in which this Court famously

pronounced that “[t]here is no federal general common law.”

304 U.S. at 78. Prior to Erie, the federal courts applied their

own independent rules of decision to transitory common-law

claims. See, e.g., Swift v. Tyson, 41 U.S. (16 Pet.) 1, 18-19

(1842); William A. Fletcher, The General Common Law and

Section 34 of the Judiciary Act of 1789: The Example of

Marine Insurance, 97 Harv. L. Rev. 1513, 1517-27 (1984)

(describing the Founding era view of the “general common

law”). These federal-court decisions on matters of “general

law” did not create or apply federal law. See Erie, 304 U.S.

at 74-75 (explaining that “general law” was not binding on

the States); Fletcher, supra, at 1517-18, 1521-25, 1558-62

(explaining the early American understanding of “t]he

general common law” as “nonfederal law”); cf Wheaton v.

Peters, 33 U.S. (8 Pet.) 591, 658 (1834) (“It is clear, there

can be no common law of the United States... . There is no

principle which pervades the union and has the authority of

law, that is not embodied in the constitution or laws of the

union. The common law could be made a part of our federal

system, only by legislative adoption.”). To a modern eye,

however, these pre-Erie decisions could be — and to the

Filartiga court were — misinterpreted as endorsing the view

that certain aspects of the common law, such as international

law, were federalized. To the contrary, international law was

simply a part of this “general common law” and, in that

18

respect, was no different than the law of contracts and the

law of torts: all were “part of our law” and of the “law of the

land.” See, e.g., Kurtz v. Moffitt, 115 U.S. 487, 498 (1885)

(describing the common law of England as “part of our

law”); Eidman v. Martinez, 184 U.S. 578, 591 (1902)

(“[w]hen we speak of our laws we mean to be understood as

referring to our own statutory laws or the common law we

inherited from the mother country” (emphasis in original));

4 William Blackstone, Commentaries *67 (explaining that

“the law of nations . . . is [in England] adopted in its full

extent by the common law, and is held to be a part of the law

of the land”).’

This pre-Erie understanding of international law was

specifically addressed by this Court in Huntington v. Attrill,

146 U.S. 657 (1892). The issue there was whether the

Maryland state courts were required to give full faith and

credit to a judgment rendered under a New York law, which

required a determination whether the New York law was

penal in nature. This Court characterized the question as one

of “international law” and described the domestic status of

such law in a manner reflecting a quintessential example of

the pre-Erie understanding of the common law:

In this country, the question of international law must

be determined in the first instance by the court, state or

national, in which the suit is brought. If the suit is

brought in a Circuit Court of the United States, it is one

’ Filartiga’s conceptual misstep is criticized in depth in Curtis A.

Bradley & Jack L. Goldsmith, Customary International Law as Federal

Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815

(1997). See also Al Odah, 321 F.3d 1147-48 (Randolph, J., concurring);

Curtis A. Bradley & Jack L. Goldsmith, Federal Courts and the

Incorporation of International Law, 111 Harv. L. Rev. 2260 (1998);

Arthur M. Weisburd, The Executive Branch and International Law,

41 Vand. L. Rev. 1205 (1988).

19

of those questions of general jurisprudence which that

court mast decide for itself, uncontrolled by local

decisions.... If a suit... is brought in a court of

another State, the Constitution and laws of the United

States have not authorized its decision upon such a

question to be reviewed by this court.

Huntington, 146 U.S. at 683 (citing New York Life).

Erie, however, expressly disavowed the two major

premises on which nineteenth-century jurisprudence was —

and Filartiga is — based. First, this Court rejected the idea

that the federal courts can apply law not derived from a

‘sovereign source, noting that “law in the sense in which

courts speak of it today does not exist without some definite

authority behind it.” Erie, 304 U.S. at 79 (internal quotation

marks omitted). Second, the Supreme Court rejected the

legal fiction that courts “discover” common law rules,

explaining that the common law “is often little less than what

the judge advancing the doctrine thinks at the time should be

the general law on a particular subject” and noting that under

the Constitution, the federal courts lack this general

common-lawmaking power. /d. at 78 (internal quotation

marks omitted); see also Guaranty Trust Co. v. York,

326 U.S. 99, 101-02 (1945) (“[Erie] overruled a particular

way of looking at law”); Alexander v. Sandoval, 532 U.S.

275, 287 (2001) (“Raising up causes of action where a

* In Huntington, the Court ultimately applied federal law to the

question presented, but did so only because that issue was part of an

inquiry under the Full Faith and Credit Clause of the Constitution. The

Court explained that its decision to apply federal law was “analogous” to

the situation where federal law controls the interpretation of contracts in

matters arising under the Constitution's Contracts Clause. /d. at 684; see

also Irving Trust Co. v. Day, 314 U.S. 556, 561 (1942) (“When this

Court is asked to invalidate a state statute upon the ground that it impairs

the obligation of a contract, the existence of the contract and the nature

and extent of its obligation become federal questions . . . .”).

20

statute has not created them may be a proper function for

common-law courts, but not for federal tribunals.” (internal

quotation marks omitted)). Filartiga rests precisely on both

these premises; it refers to a source of law (the norms of

customary international law) that has no sovereign authority

behind it, and it grants the federal courts common-

lawmaking authority to fashion general rules relating to that

“law.”

In contrast to the “federal general common law” that was

repudiated in Erie, there is a modern, limited form of federal

common law. But this modern federal common law does not

support the creation of a body of international human rights

tort law. To the contrary, consistent with Erie’s

pronouncement that federal courts are powerless to apply

law not derived from a sovereign source, modern federal

common law applies only where necessary to further “a

genuinely identifiable (as opposed to judicially constructed)

federal policy.” O'Melveny & Myers v. FDIC, 512 U.S. 79,

89 (1994); cf D'Oench, Duhme & Co. v. FDIC, 315 U.S.

447, 472 (1942) (Jackson, J., concurring) (observing that

“{flederal common law implements the federal Constitution

and statutes, and is conditioned by them”). Thus, this Court

has held that federal common law will displace non-federal

law only where there is both an identifiable “uniquely federal

interest” and a “significant conflict” between that interest

and the operation of the non-federal law. Boyle v. United

Techs. Corp., 487 U.S. 500, 507 (1988).

There exists no identifiable uniquely federal interest in

tort disputes arising out of the mistreatment of foreign

citizens by their own governments or by their fellow citizens

within their own countries. Even if there were such an

interest, moreover, it is difficult to see how it would

significantly conflict with, so as to preempt completely, the

application of local law to such disputes. See id. at 508

(explaining that federal common law applies only to those

particular elements of a claim that are in conflict with the

21

federal interest). Indeed, to the extent there is any

identifiable federal policy with respect to individual human

rights under international law, it counsels against the

creation of a private right of action enforceable in federal

court, as demonstrated by this Court’s holding in Banco

Nacional de Cuba v. Sabbatino.

In Sabbatino, this Court held that modern federal common

law requires the application of the act-of-state doctrine as a

federal law defense against claims challenging the conduct of

foreign governments under international law. /d. at 421. In

doing so, the Supreme Court made clear that the act-of-state

doctrine had “‘constitutional’ underpinnings,” and originated

not in international law but in constitutional separation of

powers principles that counseled against judicial intervention

in foreign affairs. Jd. at 422-24; see also Restatement

(Third) Foreign Relations Law of the United States § 443

cmt. a & n.1(“no rule of international law requires

application of the act of state doctrine”). Thus, despite some

broad dictum in Sabbatino concerning the application of

modern federal common law to issues of international law, it

is Clear that this Court did not endorse the federalization of

every common-law tort that happened also to be a human

rights violation. To the contrary, in holding that the act-of-

state doctrine prevented a plaintiff from bringing claims for

torts alleged to violate international human rights law, the

Court in Sabbatino “declared the ascertainment and

application of international law beyond the competence of

the courts of the United States,” 376 U.S. at 439 (White, J.,

‘lissenting), and “did not consider international law to be part

of the law of the United States in the sense that United States

courts must find and apply it as they would have to do if

international legal rules had the same status as other forms of

United States law,” Harold G. Maier, The Authoritative

Sources of Customary International Law in the United

States, 10 Mich. J. Int'l L. 450, 463 (1989).

22

IV. THE INCORPORATION OF INTERNATIONAL

HUMAN RIGHTS NORMS INTO FEDERAL LAW

WOULD SERIOUSLY UNDERMINE DOMESTIC

FEDERALISM AND SEPARATION OF POWERS

The briefs of Petitioner, his other amici and the United

States persuasively explain why affirmance of the decision

below would have serious adverse consequences for both the

political branches’ ability to conduct foreign affairs

(including the war on terror) and the ability of U.S.

corporations to do business abroad, particularly in remote or

unstable areas that require security protection. This Court

should not, however, lose sight of the drastic domestic

implications of its decision in this case.

Although the focus of international human rights litigation

to date has been on abuses committed by and in foreign

nations, see supra pp. 4-5, there is nothing in the doctrines

developed by the lower courts that would limit the

application of the Alien Tort Statute to such situations. To

the contrary, the entire premise of the modern conception of

customary international law is that the rules protect

individuals from human rights abuses committed by their

own governments and countrymen and in their own

countries. See supra pp. 4-5. Accordingly, any federal right

of action to enforce international “law” generally (as

opposed to a narrowly drawn congressional enactment such

as the TVPA, see supra note 3) would necessarily govern the

domestic conduct of state and federal officials. In other

words, if U.S. law provides a cause of action for human

rights abuses committed in Mexico, then it necessarily

authorizes a cause of action for the same human rights

abuses committed in New Mexico.’

” The class of plaintiffs eligible to bring human-rights claims against

domestic officials would vary depending on which of the lower courts’

23

Under the current legal regime, plaintiffs with grievances

against state or federal officials may bring federal claims

under the Civil Rights Act of 1871, 42 U.S.C. § 1983, or the

Bivens doctrine. If this Court were to recognize claims for

customary international law violations, then in many, if not

most, cases involving allegations of civil rights violations or

police misconduct, plaintiffs will demand, and the courts will

be required to perform, a second layer of review, testing the

official action not only against the strictures of the U.S.

Constitution and federal law, but also against the prevailing

standards of customary international law. Such review — in

addition to altering the balance of power between the States

and the federal government and between the courts and the

political branches — will likely impose a significant burden

on both courts and litigants. See Flores v. Southern Peru

Copper Corp., 343 F.3d 140, 154 (2d Cir. 2003) (“the

relevant evidence customary international law is widely

dispersed and generally unfamiliar to lawyers and judges’’).

In addition to imposing additional restrictions on the

conduct of government officials in their law enforcement and

other duties, customary international human rights norms, if

found to be a part of federal law, could be used as an end run

around this Court’s decisions limiting the scope of federal

authority. For example, the Court has held that the federal

government lacks the constitutional authority to authorize

federal remedies for local acts of gender-motivated violence.

theories were adopted. Under the Ninth Circuit's view that the Alien

Tort Statute creates a statutory right of action, that right of action would

be limited by the express terms of the statute, whic applies only to alien

plaintiffs. By contrast, under the Second Circuit's more expansive view

that claimed violations of customary international law arise under federal

common law, such claims could be brought by any plaintiff pursuant to

the general federal-question jurisdictional statute, 28 U.S.C. § 1331. See

supra note 5. In either event, the adverse domestic consequences

discussed herein would be significant.

24

See United States v. Morrison, 120 S. Ct. 1740 (2000).

However, the documents and institutions that are the sources

for customary international law suggest that freedom from

gender-motivated violence is, or is evolving into, an

international human rights norm. See Brief of Amici Curiae

on Behalf of the International Law Scholars and Human

Rights Experts in Support of Petitioners, United States v.

Morrison, 529 U.S. 598 (2000) (Nos. 99-5, 99-29), 1999 WL

1037253 (cataloging such sources). If this is so, then a

federal cause of action of the sort invalidated in Morrison

would nevertheless be viable under federal law. Indeed, a

number of commentators have urged just such a result. See,

e.g., id.; Mary Ann Case, Reflections on Constitutionalizing

Women's Equality, 90 Calif. L. Rev. 765, 774 n.56 (2002).

Similarly, given that various sources of international human-

rights norms address freedom of religion, see Morley, supra,

at 116 & nn40-41 (cataloging such sources), the

incorporation of those norms into federal law could require

courts to enforce limitations on state action affecting

religious activity similar to those that the Court invalidated,

as exceeding the scope of Congress’s powers, in City of

Boerne v. Flores, 521 U.S. 507 (1997).

The incorporation of customary international human rights

norms into federal law would also inevitably lead to

unwarranted federal-court interference with the several

States’ criminal justice systems, including, for example, the

ability of the States to impose punishments such as the death

penalty. Under federal law, the outer boundaries of a State's

power to impose punishment for criminal activity are

delineated by the Eighth Amendment, and may not be further

infringed upon by the national government. Yet, if the

human-rights norms of the international community are

incorporated into U.S. law, then a judicial determination that

certain punishments violate those norms would prohibit the

States from imposing them, regardless of how widespread

their domestic acceptance. Indeed, many international law

scholars have argued that the death penalty (or at least

25

certain applications of it) violates custo.tiary international

law, see, e.g., Julian S. Nicholls, Comment, Too Young to

Die: International Law and the Imposition of the Juvenile

Death Penalty in the United States, 5 Emory Int’! L. Rev.

617, 651-52 (1991) (arguing that the juvenile death penalty

violates federal common law); Curtis A. Bradley, The

Juvenile Death Penalty and International Law, 52 Duke L.J.

485, 489-90, 514, 533-34 (2002) (collecting arguments that

the imposition of the death penalty on persons under the age

of eighteen violates customary international law), and

challenges to the death penalty based on international human

rights norms have already been brought in the federal courts,

see, e.g., Hain v. Gibson, 287 F.3d 1224, 1242-44 (10th Cir.

2002), cert. denied, 537 U.S. 1173 (2003); Beazley v.

Johnson, 242 F.3d 248, 263-68 (Sth Cir. 2001).

These examples are just the tip of the iceberg. Scholars

and commentators have argued that international law

protects, Or may soon protect, rights relating to an incredibly

broad range of topics, including, in addition to those

discussed above, education, employment, property,

environmental protection and sexual orientation. See

Bradley & Goldsmith, C ustomary International Law as

Federal Common Law: A Critique of the Modern Position,

supra, ‘110 Harv. L. Rev. at 841 & nn.170-71 (1997)

(providing examples of such arguments); Morley, supra, at

117 (explaining that “{e)xisting international agreements

cover almost every imaginable aspect of society, including

marriage, juvenile justice, and education” (footnotes

omitted)). A decision endorsing the incorporation of

customary international law into federal law thus has the

potential to federalize vast expanses of areas that are now

within the realms of state self-government.

The use of international human rights norms to regulate

local activity is particularly troublesome because of the

nature of modern international law. Despite the sources of

international law set forth in Filartiga and the Restatement,

26

there is neither an authoritative arbiter of international law

nor an objective method for determining the norms

incorporated therein, making international human rights law

necessarily indeterminate. See, e.g., Flores, 343 F.3d at 154

(describing customary international law's “soft,

indeterminate character”); Christopher A. Ford, Adjudicating

Jus Cogens, 13 Wis. Int'l L.J. 145, 165 (1994) (“Apart . . .

from the comparatively uncontroversial genocide and slavery

prohibitions—which still have their doctrinal critics—

nothing approaching a general consensus has developed

regarding the substantive content of peremptory international

law” (footnote omitted)). International law “evolves,”

moreover, on the basis of the views of entities, such as

domestic and foreign jurists, foreign and transnational courts

and treaty-making bodies, that are neither representative of

the American political community nor responsive to it.

Under these circumstances, the potential for anti-democratic

judicial activism in connection with the creation of a federal

common law of international law cannot be overstated. As

Judge Randolph recently observed in arguing that courts are

unauthorized to exercise a “free-wheeling judicial power” to

apply international law:

The political branches of our government may

influence but they by no means control the

development of customary international law. To have

federal courts discover it among the writings of those

considered experts in international law and in treaties

the Senate may or may not have ratified is anti-

democratic and at odds with principles of separation of

powers.

Al Odah, 321 F.3d at 1148 (Randolph, J., concurring); see also

Tel-Oren, 726 F.2d at 827 (Robb, J., concurring) (arguing that the

courts “ought not serve as debating clubs for professors willing to

argue over what is or what is not an accepted violation of the law

of nations”).

- ome oe eee oo ee we — =

27

Judicial interpretation is difficult and divisive enough

when it is based on the Constitution and the laws enacted by

Congress. Were federal courts authorized to pass judgment

on official action based on a State’s compliance with

“international” or foreign norms, fundamental principles of

judicial restraint, separation of powers and federalism would

be subverted. Whether Congress could even authorize such

a regime through an unambiguous statutory pronouncement

is itself a serious question going to the heart of our

constitutional structure. To permit the courts to authorize it,

either based on a once-obscure jurisdictional statute or, even

more radically, without any congressional authorization at

all, is a step that this Court should firmly reject.

CONCLUSION

For the reasons set forth above, this Court should reverse

the decision below and hold that the neither the Alien Tort

Statute nor the “common law of the United States” provides

a private right of action for violations of international human

rights law.

Respectfully submitted,

DANIEL J. POPEO

RICHARD A. SAMP

DONALD B. AYER

CHRISTIAN G. VERGONIS

WASHINGTON LEGAL (Counsel of Record)

FOUNDATION JONES DAY

2009 Massachusetts 51 Louisiana Avenue, N.W.

Avenue, N.W. Washington, DC 20001

WASHINGTON, D.C. 20036 (202) 879-3939

(202) 588-0302

January 2004 Counsel for Amici Curiae