Amicus Curiae Brief — Jaffe v. Snow

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

RUTH JAFFE,

Petitioner,

V.

HARDY M. SNOW, JR. and

ACCREDITED SURETY & CASUALTY

COMPANY, INC.,

Respondents.

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF AMICUS CURIAE OF THE

INTERNATIONAL HUMAN RIGHTS LAW GROUP,

LOWENSTEIN INTERNATIONAL HUMAN RIGHTS CLINIC

AND CENTER FOR CONSTITUTIONAL RIGHTS

IN SUPPORT OF THE

PETITION FOR WRIT OF CERTIORARI

,

HAROLD HONGJU KOH

RONALD C. SLYE

Allard K. Lowenstein

International Human

Rights Clinic

127 Wall Street

New Haven, Ct. 0652

yD ZOU

(203) 432-4932 MICHAEL RATNER

Center for

Constitution Rights

666 Bruadway

New York, NY 10012

(212) 614-6464

unsel for Amici Curiae

*Counsel for Record

JANELLE M. DILLER*

International Human

Rights Law Group

1601 Conn. Ave., NW

Washington, DC 20009

(202) 232-8500

Page

TABLE OF AUTHORITIES a a ee ee ae a ee ee a

MOTION FOR LEAVE TO FILE BRIEF

ee a: — 7

REASONS FOR GRANTING PETITION .... > « « sO

he AS PART OF THE LAW OF THE UNITED STATES,

CUSTOMARY INTERNATIONAL LAW HIGHLIGHTS

THE SIGNIFICANCE OF THE FEDERAL ISSUES

RAISED IN THIS PETITION ....... 10

i? THE BOUNTY HUNTERS VIOLATED THE

TERRITORIAL SOVEREIGNTY OF CANADA AND

HENCE INTERNATIONAL LAW IN KIDNAPPING

ee a ga ee 12

A. The Canadian Court Was Correct in

Awarding Petitioner a Remedy for

Wrongs Done to Her by

MOSPONGONtS . 2. 5s 6 we tw tw tl tl tlw A

B. The Forcible Abduction of a Person

From Another Nation Constitutes a

Tort in Violation of the Law of

| ee ee ee ee,

III. THE REFUSAL OF THE FLORIDA COURTS TO

ENFORCE PETITIONER’S CANADIAN JUDGMENT

BREACHES A DUTY THE UNITED STATES OWES

CANADA UNDER INTERNATIONAL LAW. . . « aa

Ve THE FLORIDA DECISION BREACHES THE

INTERNATIONAL CUSTOM OF GOOD FAITH

DEALING BETWEEN TREATY PARTIES BY

CONDONING RESPONDENTS’ ILLEGAL ACTS - 26

Vv. CONCLUGION .. «es seveeee. s « «2 26

AB OF AUTHO

UN STA AS Page

In re Aircrash in Bali, Indonesia,

664 F.2d 1301 (9th Cir. 3982) « « = «© «© « « Ba

Cohen v. Hartman, 634 F.2d 318 (5th Cir.

1903) 2 6 6 6 tee 8 wee

Fernandez v. Wilkinson, 505 F. Supp. 787

(D. Kan. 1980), aff’d subnom. Rodriguez-

Fernandez v. Wilkinson, 654 F.2d 1382

(10th Cir. 1981) . 7 * . * > * 7. > * 2 * . 10

Filartiga v. Pena-Irala, 630 F.2d 876

(2d Cis, 1980) o * * * 7 . * .* . o . oe * _ 11

Forti v. Suarez-Mason, 672 F. Supp. 1531

(N.D. Cal. 1987) o © © @ © ©, Boe eee ee ee

Forti v. Suarez-Mason, 694 F.Supp. 707

(e.B. Cal. 19606) . «+ + +6 635 ee

Hilton v. Guyot, 159 U.S.113 (1895) .... 32

Jafte vy, Smith, 825 F.24 3204 (i987) « « «s «2h

ear v. Hilton, 699 F.2d 181 (4th

Cie. 1963) « «eee + + ee eee

Ker v. Illinois, 119 U.S. 436

(3686) . + 0 «© 8 © 0 6 & ee el ele ee

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

+) >) Pa me

The Paquete Habana, 175 U.S. 677

Fi90G3 4 « s.2 ee * &. oe ee eee

Respublica v. De Longchamps, 1 Dall. 111,

iL. Ba. 99 (1784) 3 ee Cee eee

o» 43 =

Tucker v. Alexandroff, U.S. 424 (1901) — oe

United States v. Alvarez-Machain, 112 S.Ct.

UE 5s 6 6 6 8 ks te tt sw 23, 22

e S_v. Ma -Ba steros,

700 F.Supp. 528 (N.D. Fla. 1988) : * € «- sae

United States v. Rauscher, 119 U.S. 407

(1886) . co . . . « e . . e o . . e ° om . . 30

United aan . —tescanine, 500 F.2d. 267

i.) ee kh eee i ee

ed tes v. Verdugo-U idez,

939 F.2d 1341 (9th Cir. 1991), vacated,

Bae @eGes 2986 (1992) . .. sc cece s « 22

Volkswagenwerk-Aktiengesellschaft v.

Schlunk, 486 U.S. 694 (1988) ie & «as &-s 2S

Zschernig v. Miller, 389 U.S. 429

OEE G 6 5 6 sw sk et ee wt lt

UNITED STATES CONSTITUTION

OE ES 5 | rrr 3a, 2a

TREATIES

Treaty on Extradition, Dec. 3, 1971,

U.S.-Can., 27 U.S.T. 983 ene Ss £2 © 6 ey ae

Treaty on Extradition, May 4, 1978,

we@n“memese, 24 U.8.T. S089... . ce ecee . @a

The Vienna Convention on the Law

of Treaties, opened for signature

May 23, 1969, 1155 U.N.T.S. 331

(entered into force Jan. 27, renee — ee

article 18 ‘ . * 6 «6s « «& ae

ES - 28

*- £313

INTERNATIONAL CASES

The Flick Case, 6 Trials of War

Criminals Before the Nuremberg

Military Tribunals Under Control

Coumes2 tew Me. 10 (31952) . « « » « «© « 0 « 39

Military and Paramilitary Activities

(Nicaragua vy. U.S.), 1986 I.C.3. 14... s+ 29

Nuclear Test Cases (Australia v. France),

1974 Loe e 253 7. * * = o o > . . > > > * * 29

Nuclear Test Cases (New Zealand v. France),

1974 ) oe 457 . . 7 ° * . . . * 7. . . * + 29

SES AND MISC NEO

I. Brownlie, Principles of Public

International Law 616 (4th ed. 1990) .. 26

B. Cheng, General Principles of Law

as Applied by International Courts

and Tribunals 119 (1953), reprinted in

International Law and World Order 792

(B.H. Weston ed., 1980) ..... «eee 27

1 Hyde’s International Law § 11A

eg A.) rs |

P.K. Menon, The Law of Treaties Between

States and International Organization

Oe feeeee 6 es ke eae eee Se ee eae

Restatement (Third) of Foreign

Relations Law of the United States (1986)

See. ee Or ele CP ee a 30

me eee ee ee a ee ee ee ee ee ee ee ee ee

S vee Ges Bs 6 kb te 4 Se Se UC 8 ee

S tae Glee @ as & 4 eK Se K OOS mE 8 25

S fi, Feporters’ note il. «6 6 6 te 8 25

Webster’s Ninth Collegiate

Dietionary 274 (1988) ....+.s6+sses2s eco #8

- iv -

eee ei

No. 93-241

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

RUTH JAFFE,

Petitioner,

V «

HARDY M. SNOW, JR. and

ACCREDITED SURETY &

CASUALTY COMPANY, INC.,

Respondents.

)

)

)

)

)

)

)

)

)

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE

OF THE INTERNATIONAL HUMAN RIGHTS LAW GROUP,

LOWENSTEIN INTERNATIONAL HUMAN RIGHTS CLINIC,

AND CENTER FOR CONSTITUTIONAL RIGHTS

IN SUPPORT OF THE

PETITION FOR WRIT OF CERTIORARI

The International Human Rights Law Group

(IHRLG), the Allard K. Lowenstein International

Human Rights Clinic of the Yale Law School

(LIHRC or Clinic), and the Center for

Constitutional Rights (CCR or Center) request

the Court for leave to file the attached brief

amicus curiae supporting the Petition for Writ

of Certiorari in this case. Below, the IHRLG

filed an amicus brief in the Fifth District

Court of Appeals of the State of Florida on

behalf of Petitioner, then Plaintiff/Appellant.

- il-

olen

SS a ee See ee ee

INT e) .

The IHRLG is a non-profit legal

organization founded in 1978 that provides legal

assistance and information on international

human rights law and has_ Category II

consultative status with the United Nations

Economic and Social Council. The IHRLG provides

legal advice in lawsuits raising questions of

international human rights and has participated

as amicus before this Court in cases including

Sale v. Haitian Centers Council, Inc., 113 S.Ct.

2549 (1993), Saudi Arabia v. Nelson, 113 S.Ct.

1471 (1993), and Unite tates v. Alvarez-

Machain, 112 S.Ct. 2188 (1992).

The Clinic was organized in 1991 at the

Yale Law School as a faculty-supervised course

under the auspices of the Allard K. Lowenstein

International Human Rights Project, a student-

run organization that works to educate in

international human rights. The Clinic is

acting as co-counsel for the plaintiffs in

several ongoing lawsuits seeking damages for

violations of international human rights. See,

e.g., Evans Paul, et al. vy. Prosper Avril, No.

91-0399 (S.D. Fla. filed Feb. 28, 1991); Teresa

Xuncax, et al. V. Hector Gramajo, No. 91-11564WD

(D. Mass. filed June 6, 1991). During the past

two terms, the Clinic was lead counsel before

this Court in Sale v. Haitian Centers Council,

inc., 113 S.Ct. 3028 (1993) and Sale v. Haitian

Centers Council, Inc., 113 S.ct. 2549, and filed

amicus briefs in Saudi Arabia v. Nelson, 113

S.Ct. 1471 and United States v. Alvarez-Machain,

412 &.Ct. 2188.

The CCR is a tax-exempt litigation firm

devoted to enforcing the U.S. Bill of Rights and

the International Bill of Rights in United

States courts. CCR was a lead counsel in the

landmark case, Filartiaa v. Pena-Irala, 630 F.2d

876 (2d Cir. 1980) (Alien Tort Claims Act, 28

U.S.C. § 1350 (1988), grants federal courts

jurisdiction to hear cases seeking compensation

for acts of torture outside the United States).

Since then, the Center has been co-counsel on

numerous cases seeking damages for violations of

international human rights. The questions

presented here regarding the enforceability of

damages judgments for human rights violations

are of great interest to the IHRLG, the Clinic,

the Center and their clients.

ON V

Counsel for Respondents has refused to

crant consent for amici to file the attached

brief amicus curiae, and has refused to notify

amici of the date of her receipt of the Petition

for Writ of Certiorari, filed August 9, 1993.

As an amicus below, the IHRLG received a copy of

the Petition mailed from Los Angeles to

Washington, D.C. on August 11, 1993. Estimating

that Respondents’ counsel in Florida received

the Petition on or after August 11, 1993 as

well, amici consider that this Motion and the

accompanying brief are timely filed by September

10, 1993, 30 days from receipt on August 11.

In the accompanying brief, amici address

important and relevant questions of Federal and

ee

|

international law that will not otherwise be

presented to the Court. The questions have not

been presented in the Petition for Writ of

Certiorari, and Respondent would have no reason

to address such issues that weigh in favor of

granting certiorari. The issues highlight the

foreign affairs implications of this case and

its significance for reciprocal enforcement of

U.S. judgments. Because of amici’s expertise

with respect to such issues, amici respectfully

request this Court for leave to file the

accompanying brief.

Respectfully submitted,

yg / / *

LPLEEPMUETY, Paew. :

Harold Hongju Koh Janelle M. Diller*

Ronald C. Slye International Human

Allard K. Lowenstein Rights Law Group

International Human 1601 Conn. Ave., NW

Rights Clinic Washington, DC 20009

127 Wall Street (202) 232-8500

New Haven, Ct 06520

(203) 432-4932 Michael Ratner

Center for

Constitutional Rights

666 Broadway

New York, NY 10012

(212) 614-6464

Counsel for Amici Curiae

ga *Counsel of Record

Dated: September /Y, 1993

No. 93-241

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

RUTH JAFFE,

Petitioner,

Ve

HARDY M. SNOW, JR. and

ACCREDITED SURETY &

CASUALTY COMPANY, INC.,

Respondents.

mee ee ee ee ee ee ee ee eee ee ee”

BRIEF AMICUS CURIAE

OF THE INTERNATIONAL HUMAN RIGHTS LAW GROUP,

LOWENSTEIN INTERNATIONAL HUMAN RIGHTS CLINIC,

AND CENTER FOR CONSTITUTIONAL RIGHTS

IN SUPPORT OF THE

PETITION FOR WRIT OF CERTIORARI

Amici Curiae, the International Human

Rights Law Group [IHRLG], the Lowenstein

International Human Rights Clinic, and Center

for Constitutional Rights, respectfully urge

this Court to issue a writ of certiorari to the

District Court of Appeal of the State of

Florida, Fifth District. For the following

reasons, amici submit that this case presents

substantial and significant questions of Federal

- 6 -

and international law.

Amici adopt and incorporate herein by

reference the Statement of the Case set out in

the Petition ("Pet."), at pp. 3 - 10.

INTEREST OF AMICI

The IHRLG is a non-profit legal

organization founded in 1978 that provides legal

assistance and information on international

human rights law and has Category II

consultative status with the United Nations

Economic and Social Council. The IHRLG provides

legal advice in lawsuits raising questions of

international human rights and has participated

aS amicus before this Court in cases including

Sale v. Haitian Centers Council, ne. , 1413: 8.ce;

2549 (1993), Saudi Arabia v. Nelson, 113 S.Ct.

1471 (1993), and United States v. Alvarez-

Machain, 112 S.Ct. 2188 (1992).

The Allard kK. Lowenstein International

Human Rights Clinic of the Yale Law School

[Clinic] was organized in 1991 at the Yale Law

School as a faculty-supervised course under the

auspices of the Allard K. Lowenstein

International Human Rights Project, a student-

run organization that seeks to educate and

inspire law students, scholars, practicing

attorneys, and policymakers in the defense of

international human rights. The Clinic is

currently acting as co-counsel for the

plaintiffs in several ongoing lawsuits seeking

damages for violations of international law and

human rights. See, e.g., Evans Paul, et al. v.

Prosper Avril, No. 91-0399 (S.D. Fla. filed Feb.

28, 1991) (suit seeking damages for torture,

arbitrary detention, cruel, inhuman or degrading

treatment against former dictator of Haiti);

Teresa Xuncax, et al. V. Hector Gramajo, No. 91-

11564WD (D. Mass. filed June 6, 1991) (suit

seeking damages for summary execution,

disappearance, torture, arbitrary detention, and

cruel inhuman or degrading treatment against

former defense minister of Guatemala). During

the past two terms, the Clinic was lead counsel

before this Court in Sale v.~Haitian Centers

—————————

Council, Inc., 113 S.Ct. 3028 and Sale v.

Haitian Centers Council, Inc., 113 S.Ct. 2549,

and filed briefs amicus curiae in Saudi Arabia

: son, 113 S.Ct. 1471 (1993), and United

States v. Alvarez-Machain, 112 S.Ct. 2188

(1992). The important questions presented here

regarding the enforceability of damages

judgments for human rights violations is

therefore of great interest to the Clinic and

its clients.

The Center for Constitutional Rights [CCR

or Center] is a tax-exempt litigation

organization devoted to enforcing the U.S. Bill

of Rights and the International Bill of Rights.

The Center has a particular interest in

enforcing the norms of international rights in

United States courts. CCR was a lead counsel in

the landmark case, Filartiga v. Pena-Irala, 630

F.2d 876 (2d Cir. 1980), which established that

the Alien Tort Claims Act, 28 U.S.C. § 1350

(1988), grants federal courts jurisdiction to

hear cases seeking compensation for acts of

torture that occurred outside the United States.

Since the Filartiga decision, the Center has

been co-counsel on numerous seeking damages for

violations of international human _ rights,

including the cases currently being brought by

amicus Clinic. The Court’s decision in this

case is thus of great importance to the Center

and its clients.

REASONS FOR GRANTING THE PETITION

I. AS PART OF THE LAW OF THE UNITED STATES,

CUSTOMARY INTERNATIONAL LAW HIGHLIGHTS THE

SIGNIFICANCE OF THE FEDERAL ISSUES RAISED

IN THIS PETITION

As part of the law of the United States,

international customary law provides binding

“rules that highlight the significance of the

Federal issues raised in this petition.’ As

‘J Federal common law has long been held to

include customary international law. See

The Paquette Habana, 175 U.S. 677, 700

(1900); The Nereide, 13 U.S. (9 Cranch)

388, 423 (1815); Fernandez v. Wilkinson,

505 F. Supp. 787 (D. Kan. 1980), aff’d sub

- 10 -

argued below, the Canadian judgment for which

Petitioner seeks enforcement arises from acts of

Respondents that violate the customary

international law norm of territorial

sovereignty. The Florida courts’ refusal to

honor the judgment also breaches the duty that

the United States owes Canada under

international law to redress a Canadian

national’s injuries that occurred on U.S.

territory. Finally, the decision for which

Petitioner seeks review breaches the

nom. Rodrigquez-Fernandez v. Wilkinson, 654

F.2d 1382 (10th Cir. 1981). In 1900, this

Court observed that the law of nations "is

a part of our law, and must be ascertained

and administered by [our] courts ..."

The Paquete Habana, 175 U.S. at 700.

Indeed, international law "became a part

of the common law of the United States

upon the adoption of the Constitution."

Filartiga v. Pena-Irala, 630 F.2d 876, 886

(2d Cir. 1980) (emphasis in original).

- ll-

international norm requiring good faith dealing

between treaty parties by condoning Respondent’s

illegal act, a condemnation that unnecessarily

disrupts foreign affairs and violates’ the

princip.e of federal supremacy.

II. THE BOUNTY HUNTERS VIOLATED THE

TERRITORIAL SOVEREIGNTY OF CANADA AND

HENCE INTERNATIONAL LAW IN KIDNAPPING

SIDNEY _WJAFFE

A. The Canadian Court Was Correct in

Awarding Petitioner a Remedy for

Wrongs Done to Her by Respondents

The Florida court based its determination

not to enforce Petitioner’s Canadian judgment in

large measure upon its condemnation of her

husband as a fugitive from justice, a contemnor,

and a wrongdoer who must be prevented from

profiting by his wrong. This view, said the

court, barred his wife’s recovery, even though

his forcible return from Canada by Respondents

"was wrongful in Canada’s eyes." Pet., at A-13.

Transborder kidnapping is wrongful, not

only "in Canada’s eyes," but also in

international law and hence in the law of the

United States. It cannot cavalierly be

- 12 -

dismissed with a wink and a nod. Moreover, the

specifically Federal character of the wrong --

and the potential consequences for the Federal

Government if such wrongs go unredressed --

mandate the intervention of this Court.

It should be noted at the outset that

review of this case and decision on the merits

in favor of Petitioners would not require

overruling or narrowing of United States v.

Alvarez-Machain, 112 S.Ct. 2188 (1992). The

question in Alvarez was not the wrongfulness of

international kidnapping. To the contrary, the

Court conceded that it "may be correct that

respondent’s abduction was "shocking" . .. and

that it may be in violation of general

international law principles. Id. at 2196. In

Alvarez, the much more limited question was

whether the prohibition of such conduct was part

-- implicitly or explicitly -- of a particular

legal instrument, the U.S.- Mexico Extradition

Treaty. This Court held that it was not, and

thus that the "fact of respondent’s forcible

abduction does not .. . prohibit his trial in

a court in the United States for violations of

the criminal laws of the United States." Id. at

2197.

Here, Petitioner does not seek to have

Respondent’s conduct measured against any

particular international treaty. The measuring

has already taken place. Ms. Jaffe’s Ontario

judgment incorporates an adjudication that she

was wronged by the Respondent’s conduct, and

that those wrongs entitle her to a remedy in

money damages. Nor is the question whether

Jaffe’s forcible abduction prohibited a U.S.

criminal trial. Rather, the question is whether

U.S. courts should give recognition to a duly

entered Canadian judgment, granted in accordance

with due process and Canadian law. Even were

her husband’s illegal conduct proved, *

2/ While amici take no position on the merits

of Mr. Jaffe’s ongoing legal disputes with

the State of Florida, one cannot help but

notice numerous inaccuracies in the court

- 14 =

4

|

i

Petitioner should be entitled to damages for the

injury done to her by Respondents’ illegal acts.

By refusing to recognize and enforce the

Canadian judgment, the Florida court

inexplicably ignored this Court’s express

pronouncement that a person forcibly abducted

from a foreign country by private citizens to

stand trial in the United States may recover

civil tort damages from his abductors. In Ker

v. Illinois, 119 U.S. 436 (1886), this Court

held that a U.S. citizen kidnapped in Peru by a

Pinkerton agent could be tried in this country

despite the fact that the abduction was illegal.

The Court took pains, however, to emphasize that

its holding did

not leave the prisoner . . . without

Of appeals’ decision. To cite but one

example, the court describes Sidney Jaffe

as a fugitive from justice for failing to

appear in a Florida courtroom, when at the

time Mr. Jaffe was testifying against his

kidnappers in Canada.

- 15 -

remedy for his unauthorized seizure

{because he could sue the Pinkerton agent]

in an action of trespass and false

imprisonment, and the facts set out in the

plea would without doubt sustain the

action.

Id. at 444, see United States v. Matta-

Ballesteros, 700 F.Supp. 528, 530 (N.D. Fla.

1988) (in Ker the Supreme Court "pointed out

that the defendant could sue his abductor for

damages").

Thus, while Ker is often cited for the

proposition that criminal jurisdiction may be

asserted over a defendant no matter how he or

she is brought before the court, Ker itself also

supports the right of Ms. Jaffe to enforce her

Canadian judgment against Respondents. The

Florida court clearly acted contrary to Ker when

it refused to recognize and enforce that

judgment.

B. The Forcible Abduction of a

Person From Another Nation

Constitutes a Tort in Violation

of the Law of Nations.

The illegality of Respondents’ conduct in

international law is established. That

- 16-

illegality entails, as a matter of logic,

illegality under United States law, since

international law is part of the law of the

United States. See supra at note 1.

The forcible abduction of Mr. Jaffe from

Canada constituted a tort in violation of the

law of nations. In addition, even though the

kidnapping was perpetrated by private

individuals, their conduct violated the "law of

nations" because it (1) was contrary to

standards, rules or customs affecting the

relationship between states used by those states

for dealings among themselves, and (2) infringed

upon the sovereignty of a foreign nation.

The law of nations encompasses "standards

by which nations regulate their dealings with

another." Cohen v. Hartman, 634 F.2d 318, 319

(Stn Cir. 1962). An act committed by one or

more individuals may constitute a tort in

violation of the law of nations if it (1)

violates "‘those standards, rules of customs (a)

affecting the relationship between states or

between an individual and a foreign state, and

(b) used by those states for their common good

and/or dealings inter se,’" and (2) "impinges

upon a nation’s exercise of its sovereignty."

Id. (citation omitted.)

In Forti v. Suarez-Mason, 672 F. Supp. 1531

(N.D. Cal. 1987), the district court held that

a claim against an individual for arbitrary

detention constituted a cause of action for

tortious conduct in violation of the law of

nations, and rejected as "unsupported" the

defendant’s contention that international law

extends only to relations between sovereign states.?

>/ Upon reconsideration, the court extended

its ruling to hold that the tort of

"Causing disappearance" also violated the

law of nations. Forti v. Suarez-Mason,

694 F.Supp. 707 (N.D. Cal. 1988).

It has long been recognized that

international law may govern the conduct

of private individuals. See Respublica v.

De Longchamps, 1 Dall. 111, 115-6, 1 L.

- 18 -

—EEE——

Ed. 59 (1784) (by "threatening and

menacing bodily harm and violence to...

[the] Secretary to the Legation from

France," the defendant -- a private

individual -- violated "the Law of

Nations"); The Flick Case, 6 Trials of War

Criminals Before the Nuremberg Military

Tribunals Under Control Council Law No. 10

at 1192 (1952) ("{i]nternational law, as

such binds every citizen just as does

ordinary municipal law") ; 1 Hyde’s

International Law § 11A at 33, 34 (24a

rev’d ed. 1945) ("The commission of

particular’ acts, regardless of the

character of the actors, may be so

detrimental to the welfare of the

international society that its

international law may clothe a State with

the privilege of punishing the offender,

or impose upon it the Obligation to

endeavor to do so. The offender may be a

- 19 -

Id. at 1540-42.

The bounty hunters’ abduction of Mr. Jaffe,

at Respondents’ behest similarly qualifies as a

tort in violation of the law of nations. The

abduction contravened "standards, rules or

customs affecting the relationship between

states" and used by those states for dealings

among themselves. Furthermore, the

international nature of the kidnapping violated

the sovereignty of Canada, to which Canada has

objected strenuously and continuously.

The conclusion that the abduction of Mr.

Jaffe by Respondents contravened "standards,

rules or customs affecting the relationship

between states" is borne out by a look at the

rules used by those states for dealings among

themselves. Courts in the United States have

recognized that "international law does not

private individual; and when he is

subjected to the imposition of a penalty,

he comes into close contact with the law

of nations").

- 20 -

permit one nation forcibly to remove an

individual from another." E.g., United States

v. Verdugo-Urquidez, 939 F.2d 1341, 1352 (9th

Cir. 1991), vacated, 112 S.ct. 2986 (1992). In

United States _v. Toscanino, 500 F.2d. 267

(1974), the Second Circuit expressly

acknowledged the "long-standing principle of

international law that abductions by one state

of persons located within the territory of

another state violate the territorial

sovereignty of the second state." 500 F.2d at

278 (emphasis added).

The bounty hunters’ abduction of Mr. Jaffe

from Canada unquestionably infringed upon the

sovereign interest of Canada in protecting its

citizens, and Canada has so noted in its

objections. U.S. courts have had no difficulty

in reaching this conclusion in cases involving

the same facts as those in the case under

petition. See Kear v. Hilton, 699 F.2d 181, 184

[4am Cie. 1983) (a U.S. bail bondsman’s

abduction of Mr. Jaffe, a Canadian citizen, from

- 21-

a

Canada resulted in "the sovereignty of a foreign

power [being] infringed"). The right of the

victims of such a tort to compensation should be

upheld.

IIt. THE REFUSAL OF THE FLORIDA COURTS TO

ENFORCE PETITIONER’S CANADIAN JUDGMENT

BREACHES A DUTY TO REMEDY THAT THE UNITED

STATES OWES CANADA IINDER INTERNATTONAL LAW

The United States has an Extradition Treaty

with Canada, Treaty on Extradition, Dec. 3,

1971, U.S.-Can., 27 U.S.T. 983, just as it has

with Mexico, Treaty on Extradition, May 4, 1978,

U.S.-Mex., 31 U.S.T. 5059. In Alvarez-Machain,

this Court held that the United States may

exercise criminal jurisdiction over a person

brought into the United States by a means (e.g.

kidnapping) not contemplated by the Treaty, even

if that means was illegal when and where carried

out. 1i2 S.Ct. 2188 (1992). That is, the

irregularity of the method by which a defendant

was brought before a court does not defeat the

court’s ability to try him.

Alvarez does not expressly address the

question whether the abducted foreign national

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might have a private right of action against his

kidnappers. But its reference to Ker v.

Illinois would seem to suggest that the

kidnapped individual does have such a right. In

Ker this Court rejected Ker’s objection to

jurisdiction in part because "(t)he party

himself could... sue... in an action of

trespass and false imprisonment..." 119 U.S.

at 425.4

4/ Even if a public policy argument might be

constructed in favor of denying the right

to sue to an abductee ultimately convicted

of criminal behavior in a U.8.

jurisdiction, that would not apply to Mr.

Jaffe. Although the court below suggests

that Jaffe’s acquittal rested on some kind

of technicality, Pet. at A-4, the fact

remains that the same court overturned

Jaffe’s original conviction, thus

vindicating his wife’s right to sue. In

fact, no court in Florida or elsewhere has

found Mr. Jaffe guilty of the land fraud

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Canada has a right in international law to

the cooperation of the United States in

enforcing the Treaty, including enforcement in

damages for violations by private parties. This

right is trampled by the judgment review of

which is now sought.

The State of Florida is obligated to

provide victims of breaches of international

human rights law the ability to obtain civil

tort damages from those private U.S. citizens

responsible for the violation. As reflected in

§ 701 (b) of the Restatement (Third) of Foreign

Relations Law of the United States, governmental

charges first levelled against him, but

for a trial judgment later reversed on

appeal. In such a case, the suggestion

that a judgment in tort be enforced by his

wife against the kidnappers who brought

him into the jurisdiction, where he was

incarcerated for months before his

conviction was set aside, is anything but

offensive.

entities are required to "respect the human

rights of persons" which nations "generally are

bound to respect as a matter of customary

international law." See Restatement (Third) of

Foreign Relations Law of the United States § 701

cmt. e. (1986) ("[t]he United States is bound by

the international customary law of human

rights").

The Restatement also provides:

A_state is also responsible if it

fails to provide an alien remedies

for injury to person or property,

whether inflicted by the state or by

private persons in circumstances in

which a remedy would be provided by

the major legal systems of the world.

Restatement (Third) of Foreign Relations Law of

the United States § 711 cmt. e. (1986) (emphasis

added); see also Restatement (Third) of Foreign

Relations Law of the United States § 711

reporters’ note 1 (1986) ("ijt is wrong under

international law for a state to deny a foreign

national access to domestic courts").

Accordingly, the State of Florida was obligated

to permit Ms. Jaffe to enforce her judgment

-' 25 -

against Respondents for the international

kidnapping of her husband.

IV. THE FLORIDA DECISION BREACHES THE

INTERNATIONAL CUSTOM OF GOOD FAITH DEALING

BETWEEN TREATY PARTIES BY CONDONING

RESPONDENTS’ TLUEGAL ACTS

The Florida courts’ refusal to honor the

Petitioner’s Canadian judgment breaches the

international norm requiring good faith dealing

between treaty parties by condoning respondents’

illegal acts. AS a matter of customary

international law, which is part of the law of

the United States, see Supra at note 1, states

are obligated to refrain from committing acts

calculated to defeat the object and purpose of

treaties to which they are party. It is a

cardinal principle of customary international

law that "a treaty in force is binding upon the

parties and must be performed by them in good

faith." I. Brownlie, Principles of Public

International Law 616 (4th ed. 1990). This rule

of pacta sunt servanda has been a cornerstone of

international law since its earliest Origin and

"has acquired great importance for the stability

- 26 -

as

and development of international relations as

instruments of peace and as mechanisms for

settlement of disputes or relaxation of

tensions." P.K. Menon, The Law of Treaties

Between States and International Organization 56

(1992).

The principle at stake here is much the

Same as its domestic contract law counterpart.

One commentator has stated:

Good faith in contractual relations thus

implies the observance by the parties of a

certain standard of fair dealing,

sincerity, honesty, loyalty, in short, of

morality throughout their

dealings...International law applies this

Standard in treaty relations between

States...much as municipal law in

contractual relations between individuals.

B. Cheng, General Principles of Law as Applied

by International Courts and Tribunals 119

(1953), reprinted in International Law and World

Order 792 (B.H. Weston ed., 1980).

Conventional agreements have recognized the

force of the international norm mandating good

faith conduct among treaty parties. The Vienna

- 27 -

Convention on the Law of Treaties® notes the

pacta sunt servanda rule in its Preamble and

defines its contours in two articles. Article

18 states that "[a] State is obliged to refrain

from acts which would defeat the object and

purpose of a treaty;" article 26 provides that

"[e]very treaty in force is binding upon the

parties to it and must be performed by them in

good faith."

In like manner, the International Court of

Justice has consistently recognized the impact

of the good faith rule governing treaty parties’

3/ The Vienna Convention on the Law of

Treaties, opened for _ siqnature May 23,

1969, 1155 U.N.T.S. 331 (entered into

force Jan. 27, 1980). Although the United

States is not a party to the Vienna

Convention, the treaty, ratified by 74

States, reflects an international

consensus. The Vienna Convention is

primarily a codification of customary

norms of international law.

- 28 -

conduct. In the Nicaragua case, the World Court

relied on the principle that a State has a legal

obligaticn "not to impede the due performance of

any treaties entered into by them." Military

and Paramilitary Activities (Nicaragua v. U.S.),

1986 I.C.J. 14, 135. The Court reasoned that

the United States violated the customary rule by

committing acts that were calculated to deprive

the Treaty of Friendship, Commerce and

Navigation between the United States and the

government of Nicaragua of its object and

purpose. Id. at 148. see also Nuclear Test

Cases (Australia v. France), 1974 I.c.J. 253,

268; and Nuclear Test Cases (New Zealand v.

France), 1974 1.¢cC.J. 457, 473 (good faith

requires adherence to unilateral commitment not

to test).

The Restatement of Foreign Relations Law of

the United States reiterates the principle,

stating that "[e]very international agreement in

force is binding upon the parties to it and must

be performed by them in good faith."

- 29 -

Restatement (Third) of Foreign Relations Law of

the United States § 321 (1986). Section 325 of

the Restatement mandates that "Cajn

international agreement is to be interpreted in

good faith..." Id. § 325.

In keeping with the Restatement, U.S.

courts have recognized the customary rule of

acta sunt servanda as a framework for

interpreting the treaty obligations of the

United States. In United States v. Rauscher,

119 U.S. 407 (1886), the Supreme Court

emphasized the good faith with which extradition

treaties are to be read. The Rauscher Court

held that a prisoner could not be charged for a

crime never presented to the extradition judge

under the Webster-Ashburton Treaty, stating that

to do otherwise would violate the "manifest

scope and object of the treaty." Id. at 422.

See also Tucker v. Alexandroff, U.S. 424, 437

(1901) (the convention under review "should be

interpreted in a spirit of uberrima fides, and

in a manner to carry out its manifest purpose.")

- 30 -

f

Although it has been held that an

extradition treaty is not violated by conduct

that is solely of private individuals, this rule

does not apply where a government sponsors or

condones the actions. In Jaffe v. Smith, 825

F.2d 304 (1987), prior to the Florida court of

appeals’ ruling, the Eleventh Circuit held that

Mr. Jaffe’s abduction from Canada would have

constituted a violation of the U.S.-Canada

Extradition Treaty if governmental actors were

involved, that is, if the government conducted

Or condoned his removal by means other than

those outlined in the Treaty. Id. at 308

(emphasis added). "Condonation" is defined as

"an implied pardon of an offense by treating the

offender as if it had not been committed."

Webster’s Ninth Collegiate Dictionary 274

(1988). By refusing to recognize and enforce

the Canadian judgement against the appellees,

the Florida court Clearly "condoned"

- 31-

Respondents’ role in the abduction of Mr.

Jaffe.°®

°/

Furthermore, that an extradition treaty

does not give private citizens a private

cause of action for violation does not

mean U.S. citizens are free to flout its

prescriptions. Article VI, Clause 2, of

the U.S. Constitution states that "all

Treaties .. . shall be the Supreme Law of

the Land." U.S. citizens are therefore

bound by a treaty’s proscriptions. See,

e.g., Volkswagenwerk-Aktiengesellschaft v.

Schlunk, 486 U.S. 694 (1988) (the Hague

Service Convention imposes on private U.S.

citizen obligations for the service of

process abroad); In re Aircrash in Bali,

Indonesia, 684 F.2d 1301 (9th Cir. 1982)

(the Warsaw Convention -- a treaty which

limits the amount of liability of air

carriers for accident or loss -- applies

to private individuals seeking damages

caused by a plane crash); cf. Hilton v.

- 32 -

Consequently, the Florida decision has

participated in a violation of the extradition

treaty by effectively permitting circumvention

of the treaty by private parties. Such action

on the part of a State court should not and can

not be countenanced in our Federal system of

Government. The fact that this international

law violation is being committed by a state of

the union is particularly egregious because it

violates the principle of federal supremacy.

See U.S. Const. art. VI. The violation of

international law by the state courts

unnecessarily disrupts foreign affairs and the

Guyot, zoe60O lo WB. 139 (1895) (treaties

provide a "most certain guide" for the

application of international law to

questions "concerning the rights of

persons within the territory and dominion

of one nation, by reason of acts, private

or public, done within the dominions of

another nation") (259 U.8. at 163,

emphasis added).

comity owed to foreign nations. This Court held

in Zschernig v. Miller, 389 U.S. 429 (1968),

that this "kind of state involvement in foreign

affairs and international relations [are]

matters which the Constitution entrusts solely

to the Federal Government. [State] regulations

must give way if they impair the effective

exercise of the Nation’s foreign policy. Where

those laws conflict with a treaty, they must bow

to the superior Federal policy. Yet even in the

absence of a treaty, a state’s policy may

disturb foreign relations." This court should

not, through denial of certiorari, effectively

condone such a state intrusion into foreign

affairs, especially when it has not heard from

the US Government on this question.

V. CONCLUSION

For all of the foregoing reasons, amici

curiae respectfully submit that the writ of

certiorari should issue. Amici will thereafter

seek leave to expand upon these and related

arguments in urging this Court to reverse and

cee eae

remand the judgement under review.

Given the foreign affairs implications of

the issues presented in this. case, its

significance for reciprocal enforcement of U.S.

judgments, and the high level of interest shown

by several successive administrations of the

Executive Branch of the U.S. Government (see,

e.g., Pet. at 3-7, A-48 - A-51) and the Canadian

Executive and Parliament, the Court may wish to

| call for the views of the Solicitor General

before final action on the petition.

Respectfully submitted,

/

WIAUE OU. pry

- =

Harold Hongju Koh Janelle M. Diller*

Ronald Cc. Slye International Human

Allard K. Lowenstein Rights Law Group

International Human 1601 Conn. Ave., NW

Rights Clinic Washington, DC 20009

127 Wall Street (202) 232-8500

New Haven, Ct. 06520

(203) 432-4932 Michael Ratner

Center for

Constitution Rights

666 Broadway

New York, NY 10012

(212) 614-6464

Counsel for Amici Curiae

*Counsel for Record

Dated: September (0, 1993

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