States," was part of “an articulated scheme of federal control over external affairs," and that the constitutional basis for the Alien Tort Statute is the law of nations, “which has always been part of the federal common law." The Court ruled that Federal jurisdiction might properly be exercised over the Filartigas' claim and remanded the action for further proceedings.

By a letter from A. Daniel Fusaro, Clerk of Court, to the Dept. of State's Legal Adviser, Roberts B. Owen, dated Oct. 29, 1979, the Court "requested the Department to submit a memorandum setting forth its position concerning the proper interpretation of 28 U.S.C. §1350 in the light of the facts of this case." (See the 1979 Digest, pp. 522-525.)

The memorandum of the U.S. Government as amicus curiae, prepared by the Dept. of State and the Dept. of Justice and filed on June 6, 1980, read in part: (footnotes selectively omitted)

II

OFFICIAL Torture is a tort and Gives Rise to a JudICIALLY
ENFORCEABLE REMEDY

Not every violation of international law is a tort within the meaning of Section 1350. However, some such violations are judicially cognizable as torts. A corollary to the traditional view that the law of nations dealt primarily with the relationship among nations rather than individuals was the doctrine that generally only States, not individuals, could seek to enforce rules of international law. [Banco Nacional de Cuba v.] Sabbatino,... 376 U.S. 398 (1964), at 422-423. Just as the traditional view no longer reflects the state of customary international law, neither does the latter doctrine.

Indeed, it has long been established that in certain situations, individuals may sue to enforce their rights under international law. For example, when a ship is seized on the high seas in violation of international law, the owner of the ship may sue to recover the ship as well as seek damages. The Paquete Habana, . . . [175 U.S. 677 (1900).] Similarly, when there has been an assault on a foreign ambassador in violation of international law, domestic courts may properly furnish a remedy. Cf. Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111 (1784).

The more recently evolved international law of human rights similarly endows individuals with the right to invoke international law, in a competent forum and under appropriate circumstances. The highly respected Constitutional Court of Germany has recognized this right of individuals. The court declared that, although “contemporary generally recognized principles of international law include only a few legal rules that directly create rights and duties of private individuals by virtue of the international law itself," an area in which they do create such rights and duties is "the sphere of the minimum standard for the protection of human rights."44 As a result, ín nations such as the United States where international law is part of the law of the land, an individual's fundamental human rights are in certain situations directly enforceable in domestic courts. As the Supreme Court said in The Paquete Habana, supra, 175 U.S. at 700:

International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.

Because foreign officials are among the prospective defendants in suits alleging violations of fundamental human rights, such suits unquestionably implicate foreign policy considerations. But not every case of controversy which touches foreign relations lies beyond judicial cognizance. Baker v. Carr, 369 U.S. 186, 211 (1962). Like many other areas affecting international relations, the protection of fundamental human rights is not committed exclusively to the political branches of government. See Sabbatino, supra, 376 U.S. at 423, 430 n. 34.

This does not mean that Section 1350 appoints the United States courts as Commissions to evaluate the human rights performance of foreign nations. Cf. Sabbatino, supra, 376 U.S. at 423. The courts are properly confined to determining whether an individual has suffered a denial of rights guaranteed him as an individual by customary international law. Accordingly, before entertaining a suit alleging a violation of human rights, a court must first conclude that there is a consensus in the international community that the right is protected and that there is a widely shared understanding of the scope of this protection. Sabbatino, supra, 376 U.S. at 428, 430 n. 34. When these conditions have been satisfied, there is little danger that judicial enforcement will impair our foreign policy efforts. To the contrary, a refusal to recognize a private cause of action in these circumstances might seriously damage the credibility of our nation's commitment to the protection of human rights. As we have shown in Part I-C[see this Digest, Ch. 3, §6, post official torture is both clearly defined and universally condemned. Therefore, private enforcement is entirely appropriate.

45

From what we have said, it should be clear that a court is not at liberty to enforce its own views of policy under the guise of interpreting the requirements of international law. On the other hand, as the Supreme Court stated in Sabbatino, supra, 376 U.S. at 428:

It should be apparent that the greater the degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it, since the courts can then focus on the application of an agreed principle to circumstances of fact rather than on the sensitive task of establishing a principle not inconsistent with the national interest or with international justice.

In this case, not only is there a consensus in the international community that official torture is unlawful, but Paraguay's Constitution expressly prohibits official torture46 and Paraguayan law recognizes a tort action as an appropriate remedy.47 The compatibility of international law and Paraguayan law significantly reduces the likelihood that court enforcement would cause undesirable international consequences and is therefore an additional reason to permit private enforcement.

Because international law and Paraguayan law both prohibit torture, this Court need not decide whether considerations of comity or a proper construction of Section 1350 might require a different result if, despite the nearly universal condemnation implicit in the existence of a rule of customary international law, the jurisdiction with the most immediate interest in the controversy did not prohibit torture. Similarly, this case does not present any questions concerning whether international law, Paraguayan law or federal common law will govern other aspects of this lawsuit. The only question presented is whether official torture is a "tort *** committed in violation of the law of nations *** "48 Because the district court erred in concluding that it is not, its judgment should be reversed and the case remanded for further proceedings.49

44 In Matter of the Republic of the Philippines, 46 BVerfGE 342, 362 (2 BvM 1/76, December 13, 1977) (translated from the German by Stefan A. Riesenfeld); see also Borovsky v. Commissioner of Immigration, Judgment of September 28, 1951 (S.Ct. Philippines), summarized in [1951] United Nations Yearbook on Human Rights 287-288; Chirskoff v. Commissioner of Immigration, Judgment of October 26, 1951 (S.Ct. Philippines), summarized in id. at 288-289; Judgment of Court of First Instance of Courtrai (Belgium) of June 10, 1954, summarized in [1954] United Nations Yearbook on Human Rights 21 (courts relied on Universal Declaration of Human Rights in ordering release from detention).

45 There are few decisions which base judgments against torturers directly on customary international law. But this attests to the longstanding condemnation of torture under municipal law and the more recent evolution of international human rights law. Courts have, nonetheless, invoked customary international law along with municipal and treaty law in cases involving torture. Ireland v. United Kingdom, Judgment of January 18, 1978 (European Ct. of Human Rights), summarized in [1978] Y.B. Eur. Conv. on Human Rights 602 (Council of Europe) (UN Declaration on Torture relied on in interpreting the European Convention on Human Rights);

Auditeur Militaire v. Krumkamp, Pasicrisie Belge, 1950.3.37 (February 8, 1950) (Belgian Conseil de Guerre de Brabant), summarized in 46 Am.J. Int'l L. 162-163 (1952) (Article 5 of Universal Declaration of Human Rights, which prohibits torture and cruel treatment, cited as authority that under customary international law the defendant accused of war crimes was not free to use torture).

* Article 45 of the Paraguayan Constitution.

47 A. 51-53, 80.

48 Because the lower court dismissed for lack of jurisdiction, it did not decide whether the case should be dismissed on the ground of forum non conveniens. Although we agree with plaintiffs that this question should be addressed by the district court first, we note that when the parties and the conduct alleged in the complaint have as little contact with the United States as they have here, abstention is generally appropriate. Romero v. International Terminal Operating Co., 358 U.S. 354 (1959); Lauritzen v. Larsen, 345 U.S. 571 (1953). Plaintiffs assert that abstention is inappropriate because a tort suit in Paraguay would be a sham. For reasons of comity among nations, however, such an assertion should not be accepted absent a very clear and persuasive showing. In determining whether abstention is appropriate, the court should also consider the fact that the defendant has been deported. Compare United States v. Castillo, 615 F.2d 878, 882 (9th Cir. 1980).

49 Defendant erroneously suggests (Br. 4-16) that Section 1350 is unconstitutional in conferring jurisdiction to federal courts to entertain tort actions under the law of nations. Customary international law is federal law, to be enunciated authoritatively by the federal courts. Sabbatino, supra, 376 U.S. at 425; see The Paquete Habana, supra, 175 U.S. at 700. An action for tort under international law is therefore a case "arising under*** the laws of the United States" within Article III of the Constitution. See Note, Federal Common Law and Article III: A Jurisdictional Approach to Erie, 74 Yale L.J. 325, 331-336 (1964).

Memorandum for the United States as Amicus Curiae, Filartiga v. Pena-Irala, No. 79-6090 (filed June 6, 1980), pp. 20-25; Dept. of State File No. P84 0132-2279.

On remand from the Second Circuit, the U.S. District Court for the Eastern District of New York awarded judgment by default in favor of the plaintiffs (Pena-Irala had been deported and took no further part in the case), and referred the question of damages to a magistrate for report. The plaintiffs filed objections to the latter's conclusion that they were entitled only to damages recoverable under Paraguayan law. See, further, Filartiga v. Pena-Irala, 577 F. Supp. 860 (1984).

See, however, Hanoch Tel-Oren v. Libyan Arab Republic, 517 F.Supp. 542 (D.D.C. 1981), aff'd, 726 F.2d 774 (D.C. Cir. 1984), cert. denied, 470 U.S. 1003 (1985), a consolidated action by survivors and representatives of persons killed in an armed attack by a Palestinian terrrorist group on a civilian bus in Israel on Mar. 11, 1978. (In regard to the attack itself, see the 1978 Digest, pp. 1588-1601.)

On June 30, 1981, District Judge Joyce Hens Green dismissed the case for lack of subject-matter jurisdiction. The Alien Tort Statute, the Court said, served "merely as an entrance into the Federal courts and in no way provides a cause of action to any plaintiff", who must demonstrate a specific right to a private claim either under the law of nations or under a U.S. treaty.

On Feb. 3, 1984, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit affirmed the dismissal for lack of subject-matter jurisdiction, with each judge filing a separate concurring statement.

The brief of the United States as amicus curiae, submitted at the request of the Supreme Court, recommended that the Court deny the plaintiffs' petition for writ of certiorari. It may be found, also, at Dept. of State File No. P85 0185-0051.

In Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir. 1985), a three-judge panel of the U.S. Court of Appeals for the District of Columbia affirmed on Aug. 13, 1985, the district court's dismissal of a complaint alleging various causes of action predicated upon the defendants' alleged support of forces ("Contras"), that were operating against the Government of Nicaragua. (In Sanchez-Espinoza v. Reagan, 568 F. Supp. 596 (D.D.C. 1983), the Nicaragua plaintiffs had maintained that the allegedly U.S.

sponsored raids on Nicaraguan towns and villages violated fundamental human rights established under international law and the U.S. Constitution, and they had alleged subject matter jurisdiction in part under the Alien Tort Statute. District Judge Howard F. Corcoran on Aug. 1, 1983 had dismissed all the Federal claims as presenting a nonjusticiable political question.)

Although affirming the dismissal for the most part on other grounds, the Court of Appeals held that the Alien Tort Statute could not apply in any event to officially authorized actions of the United States Government. The Alien Tort Statute, Circuit Judge Antonin Scalia stated, was not itself a waiver of the domestic sovereign immunity applicable to such actions. Judge Scalia also considered that it would be an abuse of the Court's discretion to provide nonmonetary, discretionary relief (including injunction, mandamus, or declaratory judgment) against U.S. Government support for such military operations. If the allegations in the complaint were accepted as true (as they must be for purposes of a motion to dismiss), such support, the Court pointed out, had received the attention and approval of the President, the Secretary of State, the Secretary of Defense, and the Director of the Central Intelligence Agency, and involved the conduct of United States diplomatic relations with at least four foreign states-Nicaragua, Costa Rica, Honduras, and Argentina.

For the Federal Defendants' Reply Memorandum filed in Sanchez-Espinoza v. Reagan, 568 F.Supp. 596 (D.D.C. 1983), see, also, Dept. of State File No. P86 01050186; for the Brief for the Federal Appellees filed in Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir. 1985), see, also, ibid., No. P86 0105-0104. And see, this Digest, Ch. 3, §6, post.

International Law As an Aid to Statutory Interpretation Customary International Law

In Federal Trade Commission v. Compagnie de Saint-GobainPont-A-Mousson, 636 F.2d 1300 (D.C. Cir. 1980), the United States Court of Appeals for the District of Columbia Circuit, primarily guided by "recognition of established and fundamental principles of international law", ruled on November 17, 1980, that district court orders enforcing Commission subpoenas be vacated and that the action be dismissed by the district court.

The Court of Appeals had already made clear in an earlier remand to the district court that any construction of the Commission's claimed authority to serve subpoenas outside the United States by registered mail should be in conformity with accepted principles of international law. In the appeal from the district court's decision following the earlier remand, the Court of Appeals found that the district court had failed to draw "two distinctions of critical importance in international law: the first, based on the type of document being served; the second, based on the type of jurisdiction being invoked." By failing to draw these distinctions, the Court said, the district court had failed to give adequate weight to fundamental principles of international law that disfavored extraterritorial subpoena service in circumvention of official channels of judicial assistance, opposed judicial enforcement of investigatory subpoenas

abroad, and prohibited the particular manner of subpoena service employed in the instant case.

636 F.2d, at 1310.

See, further, this Digest, Ch. 6, §1, post.

Treaty-Codified International Law

In United States v. Williams, a marijuana smuggling case, 617 F.2d 1063 (5th Cir. 1980), the United States Court of Appeals for the Fifth Circuit interpreted the Coast Guard's statutory authority under 14 U.S.C. 89 (a) to stop (seize) and board any vessel on the high seas that is "subject to the jurisdiction, or to the operation of any law, of the United States" against an analogous international law standard governing the seizure of foreign vessels in international waters, Article 22 of the 1958 Convention on the High Seas.

The Court rejected the argument that the statute required the Coast Guard to be absolutely certain that those aboard a foreign vessel were in the process of violating Federal law before seizing the vessel. It held that the limiting language, “subject to the . . . operation of any law, of the United States" required that before seizing a vessel, the Coast Guard must have at least a reasonable suspicion that it was subject to the operation of United States law. This included a reasonable suspicion that a foreign vessel in international waters was engaged in smuggling.

The Court noted that Article 22 of the Convention, setting out exceptions to the general principle of non-interference on the high seas, codified the right of approach, a doctrine of international maritime common law. The Court concluded that Congress, in enacting 14 U.S.C. 89(a), had created an exception to the principle of noninterference analogous to those contained in Article 22, and that it was appropriate "to construe section 89(a), like article 22, to require that a seizure of a foreign vessel in international waters be founded on reasonable suspicion."

617 F.2d, at 1077.

The Convention on the High Seas, done at Geneva, Apr. 29, 1958, may be found at TIAS 5200; 13 UST 2312; entered into force, Sept. 30, 1962.

See, further, this Digest, Ch. 6, §5, post.