1 923 F.2d 1528 (11th Cir. 1991), cert, pending, No. 91-522.

2 923 F.2d at 1534.

3 28 U.S.C. 1605(a)(2) permits jurisdiction in three situations involving commercial activity by foreign sovereigns. The Nelson case concerned an “action … based upon a commercial activity carried on in the United States by the foreign state… .” Saudi Arabia used the services of an agent, Hospital Corporation of America, to recruit Scott Nelson in the United States for employment at a state-run hospital in Saudi Arabia. Mr. Nelson allegedly was tortured and imprisoned for reporting safety problems in the hospital, in the course of his employment.

4 See, generally, Ian Brownlie, Principles of Public International Law (4th ed., 1990) at 332-33.

5 621 F.2d 1371 (5th Cir. 1980). In Arango, travelers were manhandled by employees of a stateowned airline in the Dominican Republic and forced out of the country because their names appeared on a list of undesirable aliens. The plaintiffs had contracted for the tour in the United States. Jurisdiction was permitted over the breach of contract claims, but not over claims for false arrest and battery. As to the latter, the Fifth Circuit reasoned that in abusing plaintiffs, the airline had acted “merely as an arm or agent of the Dominican government … and, as such, is entitled to the same immunity from any liability arising from that governmental function as would inure to the government, itself.” 621 F.2d at 1379.

6 No. 85-5773, appeal pending (9th Cir.). The order of the District Court dismissing the torture claims on sovereign immunity grounds is unreported. Civ. No. 82-1772 RMT, order of March 7, 1985.

7 836 F.2d 91 (2d Cir. 1987).

8 28 U.S.C. 1350.

9 Martin was brought under the commercial tort exception of 28 U.S.C. 1605(a)(2). Other suits have been brought under the noncommercial tort exception of 28 U.S.C. 1605(a)(5), including Persiger v. Iran, 729 F.2d 835 (D.C. Cir.), cert, denied. 469 U.S. 881 (1984); and McKeel v. Islamic Republic of Iran, 722 F.2d 582 (9th Cir. 1983), cert, denied, 469 U.S. 880 (1984), both of which involved claims by U.S hostages held in Iran and their families; and Frolova v. U.S.S.R., 761 F.2d 370 (7th Cir. 1985), which involved claims of mental distress and loss of consortium resulting from a denial to plaintiff’s husband of the right to emigrate.

10 A default judgment against Imee Marcos-Monotoc is pending on appeal in the Ninth Circuit: Trajano v. Marcos, No. 91-15891 (default judgment entered May 13, 1991, D. Hawaii, Civ. No. 86- 0207). Scheduled for trial before Judge Real of the U.S. District Court for the District of Hawaii in August 1992 are consolidated cases styled In re Estate of Ferdinand Marcos Human Rights Litigation, MDL No. 840.

11 Paul v. Avril, No. 91-0399 (S.D. Fla. filed Feb. 28, 1991).

12 Xuncax v. Gramajo, No. 91-11564WD (D. Mass. filed June 6, 1991).

13 Abebe-Jiri v. Negewo, No. 9-2010 (N.D. Ga. 1990).

14 Imee Marcos-Manotoc now argues that she should enjoy sovereign immunity, however. Trajano v. Marcos, No. 91-15891 (9th Cir. appeal pending), Brief of Appellant at 41-45 (filed September 6, 1991)

15 Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 429 (1989).

16 Von Dardel v. U.S.S.R., 623 F.Supp. 276 (D.D.C. 1985), vacated, 736 F.Supp. 1 (D.D.C. 1990).

17 Gibbons v. Udaras Na Gaeltachta, 549 F.Supp. 1094, 1105-06 (S.D.N.Y. 1982). While Gary Born and David Westin find this criticism “somewhat overstated,” they acknowledge the complexity of the FSIA’s exceptions and track the wavering course of its interpretation by courts. See International Civil Litigation in United States Courts 347 (1989).

18 The majority held that the treaties cited by respondent did not satisfy the requirements of 28 U.S.C. 1604 because they contained “no mention of a waiver of immunity to suit in United States courts or even the availability of a cause of action in the United States.” 488 U.S. at 442-443. To similar effect was the rejection of claims based upon the UN Charter and the Helsinki Final Act in Frolova v. U.S.S.R., 761 F.2d 370 (7th Cir. 1985).

19 See Brief of Appellants, Siderman v. Republic of Argentina, No. 85-5773 (9th Cir., filed December 26, 1990); Adam C. Belsky et al., Implied Waiver Under the FSIA: A Proposed Exception to Immunity for Violations of Peremptory Norms of International Law, 11 Cal. L. Rev. 365 (1989).

20 The relevant exception of 28 U.S.C. 1605(a)(2) concerned “an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States….”

21 The Second Circuit cited three cases involving garden-variety torts: Zernicek v. Brown & Root, Inc., 826 F.2d 415 (5th Cir. 1987) (worker injured in Mexico by exposure to radiation); Tucker v. Whitaker Travel, Ltd., 620 F.Supp. 578 (E.D.Pa. 1985), aff’d mem., 800 F.2d 1140 (3d Cir.), cert, denied, 479 U.S. 986 (1986) (injury while riding horseback in the Bahamas); and Upton v. Empire of Iran, 459 F.Supp. 264 (D.D.C. 1978), aff’d mem., 607 F.2d 494 (D.C. Cir. 1979) (injury from collapse of airline terminal roof). The court distinguished Texas Trading & Milling Corp. v. Federal Republic of Nigeria, 647 F.2d 300 (2d Cir. 1981), cert, denied, 454 U.S. 1148 (1982), on grounds that the breach of contract there had created a direct effect in the United States because payment for the cement was to occur at a New York bank.

22 E.g., the Persiger, McKeel, and Frolova cases, supra note 9.

23 de Letelier v. Republic of Chile, 488 F.Supp. 665 (D.D.C. 1980).

24 Liu v. Republic of China, 892 F.2d 1419 (9th Cir. 1989).

25 See, e.g., Gordon Christenson, Jus Cogens: Guarding Interests Fundamental to International Society, 28 Va. J. Int’l L. 585 (1988); Anthony D’Amato, It’s a Bird, It’s a Plane, It’s Jus Cogens! 6 Conn. J. Int’l L. 1 (1990); Jordan Paust, The Reality of Jus Cogens, 7 Conn. J. Int’l L. 81 (1991).

26 Federal Jurisdiction Over Extraterritorial Acts of Terrorism and Nonimmunity for Foreign Violators of International Law Under the FSIA and the Act of States Doctrine, 23 Va. J. Int’l L. 191 (1983).

27 Indeed, my name is among those concurring in the draft brief Jordan Paust published in 8 Hous. J. Int’l L. 49 (1985). While I have changed my name (from Hartman to Fitzpatrick), I have not changed my views.

28 28 U.S.C. 1603(d) provides that whether an activity is commercial “shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose."

29 Principles of Public International Law (2d ed. 1973) at 323-24 (citations omitted).

30 Article 53 of the Vienna Convention on the Law of Treaties, May 23, 1969, reprinted in 63 AJ1L 875 (1969), provides: A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

31 The difficulty here is that a similar observation could be made about any act violative of international law. For this reason, I do not reject the broader arguments made by Jordan Paust, supra notes 26, 27. But jus cogens norms have unique elements that answer objections to the appropriateness of jurisdiction in municipal courts, which are not shared by all international law breaches.

32 859 F.2d 929, 939-42 (1988).

33 Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States), 1986 1CJ REP. 14 (Judgment).

34 859 F.2d at 941.

35 Daniel Bodansky, The Role of International Law in Human Rights Litigation in the United States, 82 Proc. (ASIL) 470-74 (1988).

36 Filartiga v. Pena-lrala, 630 F.2d 876 (2d Cir. 1980).

37 Christoph Schreuer. State Immunity: Some Recent Developments 60 (1988).

38 Id. at 60-61.

39 Only 58 of 99 states parties to the International Covenant on Civil and Political Rights had also accepted the Optional Protocol, as of December 1991.

40 Id. at 60.

41 28 U.S.C. 1602; H. Rep. No. 94-1487, 1976 USCCAN, 94th Cong., 2d Sess. 6604.6606. ("A principal purpose of this bill is to transfer the determination of sovereign immunity from the executive branch to the judicial branch, thereby reducing the foreign policy implications of immunity determinations and assuring litigants that these often crucial decisions are made on purely legal grounds and under procedures that insure due process.")

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

43 Jordan 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); Kenneth Randall. Federal Courts and the International Human Rights Paradigm (1990).

44 Gary Born & David Westin. supra note 17, at 367 (referring to the tendency of courts in cases involving natural resources to find that the nature of the foreign sovereign’s activity was not commercial and thus not within the exceptions of the FSIA).

45 E.g., Perez v. The Bahamas, 482 F.Supp. 1208, 1210 (D.D.C. 1980), aff’d, 652 F.2d 186 (D.C. Cir.), cert, denied, 454 U.S. 865 (1981). The legislative history is ambiguous. While 28 U.S.C. 1605(a)(1) speaks of both implied and express waivers, the examples in the House Report for implied waivers do not bear a close resemblance to a fundamental human rights/universal jurisdiction concept ("where a foreign state has agreed to arbitration in another country or where a foreign state has agreed that the law of a particular country should govern the contract [;]… where a foreign state has filed a responsive pleading in an action without raising the defense of sovereign immunity.” 1976 USCCAN 6617.).

46 28 U.S.C. 1602, 1604.

47 Pub.L.No. 100-640, 1988 USCCAN 4511 (amendment to 28 U.S.C. 1605(b) because “[o]ver the ten years since its enactment, some problems have surfaced… .” H.R. REP. No. 100-823, 1988 USCCAN 4512); Pub. L. No. 101-650, 1990 USCCAN 6802.

48 Torture Victims Protection Act of 1991, H.R. 2092, passed November 25, 1991, 137 Cong. Rec. H11244-H11245 (daily ed. November 25, 1991). The TVPA passed the Senate on March 3, 1992, 138 CONG. REC. S2667-S2669 (daily ed. March 3, 1992); and was signed by the President on March 12, 1992. Pub. L. No. 102-256.

49 137 Cong. Rec. H11245 (remarks of Mr. Yatron).

50 Section 2(a)(1) and 2(a)(2) of H.R. 2092. The definition of torture (section 3(b)) tracks the international definition contained in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

51 Rep. Bill McCollum (R-Fla.) stated at the time of the TVPA’s most recent passage by the House, 137 Cong. Rec. HI 1245 (daily ed. November 25, 1991): It seems to me that despite some opposition and some questions about it from sources concerned with the fact that there might be a reciprocity question that could get us into conflict somewhere, that this is not that big a deal, but it is indeed a very big deal to the victims involved, and we ought to provide civil remedies. For discussion of the bases for Executive Branch opposition, see David Stewart, The Torture Convention and the Reception of International Criminal Law Within the United States, 15 Nova L. Rev. 449, 458-60(1991).