can claims based on international law violations be

Can Claims Based on International Law Violations Be Brought under 28 U.S.C. sec. 1331 (for Violations of Federal Law), or Are Separate Additional Statutes Needed Recognizing Jurisdiction and Creating a Cause of Action?

University of Hawaii School of Law Library - Jon Van Dyke Archives Collection

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C. Customary International Law 253

priation of a foreign-owned corporation's assets, noting the sharply conflicting views on the issue propounded by the capital-exporting, capitalimporting, socialist and capitalist nations.

The case at bar presents us with a situation diametricall 0 osed to the conflicted state of law that confronted the Sa batino Court. Indeed, (0 paraphrase that Court's statement, Id., aF428 , there are few, if any, issues in international law today on which opinion seems to be so unit<s? as the limitations on a state's power to torture persons held in its custody. ~ l]1e !Jnited Natjons Charter (a (Teaty of tfie Umted States , see 59

Stat. 1033 (1945» makes it clear that in this modern age a state's treat~ent of its own citizens js a matter of international concerJl. It provides:

With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations . .. the United Nations shall promote . . . universal respect for, and observance of, human rights and fundamental freedoms for all without distinctions as to race, sex, language or religion.

Id. Art. 55. And further:

All members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.

Id. Art. 56. While this broad mandate has been held not to be wholly self-exeq.lt

ing-, this observation alone does not end our inquiry. For although there is no universal agreement as to the precise extent of the " human rights

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and fundamental freedoms" guaranteed to all by the Charter, there is at present no dissent from the view that the guaranties include, at a bare minimum, the right to be free from torture. This prohibition has become if part of customary international la\,\', as evidenced and defined by the Umversal Declaration of Human Rights, General Assembly Resolution 217 (III) (A) (Dec. 10, 1948) which states, in the plainest of terrl1s, " no one shall be subjected to torture." lO The General Assembly has declared that \ / _ the Charter precepts embodied in this Universal Declaration "constitute ~ basic principles of international law." G.A, Res . 2625 (XXV) (Oct. 24 , 1970) .

Particularly re levant is the Declaration on the Protection of All Persons from Being Subjected to Torture, General Assembly Resolution 3452 (1975) , which is set out in full in the margin. The Declaration expressly prohibits any state from permitting the dastardly and totally inhuman act oftonure. Torture, in turn, is defined as "any act by which

I O.!ighr('C''l no' ;'=lnr R -l"C ipcorpora(ed (he Universal Derla ralion into th e ir own cou.:: ti LUlIOIlS. 48 R", LIe llllern 'Hi ona l" de Droit Pellal :--los . 3 8.: 4. at 2 11 (1977). -


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254 3. International Law in the United States

~(severe pain and suffering, whether physical or mental, is intentionally ~./"" inflicted by or at the instigation of a public official on a person for such

purposes as . . . intimidating him or other persons." The Declaration goes on to provide that " [w]here it is proved that an act of torture or other cruel, inhuman or degrading treatment or punishment has been committed by or at the instigation of a public official, the victim shall be afforded redress and compensation, in accordance with national law." This Declaration, like the Declaration of Human Rights before it, was adopted without dissent b the General Assembly.

__ ~ These U.N. declarations are sIgm cant ecause t ey speCl y WIt ----I reat i 'ons of member nations u er the Charter

Since their adoption, "[m]embers can no longer contend that they do not know what human rights they promised in the Charter to promote." Sohn, "A Short History of United Nations Documents on Human Rights," in The United Nations and Human Rights, 18th Report of the Commission (Commission to Study the Organization of Peace ed. 1968). Moreover, a U.N. Declaration is, according to one authoritative definition, "a formal and solemn instrument, suitable for rare occasions when principles of great and lasting importance are being enunciated." 34 U.N. ESCOR, Supp. (No. 8) 15, U.N. Doc. E/cn.4/1/610 (1962) (memorandum of Office of Legal Affairs, U.N. Secretariat). Accordingly, it has been observed that the Universal Declaration of Human Rights "no longer fits into the dichotomy of 'binding treaty ' against 'non-binding pronouncement,' but is rather an authoritative statement of the international community." E. Schwelb, Human Rights and the International Community 70 (1964) . Thus, a Declaration creates an expectation of adherence, and " insofar as the expectation is gradually justified by Staie practice, a declaration may by custom become recognized as laying down rules binding upon the States." 34 U.N. ESCOR, supra. Indeed, several commentator:; have concluded that the JJnjyersaJ Declaration has become in toto, a part 'of binding, customary international law. [E.g.,] Waldlock, "Human RIghts In Contemporary International Law and the Significance of the European Convention," IntI. & Compo L.Q, Supp. PubL No. 11 at 15 (1965) .

Turning to the act of torture, we have little difficulty discerning its universal renunciati in the modern usage and practice of natio S. The illlernatlOna consen~us surrounding torture as oun n in numerous international treaties and accords. E.g. , American Convention on Human Rights, Art. 5 ("No one shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment"); International Convenant on Civil and Political Rights , U.N. General Assembly Res . 2200 (Dec. 16, 1966) (identical language) ; European Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 3. The substance of these international agreements is reflected in modern mu-

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C. Customary International Law 255

nicipal- i.e. national-law as well. Although torture was once a routine concomitant of criminal interrogations in many nations, during the modern and hopefully more enlightened era it 'has been universally r,enounced.-According to one survey, torture is prohibited, expressly or implicitly, by the constitutions of over fifty-five nations, including both the United States and Paraguay. Our State Department reports a general recognition of this principle:

There now exists an international consensus that recognizes basic human rights and obligations owed by all governments to their citizens ... . There is no doubt that these rights are often violated; but virtually all governments acknowledge their validity.

Department of State, Country Reports on Human Rights for 1979. We have been directed to no assertion by any contemporary state of a right to torture its own or another nation's citizens. Indeed, United States diplomatic contacts confirm the universal abhorrence with which torture is viewed:

In exchanges between United States embassies and all foreign states with which the United States maintains relations, it has been the Department of State's general experience that no government has asserted a right to torture its own nationals. Where reports of torture elicit some credence, a state usually responds by denial or, less frequently, by asserting that the conduct was unauthorized or constituted rough treatment short of torture. IS

Memorandum of the United States as Amicus Curiae at 16 n.34. Having examined the sources from which customary international

law is derived - the usage of nations, judicial opinions and the works of jurists 16 - we conclude that official torture is now prohibited by the law of nations . The prohibition is clear and unambiguous, and admits of no distinction between treatment of aliens and citizens. Accordingly, we must conclude that the dictum in Dreyfus v. von Finck, supra, 534 F.2d

15. The fact that the prohibition of torture is often honored in the breach does not J diminish its binding effect as a norm of internationallaw. As one commentator has put it, ~ "The best evidence for lhe existence of internationallaw is that every actual Stale recog-nizes that it does exist and that it is itself under an obligation to observe it. States often violate international law, just as individuals often violate municipal law; bUI no more lhan individuals do Stales defend their violations by claiming that they are above the law." J . Brierly, The OUllook for International Law 4-5 (Oxford 1944) .

16. See .. . Irela . " 0 ,Judgment of Jan. 18, 1978 (European Court of Human Rights) . summarized in [1978] Yearbook, European Convention on Human Right 602 (Council of Europe) (holding that Britain's subjection of prisoners to sleep deprivation, hooding, exposure to hissing noise, reduced diet and standing againsl a wall for hours was " inhuman and degrading," but not "torture" within meaning of European Convention on Human RighIS) .


Are There Any Limits on Actions Under the Alien Tort Claims Act?

On August 31, 2000, Li Peng - Chinese Prime Minister at the time of the Tiananmen Square massacre - was sued by Wang Dan - a student leader - when Li Peng was at the Waldorf Astoria Hotel in New York.

Li Peng is now chair of the National People's Congress and a senior member of the Communist hierarchy.

Service was on Li Peng's bodyguard, in the hotel's garage.

On September 7, Robert Mugabe, president of Zimbabwe, in New York for the United Nations summit, was served with a lawsuit for human rights abuses against his opponents. He was served while entering a church in Harlem .

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Alien Tort Claims Act, 28 U.S.C. 1350

"The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."


In re Alien Children Education Litigation (S.D.Texas 1980)

Texas refused to admit illegal alien children to its public schools.

Can they invoke the: * Universal Declaration of Human Rights,

article 26, * American Declaration of the Rights and

Duties of Man, article XII, * American Convention on Human Rights,

preamble and articles 1,3, 19,24,26, 29(c)-(d)?

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Alien Tort Claims Act - 28 U.S.C. sec. 1350:

"The district courts shall have original jurisdiction of any civil action by an alien for a tort only, con1mitted in violation of the law of nation~ or a treaty of the United States."


Human Rights Claims in U.S. Courts * Class action? * Command responsibility? * Sovereign immunity? * Act of state doctrine? * Forum non conveniens? * Statute of limitations? * Exhaustion of domestic remedies? * Damages?

* How much is appropriate? * Are punitive (or "exemplary" or "moral")

damages appropriate?


Class Actions

Is it appropriate to bring a human rights claim as a class action?

The abuse imposed on each individual is inevitably different from that imposed on the others.

Does it reduce value of the individual claimant?

Does it deny due process to the defendant?


Human Rights Claims in U.S. Courts * Jurisdictional Statute

* Alien Tort Statute, 28 U.S.C. sec. 1350 * "alien" * "tort only" * "in violation of the law of nations or a

treaty" * Torture Victim Protection Act

* citizens can use * covers torture, murder, and disappearances * 10-year statute of limitations * exhaustion of domestic remedies

requirement * applicable retroactively?

* 28 U.S. C. sec. 1331 * Personal Jurisdiction

* Proper service is necessary * Is transient presence sufficient?

* Subject-Matter Jurisdiction * Is a separate "cause of action" necessary? * Torture * Extrajudicial murder * Disappearances * Prolonged arbitrary detention * Cruel, inhuman, and degrading treatment?


Does the U.S. Constitution Apply in the Five U.S. Territories and Commonwealths?

American Samoa Commonwealth of the N orthem Mariana

Islands Commonwealth of Puerto Rico Guam U.S. Virgin Islands


What Is the Proper Role of the Executive Branch in Litigation Involving International Law?

In Filartiga, the State Department filed an amicus curiae brief supporting the cause of action.

In Karadzic, the State Department submitted a letter saying that Karadzic did not have diplomatic immunity, and then a "Statement of Interest" saying that the political question doctrine should not bar the claim against him.

Are these submissions binding on the court?


Transitory Torts

If two persons who live in Hawai' i are both in the Philippines on business, driving from Makati to Quezon City, and one crashes into the other causing serious injury, can the injured person sue the other driver in Hawai' i, after they both return to their homes?

If so, what law would apply?

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Is Torture Ever Legitimate? "Ticking bomb"?

What Is Torture?


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Are There An)' Limits on Actions Under the Alien Tort Claims Act?

On August 31, 2000, Li Peng - Chinese Prime Minister at the time of the Tiananmen Square massacre - was sued by Wang Dan - a student leader - when Li Peng was at the Waldorf Astoria Hotel in New York.

Li Peng is now chair of the National People's Congress and a senior member of the Communist hierarchy.

Service was on Li Peng's bodyguard, in the hotel's garage.

On September 7, Robert Mugabe, president of Zimbabwe, in New York for the United Nations summit, was served with a lawsuit for human rights abuses against his opponents. He was served while entering a church in Harlem.
