# Amicus Curiae Brief — Sosa v. Alvarez-Machain

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0704%3A16

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 542 U.S. 692

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0704%3A16. Public record. Not legal advice.