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Professor D’Amato’s Concept of American Jurisdiction is Seriously Mistaken

Published online by Cambridge University Press:  23 March 2017

Alfred P. Rubin
Alfred P. Rubin*
Affiliation:
The Fletcher School of Law and Diplomacy
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Extract

Professor Anthony D’Amato criticizes a long opinion of Judge Bork rejecting American jurisdiction over various foreign defendants in a tort action growing out of an attack on civilians in Israel by members of the Palestine Liberation Organization. None of the victims was American and there seems to be no connection between the United States and the incident except the temporary presence of agents of various defendants in the United States.

Type
Agora: What Does Tel-Oren Tell Lawyers?
Information
American Journal of International Law , Volume 79 , Issue 1 , January 1985 , pp. 105 - 112
Copyright
Copyright © American Society of International Law 1985

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References

1 The Paquete Habana, 175 U.S. 677 (1900); The Zamora, [1916] 2 A.C. 77.

2 “Est quidem vera lex recta ratio naturae congruens, diffusa in omnes, constans, sempiterna . . . sed et omnes gentes et omni tempore una lex et sempiterna et immutabilis continebit . . .” (True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting . . . but one eternal and unchangeable law will be valid for all nations and all times), Cicero, De Re Publica, bk. III, ch. xxii, §33. It is not clear from the context whether “lex,” “law” as used by Cicero, would include what we call the positive law, or only the “moral law,” and whether its use by courts in disregard of the positive law would be a form of legislation or even permissible under current theories of judicial powers in the absence of positive legislation authorizing its use.

3 U.S. CONST, art. III, §2, para. 1. The states retain a vestige of common law jurisdiction in some cases that might be classified as admiralty cases. But the principle of exclusive federal jurisdiction was not seriously questioned as a matter of constitutional law until the 1850s. Taylor v. Carryl, 61 U.S. (20 How.) 583 (1857). Further derogations from the plan of exclusive federal enforcement jurisdiction in admiralty occurred later, as the conception of universal natural law prescriptions eroded. In general, see Robertson, D., Admiralty and Federalism 123–35 (1970)Google Scholar.

4 This “Act,” which is really merely a section of the Judiciary Act of 1789, creates jurisdiction in federal district courts concurrent with state courts “of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.” 28 U.S.C. §1350.

5 Cf. 4 Blackstone, W., Commentaries on the Laws of England 67 (1769)Google Scholar (American ed. 1790).

6 Fourth Interim Report of the Committee on International Terrorism, in International Law Association, Report of the Sixtieth Conference 349, esp. conclusion in para. 21, at 354 (1982).

7 21 Int’l Prac. Notebook 19 (1983).

8 Story, J., Commentaries on the Conflict of Laws (1834)Google Scholar (photo reprint 1972). The notion of conflict of laws appears in many earlier writings and some famous cases long before 1834, but this is not the place to trace its history.

9 Id. at 27.

10 Id. at 4 - 5 , 7–9 and 29.

11 Id. at 28–29. And compare his dissenting opinion in The Antelope, 23 U.S. (10 Wheat.) 66 (1825), with his opinion as Circuit Judge in United States v. La Jeune Eugenie, 26 F. Cas. 832 (C.C.D. Mass. 1822) (No. 15,551).

12 There is, of course, much more to this evolution than can be set out here, and the “positivist” results of the cases never wholly defied the ability of “naturalist” jurists like Story and Wheaton to continue to assert the theoretical existence of universal prescriptions whose enforcement by uninvolved states was deterred only by policy considerations. See, e.g., Story’s opinion for a unanimous Supreme Court in The Santissima Trinidad and the St. Andre, 20 U.S. (7 Wheat.) 283 (1822), holding the wrongful fitting out of a belligerent vessel to have been “a violation of the law of nations as well as our own municipal laws” (at 348); as a result, subsequent captures were tortious and would require restitution (at 349). On the other hand, the attempt of Venezuela to assert its admitted concurrent jurisdiction in the case was rejected on the express positivist ground that “[i]t would be an attempt to exercise sovereign authority over the court having possession of the thing, and take from the nation the right of vindicating its own justice and neutrality” (id. at 355).

At the Congress of Aix-la-Chapelle in 1818, Lord Castlereagh had argued unsuccessfully that the slave trade being a violation of the law of nations, the prohibition could be enforced by the British fleet against Portuguese and French traders without permission of the flag states involved. 6 Brit. & Foreign St. Papers 77, 79 (1818–19). The French rejected Castlereagh’s argument and the issue was resolved by treaty.

Perhaps the clearest statement of the “positivist” position was by Judge Kane in a charge to a federal district court jury, in a Philadelphia slave-trading case in 1855:

But it is only in the two cases, where the individual accused is himself a citizen . . . or where the property upon which the individual was found perpetrating a wrong was properly recognized as American . . . , that the United States can make a law which would be binding upon all citizens or which could be enforced by courts of justice; and I do not hestitate to say, after something of mature consideration, that if the Congress of the United States, in its honorable zeal for the repression of a grievous crime against mankind, were to call upon courts of justice to extend the jurisdiction of the United States beyond the limits I have indicated, it would be the duty of courts of justice to decline the jurisdiction so conferred.

United States v. Darnaud, 3 Wallace 143, 162, 25 F. Cas. 754 (3d Cir. 1855) (No. 14,918).

The cases in the Supreme Court containing this positivist orientation, but with naturalist arguments that Judge Kane ignored as the law became settled and the time for preserving theoretical positions passed, were United States v. Palmer, 16 U.S. (3 Wheat.) 610 (1818); United States v. Wiltberger, 18 U.S. (5 Wheat.) 76 (1820); and United States v. Klintock, id. at 144. And see Wheaton’s note on the Wiltberger case in id. at 106–16.

13 18 U.S. (5 Wheat.) 144 (1820).

14 Id. at 152.

15 Wiltberger, 18 U.S. (5 Wheat.) 76 (1820); Palmer, 16 U.S. (3 Wheat.) 610 (1818).

16 Wiltberger, 18 U.S. at 94–95; Palmer, 16 U.S. at 630–33. These cases long precede the “protective principle” cases developed in the 20th century to reflect other interests.

17 One of the cases in United States v. Pirates, 18 U.S. (5 Wheat.) 184, 195 (1820).

18 Or even a full-length article. I have attempted it as the chapter of a book. That chapter runs almost two hundred pages, and cannot be understood without reference to yet other material, in total about seven hundred pages of typescript.

19 In re Tivnan, 5 Best & Smith 645, 122 Eng. Rep. 971 (1864). A similar result had been reached by a Canadian court in 1863. The Chesapeake, 2 Moore, J., Digest of International Law 1080–81 (1906)Google Scholar. The Webster-Ashburton Treaty of 1842 is in 8 Stat. 572, TS No. 119. The British cases rest on British municipal law implementing the Treaty, 6 & 7 Vict., ch. 76 (1843).

20 United States v. Baker, 5 Blatchford 6, 24 Fed. Cas. 962 (C.C.S.D.N.Y. 1861) (No. 14,501).

21 J. Moore, supra note 19, at 1079–83.

22 Cf. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, esp. 428 n.26 and 434–35 (1964), opinion by Justice Harlan for the majority of eight.

23 The distinction between the jus gentium and the jus inter gentes, i.e., between the law of nations as described by Cicero and the law between states nowadays usually considered the essence of public international law, was brought into modern jurisprudence in England by an admiralty judge, Richard Zouche, by 1650. Zouche, , Iuris et Iudicii Fecialjs 1 (1650)Google Scholar (Carnegie Endowment trans., 1911). Natural law thinkers argued that the same fundamental principles applied to both legal relationships. Pufendorf, S., Elementorum Jurisprudentiae Universalis, bk. I, def. XIII, sec. 24, at 165 (1660)Google Scholar (1672 ed., Carnegie Endowment trans., 1931), arguing that aside from the “jus gentium” applied between states as it applies between natural persons, there is no “law of nations” binding states with regard to each other.

24 The ICJ has found the rules relating to jus standi sufficient to deprive a claimant of his “day in court” in at least three notable cases: The Nottebohm Case (Second Phase) (Liechtenstein v. Guat.), 1955 ICJ Rep. 4 (Judgment of Apr. 6); the South West Africa Cases (Second Phase) (Ethiopia v. S. Afr.; Liberia v. S. Afr.), 1966 ICJ Rep. 6 (Judgment of July 18); and Barcelona Traction, Light & Power Co., Ltd. (Second Phase) (Belg. v. Spain), 1970 ICJ Rep. 3 (Judgment of Feb. 5). Since all known legal systems have rules limiting access to the enforcement mechanisms of the law to parties with a legal interest in the outcome of the case, the rules limiting standing seem to be a part of the general principles of law recognized by civilized nations at least as much as any rules relating to human rights. It is surprising that so little has been published on the rules and their ramifications.