1 830 F.2d 421 (2d Cir. 1987), reprinted in 26 ILM 1375 (1987), petition for cert, filed, 56 U.S.L.W. 3592 (U.S. Mar. 1, 1988) (No. 87-1372).

2 The case came up after the district court had granted the defendant’s motion to dismiss for lack of jurisdiction. Thus, the court of appeals accepted the plaintiffs’ allegations as true. The stated facts are essentially as reported at the time of the alleged attack. See N.Y. Times, June 9, 1982, at A23, col. 1.

3 See UN Charter art. 2(4); Convention on the High Seas, Apr. 29, 1958, Arts. 2, 6, 450 UNTS 82, 13 UST 2312, TIAS No. 5200; Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Arts. 87, 92, UN Doc. A/CONF.62/122, reprinted in United Nations, The Law of the Sea: United Nations Convention on the Law of the Sea, UN Sales No. E.83.V.5 (1983), and 21 ILM 1261 (1982). Seealso note 19 infra. The court relied on Articles 22 and 23 of the Convention on the High Seas.

4 28 U.S.C. §1350(1982).

5 It would not necessarily be all the court would have to find in order to establish the constitutionality of the Alien Tort Claims Act, as applied to these facts. Amerada Hess probably would be within the federal judicial power (Article III of the Constitution) only if it were a case “arising under . . . the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” (No attempt was made, apparently, to bring it within the admiralty and maritime jurisdiction.) For international customary or treaty law to be within the quoted language, it would have to be self-executing or embodied in a federal statute. Specific human rights norms—such as the norm against torture—should be held self–executing, but it is less clear that the norms involved in Amerada Hess would be (or that they are somehow incorporated by reference in §1350). The court in Amerada Hess did not address the constitutional issue.

6 830 F.2d at 425, reprinted in 26 ILM at 1380. For this, the court relied on Paust, , Federal Jurisdiction over Extraterritorial Acts of Terrorism and Nonimmunity for Foreign Violators of International Law Under the FSIA and the Act of State Doctrine, 23 Va. J . Int’l L. 191, 221–32 (1983)Google Scholar; Bazyler, , Litigating the International Law of Human Rights: A “How to” Approach, 7 Whittier L. Rev. 713, 733–34 (1985)Google Scholar.

7 Some commentators have argued that, historically, sovereign immunity did not apply to a foreign sovereign accused of committing acts in violation of international law. See D’Amato, A., International Law: Process and Prospect 201–04 (1987)Google Scholar; Paust, supra note 6, at 238–41. The commentators and the court in Amerada Hess have cited The Santissima Trinidad, 20 U.S. (7 Wheat.) 283 (1822), for this proposition. That case involved a claim against>goods unlawfully taken as prize by a foreign public vessel, but not in the possession of the foreign sovereign. Instead, the goods were in the possession of a private bailee. The Schooner Exchange v. M’Faddon, 11 U.S. (7 Cranch) 116 (1812), applied sovereign immunity to preclude private libelants from asserting that a public vessel in the possession of the French navy had been taken from them in violation of international law. Thus, sovereign immunity seems firmly established historically, even in cases involving an alleged violation of international law.

8 Judgment of the International Military Tribunal at Nuremberg, Oct. 1, 1946, 41 AJIL 172, 220–21 (1947) [hereinafter Nuremberg Judgment].

9 28 U.S.C. §§1330, 1602–1611 (1982).

10 28 U.S.C. §1330.

11 The majority did recognize one exception, in §1605(a)(5) (torts causing harm in the United States). That exception, of course, did not apply to the facts in the case.

12 830 F.2d at 426, reprinted in 26 ILM at 1381. Judge Kearse entered a forceful dissent on this point.

13 28 U.S.C. § 1605(a)(3). Although expropriations usually are of property used for commercial purposes, the acts of expropriation are not commercial acts.

14 830 F.2d at 427, reprinted in 26 ILM at 1382–83.

15 See especially Report of the International Law Commission on the work of its thirty-second session, UN Doc. A / 3 5 / 1 0 (1980), reprinted in [1980] 2 Y.B. Int’l. Comm’n, pt. 2 at 1, 137–57, UN Doc. A/CN.4/SER.A/1980/Add.1. In its commentary to draft Article 6 on jurisdictional immunities, the Commission reviewed state practice and concluded that, “in the general practice of States as evidence of customary law, there is little doubt that a general rule of State immunity has been firmly established as a norm of customary international law.” Id. at 149. The Commission has recognized a number of exceptions, but they do not encompass the Amerada Hess situation.

16 It is increasingly evident that federal judges should be given training in basic international law, and in the relationship between international and domestic law. To the extent that the judiciary acquires expertise in international law, the strength of the argument in the text diminishes.

17 This objection loses some force when the violation of international law is clear, as it seems to have been in Amerada Hess. But judges in domestic courts are not well equipped to distinguish clear violations from unclear ones. This is true in the sovereign immunity context, as it is in the act of state context. Cf. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 433–35 (1964).” Even in the Amerada Hess situation, the court relied on the wrong provisions of the Convention on the High Seas. See note 3 supra.

18 830 F.2d at 428, reprinted in 16 ILM at 1383 (citing Paust, , Draft Brief Concerning Claims to Sovereign Immunity and Human Rights: Nonimmunity for Violations of International Law Under the FSIA, 8 Houston J. Int’l L. 49, 69–70 (1985)Google Scholar).

19 See Nuremberg Judgment, supra note 8, at 304; Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 607 (Y. Sandoz, Ch. Swinarski & B. Zimmermann eds. 1987).

20 For the distinction between jurisdiction to prescribe and jurisdiction to adjudicate, see Restatement (Third) of Foreign Relations Law of the United States §401 (1988) [hereinafter Restatement (Third)]. See also id., ch. 2, Introductory Note.

21 See International Shoe Co. v. Washington, 326 U.S. 310 (1945).

22 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).

23 Cf. Asahi Metal Industry Co. v. Superior Court, 107 S.Ct. 1026, 1034 (1987).

24 See Born, , Reflections on Judicial Jurisdiction in International Cases, 17 Ga. J. Int’l & Comp. L. 1, 28–44 (1987)Google Scholar (arguing for heightened scrutiny of jurisdictional claims in international cases, even when the defendant is not the sovereign). Cf, Restatement (Third), supra note 20, §421 (which says that the exercise of jurisdiction to adjudicate must be “reasonable,” without distinguishing between the requirements of constitutional law and of international law).

25 Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

26 See D’Zurilla, , Individual Responsibility for Torture Under International Law, 56 Tulane L. Rev. 186 (1981)Google Scholar.

27 For a current definition, see Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 1, GA Res. 39/46 (Dec. 10, 1984). A similar definition appears in the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 3452 (XXX) (Dec. 9, 1975). Neither the Convention nor the declaration expressly provides that an individual violates international law by committing torture.

28 630 F.2d at 890. Cf. Carmichael v. United Technologies Corp., 835 F.2d 109, 113–14 (5th Cir. 1988).

29 Notwithstanding Judge Bork’s individual opinion to the contrary in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 798–823 (D.C. Cir. 1984), cert, denied, 470 U.S. 1003 (1985).

30 It arguably was at issue in Filartiga, but the court managed to finesse the point. 630 F.2d at 889–90. See also Forti v. Suarez-Mason, 672 F.Supp. 1531, 1544–47 (N.D. Cal. 1987).

31 The list consists of genocide; slavery or slave trade; murder or causing the disappearance of individuals; torture or other cruel, inhuman or degrading treatment or punishment; prolonged arbitrary detention; systematic racial discrimination; and consistent patterns of gross violations of internationally recognized human rights. See Restatement (Third), supra note 20, §702. The section deals with violations committed as a matter of state policy; it does not address individual responsibility. Nevertheless, each of the listed offenses should entail individual responsibility under international law if the individual is acting under color of state authority.

For a case following the lead of Filartiga by applying the Alien Tort Claims Act to prolonged arbitrary detention by military personnel under the command of the defendant, a former general in Argentina, see Forti v. Suarez-Mason, 672 F.Supp. 1531 (N.D. Cal. 1987).

32 See GA Res. 40/61 (Dec. 9, 1985) (referring to acts of terrorism as criminal); SC Res. 579 (Dec. 18, 1985) (referring to the taking of hostages and abductions as offenses of grave concern to the international community); both reprinted in 80 AJIL 435 (1986).

33 See Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Art. 147, 75 UNTS 287, 6 UST 3516, TIAS No. 3365; Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 10, 1977, Arts. 11, 85(3), UN Doc. A/32/144, Ann. 1, reprinted in 16 ILM 1391 (1977).

34 Cf. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964).