Amicus Curiae Brief — Sosa v. Alvarez-Machain

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(3) FILED

JAN 2 3 2004

No. 03-339

IN THE

Supreme Court of the United States

JOSE FRANCISCO SOSA,

Petitioner,

HUMBERTO ALVAREZ-MACHAIN ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF FOR PROFESSORS OF INTERNATIONAL

LAW, FEDERAL JURISDICTION AND THE

FOREIGN RELATIONS LAW OF THE

UNITED STATES AS AMICI CURIAE

IN SUPPORT OF PETITIONER

PAUL B. STEPHAN

Counsel of Record

580 Massie Rd.

Charlottesville, VA 22903

(434) 293-6939

SAMUEL ESTREICHER

40 Washington Square South

New York, NY 10012

(212) 998-6226

January 23, 2004 Counsel for Amici Curiae

_ Eee

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20001

LIST OF AMICI

Samuel Estreicher is the Charles L. Denison Professor of

_ Law and Co-Director, Institute for Judicial Information, New

York University School of Law. He has been on the faculty of

New York University since 1978.

John C. Harrison is the D. Lurton Massie, Jr. Professor of

Law and the Horace W. Goldsmith Research Professor at the

University of Virginia School of Law. He has been on the

faculty of the University of Virginia since 1993 and served in

the Justice Department from 1983 to 1993, from 1990

to 1993 as Deputy Assistant Attorney General, Office of

Legal Counsel.

John O. McGinnis is Professor of Law, Northwestern

University School of Law. He has been on the faculty of

Northwestern University since 2002, from 1991 to 2002 on

the faculty of Benjamin N. Cardozo School of Law, Yeshiva

University, and from 1985 to 1991, was an attorney-advisor,

then Deputy Assistant Attorney General, Office of Legal

Counsel, U.S. Department of Justice.

Michael D. Ramsey is Professor of Law, University of San

Diego School of Law. He has been on the faculty of the

University of San Diego since 1995.

Paul B. Stephan is the Lewis F. Powell, Jr. Professor of Law,

University of Virginia School of Law. He has been on the

faculty of the University of Virginia since 1979.

Ruth Wedgwood is the Edward B. Burling Professor of

International Law and Diplomacy, Paul H. Nitze School of

Advanced International Studies, Johns Hopkins University

and has been a member of the Secretary of State's Advisory

Committee on International Law since 1993. She has been on

the faculty of the Paul H. Nitze School since 2001, on the

faculty of Yale Law School from 1986 to 2002, and was

Assistant U.S. Attorney, Southern District of New York, from

1980-86.

(i)

A. Mark Weisburd is Professor of Law, University of North

Carolina School of Law. He has been on the faculty of the

University of North Carolina since 1981.

III.

IV.

TABLE OF CONTENTS

| I.

The Ninth Circuit’s Interpretation Of 28

U.S.C. § 1350 Is Unsound And Imposes

Burdens Under International Law To Which

This Country Has Not Assented ........................

28 U.S.C. § 1350 Does Not Authorize Federal

Courts To Incorporate International Law Into

ST TT tncrenncngnnenemensnccsenscenencsees

The Court Below’s Interpretation Of 28 U.S.C.

§ 1350 Would Hinder U.S. Participation

In The Sound Development Of International

Ta daetderacaensageeanenensensnerennnessenseosesenees

Other States Do Not Permit Private Civil Suits

For Damages Based Solely On Alleged Vio-

lations Of General International Law ................

The Argument That 28 U.S.C. § 1350 Provides

A Cause Of Action For Private Civil Suits

Based On Alleged Violations Of Interna-

Tional Law Cannot Be Reconciled With The

190-Year Gap In That Statute’s History............

SE TEEITTIITTIIIT enntntnencensscnescosetcseseensecensescneesececnssccessceeses

(iii)

iV Vv

TABLE OF AUTHORITIES TABLE OF AUTHORITIES—Continued

CASES Page | Page

Air France v. Saks, 470 U.S. 392 (1985)... 3 The Paquete Habana, 175 U.S. 677, 708 (1900) .. 9

Alvarez-Machain v. United States, 331 F.3d 604 Ex Parte Quirin, 317 U.S. 1 (1942)...ccc.csseesssseee00e 16

a om 1 oe | In re South African Apartheid Litigation, MDL

American Insurance Co. v. Canter, 26 U.S. (1 No. 1499 (S.D.N.Y.).ccccccccccosesucsnesessessesseeneeneene 21

Pet.) S11 (1828) ......ssssssssssesecssesssssesseeensnsessneessces 7) | Territory of Hawaii v. Ho, 41 Haw. 565 (1957)... 13

Argentine Republic v. Amerada Hess Shipping : Verlinden B.V. v. Central Bank of Nigeria, 461

Corp., 488 U.S. 428 (1989) .....ssesccesssssesseeessnen 26 U.S. 480 (1983) .occcccccccsssseee a eee 12

Baldwin-Lima-Hamilton Corp. v. Superior West v. Multibanco Comermex, S.A., 807 F.2d

Court, 208 Cal. App. 2nd 803, 25 Cal. Rptr. I a ee ie 11

Bot A 13

Banco Nacional de Cuba v. First National City CONSTITUTION, STATUTES, AND

Bank, 478 F.2d 191 (2nd Cir. 1973) .....cssee-sseee0 1 | ADMINISTRATIVE PROVISIONS

Banco Nacional de Cuba v. Sabbatino, 376 U.S. U.S. Constitution Article 1, § 8, cl. 10 .....c.ccccccceeee. 10

ere siannstnichicitinacieicisatitesiaeiaaneteiiniamacntiaiitaianadatatiiase 10, 11 | U.S. Constitution Article I.....................ccccecee00-.. 16

Bivens v. Six Unknown Named Agents, 403 U.S. U.S. Constitution Article [I ........c.ccccccseseceseeeseees passim

|, | SEE EEE - 7 RRR ATS SAA IRE, Nore tra rn 14

Burke v. Trevitt, 4 Fed. Cas. 746 (C.C.D. Mass. ie i etheatceatiadinnticeniemeeinmamaenel passim

TTT cscrsccisintannmnsetitatideiasiauinadiaansiasiiiahimaantiniiaadiaddatints 28 Act of Mar. 3, 1875, § 1, 18 Stat. 470 (current

Chan v. Korean Air Lines, Lid., 490 U.S. 122 ~ version codified at 28 U.S.C. § 1331) ............0+. 27

SUT ccisdeisetstaitenieseisiaintsilitaltasitatimuiaiiaiala tiaidssiiaatueabinadianimeaniies 4 Act of June 4, 1920, art. 15, 41 Stat. 759, 790...... 15

El Al Israel Airlines, Lid. v. Tseng, 525 U.S. 155 Foreign Sovereign Immunity Act of 1976, 90

ee Ie LE “ 3 Stat. 2891 (codified at 28 U.S.C. §§ 1330,

Filartiga v. Pena-lrala, 630 F.2d 876 (2nd Cir. ERIS en errr een Woonetner cre Wea 10, 12

UTI ncsenanuntsinneisumanatidnnunatniaaiainntpeimasnenaiattetiaees passim Judiciary Act of 1789, ch. 20, 1 Stat. 73....8, 26, 27, 28, 29

First National City Bank v. Banco Para el Foreign Assistance Act of 1964, § 301(2), 78

Comercio Exterior de Cuba, 462 U.S. 611 Stat. 1009, 1013 (1965) (codified at 22 U.S.C.

( SED cocescsssecsccnsesssnereceressnsesssnssseeusensasesssuusssse “ 10 a CARR SPSEN AE SEPP EAP CEN 10

IIT v. Vencap, 519 F.2d 1001, 1015 (2nd Cir. North American Free Trade Agreement Imple-

aval onscnnccdtennpeneminndnanniuninsiinadiiniibmaadieaiaiaiitans 26 mentation Act of 1993, § 102(b)(2), (c), 107

The Marianna Flora, 24 U.S. (11 Wheat.) | Stat. 2057, 2062 (codified at 19 U.S.C.

SITET esscssocrcaisnusnsinsehiueniiaitninniiiastiattaahaiapadeeadiaeniamadiaiiaadians 7) NE ELI Tee TE 13

Mossman v. Higginson, 4 U.S. (4 Dall.) 12

(ee accesnensnsasssssmnenneeummmamsennnnnsentins 14, 28, 29 ‘

TABLE OF AUTHORITIES—Continued

Page

Torture Victim Protection Act of 1991

(“TVPA”), 106 Stat. 73 (1992), reprinted in 28

elie OF CEN ccisinenimpnsnimcnimniuniermnemmediones 14

Uniform Code of Military Justice, 10 U.S.C.

STEED carsnsseetneneninaninedmnenmnennmnnemnniinananen 16

Uruguay Round Agreements Act of 1994,

§ 102(b)2,A), (c), 108 Stat. 4809, 4815

(codified at 19 U.S.C. § 3512(b)(2)(A), (c)) ... 13, 14, 19

Military Order of November 13, 2001, 66 FED.

REG. 57,833 (Nov. 16, 2001) .........cccceeeeeeeeeeees 16

LEGISLATIVE MATERIALS

U.S. Senate Resolution of Advice and Consent to

Ratification of the International Covenant on

Civil and Political Rights, 138 CONG. REC.

$4783 (daily ed. Apr. 2, 1992) .......ccccceeseeeeeees 6, 19

REPORT OF THE COMMITTEE ON FOREIGN

RELATIONS, INTERNATIONAL COVENANT ON

CIVIL AND POLITICAL RIGHTS, S. Exec. Rep.

TTT incr sssrsinasiciaanstaesenianianeniteainanimareitaiitlentetin 6,19

TREATIES AND EXECUTIVE AGREEMENTS: HEAR-

INGS ON S.J. RES. | AND S.J. RES. 43 BEFORE A

SUBCOMM. OF THE SENATE COMM. ON THE

JUDICIARY, 83d Cong., Ist Sess. (1953)............ 19

Four Treaties Relating to Human Rights, Hear-

ing before the Comm. On Foreign Relations,

96th Cong., Ist Sess. (1979)............scccccessreeesees 19

U.S. State Dep’t Circular No. 175 (Dec. 13,

Peep axeessencenunssansienniennestineinmmemnmemenmansien 19

Vil

TABLE OF AUTHORITIES—Continued

TREATIES OF THE UNITED STATES

Convention on the Prevention and Punishment of

Genocide, S. Exec. Doc. O, 81st Cong., Ist

Sess. (1949), 78 U.N.T.S. 277 (opened for

signature, Dec. 9, 1948, entered into force,

Jan. 12, 1951, entered into force for the U.S.,

Feb. 23, 1989, ratified by the U.S. with reser-

vations, understandings, and one declaration,

132 Cong. Rec. 2349 (1986)) ......ccccceeeeeeeeeeees

International Covenant on Civil and Political

Rights, S. Exec. Doc. E, 95-2 (1978), 999

U.N.T.S. 171 (opened for signature, Dec. 16,

1966, entered into force Mar. 23, 1976,

entered into force for the U.S., Sept. 8, 1992)

(ratified by the U.S. with reservations,

understandings, declarations, and one proviso,

Page

138 Cong. Rec. 8070 (1992)) ....... cee 6, 7, 14, 18, 19

International Convention on the Elimination of

All Forms of Racial Discrimination, S. Exec.

Doc. C, 95-2 (1978), 660 U.N.T.S. 195

(opened for signature, Mar. 7, 1966, entered

into force, Jan. 4, 1969, entered into force for

the United States, Nov. 20, 1994) (ratified by

the U.S. with reservations, understandings, one

declaration, and one proviso, 140 Cong. Rec.

ITI os orsssstsaiiniaastaaiisiaatinnaialtintadinniiataiienads

Treaty to Prohibit Transborder Abductions, Nov.

23, 1994, United States-Mexico ..................00005

OTHER TREATIES

African Charter on Human and Peoples’ Rights,

1520 U.N.T.S. 217 (opened for signature, June

27, 1981, entered into force, Oct. 21, 1986)......

5,7

Vill

TABLE OF AUTHORITIES—Continued

. American Convention on Human Rights, 1144

U.N.T.S. 123 (opened for signature, Nov. 22,

1969, entered into force, July 18, 1978)............

Convention Against Torture, and Other Cruel,

Inhuman or Degrading Treatment or Punish-

ment, 1465 U.N.T.S. 85 (opened for signature,

Dec. 10, 1984, entered into force, June 26,

European Convention for the Protection of

Human Rights and Fundamental Freedoms,

213 U.N.T.S. 222 (opened for signature,

Nov. 4, 1950, entered into force, September 3,

Page

Ee 6, 22, 23, 24

MISCELLANEOUS

Human Rights Act, 1998, c. 42 (Eng.) .........0c000

Loi relative aux violations graves du droit

international humanitaire. (Loi du 5 August

Azanian Peoples Organization and Others v. the

President of the Republic of South Africa and

Others, Constitutional Court of South Africa,

CCT 17/1996, 25 July 1996.............csccssecsesseees

Brodie v. Singleton Shire Council, 186 Australian

L. Rptr. 145 (Australian High Ct. 2001)............

Democratic Republic of the Congo v. Belgium,

[2002] 1.0.5. .nrevcscscsrsrserscsrersssnsesececsersssessnsseees

E. v. United Kingdom (App. No. 33218/96),

European Court of Human Rights (Nov. 26,

Regina v. Bow Street Metropolitan Stipendiary

Magistrate and others, ex parte Pinochet

Ugarte (No. 3), [2000] 1 A.C. 147 (HLL.).........

TABLE OF AUTHORITIES—Continued

Rio Tinto Zinc Corp. v. Westinghouse Electric

Corp., [1978] A.C. 547, 562-63 (H.L.) .............

Schreiber v. Canada, 216 Dom. L. Rptr. 513

(2002) (Sup. Ct. Cam.) ..........scccsssrsssssrsssssreseeeees

RESTATEMENT (THIRD) OF THE FOREIGN

RELATIONS LAW OF THE UNITED STATES (ALI

Grant Gilmore & Charles L. Black, Jr., THE LAW

OF ADMIRALTY (1957) ...ccccccrerersececsrecsererseeeseeees

Louis Henkin, FOREIGN AFFAIRS AND THE

I aie enier eile ienitliiinien

TORTURE AS TORT—COMPARATIVE PERSPEC-

TIVES ON THE DEVELOPMENT OF TRANSNA-

TIONAL HUMAN RIGHTS LITIGATION (Craig

Curtis A. Bradley, The Alien Tort Statute and

Article Ill, 42 VA. J. INT'L L. 587 (2002) ..........

Curtis A. Bradley & Jack L. Goldsmith, Cus-

tomary International Law as Federal Common

Law: A Critique of the Modern Position, 110

HARV. L. REV. 815 (1997) ..........ccccccccseseseseeseeees

Curtis A. Bradley & Jack L. Goldsmith, Federal

Courts and the Incorporation of International

Law, 110 HARV. L. REV. 2260 (1998)...............

Curtis A Bradley & Jack L. Goldsmith, Treaties,

Human Rights, and Conditional Consent, 149

U. PA. L. REV. 399 (2000) ............cccccceeeeeseeseeeees

Ronald A. Brand, The Status of the General

Agreement on Tariffs and Trade in United

States Domestic Law, 26 STAN. J. INT’L L. 479

_ Page

TABLE OF AUTHORITIES—Continued

Kristin Henard, Post-Apartheid South Africa:

Transformation and Reconciliation, 166

WORLD AFFAIRS 37 (2003)..........ccccccseecceceeeeeeees

Louis Henkin, U.S. Ratification of Human Rights

Treaties: The Ghost of Senator Bricker, 89

PR ee

Robert E. Hudec, The Legal Status of the GATT

in the Domestic Law of the United States, in

THE EUROPEAN COMMUNITY AND GATT 187

(Meinhard Hilf, Francis G. Jacobs & Ernst-

Ulrich Petersmann eds. 1986)................c..e0eeeeees

Human Rights Committee, International Law

Association (British Branch), Report on Civil

Actions in the English Courts for Serious

Human Rights Violations Abroad, 2 Eur.

Hum. RTS. L. REV.129 (2001) ............ccccccceseeeees

Harold H. Koh, /s /nternational Law Really State

Law? 111 HARV. L. REV. 1824 (1998) ..............

John H. Jackson, The General Agreement on

Tariffs and Trade in United States Domestic

Law, 66 Mich. L. REV. 260 (1967) ................064.

Catherine J. Redgwell, Reservations to Treaties

and Human _ Rights Committee General

Comment No. 24(52), 46 INT’L & Comp. L.Q.

Fk eR tctecccncnnsenannentomianmenniniane

Catherine Redgwell, Universality or Integrity?

Some Reflections on Reservations to General

Multilateral Treaties, 1993 Brit. Y.B. INTL

Paul B. Stephan, Courts, the Constitution, and

Customary International Law: The Intellectual

Origins of the Restatement (Third) of the

Foreign Relations Law of the United States, 44

ee ee

Page

a mm ee

TABLE OF AUTHORITIES—Continued

Beth Stephens, Translating Filartiga: A

Comparative and International Law Analysis

of Domestic Remedies for International

Human Rights Violations, 27 YALE J. INT’L L.

Phillip R. Trimble, A Revisionist View of

Customary International Law, 33 U.C.L.A. L

I I cee sett aaitaai ieee

A. Mark Weisburd, State Courts, Federal Courts,

and International Cases, 20 YALE J. INT’L L. 1

SSSI TaTeiihecrisnsiciictemtiaciabesitcsiatinthitiladeileaanietdeidaainasit iat

Note, The United States Participation in the

General Agreement on Tariffs and Trade, 61

COLUM. L. REV. 505 (1961) oo... ccecceeeeeeeees

Page

ee A

INTEREST OF THE AMICI CURIAE '

This brief amicus curiae is respectfully submitted by law

professors with expertise in international law, federal

jurisdiction, and the foreign relations law of the United

States. Amici believe that the Ninth Circuit’s interpretation of

28 U.S.C. § 1350 in this case, which draws on an earlier

innovation of the Second Circuit in Filartiga v. Pena-Irala,

630 F.2d 876 (1980), reflects unsound statutory interpretation

and impermissibly shifts the lawmaking role from the

politically accountable branches to the courts. The principal

effect of the unrestrained role for the judiciary advanced by

the decision below is to place the United States at a structural

disadvantage in its international relations by undermining the

government’s capacity to ensure the meaning of its

commitments under international agreements. As specialists

in international law and federal jurisdiction, we are con-

- cerned that an affirmance of the ruling below would impose

upon the political branches of our country handicaps faced by

the governments of no other nation and seriously complicate

the ability of the United States to advance the interests of its

people in international affairs.

SUMMARY OF ARGUMENT

The Ninth Circuit incorrectly interpreted 28 U.S.C. § 1350

as authorizing federal courts to create means of enforcing

international obligations through private civil suits between

aliens. Shifting the power to create remedies for supposed

violations of international law away from the Executive and

Congress and towards the courts undermines the role of state

consent in the creation of international law by imposing upon

' No counsel for any party authored this brief either in whole or in part,

and no persons other than the amici curiae made any monetary

contribution to its preparation or submission. The written consents of

petitioner and respondent Alvarez-Machain to the filing of this brief have

been filed with the Clerk. The written consent of respondent United States

accompanies this brief.

the United States enforcement obligations that it has not

assumed. The political branches should decide whether

particular obligations reached in international negotiations

will carry with them a private right of action for money

damages. The Ninth Circuit’s reading will undermine the

capacity of the United States to participate in the sound

development of international law. Other nations do not

recognize a general power on the part of their courts to use

private civil suits as a means of enforcing international law.

There is no reason to believe that Congress in 1789 created

such a power in the judiciary. The long history of disuse of 28

U.S.C. § 1350, from the time of its enactment in 1789 until

the Second Circuit’s 1980 invocation in Filartiga, indicates

that the interpretation embraced by the Ninth Circuit is a

modern artifact unrelated to the original purpose of Congress

in enacting the statute.

ARGUMENT

I. The Ninth Circuit’s Interpretation of 28 U.S.C. § 1350

Is Unsound and Imposes Burdens under International

Law to Which This Country Has Not Assented.

The fundamental issue in this case is whether 28 U.S.C.

§ 1350 (hereinafter “§ 1350”), in referring to “any civil action

by an alien for a tort only, committed in violation of the law

of nations or a treaty of the United States,” means to treat as

actionable torts all injuries traceable to transgressions of “the

law of nations” or any treaty.

The court below ruled that § 1350 both creates federal

court jurisdiction to hear all claims based on international law

and authorizes the federal courts to develop a federal

common law of torts based on international law.

We discuss the question of jurisdiction in Part V below. As

to the rule of decision, the operative language of the statute is

“a tort only, committed in violation of the law of nations or a

treaty of the United States.” There is no basis for believing

that Congress intended this language to.embrace all violations

————— LN tt

of international law anywhere. By using these words of

limitation, Congress addréssed only those instances where

international law itself regarded specific conduct as giving

rise to a civil action for damages on the part of a person

injured by the violation. It is not enough for international law

to forbid particular conduct. International law must provide

for civil liability for a violation in order for the violation to

constitute a tort under § 1350.

A proper understanding of the meaning and purpose of this

language in § 1350 requires an appreciation of what

international law is and is not. International law in its essence

involves obligations that a state has assumed. In the case of

treaties, the assumption of the obligation results from the

state’s consent to the treaty, and the content of the obligation

becomes a matter of treaty interpretation. See, e.g., El Al

Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 167 (1999) (focus

on words of treaty and evidence of the understanding of

parties); Air France v. Saks, 470 U.S. 392, 399 (1985) (same).

As with a private contract, a treaty will not be understood to

impose on parties duties that they did not intend to assume.

There is considerable disagreement as to what kind of law

customary international law is, and in particular whether it

constitutes federal law within the meaning of Article III of the

Constitution.” There is no debate, however, about the core

> The academic literature debating the status of customary international

law as federal law is vast and contentious. For the early stages of this

debate, compare 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), and Curtis A. Bradley & Jack L.

Goldsmith, Federal Courts and the Incorporation of International Law,

110 HARV. L. REV. 2260 (1998), Phillip R. Trimble, A Revisionist View of

Customary International Law, 33 U.C.L.A. L REV. 665 (1986), and A.

Mark Weisburd, State Courts, Federal Courts, and International Cases,

20 YALE J. INT'L L. 1 (1995), with RESTATEMENT (THIRD) OF THE

FOREIGN RELATIONS LAW OF THE UNITED STATES §§ 111 comment d, 115

comment e (1987), and Harold H. Koh, /s /nternational Law Really State

Law? 111 HARV. L. REV. 1824 (1998). Of course, if customary interna-

principle that a rule of customary international law exists if,

and only if, states regard that norm as creating a binding legal

obligation. A state which has rejected the binding character of

a purported norm of customary international law is not bound

by that norm.”

In determining the obligations that bind a state under

international law, whether through a treaty or as a matter of

customary international law, one must distinguish between

the primary rule of conduct—whether a promise to disarm, to

adopt a rule of international commercial law, or to respect

core human rights—and the remedial mechanisms for

enforcing that rule, including the choice of persons against

whom an obligation may be enforced. A state may accept a

particular obligation while imposing strict limits on the ways

that obligation can be enforced against it or its subjects. In

sum, a state is bound under international law only to the

extent it has assented both to an obligation and to the means

of enforcing that obligation.

This Court’s jurisprudence recognizes that the existence of

an obligation under international law does not imply a license

for the judiciary to create methods to enforce the obligation.

For example, in Chan v. Korean Air Lines, Ltd., 490 U.S. 122

(1989), the Court confronted an air carrier’s violation of an

obligation to provide adequate notice of the limits to the

carrier’s liability resulting from the Warsaw Convention. The

Court noted that whatever the precise obligation of the carrier

to notify passengers of the liability limits, the Warsaw

Convention did not impose suspension of the limits as a

sanction. The Court recognized, in other words, that both the

duty and the consequences for its violations had to be

tional law is not federal law, then a suit brought by an alien against

another alien, not based on admiralty, would not vel non come within

federal court jurisdiction.

’ RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE

UNITED STATES § 102 comment d (ALI 1987).

determined by reference to the international instrument in

question, and not based on a free-standing mandate for judges

to create whatever enforcement mechanisms they might wish.

The decision of the court below, as did the earlier ruling of

the Second Circuit in Filartiga v. Pefia-lrala, 630 F.2d 876

(1980), flouts this fundamental principle of international law.

It leaps from a determination that a norm of customary inter-

national law exists to an assertion that a transgression of that

norm must result in a right to a civil action against an indi-

vidual under § 1350. This move is unwarranted and unsound.

The court below conceded, as it must, that no international

agreement to which the United States (or, for that matter, any

other state) is a party creates a personal right not to be

subjected to what it characterized as a transborder abduction.*

Instead, the court divined the existence of an individual right

under customary international law to be free from “arbitrary

arrest and detention.” It further determined that a violation of

this supposed right occurred when a state allegedly carried

out an arrest on the territory of another state without the

permission or consent of the latter state or express

authorization under its own law. Alvarez-Machain v. United

States, 331 F.3d 604, 623 & n.23 (9th Cir. 2003). It then

concluded that § 1350 required a court to regard transgression

of this freshly minted right as “a tort . . . committed in

violation of the law of nations” and therefore actionable in

federal court. /d. at 631.

In concentrating on the question whether international

custom provided general support for the proposition that

individuals may not be subjected to arbitrary arrest and

* Indeed, a treaty signed by the United States and Mexico, which has

not yet gone into force, would expressly prohibit suits for such

abductions. Treaty to Prohibit Transborder Abductions, Nov. 23, 1994,

U.S.-Mex., reprinted in Michael Abbell, Extradition to and From the

United States, at A-303 (2002) (cited in Alvarez-Machain v. United ~

States, 331 F.3d 604, 619 (9th Cir. 2003).

detention, the court ignored the question of what consequen-

ces international law attached to violations and therefore what

constitutes “a tort . . . committed in violation of the law of

nations.” The evidence cited by the court for the existence of

this supposed custom cum law included the European

Convention for the Protection of Human Rights and

Fundamental Freedoms, opened for signature, Nov. 4, 1950,

213 U.N.T.S. 222, and the African Charter on Human and

Peoples’ Rights, opened for signature, June 27, 1981, 1520

U.N.T.S. 217, instruments to which the United States is

manifestly not a party and which in no case provide for a

right to a civil action for damages in domestic courts, and the

American Convention on Human Rights, opened for

signature, Nov. 22, 1969, 1144 U.N.T.S. 123, an instrument

that the United States has not ratified and which also does not

provide for domestic judicial enforcement. 331 F.3d at 621

n.17. The court below also relied on the International

Covenant on Civil and Political Rights, 999 U.N.T.S. 171

(entered into force Mar. 23, 1976; for the United States,

Sept. 8, 1992), an instrument which the United States in

ratifying explicitly stated does not create any judicially

enforceable remedies under U.S. law. U.S. Senate Resolution

of Advice and Consent to Ratification of the International

Covenant on Civil and Political Rights, 138 CONG. REC.

$4783 (daily ed. Apr. 2, 1992); REPORT OF THE COMMITTEE

ON FOREIGN RELATIONS, INTERNATIONAL COVENANT ON

CiviL AND POLITICAL RIGHTS, S. Exec. Rep. 102-23, at 10

(1992). None of the authorities cited by the court below

suggests the existence under international law of a right to sue

for damages for arbitrary arrest and detention. Further, the

international instruments cited by that court purport to create

rights against governments only, not against individual

government agents.

* The United States, of course, has remarkably strong legal protections

against arbitrary arrest and detention, based principally on the Fourth and

The holding of the court below produces a result clearly at

odds with the obligations that the United States has assumed.

First, by defining an “arbitrary arrest and detention” as

comprising all instances where the United States carries out

an arrest outside of U.S. territory without the cooperation and

consent of local authorities (absent express domestic auth-

ority to effect extraterritorial arrests), it in effect creates an

individual right not to be subjected to transborder abduction.

This result flies in the face of the Ninth Circuit’s correct

determination that no such U.S. obligation exists. Second, the

holding of the court below would appear to make a nullity of

the provision of the impending U.S.-Mexican treaty that for-

bids lawsuits based on abductions. See note 4 supra. Third, it

reverses the determination of the U.S. Senate that the

International Covenant on Civil and Political Rights should

not have direct effect in U.S. law by authorizing a damages

action for violation of that treaty. Fourth, it brings into effect

the American Convention on Human Rights without any

Senate consent at all. In essence, the Ninth Circuit seeks

to impose on the United States, in the guise of “finding”

customary international law, an obligation which the politi

cal branches of our government have manifestly refused

to assume.

A proper reading of § 1350 avoids each of these obviously

problematic outcomes. It would not regard § 1350 as an open

invitation to develop a law of sanctions for any behavior that

might be regarded as violating some aspect of international

law. To the contrary, that statute applies only to particular

international-law obligations, namely those recognized under

Fourteenth Amendments. See, e.g., Bivens v. Six Unknown Named Agents,

403 U.S. -388 (1971). These protections, however, do not extend to the

actions of foreign actors such as petitioner Sosa. The Ninth Circuit in

effect interpreted the international obligations of the United States as

comprising the creation of a Bivens claim on behalf of all persons,

including nonresident aliens, against all governmental actors worldwide.

No international treaty, however, creates such an obligation.

international law as giving rise to a civil action in tort for

compensation. It does not give federal courts the authority to

treat as torts all violations of international law involving

aliens, but instead is limited to violations that, as a matter of

“the law of nations or a treaty of the United States,” constitute

a tort. And a tort, both at the time of this provision’s

enactment and today, means precisely a legally authorized

civil action for damages.

Il. 28 U.S.C. § 1350 Does Not Authorize Federal

Courts to Incorporate International Law into U.S.

Domestic Law

We do not dispute that Congress in enacting a statute may

choose to incorporate a rule of international law into the law

of the United States, and in doing so may specify what

sanctions apply.

A review of U.S. practice suggests that Congress and the

President, acting together through the legislative process,

have bestowed on the federal courts the authority to interpret

and apply international law in situations where the exercise of

that capacity is consistent with the national interest. They

have done so selectively and in response to particular

concerns. These specific instances of delegating limited

authority to the courts to determine the content of

international law would have been superfluous if § 1350

meant what the court below claims it means.

An early and important example of delegation of the

authority to determine international law is the creation of

“admiralty and maritime jurisdiction,” mentioned specifically

in Article III § 2, cl. 1, of the Constitution and established by

Section Nine of the Judiciary Act of 1789. As the leading

treatise on the subject states,

“It was assumed at first, and later expressly stated by

all authorities, that those courts to which judicial

jurisdiction over maritime cases was granted were thereby

empowered and obligated to apply to such cases, in the

absence of statute, the rules of the general maritime law.”

Grant Gilmore & Charles L. Black, Jr., THE LAW OF

ADMIRALTY 41 (1957). Thus, in The Marianna Flora, 24

U.S. (11 Wheat.) 1, 41 (1826), the Court declared that an

unauthorized attack by a private armed vessel “may be

punished by all the penalties which the law of nations can

properly administer.” And at the outset of the twentieth

century, this Court similarly observed that a rule of decision

“that at the present day, by the general consent of the

civilized nations of the world, and independently of any

express treaty or other public act” had become an established

rule of international law, “is one which prize courts, admin-

istering the law of nations, are bound to take judicial notice

of, and to give effect to, in the absence of any treaty or other

public act of their own government in relation to the matter.”

The Paquete Habana, 175 U.S. 677, 708 (1900) (ascertaining

content of international law for purposes of resolving an

admiralty dispute). Early on the Court made clear that the

rules of decision applicable to admiralty cases did not “arise

under” the laws of the United States, except where a statute or

treaty expressly displaced the common law. See American

Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511, 545-46 (1828).

One cannot infer from the establishment of admiralty

jurisdiction, in which courts were given a special warrant to

apply customary international law based on well-recognized

causes of action in the absence of other legal authority, a

general practice of authorizing federal courts to develop

international law norms across the board. Article III explicitly

authorizes the creation of admiralty jurisdiction.° It contains

° At the time of the founding of the Republic, admiralty already was a

well developed body of law of critical importance to a seafaring nation

heavily dependent on maritime tradz. The United States, then a relatively

weak force internationally, had no reason to impose its own rules, but

instead sought to reconcile its judicial practice with that of British and

no reference to international law other than treaties, whereas

Article |, § 8, cl. 10 clearly assigns to Congress, and not the

courts, the power to “define and punish . . . Offenses against

the Law of Nations.”

Another example of legislative authorization for federal

courts to determine general rules of international law is

the so-called Second Hickenlooper Amendment. Foreign

Assistance Act of 1964, Pub. L. No. 88-633, § 301(2), 78

Stat. 1009, 1013. This provision, a reaction to the decision in

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964),

requires federal courts not to:

“decline on the ground of the federal act of state doctrine

to make a determination on the merits giving effect to the

principles of international law in a case in which a claim

of title or other right to property is asserted by any party

including a foreign state . . . based upon (or traced

through) a confiscation or other taking . . . by an act of

that state in violation of the principles of international

law,...”

The Second Hickenlooper Amendment had the effect of

authorizing federal courts to employ principles of- inter-

national law to determine when a state’s expropriation of an

alien’s property would be actionable, in spite of this Court’s

expressions of reluctance, Sabbatino, supra, at 824-25, to

determine on its own whether such law existed.’ The courts

have honored this command of Congress and, when

necessary, have assessed the legality of governmental

confiscations. See, e.g., First National City Bank v. Banco

Para el Comercio Exterior de Cuba, 462 U.S. 611 (1983)

continental courts. This concern was particular and pressing, and not

relevant to other aspects of international custom.

’ Congress in 1976 supplemented the power of federal courts to deal

with disputes over confiscation of property in violation of international

law by authorizing jurisdiction over suits raising these claims against

foreign sovereigns. See 28 U.S.C. §§ 1330(a), 1605(a)(3).

(international-law-based right of compensation can offset

claim on letter of credit); Banco Nacional de Cuba v. First

National City Bank, 478 F.2d 191 (2nd Cir. 1973) (Cuban

seizure of bank property violated customary international

law), on remand from 406 U.S. 759 (1972); West v.

Multibanco Comermex, S.A., 807 F.2d 820 (9th Cir.)

(Mexican imposition of restrictions on right to withdraw

dollars from local banks did not violate international law),

cert. denied, 482 U.S. 906 (1987). In each of these cases,

however, the underlying right of action was not derived from

international law, but rather was “a claim of title or other

_ right to property,” as specified in the Second Hickenlooper

Amendment, based on state or foreign law.

Again, no inference can be drawn from the enactment of

the Second Hickenlooper Amendment that Congress in

1964—let alone in 1789—contemplated that persons wronged

by any and all violations of international law have an

automatic right to sue for damages in federal courts.

Sabbatino was a case where federal jurisdiction rested on

alienage diversity jurisdiction (a suit by an instrumentality of

a foreign government against citizens of a U.S. state) and

where the defendants interposed a violation of international

law as a defense to a claim based on a commercial contract.

There is no evidence that Congress believed that victims of

expropriations had any rights under § 1350, and the

expressions of the Sabbatino Court about the undesirability of

federal courts entertaining suits to vindicate the rights of

owners of confiscated property, if anything, supports the

opposite inference.*

* This Court stated that:

“There are few if any issues in international law today on which

opinion seems to be so divided as the limitations on a state’s power to

expropriate the property of aliens. . . It is difficult to imagine the courts

of this country embarking on adjudication in an area which touches

more sensitively the practical and ideological goals of the various

members of the community of nations.”

Yet another instance of the carefully calibrated incorpor-

ation of international law principles into U.S. domestic law is

the enactment of 28 U.S.C. § 1330 as part of the Foreign

Sovereign Immunity Act of 1976 (FSIA). Before enactment

of the FSIA, foreign sovereign immunity in the United States

rested on decisional law rather than a statute or treaty.

Congress decided to supplant that body of law with the FSIA,

which codifies the immunity enjoyed by foreign sovereigns

and authorizes federal jurisdiction over all suits brought

against foreign sovereigns where an exception to immunity

exists. As this Court recognized in Verlinden B.V. v. Central

Bank of Nigeria, 461 U.S. 480 (1983), the enactment of 28

U.S.C. § 1330 did not create any new rules of decision

governing the conduct of foreign sovereigns, but rather

established federal standards for determining when American

courts could assert jurisdiction over claims arising under

foreign, international, state, or federal law asserted against

foreign sovereigns.’ Of special relevance, in light of the Ninth

Circuit’s assertion that § 1350’s grant of jurisdiction implies

the authority to create a federal common law of international

human rights, is the evident capacity of Congress to create

federal court jurisdiction pursuant to the “arising under”

prong of Article Ill, § 2, cl. 1, without at the same time

conferring on the federal courts any authority to create a

federal common law of international relations.

Sabbatino, supra, at 824-25. Under the reasoning of the court below,

however, a federal court would be obligated to hear all such claims, at

least if asserted by aliens, even if Congress never had enacted the Second

Hickenlooper Amendment.

* In Verlinden the Court in particular recognized that the creation by

Congress of a federal remedy for a claim arising against a foreign

sovereign presented a question “arising under . . . the laws of the United

States” sufficient to sustain jurisdiction under Article Ill, § 2, cl. 1, even

though the substantive rule of decision on which a claim would be based

did not arise under U.S. law. 461 U.S. at 492-97.

Another illustration of legislative incorporation of inter-

national law into domestic law involves the implementation

of trade agreements. Section 102(b)(2), (c) of the North

American Free Trade Agreement Implementation Act of

1993, codified at 19 U.S.C. § 3312(b)(2), (c), recognizes the

legal force of a particular international agreement, i.e., the

North American Free Trade Agreement, but restricts dom-

estic enforcement to suits for injunctive relief brought solely

by the United States government. Section 102(b)(2)(A), (c) of

the Uruguay Round Agreements Act of 1994, codified at 19

U.S.C. § 3512(b)(2)(A), (c), achieves precisely the same

result, albeit with somewhat more precise and elaborate

language, with respect to the Uruguay Round Agreements.

These instruments provide rules of decision for lawsuits in

the United States, but only if invoked by the federal

government in the course of seeking injunctive relief against

state and local governments. This clearly expressed desire of

Congress runs contrary to the lower court’s interpretation of §

1350, which, for example, might lead to a tort suit for seizure

of property by a customs official (characterized as an

unjustified injury to property in violation of customary

international law) if that official could be shown to be acting

inconsistently with one of the Uruguay Round Agreements

and if a court were prepared to infer the existence of a rule of

customary international law simply from the existence of an

international agreement on the subject.'°

hypothetical, we would note that a number of lower court decisions did

recognize a right to bring a civil action pursuant to the General

Agreement on Tariffs and Trade (GATT), the predecessor to the Uruguay

Round Agreements. See Territory of Hawaii v. Ho, 41 Haw. 565 (1957);

Baldwin-Lima-Hamilton Corp. v. Superior Court, 208 Cal. App. 2nd 803,

25 Cal. Rptr. 798 (Dist. Ct. App. 1962). For commentators who

applauded this outcome and called for its extension, see Ronald A. Brand,

The Status of the General Agreement on Tariffs and Trade in United

States Domestic Law, 26 STAN. J. INT'L L. 479 (1990); Robert E. Hudec,

Next, we consider the Torture Victim Protection Act of

1991 (TVPA), codified as 28 U.S.C. § 1350 note. Congress in

that legislation adverted precisely to the conduct at issue in

Filartiga v. Pena-lrala, 630 F.2 876 (1980), namely extra-

judicial killing and torture carried out under authority of law

in violation of fundamental and widely shared concepts of

decency. As noted above, Congress referred to international

standards to define an actionable extrajudicial killing. At the

same time, however, Congress provided its own clear and

precise definition of actionable torture, rather than referring

to any definition found in various international conventions

and instruments. If § 1350 meant what Filartiga and the court

below claimed, this action by Congress would have been

unnecessary and superfluous. Yet Congress enacted the

TVPA precisely because it believed that victims of

extrajudicial killing and torture carried out by the agents of

foreign states otherwise might not have access to the federal

courts to sue their tormentors. '!

The Legal Status of the GATT in the Domestic Law of the United States,

in THE EUROPEAN COMMUNITY AND GATT 187 (Meinhard Hilf, Francis

G. Jacobs & Ernst-Ulrich Petersmann eds. 1986); John H. Jackson, The

General Agreement on Tariffs and Trade in United States Domestic Law,

66 MICH. L. REV. 260 (1967); Note, The United States Participation in

the General Agreement on Tariffs and Trade, 61 COLUM. L. REV. 505

(1961). Moreover, we note that the court below found a way, through its

interpretation of § 1350, to provide a private action for damages to

enforce the International Covenant on Civil and Political Rights despite

the express declaration by the Senate, with the concurrence of the

President, that such actions were not authorized. 331 F.3d at 620-21.

Undoubtedly, ingenious courts similarly could find a way around the

express command of 19 U.S.C. § 3512(b)(2)A), (c).

'' We say “might,” because even before the enactment of the TVPA

litigants could have brought claims in federal court to the extent that they

satisfied the requirements of federal diversity jurisdiction under 28 U.S.C.

§ 1332. In cases such as Filartiga, the presence of aliens on both sides

and no citizen of a U.S. state on either side would foreclose, as a

constitutional matter, diversity jurisdiction. Mossman v. Higginson, 4 U.S.

(4 Dall.) 12 (1800).

eae ware ne

Finally, we refer to the modern practice of the President

and the Senate, when ratifying international treaties dealing

with human rights, to state expressly that those instruments

shall not give rise to a right to a civil action in U.S. courts.'”

President Carter first used this approach to meet objections to

such treaties, and every subsequent administration, in

cooperation with the Senate, has followed this practice. The

clearly expressed concern of the political branches is that

opportunistic litigants would exploit a right to sue for

damages to alter the balance of robust protection of individual

rights already existing under U.S. law, in spite of the

conviction of the President and the Senate that the United

States already meets its obligations under these instruments.

We provide this truncated and necessarily incomplete

survey of U.S. practice regarding international law to show

that the President and Congress incorporate international law

selectively, and do not regard the federal judiciary as en-

dowed with an across-the-board warrant to determine the

content, scope and remedies of international law obligations

in all instances where a dispute otherwise exists.'’ On occa-

2 For a review and defense of U.S. practice, see Curtis A Bradley &

Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent,

149 U. PA. L. REV. 399 (2000). For criticism of U.S. practice, see Louis

Henkin, U.S. Ratification of Human Rights Treaties: The Ghost of

Senator Bricker, 89 AM. J. INT’L L. 341 (1995). For a review of the

practice of other states, see Catherine J. Redgwell, Reservations to

Treaties and Human Rights Committee General Comment No. 24(52), 46

INT’. & Comp. L.Q. 390. 391-404 (1997); Catherine Redgwell,

Universality or Integrity? Some Reflections on Reservations to General

Multilateral Treaties, 1993 Brit. Y.B. INT’L L. 245, 269-78.

‘> Although these examples focus on the participation of Congress in

the implementation of international law, the President, acting within the

scope of authority delegated by the Congress and his independent Article

Il powers, can also implement international law. For exemple, in Article

15 of the 1920 Articles of War, Congress recognized the jurisdiction of

military commissions over “offenses that by statute «~ >y the law of war

may be triable by such military commissions.” Act of June 4, 1920, art.

sion Congress authorizes the judiciary to combine inter-

national rules of decision with domestic remedies, but U.S.

practice also evidences a considered wariness about this prac-

tice and an unwillingness to authorize wholesale judicial

enforcement of international rules. The interpretation of § 1350

by the court below is in clear opposition to this practice.

Ill. The Court Below’s Interpretation of 28 U.S.C.

§ 1350 Would Hinder U.S. Participation in the

Sound Development of International Law.

The decision of the court below opens up the prospect of

virtually all violations of international law being converted

into actionable torts within the jurisdiction of the federal

courts, subject only to the limitation that in personam

jurisdiction exist over the defendant. Under its reading of

§ 1350, aliens would have the right to sue other aliens for

injuries inflicted anywhere in the world. The prospect of such

suits in U.S. courts, we submit, will significantly interfere

with the capacity of the United States to participate in the

salutary development of international law.

At the outset, it is important to keep in mind the distinctive

features of the U.S. civil litigation system:

—The civil jury trial as we know it is unheard of elsewhere

in the world, save for rarely used discretionary trials in

Canada and juries in libel actions in the United Kingdom

and other Commonwealth countries.

—A person alleging injury can obtain the services of a

lawyer without extending any money and normally will

15, 41 Stat. 759, 790 (contemporary version incorporated in the Uniform

Code of Military Justice, at 10 U.S.C. § 821) (emphasis added). In

establishing military commissions, Presidents have referred to this

provision, most recently in Military Order of November 13, 2001, 66 FED.

REG. 57,833 (Nov. 16, 200'). This example illustrates how the President,

acting as Commander in Chief, may maintain rules derived from

customary international law in proceedings necessary to the conduct of

war. See Ex parte Quirin, 317 U.S. 1, 30 (1942).

eR eee oe ce ee ee ee

not be liable for the defendants’ legal fees if the suit is

unsuccessful. Most jurisdictions elsewhere, by contrast, —

limit or forbid contingency fees, and many impose

attorneys’ fees on the losing party. Those foreign

jurisdictions that provide for lawyers without cost do not

give those lawyers an economic stake in the outcome of

the litigation.

—A person bringing suit in a U.S. federal court has a right

to sweeping pretrial discovery under the Federal Rules of

Civil Procedure. We are not aware of any other

jurisdiction that accords parties comparable rights, and

foreign courts such as the British House of Lords have

expressed concern about and opposition to the scope of

U.S. pretrial discovery. '*

—Generous U.S. rules on the recognition of class actions

allows the multiplication of claims to augment the value

of a lawsuit; the practice of most if not all other

jurisdictions is much more restrictive.

—Finally, U.S. damages rules, which recognize open-

ended compensation for pain and suffering and in some

cases punitive damages, often lead to far greater awards

than those available in other civil justice systems.

Taken together, these features make recognition of a right to

sue for damages in a U.S. court a matter of great economic as

well as political significance, especially in relation to rights to

sue in other jurisdictions.’

E.g., Rio Tinto Zinc Corp. v. Westinghouse Electric Corp., [1978]

A.C. 547, 562-63 (H.L.) (British obligation under Hague Convention on

Taking of Evidence Abroad does not extend to cooperating with request

for interviewing witnesses and obtaining documents that lacks the

specificity required under British law, even though requests conformed to

U.S. Federal Rules of Civil Procedure).

'S We make these observations not to suggest any criticism of any of

these aspects of the U.S. civil litigation system, but merely to emphasize

the significance of recognizing a civil action under U.S. law in

Confronted with a risk that the recognition of any

particular obligation under international law may lead to

costly litigation, the United States and other countries with

which it negotiates face a serious dilemma. On the one hand,

they may perceive areas of cooperation that would be to their

mutual benefit and would like to rely on law to reassure each

other of the seriousness of their commitment to cooperation.

On the other hand, they may not want that commitment to

invite the risk of costly private litigation and hefty jury

verdicts. If they were unable to ensure that any agreement

reached would not result in this risk, some otherwise valuable

international agreements would not come about.

This argument is not speculative, but rather is confirmed

both by history and contemporary events. Consider first the

various human rights treaties that the United Nations

sponsored in the decades after its founding. These include the

Convention on the Prevention and Punishment of the Crime

of Genocide, 78 U.N.T.S. 277 (entered into force Jan. 12,

1951; for the United States, Feb. 23, 1989); the International

Convention on the Elimination of All Forms of Racial

Discrimination, 660 U.N.T.S. 195 (entered into force Jan. 4,

1969; for the United States, Nov. 20, 1994); and the

International Covenant on Civil and Political Rights, 999

U.N.T.S. 171 (entered into force Mar. 23, 1976; for the

United States, Sep. 8, 1992). The reaction of the U.S. Senate

to the promulgation of these instruments, which represent-

tatives of the U.S. government had helped to negotiate, was

that they raised the specter of legal challenges to aspects of

the U.S. legal system that were either already undergoing

sweeping change (such as de jure racial segregation) or were

widely accepted but also controversial (such as the death

penalty). Not only did the Senate initially refuse to consent to

these conventions, but it seriously considered a constitutional

comparison to recognition of such an action under the law of other

jurisdictions.

amendment that would have forbidden international law from

having any domestic effect in the United States, absent an

incorporating act of Congress. The Eisenhower Administra-

tion thwarted the effort to constitutionaiize this issue, but only

by representing to the Senate that it would not adhere to

any international agreement that had as its purpose domestic

law reform.

The United States eventually became a party to all these

covenants, but only after the President and the Senate reached

agreement that various reservations, understandings, and

declarations would limit their legal force and in particular

would foreclose the possibility of civil actions by private

persons in U.S. courts. Reassured by these commitments, the

Senate ultimately gave its consent to the treaties.'® It is

inconceivable that the President and the Senate meant these

restrictions to be of no effect, yet the decision of the Ninth

Circuit achieves exactly that result.

Another instance of the tension between international law

creation and its enforcement through civil actions involves

the Uruguay Round Agreements, which the United States

signed in 1994 and which, pursuant to the Uruguay Round

Agreements Act, entered into force for the United States on

January |, 1995. Uruguay Round Agreements Act of 1994,

108 Stat. 4809 (codified a 19 U.S.C. § 3511 et seg.) As we

Res. | and S.J. Res. 43 before a Subcomm. of the Senate Comm. on the

Judiciary, 83d Cong., 1st Sess. 825 (1953) (statement of Secretary Dulles);

U.S. State Dep't Circular No. 175, 4 2 (Dec. 13, 1955), reprinted in 50

AM. J. INT'L L. 784, 785 (1956); Four Treaties Relating to Human Rights,

Hearing before the Comm. On Foreign Relations, 96th Cong., !st Sess. 21

(1979) (testimony of Deputy Secretary of State Christopher); U.S. Senate

Resolution of Advice and Consent to Ratification of the International

Covenant on Civil and Political Rights, 138 CONG. REC. $4783 (daily ed.

Apr. 2, 1992); REPORT OF THE COMMITTEE ON FOREIGN RELATIONS,

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, S. Exec.

Rep. 102-23, at 10 (1992).

observed above, note 10 supra, some lower courts had

indicated that the predecessor agreement, the General

Agreement on Tariffs and Trade, had direct effect in U.S.

law, and considerable academic authority urged that

conclusion. Over the years, the United States saw the need for

a more extensive set of agreements covering not just tariff

reduction and nondiscrimination against imports, but a wide

range of international economic issues. These agreements

would affect many U.S. regulatory initiatives, including those

aimed at public health and safety, that might be viewed in

some quarters as de facto trade barriers. Congress apprec-

iated the importance of these agreements, but also was deeply

concerned about private litigants exploiting them to chal-

lenge legitimate regulatory programs at the federal and state

level. The compromise that made adoption of these agree-

ments possible is contained in 19 U.S.C. § 3512(b)(2)(A), (c),

which forbids U.S. courts from enforcing these agree-ments

except in the case of a suit for injunctive relief brought by the

United States.

Finally, lawsuits recently filed in several U.S. district

courts illustrate the destabilizing potential of the lower court's

interpretation of § 1350. The end of the South African

apaitheid regime and the peaceful transition to majority rule

in that country were extraordinary achievements. Many

observers believe that the truth and reconciliation process that

accompanied this transition was essential to its success. A

broad cross section of political scientists and lawyers have

seen this experience as a model for other societies making a

transition from a repressive past to a free and democratic

future. And an important part of the truth and reconciliation

process was an amnesty from civil as well as criminal liability

for those who cooperated with the designated authorities and

Se ew ee Oe

made a full disclosure of their role in the maintenance of

apartheid."’

In the face of this delicate and important political com-

promise, several persons purporting to act on behalf of

victims of apartheid in 2002 brought suits for damages under

§ 1350 against a number of multinational companies said to

have been complicit in the maintenance of the former regime.

In re South African Apartheid Litigation, MDL No. 1499

(S.D.N.Y.). The legal theory of these cases would extend not

just to companies that did business in South Africa, but to

anyone involved in administering apartheid, including

precisely those persons who received official amnesties as

“part of the peace and reconciliation process.

It is difficult to overstate the potential for mischief that

such lawsuits have, but under the interpretation of § 1350

propounded by the court below, as well as by the Second

Circuit in Filartiga, such cases may be quite properly brought

in a U.S. court, so long as that court is willing to infer the

existence of a rule of customary international law simply

from the fact that there exists a treaty addressing the same

subject as the putative customary law rule. Experience over

the last two decades demonstrates the desirability of

nonviolent ends to authoritarian regimes, which on occasion

has involved the establishment of some kind of immunity for

persons who might otherwise thwart peaceful change. We do

not mean to endorse any particular amnesty arrangement, but

only observe that § 1350, as interpreted by the court below,

'’ South Africa's Constitutional Court upheld the legislation

providing for this amnesty in the face of the challenge that it allowed the

architects of apartheid to escape full accountability. The court justified the

amnesty as necessary for promoting the country’s peaceful transition to

democracy. Constitutional Court of South Africa, the Azanian Peoples

Organization and Others v. the President of the Republic of South Africa

and Others, CCT 17/1996, 25 July 1996. For a full discussion, see

Kristin Henard, Post-Apartheid South Africa: Transformation and

Reconciliation, 166 WORLD AFFAIRS 37 (2003).

could threaten to unravel many transition strategies adopted

by emerging democracies. ”

IV. Other States Do Not Permit Private Civil Suits for

Damages Based Solely on Alleged Violations of

General International Law.

A review of the practice of other countries establishes that

there is no custom of providing a civil action in domestic

courts for violations of general international law. To the

contrary, authorization of civil suits by private persons for

damages are relatively infrequent, and always rest on specific,

particular, and express treaty or statutory commit-ments.

Those treaties and statutes that do explicitly authorize civil

actions reflect a background assumption that violations of

international law normally do not give rise to such a right.

The most important international treaty contemplating

some private remedies, including private suits for damages, is

the European Convention for the Protection of Human Rights

and Fundamental Freedoms. This instrument in many respects

tracks the personal guarantees and protections found in the

'* We recognize that statutes enacted in a handful of countries, in

particular Belgium and Spain, appear to allow the public authorities to

pursue criminal charges against former members of authoritarian regimes

who might have benefitted from an amnesty. To the best of our

knowledge, however, none of these jurisdictions allows private litigants to

bring a civil action for damages against such persons. Furthermore, the

scope of these countries’ efforts is limited by the reach of their extradition

treaties. In particular, the United Kingdom has interpreted its extradition

treaty with these countries as not authorizing rendition of a person unless

he or she is accused of an offense that would violate the statutory law of

the United Kingdom, inc!uding those provisions specifying extraterritorial

jurisdiction. In the particular case of the UN Convention against Torture

and other Cruel, Inhuman or Degrading Treatment or Punishment, the

House of Lords has ruled that it is bound by the terms of the Act of

Parliament implementing that Convention. Accordingly, it will not order

the extradition of anyone accused of torture occurring before the adoption

of that Act, which does not have ex post facto effect. Regina v. Bow Street

Metropolitan Stipendiary Magistrate and others, ex parte Pinochet

Ugarte (No. 3), {2000} 1 A.C. 147 (HLL.).

U.S. Constitution, in large part because it came into being in

the aftermath of World War II. Adverting to the question of

compensation for injuries, Article 13 states:

“Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy

before a national authority notwithstanding that the

violation has been committed by persons acting in an

official capacity.”

Article 41 of that instrument, in describing the function of the

European Court of Human Rights, in turn states:

“If the Court finds that there has been a violation of the

Convention or the Protocols thereto, and if the internal

law of the High Contracting Party concerned allows only

partial reparation to be made, the Court shall, if necessary,

afford just satisfaction to the injured party.”

Read in tandem, these provisions describe the Conven-

tion’s remedial scheme, and in particular its approach to civil

damages for violations. The jurisprudence of the European

Court makes it clear that Article 13 imposes an obligation to

provide an “effective” remedy, but states have considerable

leeway in choosing how to investigate, assess, and

compensate for Convention violations. The European Court

has held that a state may meet this obligation by providing

access to a civil action for damages as a means of

compensation, and in at least one recent case has held that a

substantial truncation of a right to a civil action, in the

absence of other means of recourse against governmental

actors, may constitute a violation of Article 13. E. v. United

Kingdom (App. No. 33218/96), (Nov. 26, 2002) (awarding

damages under Article 43 because British iaw at the time did

not appear to provide a right to a civil action for negligence

by child protection authorities). At the same time, the

European Court has made clear that the existence of a right to

a civil action against official actors is a sufficient, but not

necessary, means for a state to fulfil its obligation under

Article 13. /d.

The European Convention does not require that states

directly incorporate the norms of the Convention into domes-

tic law, as long as domestic law effectively remedies

Convention violations. In practice, not all parties do directly

incorporate the Convention into civil law or make Convention

violations actionable in the domestic courts. The United

Kingdom,-by the Human Rights Act 1998, did take this step,

effective as of October 2000. One should note, however, that

Parliament limited that enactment and did not make action-

able violations of international law other than the European

Convention. See Human Rights Act, 1998, c. 42 (Eng.).

British practice is reflected in other Commonwealth

countries. Justice Kirby, in a concurring opinion, recently

observed:

“The main impact of the principles of universal human

rights upon the development of tort law in this country, as

in England and elsewhere, lies in the future.”

Brodie v. Singleton Shire Council, 186 Australian L. Rptr.

145, 211 (Australian High Ct. 2001) (referring to interna-

tional standards as support for particular interpretation of

Australian common law). Similarly, although Canadian courts

have referred to international human rights law as an aid to

interpreting domestic law, including the development of

domestic torts, they have not recognized any cause of action

for civil damages based directly on international human rights

law. See, e.g., Schreiber v. Canada, 216 Dom. L. Rptr. 513,

533-34 (2002) (Sup. Ct. Can.) (speculating that violations of

human rights law might meet statutory requirements for

waiver of sovereign immunity, but finding no violation)."”

For commentary expressing a desire for Commonwealth courts to

follow Filartiga while acknowledging that this has not happened, see

TORTURE AS TORT—COMPARATIVE PERSPECTIVES ON THE DEVELOP-

MENT OF TRANSNATIONAL HUMAN RIGHTS LITIGATION (Craig Scott ed.

A brief review of the practice in non-Commonwealth

jurisdictions indicates that civil suits to seek damages for

violations of international human rights law are virtually

nonexistent. Some countries do allow victims of human rights

violations to take part in criminal proceedings and to seek

compensation in the course of those proceedings. This

procedure is seen as satisfying the requirements of Article 13

of the European Convention. But such rights are derivative of

and depend on a prosecutor’s decisions to bring criminal

charges. Beth Stephens, Translating Filartiga: A Compara-

tive and International Law Analysis of Domestic Remedies for

International Human Rights Violations, 27 YALE J. INT’LL. 1,

18-21 (2002).

In sum, there is no international practice that treats viola-

tions of general norms of international law, and specifically

the customary international law of human rights, as creating a

right to a civil action for damages. Such rights to civil actions

as exist rest on specific and limited treaty commitments, not

general norms of international law. The interpretation of

§ 1350 by the court below not only does not reflect

international practice, but in some respects may place the

United States at risk of being found in violation of

international law.””

2001); Human Rights Committee, International Law Association (British

Branch), Report on Civil Actions in the English Courts for Serious Human

Rights Violations Abroad, 2 EUR. HUM. RTS. L. REV. 129 (2001).

*° A refusal to recognize the immunity from suit of a high

government official and the exercise of jurisdiction over activity with no

connection to the forum state may constitute a violation of international

law. The International Court of Justice recently has stated that a failure to

respect the immunity from suit of high government officials violates

international law. Democratic Republic of the Congo v. Belgium, {2002]

LC.J.___ (criminal arrest warrant for Minister of Foreign Affairs). That

decision did not resolve the issue of whether Belgium’s assertion of

universal jurisdiction also violated international law, but in the face of

international criticism Belgium has modified its statute to make it

applicable only to conduct having a jurisdictional nexus with that country.

V. The Argument that 28 U.S.C. § 1350 Provides a Cause

of Action for Private Civil Suits Based on Alleged

Violations of International Law Cannot Be Reconciled

with the 190-Year Gap in That Statute’s History.

A remarkable fact about § 1350 is that this provision,

adopted by Congress in 1789 as part of Section Nine of the

Judiciary Act, had no impact on U.S. litigation until its .

invocation by the Second Circuit in Filartiga v. Pena-lrala,

630 F.2d 876 (1980). One would have thought that, if the

dramatic and sweeping implications of the reading assigned

to the statute by Filartiga and its progeny corresponded in

any way to the expectations of those who enacted this statute,

that someone would have sought civil liability for a violation

of the law of nations in the preceding 190 years. The absence

of any record of such litigation weighs heavily against

arguments for the correctness of that interpretation.

Our review of the case law suggests that there is no pre-

1980 case where a federal court unambiguously based its

jurisdiction on § 1350, and very few such cases where

litigants sought this outcome.

Not long before Filartiga, the Second C ircuit described

§ 1350 as a “kind of legal Lohengrin” (a reference to the

magical knight who could not reveal his name or origin) in

the course of rejecting an argument that an alleged fraud

perpetrated on foreign investors was actionable under that

statute. JIT v. Vencap, 519 F.2d 1001, 1015 (2nd Cir. 1975).

This Court itself has ascribed to later sessions of Congress

uncertainty over what, if anything, § 1350 does. Argentine

Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 436

(1989).”

Loi relative aux violations graves du droit international humanitaire. (Loi

du 5 August 2003) in Moniteur Belge, Aug. 7, 2003, p. 40506. Suits

under § 1350 have the potential to raise both of these problems.

21 A& review of the secondary literature in the period before the

Filartiga decision is not much more helpful in explaining the original

Although the intention of Congress in enacting the portion

of Section Nine of the Judiciary Act of 1789 that became

§ 1350 is murky at best, a few points are reasonably clear.

First, Congress in that Act had no intention of exercising its

power under Article III to create general “federal question”

jurisdiction. It did not do so until 1875. Act of Mar. 3, 1875, §

1, 18 Stat. 470 (current version codified at. 28 U.S.C.

§ 1331). Section Nine of the Judiciary Act, which deals with

the district courts, focuses principally on admiralty juris-

diction, with cases “arising under” federal law limited to

lesser federal crimes, challenges to seizures, penalties and

forfeitures by the United States, and suits in which the United

States was a plaintiff. Section Eleven of the Judiciary Act

established diversity jurisdiction, but in the circuit courts and

subject to a jurisdictional floor of $ 500 in dispute.”” There is

no evidence at the time that Congress believed that an action

understanding of § 1350. Professor Henkin’s treatise did not discuss the

provision, aside from speculating in a footnote that the statute suggests

that Congress in 1789 may have believed that the “law of nations” was

part of the “laws of the United States.” Louis Henkin, FOREIGN AFFAIRS

AND THE CONSTITUTION 459 (1972). The treatise does not explain the

basis for this inference, which seems inconsistent with the clear

contemporaneous understanding of Congress that federal courts could

apply the law of admiralty without that law becoming the law of the

United States. The first tentative draft of the RESTATEMENT (THIRD) OF

THE FOREIGN RELATIONS LAW OF THE UNITED STATES (1980), which

antedated Filartiga, made a similar passing reference to § 1350 and in at

least some respects seems to treat that provision as having a much more

limited scope than did Filartiga. See Paul B. Stephan, Courts, the

Constitution, and Customary International Law: The Intellectual Origins

of the Restatement (Third) of the Foreign Relations Law of the United

States, 44 VA. J. INT’L L. 33, 44 nn. 38-39 (2003) (noting tentative draft’s

implication that statute would apply only to violations taking place on

territory of United States).

2 Section Eleven also gave the circuit courts jurisdiction over more

serious crimes under the laws of the United States, defined as those where

the penalty exceeded a fine exce-ding $ 100, imprisonment greater than six

months, or corporal punishment greater than thirty stripes of the lash.

for a tort in violation of international law arose under federal

law, and clear evidence that it believed that the law applied in

admiralty does not arise under the laws of the United States.

Second, it seems extremely doubtful that Congress believed

that a suit by an alien against another alien would satisfy the

requirements of diversity jurisdiction under Article III, given

this Court’s emphatic and conclusive rejection of such a

proposition not many years after enactment of the Judiciary

Act. Mossman v. Higginson, 4 U.S. (4 Dall.) 12 (1800).”*

An annotation in the Statutes of Large, which connects the

language of the Judiciary Act that became § 1350 to a circuit

court opinion by Justice Story, provides a slight hint of what

Congress might have believed it accomplished with this

provision. In the opinion, Story stated:

“The district court as a court of admiralty and

maritime jurisdiction, may entertain suits for all torts,

damages, and unlawful seizures, committed upon the

high seas, and other navigable waters, where the tide

ebbs and flows.”

Burke v. Trevitt, 4 Fed. Cas. 746, 747 (C.C.D. Mass. 1816),

The suggestion, admittedly subtle, is that Congress may have

thought that what is now § 1350 was necessary to ensure that

admiralty courts heard not only disputes over the ownership

of property, including salvage, but also all torts, including

personal injuries, occurring within the maritime jurisdiction

of the United States.

Recent historical scholarship also indicates that Congress

understood that, to the extent that the language that became §

1350 authorized suits not encompassed by the grant of

admiralty jurisdiction under Article III of the Constitution,

Congress intended that the suit satisfy the requirements of

Article III’s diversity jurisdiction. This meant, as later

23 We note in passing that one of the members of the Mossman Court

was Justice Ellsworth, who as a U.S. Senator had been one of the drafters

of the 1789 Judiciary Act.

expressed in Mossman v. Higginson, 4 Dall. 12 (1800), that

the claim would have to be brought against a U.S. citizen. See

Curtis A. Bradley, The Alien Tort Statute and Article III, 42

Va. J. INT’L L. 587 (2002). So understood, this portion of

Section Nine of the 1789 Act was not redundant, even given

the authorization of general diversity jurisdiction under

Section Eleven of the 1789 Act, because Section Nine

authorized jurisdiction in the district courts (with four

sessions annually) rather than in the circuit courts (with only

two sessions annually) and did not impose a dollar-amount

limit. In sum, Congress expected that suits seeking compen-

sation for a tort in violation of a treaty or the law of nations

would have to satisfy the requirements of either admiralty or

diversity jurisdiction under Article III, but would not have to

meet the more onerous requirements of Section Eleven.

What we can state with confidence is that no one has come

forward with persuasive evidence that Congress in 1789

believed it had authorized the federal courts to exercise

general jurisdiction over claims based on international law or

to apply international law as the law of the United States. No

federal court held so until 1980. Decisions by several of the

courts of appeals since then have purported to find in the

statute both jurisdiction to hear claims and an authorization to

develop a federal common law of international human rights,

but none of these decisions has seriously attempted to relate

the authority asserted to the intent of Congress or to explain

the 190-year gap in the record. Rather, they have based their

arguments largely on policy arguments for federal court

enforcement of international law. Those arguments, for the

reasons given above, are unsound.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted

PAUL B. STEPHAN

Counsel of Record

580 Massie Rd.

Charlottesville, Va. 22903

(434) 293-6939

SAMUEL ESTREICHER

40 Washington Square South

New York, NY 10012

(212) 998-6226

Counsel for Amici Curiae

January 23, 2004

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