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Judge Bork’s Concept of the Law of Nations is Seriously Mistaken

Published online by Cambridge University Press:  23 March 2017

Anthony D’Amato
Anthony D’Amato*
Affiliation:
Of the Board of Editors
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Extract

A recent decision of the Court of Appeals for the District of Columbia Circuit, Tel-Oren v. Libyan Arab Republic, is sparking considerable controversy and will undoubtedly be examined at length in law journals. The events in issue occurred March 8, 1978, when 13 heavily armed members of the Palestine Liberation Organization left Lebanon for Israel under instructions to seize and hold Israeli civilians in ransom for the release of PLO members incarcerated in Israel. On the main highway between Haifa and Tel Aviv, they stopped and seized a civilian bus, a taxi, a passing car, and later a second civilian bus, taking the passengers hostage. While proceeding toward Tel Aviv with their hostages gathered in the first bus, the terrorists fired on and killed numerous occupants of passing cars as well as some of their own passengers. They also tortured some of their hostages. At a shoot-out with the police at a police barricade, the terrorists shot more of their hostages and then blew up the bus with grenades. As a result of the terrorists’ actions, 22 adults and 12 children were killed, and 63 adults and 14 children were seriously wounded.

Type
Agora: What Does Tel-Oren Tell Lawyers?
Information
American Journal of International Law , Volume 79 , Issue 1 , January 1985 , pp. 92 - 105
Copyright
Copyright © American Society of International Law 1985

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References

1 726 F.2d 774 (D.C. Cir. 1984). A panel discussion devoted to the Tel-Oren case is scheduled for the 1985 Annual Meeting of the American Society of International Law.

2 D’Amato, , The Concept of Human Rights in International Law, 82 Colum. L. Rev. 1110, 1123–26 (1982)Google Scholar.

3 Id. at 1114–15, 1147–49.

4 Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480 (1983). To be sure, the existence of attachable assets has not been a basis in American law for jurisdiction except in certain in rem cases. Verlinden did not make it a basis; my argument in the text is merely that Verlinden stands for a stronger international perspective than perhaps lower-court judges realize the Supreme Court is willing to take. If, however, courts were to universalize their perspectives on human rights, my position is that those who deny basic human rights should be accountable in any national court where they or their assets may be found.

5 In Davis v. Passman, 442 U.S. 226, 240 n.18 (1979), the Supreme Court distinguished between standing and having a cause of action. Cf. note 23 infra.

6 442 U.S. at 238.

7 Id.

8 726 F.2d at 801 (citing Davis v. Passman, 442 U.S. 228, 240 n.18 (1979)).

9 The 13 alleged treaties listed by Judge Bork, of which the first 5 are binding, are: the Geneva Convention relative to the Protection of Civilian Persons in Time of War, the Convention with respect to the Laws and Customs of War on Land (both Hague Conventions of 1899 and 1907), the Charter of the United Nations, the Geneva Prisoners of War Convention of 1949, the OAS Convention of 1971 on Terrorism, the Protocols to the Geneva Conventions on Humanitarian Law of 1949, the General Assembly Declaration on the Principles of Friendly Relations, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the General Assembly Resolution on Protection of Civilian Populations in Armed Conflicts, the Genocide Convention, the General Assembly Declaration on the Rights of the Child and the American Convention on Human Rights. 726 F.2d at 808–09.

10 Id. at 820.

11 1 Oppenheim, L., International Law: A Treatise 19 (Lauterpacht, H. 8th ed. 1955)Google Scholar, quoted in id. at 817.

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

13 726 F.2d at 820 (Bork, J., concurring).

14 Id. at 816 (Bork, J., concurring).

15 A non-self-executing treaty may nevertheless indirectly produce domestic private effects, including those of influencing the interpretation of a statute, evidencing federal foreign policy that may preempt the states, and generating a rule of customary law that in turn may apply to private parties. See, e.g., Paust, , Book Review, Human Rights: From Jurisprudential Inquiry to Effective Litigation, 56 N.Y.U. L. Rev. 227, 239–42 (1981)Google Scholar; D’Amato, A., The Concept of Custom in International Law, ch. 5 (1971)Google Scholar.

16 726 F.2d at 779 (Edwards, J., concurring).

17 Henkin, L., Foreign Affairs and the Constitution 224 (1972), cited in id. at 777-78 Google Scholar.

18 D’Amato, supra note 2, at 1117–22; see also D’Amato, , Is International Law Really “Law”?, 79 Nw. L. Rev. (forthcoming, 1985)Google ScholarPubMed.

19 See supra text at note 7.

20 The Paquete Habana, 175 U.S. 677 (1900); United States v. Smith, 18 U.S. (5 Wheat.) 153 (1820).

21 I estimate some 5,700 cases cited in 1–20 American International Law Cases (F. Deák ed. 1971–1982).

22 See, e.g., cases cited in 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 (1983)Google Scholar.

23 It is very close to the notion of “standing,” as Judge Bork admits in a footnote, 726 F.2d at 803 n.8. A careful reading of Davis v. Passman, 442 U.S. 226 (1979), indicates that the Supreme Court did not endorse in its text the idea of defining a cause of action according to the proper class of litigants, but did make an attempt to define it as such in a (possibly clerk-written?) footnote, 442 U.S. 240 n.18. Even in that footnote, it is hard to discern a real difference between “standing” and this second meaning of “cause of action.”

24 1 L. Oppenheim, supra note 11. Oppenheim himself acknowledged contrary views to the proposition that international law concerns only states. See 1 Oppenheim, L., International Law: A Treatise 20 n.1 (2d ed. 1912)Google Scholar. Professor Paust has labeled as “nonsense” the Oppenheim-based view that individuals were not in Oppenheim’s time, and are not today, recognized as having the direct right under international law to sue or be sued. Paust, , Litigating Human Rights: A Commentary on the Comments, 4 Hous. J. Int’l L. 81, 89 (1981)Google Scholar.

25 1 L. Oppenheim, supra note 11, at 19–23.

26 See the good, but brief, discussion of Judge Edwards, 726 F.2d at 794 (Edwards, J., concurring). See also Rubin, A., Piracy, Paramountcy and Protectorates 10–12, 34–46 (1974)Google Scholar.

27 Bentham, J., An Introduction to the Principles of Morals and Legislation 326 n.1 (Hafner, ed. 1948)Google Scholar. According to Professor Janis, Bentham deliberately changed Blackstone’s fundamental assertion that the law of nations applied to individuals as well as states, Bentham opting positivistically for only the latter. Janis, , Jeremy Bentham and the Fashioning of “International Law,” 78 AJIL 405 (1984)Google Scholar.

28 The Case of S.S. “Lotus” (Fr. v. Turk.), 1927 PCIJ, ser. A, No. 10.

29 Id. at 5.

30 4 Blackstone, W., Commentaries on the Laws Of England 67 (1790)Google Scholar.

31 Rubin, , U.S. Tort Suits by Aliens Based on International Law, 21 Int’l Prac. Notebook 19, 21 (1983)Google Scholar.

32 For an expansion of this point, see D’Amato, , Book Review, 34 J. Legal Educ. 742 (1984)Google Scholar.