¹ As originally enacted, the Statute provided that the district courts “shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, 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.” Judiciary Act of 1789, ch. 20, §9(b), 1 Stat. 73, 77 (currently, with some changes, 28 U.S.C. §1350 (1982)) [hereinafter Statute]. Subsequent changes and revisions of this language were dictated by the varying approaches to the demarcation of instances of exclusive federal jurisdiction, first by consolidating all such instances in one section (revision of 1878), and subsequently by making express provision for exclusive jurisdiction in each individual section (revision of 1948). The term “civil action” was substituted in 1948 in conformity with Rule 2 of the Federal Rules of Civil Procedure. H.R. Rep. No. 308, 80th Cong., 1st Sess., app. at 124 (1947) (reviser’s notes).

² 630 F.2d 876 (2d Cir. 1980) (Kaufman, J.).

³ Id. at 885, 887. Although the acts alleged were committed in Paraguay 3 years earlier, defendant Pena-Irala was living illegally in Brooklyn when the suit was filed.

⁴ See, e.g., Symposium, 4 Hous. J. Int’l L. 1 (1981); Federal Jurisdiction, Human Rights, and the Law of Nations: Essays on Filartiga v. Pena-Irala, 11 Ga. J. Int’l & Comp. L. 305(1981); Blum & Steinhardt, Federal Jurisdiction over International Human Rights Claims: The Alien Tort Claims Act after Filartiga v. Pena-Irala, 22 Harv. Int’l L.J. 53 (1981); Lillich, The Role of Domestic Courts in Enforcing International Human Rights Law, 74 ASIL Proc. 20 (1980).

⁵ Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984), cert. denied, 470 U.S. 1003 (1985). Plaintiffs brought suit under the Alien Tort Statute against the Palestinian Liberation Organization (PLO), among others, for damages resulting from a notorious terrorist attack on Israeli buses on the Haifa highway. The D.C. Circuit panel upheld the district court’s dismissal for lack of jurisdiction, but on three different bases. Judge Edwards upheld Filartiga, but only as to “torture perpetrated by a … recognized state or one of its officials acting under color of state law,” not a nonstate actor such as the PLO. 726 F.2d at 792. Judge Bork attacked Filartiga itself on the theory that the jurisdictional grant of the Alien Tort Statute applied only where plaintiff had an independent or statutory cause of action. Finally, Judge Robb summarily dispatched the case as nonjusticiable under the political question doctrine.

⁶ In re Korean Air Lines Disaster of September 1, 1983, Misc. No. 83-0345 (D.D.C. Sept. 1, 1985). Other notable cases in this category include Greenham Women Against Cruise Missiles v. Reagan, 591 F.Supp. 1332(S.D.N.Y. 1984), aff’d, 755 F.2d 34(2d Cir. 1985) (action seeking injunction against deployment of U.S. cruise missiles near British town); and Sanchez-Espinoza v. Reagan, 568 F.Supp. 596 (D.D.C. 1983), aff’d, 770 F.2d 202 (D.C. Cir. 1985) (action by Nicaraguan citizens seeking damages for torts committed by U.S.-financed “contras”). For a detailed summary of every case invoking the Alien Tort Statute since Filartiga, see Randall, Federal Jurisdiction over International Law Claims: Inquiries into the Alien Tort Statute, 18 N. Y.U.J. Int’l L. & Pol. 1, 5 n.17 (1985).

⁷ See concurrence by Judge Edwards in Tel-Oren, 726 F.2d at 791 (international law prohibition against state terrorism does not extend to nonstate actors), and 776 n.1 (jurisdiction over Libya under the Alien Tort Statute barred by the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§1330, 1602–1611 (1982) [hereinafter FSIA]). However, in Von Dardel v. USSR, 623 F.Supp. 246 (D.D.C. 1985) (action alleging Soviet kidnapping and possibly murder of Swedish diplomat Raoul Wallenberg), the court simultaneously found jurisdiction under both the Alien Tort Statute and the FSIA.

⁸ 830 F.2d 421 (2d Cir. 1987).

⁹ Amerada Hess Shipping Corp. v. Argentine Republic, 57 U.S.L.W. 4121 (U.S. Jan. 24, 1989) (Alien Tort Statute does not grant jurisdiction over foreign sovereigns independently of the FSIA).

¹⁰ Forti v. Suarez-Mason, 672 F.Supp. 1531, 1539 (N.D. Cal. 1987) (action by two Argentine torture victims against a former Argentine general). In support of this conclusion, the court cited Filartiga; Tel-Oren (Edwards, J., concurring); Guinto v. Marcos, 654 F.Supp. 276 (S.D. Cal. 1986); Von Dardel v. USSR, 623 F.Supp. 246 (D.D.C. 1985); and Siderman v. Republic of Argentina, No. CV 82–1772-RMT (MCx) (CD. Cal. Sept. 28, 1984). But see Tel-Oren, 726 F.2d at 798 (Bork, J., concurring) (arguing that Alien Tort Statute covers only a limited class of 18th-century torts).

¹¹ Memorandum for the United States as Amicus Curiae, Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), reprinted in 19 ILM 585 (1984).

¹² Brief for the United States of America as Amicus Curiae, Trajano v. Marcos, No. 86-0297 (D. Haw. July 18, 1986), appeal docketed, No. 86–2448 (9th Cir. Aug. 20, 1986) [hereinafter Trajano amicus brief].

¹³ This position is discussed in greater detail in the text at notes 121–24 infra.

¹⁴ 726 F.2d at 775.

¹⁵ Judge Bork observed in Tel-Oren: “Historical research has not as yet disclosed what section 1350 was intended to accomplish.” 726 F.2d at 812.

¹⁶ See, e.g., D’Amato, The Alien Tort Statute and the Founding of the Constitution, 82 AJIL 62 (1988); Casto, The Federal Courts’ Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467, 489–98 (1986); Dickinson, The Law of Nations Is Part of the National Law of the United States, 101 U. Pa. L. Rev. 26, 44–45 (1952); Randall, supra note 6, at 19–22; and Rogers, The Alien Tort Statute and How Individuals “Violate” International Law, 21 Vand. J. Transnat’l L. 47 (1988). Judge Edwards also adopted this rationale, at least in part, in his opinion in Tel-Oren. 726 F.2d at 783.

Among the recent spate of articles on the Statute, Professor Casto’s, in particular, includes a prodigious amount of research. This article is already much cited and is likely to remain the definitive historical study for the foreseeable future. I have relied heavily on the materials Casto has unearthed. Although I disagree with many of his conclusions, I am indebted to him, as is anyone working in this field, for having plowed so much of the ground.

¹⁷ The Federalist NO. 80, at 500–01 (A. Hamilton) (B. Wright ed. 1961) (emphasis added).

¹⁸ D’Amato, supra note 16, at 64–65.

¹⁹ Id. at 67; see also Randall, supra note 6, at 21–22; Dickinson, supra note 16, at 44–45; and Casto, supra note 16, at 521–22.

²⁰ According to the structure of the paper, Hamilton first set out six categories of cases to which “[i]t seems scarcely to admit of controversy[] that the judiciary authority of the Union ought to extend.” The Federalist, supra note 17, No. 80, at 499. The passage cited above comes in the fourth category, cases involving the “Peace of the Confederacy.” Id. at 500. He then shows how each of the provisions of Article III falls within one or more of these categories. “[C]ases between a State and the citizens thereof, and foreign States, citizens, or subjects … have been already explained to belong to the fourth of the enumerated classes … .” Id. at 505.

²¹ Or at least all cases between a foreigner and a citizen. See infra notes 37 and 51, and text at notes 47–51 and 62–64.

²² George Mason succinctly expressed the states’ indignation at the Virginia ratifying convention: “Cannot we trust the state courts with disputes between a Frenchman, or an Englishman, and a citizen; or with disputes between two Frenchmen? This is disgraceful: it will annihilate your state judiciary; it will prostrate your legislature.” 3 Elliot’s Debates 527 (2d ed. 1836), quoted in F. Frankfurter & J. Landis, The Business of the Supreme Court 8 n.15 (1928).

²³ Casto, supra note 16, at 497 n.168.

²⁴ See sources cited supra note 19. Judge Edwards also makes this point explicitly in his opinion in Tel-Oren, 726 F.2d at 784.

²⁵ The Federalist, supra note 17, No. 80, at 501.

²⁶ Id. He also thought it “at least problematical” that even in a case arising under municipal law, an “unjust sentence against a foreigner” might be “an aggression upon his sovereign.” Id.

²⁷ See Tel-Oren, 726 F.2d at 784 (Edwards, J.) (“it would have been logical to place under federal jurisdiction at least the local actions most likely to create international tension’).

²⁸ In fact, at least with respect to cases involving official foreign emissaries, the First Congress apparently concluded that the danger arising from a potential denial of justice was greatest when they were defendants. Section 9 of the First Judiciary Act granted the district courts exclusive jurisdiction over all cases against foreign consuls; section 13 similarly made Supreme Court jurisdiction exclusive over cases against ambassadors and other public ministers, but optional where such parties were plaintiffs. See infra note 87.

²⁹ Eighteenth-century lawyers understood the law of nations to encompass public international law, the law merchant and maritime law. See Casto, supra note 16, at 505 (citing James Wilson’s lectures on law in 1790 and 1791).

³⁰ See discussion in text at notes 39–40 infra.

³¹ Sept. 3, 1783, 8 Stat. 80, TS No. 109.

³² Id. Judge John Gibbons, tracing the history of state sovereign immunity, makes a compelling argument that the Framers and the First Congress anticipated direct suits against the states for violations of this and other articles of the Definitive Peace Treaty. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1899–1920 (1983). If so, the immediate issue in these cases would have been state contravention of the Treaty, matching Hamilton’s description of cases “arising upon” a treaty or the law of nations. If not, the typical case would have been a private action by a British creditor against an American debtor for recovery of a debt, in which the defendant would have raised a state law sequestering or somehow invalidating the debt as a defense. Plaintiff could then assert the illegality of such a law under the Treaty. Although modern lawyers will automatically object that this scenario would not qualify as a case “arising upon” (or “under”) the Treaty, the Supreme Court’s decision to that effect was over a century away. See Louisville & Nashville R.R. v. Mottley, 211 U.S. 149 (1908) (a federal question raised solely as a defense is not one “arising under a law of the United States” for purposes of jurisdiction under 28 U.S.C. §1331).

³³ F. Mark, Independence On Trial 5–15 (1973); see also S. Bemis, Jay’s Treaty: A Study In Commerce and Diplomacy 132–34 (2d ed. 1962); Casto, supra note 16, at 493 n.147, 507–08.

³⁴ See S. Bemis, supra note 33, at 436; Randall, supra note 6, at 30–31; Casto, supra note 16, at 497 n.167; D’Amato, supra note 16, at 65 n.12.

³⁵ Of course, state court jurisdiction under the Constitution, as opposed to the Articles of Confederation, was subject to the Supremacy Clause, U.S. Const. Art. VI, cl. 2, and to Supreme Court review. Judiciary Act of 1789, §25, 1 Stat. 73, 85 (1789). The Supreme Court held unequivocally in 1795 that the Framers had intended the Supremacy Clause to encompass the Definitive Treaty with Great Britain, and thus to ensure its application by state courts. Ware v. Hylton, 3 U.S. (3 Dall.) 199, 236–37, 277 (1795). However, although a fair construc tion of “no lawful impediment” in Article IV would have prevented a state court from giving effect to a state law sequestering debts or making U.S. currency acceptable for their payment, the Treaty could not affect the application of ordinary contract law to the specific facts of individual cases. Considerable room thus remained for state court bias in favor of Americans.

³⁶ Casto, supra note 16, at 507–08; Randall, supra note 6, at 28–31.

An alternative theory might link the Alien Tort Statute to Articles V and VI of the Definitive Peace Treaty, supra note 31, committing the federal Government to “recommend” to the states restitution of confiscated British or Loyalist property and prohibiting future confiscations. However, although logically persuasive, this explanation similarly fails on the historical record. Charles Warren cites evidence that the $500 amount-in-controversy restriction on the circuit court jurisdiction was designed to keep confiscation suits in state courts. Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 78 (1923). Further, in an exchange of notes with British Ambassador George Hammond in 1792, Secretary of State Jefferson devoted four pages to a detailed refutation of continuing British accusations of Treaty violations with respect to confiscated property. Memorandum from Thomas Jefferson to George Hammond (May 29, 1792), reprinted in 1 American State Papers: 1 Foreign Relations 201, 202–06 (1832). Jefferson never mentioned the prospect of recourse to federal court under the Alien Tort Statute. Nor, apparently, did any British landholder ever try to sue under this provision. See Randall, supra note 6 (reviewing every case ever brought under the Statute).

³⁷ Trajano amicus brief, supra note 12, at 11. Professor Casto attempts to circumvent this difficulty by arguing that at least some of the drafters of the First Judiciary Act understood the alienage clause in Article III to confer jurisdiction over suits between aliens. Given the actual language of the provision and the contemporary jurisprudence, this is a very slender reed. See text at notes 48–51 and 62–63 infra.

³⁸ Although no other Article III alternative exists, this proposition is nevertheless highly contentious. It assumes that the Article III category of “cases or controversies arising under … the laws of the United States” included cases arising under the law of nations. This is the view of the Restatement (Third) of Foreign Relations Law of the United States § 111(2) (1987) [hereinafter Restatement (Third)]; see also Henkin, International Law as Law in the United States, 82 Mich. L. Rev. 1555, 1560 (1984). However, the historical record on this point is at best inconclusive; the Framers deleted “the law of nations” from an earlier draft of Article III. See id. n.22.

The Justice Department suggests that the Alien Tort Statute is constitutional only with respect to cases arising under the law of nations as subsequently enacted by Congress. See Trajano amicus brief, supra note 12, at 12, 25. Article I, §8 gives Congress the power to define and punish offenses against the law of nations. But cases arising under laws passed in exercise of this power would no longer be arising under the law of nations, but rather under domestic laws. It seems odd to identify such a category of cases by reference to a “violation of the law of nations.” Further, there is absolutely no evidence that the First Congress intended the alien tort provision to be so limited.

This debate raises questions about the Framers’ view of the relationship between international and domestic law that are far beyond the scope of this article. Suffice it to say here that the 200-year-old presumption that the Alien Tort Statute is indeed constitutional compels a new look at Article III.

³⁹ W. Blackstone, Commentaries on the Laws of England 881 (G. Chase 4th ed. 1923).

⁴⁰ 726 F.2d at 813. See supra note 5.

⁴¹ 726 F.2d at 815.

⁴² Respublica v. De Longchamps, I U.S. (1 Dall.) 111 (1784).

⁴³ Casto documents extensive discussion of the Marbois affair in correspondence between the nation’s most prominent statesmen. Casto, supra note 16, at 492 n.143.

⁴⁴ Id. at 499.

⁴⁵ Id. at 472.

⁴⁶ Id. at 500.

⁴⁷ Id. at 496.

⁴⁸ Id.

⁴⁹ U.S. CONST. Art. III, §2, cl. 1.

⁵⁰ The draft granted jurisdiction over all suits where “a foreigner or citizen of another state than that in which the suit is brought is a party.” This language would have extended the diversity jurisdiction to suits between citizens of the same state, as long as the suit was filed in a federal court of another state. See Casto, supra note 16, at 497–98.

⁵¹ Id. at 498. See also F. Frankfurter & J. Landis, supra note 22, at 8 n. 15 (the alienage grant in the First Judiciary Act was “broader than that of the Constitution”).

⁵² Casto, supra note 16, at 497.

⁵³ W. Blackstone, supra note 39, at 880.

⁵⁴ De Longchamps was convicted of “a crime against the whole world,” for which he was sentenced to over 2 years in prison and fined 100 French crowns. 1 U.S. (1 Dall.) at 116, 118. Similarly, the offender in the Van Berckel affair was sentenced to 3 months in jail. Casto, supra note 16, at 494. The criminal status of the offense emerges even more clearly from the British incident relied on by Judge Bork. The Russian Tsar reportedly demanded that certain creditors who had “roughed up” the Russian ambassador be put to death. The Crown did not comply with this request, but did agree to change the applicable law to permit more severe punishment for such an offense than had previously been authorized. Tel-Oren, 726 F.2d at 815.

⁵⁵ Section 11, 1 Stat. 73, 78 (1789). Section 9 contains the same language, although the provision is then limited by a restriction concerning the severity of punishment. 1 Stat, at 76.

⁵⁶ Warren, supra note 36, at 73, 77. The draft bill provided in both sections for jurisdiction over “all crimes and offences that shall be cognizable under the authority of the United States and defined by the laws of the same.” Id. (emphasis added). The Senate deleted this final modifying clause.

⁵⁷ I Stat, at 80.

⁵⁸ This restriction makes even less sense in view of a contrary expansion of the Supreme Court jurisdiction between the draft bill and the final act. The draft gave the Supreme Court nonex clusive jurisdiction over all “suits for trespasses” brought by ambassadors. Congress broadened this provision to include “all suits.” Casto, supra note 16, at 496, 498.

⁵⁹ The choice of this more general term also contrasts with the specific provision several clauses later for jurisdiction over all cases against consuls or vice-consuls. 1 Stat, at 79; see p. 470 supra.

⁶⁰ Understood in this context, the Supreme Court jurisdiction simply followed the general pattern of insisting on federal jurisdiction where aliens or out-of-state citizens were defendants, but giving them their choice of forums as plaintiffs. See text at notes 84–88 infra.

⁶¹ Casto attempts to circumvent this difficulty with the argument that Oliver Ellsworth “understood the plan of the Constitution as vesting the Congress with plenary power over the lower courts’ jurisdiction but no power over the Supreme Court’s original jurisdiction.” Casto, supra note 16, at 498 n.169. But surely a provision making the jurisdiction of the district courts concurrent with the constitutionally authorized original jurisdiction of the Supreme Court could not be construed as altering this original jurisdiction in any way.

⁶² Casto, supra note 16, at 515.

⁶³ See text at notes 49–51 supra.

⁶⁴ Hodgson v. Bowerbank, 9 U.S. (5 Cranch) 303, 304 (1809).

⁶⁵ Tribe, On Reading the Constitution, in 9 The Tanner Lectures on Human Values 3, 19 (1988).

⁶⁶ Id. at 20.

⁶⁷ See text at note 46 supra.

⁶⁸ The Federalist, supra note 17, No. 81, at 511. Hamilton’s analysis entirely confirms this line of argument. To quote the passage in full:

Public ministers of every class are the immediate representatives of their sovereigns. All questions in which they are concerned are so directly connected with the public peace, that, as well as for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation.

Id. at 510–11.

⁶⁹ W. Blackstone, supra note 39, at 881. It will be evident from the preceding section that Professor Casto also seeks to explain the Statute in terms of individual violations of interna tional law. However, he arrives at this conclusion by a rather different route. The significance of the differences between his theory and the approach advanced here is discussed in part IV infra.

⁷⁰ Id.

⁷¹ 21 J. Cont. Cong. 1136–37 (1781). See Casto, supra note 16, at 490–91, 495 and 499.

Professor Casto deserves great credit for making the connection between this resolution and the Alien Tort Statute. Professor Henkin had previously cited it, but only as general evidence of the Framers’ desire to comply with the law of nations. Henkin, supra note 38, at 1557 n.8.

⁷² 21 J. Cont. Cong., supra note 71, at 1137. The second clause of this provision is relatively easy to explain. The committee report preceding the resolution observed:

That as instances may occur, in which, for the avoidance of war, it may be expedient to repair out of the public treasury injuries committed by individuals, and the property of the innocent be exposed to reprisal, the author of those injuries should compensate the damage out of his private fortune.

Id. at 1136. The Congress accordingly urged states to authorize suits by the United States to recover from the tort-feasor any such amounts expended.

⁷³ 14 J. Cont. Cong. 635 (1779), quoted in Henkin, supra note 38, at 1557 n.8.

⁷⁴ Blackstone does explain that it is “incumbent upon the nation injured … to demand satisfaction and justice to be done on the offender.” W. Blackstone, supra note 39, at 881. The reference to “satisfaction” could certainly be construed to mean compensation to the victim. On the other hand, he begins his entire discussion of these particular offenses by distinguishing between the law of nations governing “civil transactions and questions of prop erty between the subjects of different states” and the “narrow compass” within which offenses against this law of nations “can … be the object of the criminal law of any particular state.” Id. at 880. In the subsequent paragraphs, he repeatedly describes these offenses as crimes.

⁷⁵ Act for the Punishment of certain Crimes against the United States, ch. IX, §§25–28, 1 Stat. 112, 117–19 (1790) (legislating criminal sanctions for affronts to ambassadors and other public ministers and for violations of safe-conducts and passports).

⁷⁶ This was true in the conception of the First Judiciary Act, at least according to Charles Warren. See supra note 56 and accompanying text.

⁷⁷ United States v. Hudson, 11 U.S. (7 Cranch) 32 (1812), limited the federal criminal jurisdiction to statutory crimes. Henceforth, only Congress and the state courts could divine and pronounce on new crimes emerging under the law of nations.

⁷⁸ See Trajano amicus brief, supra note 12, at 20.

⁷⁹ 1 Stat, at 77.

⁸⁰ 1 U.S. (1 Dall.) at 117.

⁸¹ The committee report preceding the 1781 resolution simply observed that “the scheme of criminal justice in the several states does not sufficiently comprehend offences against the law of nations.” 21 J. Cont. Cong., supra note 71, at 1136. Professor Casto also cites correspondence among leading Federalists after the Marbois affair discussing the extent to which it could be certain that the states would adopt the law of nations. Casto, supra note 16, at 492 n.142.

⁸² Judge Edwards made this point in his opinion in Tel-Oren. 726 F.2d at 786.

⁸³ It is true that with a universal offense such as piracy, the logical corollary of the duty to impose a sanction would be a duty to protect seafarers the world over—citizens and foreigners alike. However, the 1781 resolution did not include piracy in its list of specific offenses, perhaps because pirates were already subject to universal criminal jurisdiction as hostis humani generis, enemies of all mankind. See Randall, Universal Jurisdiction under International Law, 66 Tex. L. Rev. 785 (1988). More generally, however, 18th-century international lawyers simply could not have imagined that the law of nations would impose a positive obligation on a government with respect to its own citizens. See pp. 490–91 infra.

⁹⁴ Blackstone offered the following characterization:

Personal actions are such whereby a man claims a debt, or personal duty, or damages in lieu thereof; and, likewise, whereby a man claims a satisfaction in damages for some injury done to his person or property. The former are said to be founded on contracts, the latter upon torts or wrongs …. Of the former nature are all actions upon debt or promises; of the latter all actions for trespasses, nuisances, assaults, defamatory words, and the like.

W. Blackstone, supra note 39, at 673 (emphasis in original).

⁸⁵ From a purist Federalist standpoint, the purpose of committing all power over foreign affairs to the national government was to guarantee a uniform approach untainted by parochial interests. See, e.g., THE FEDERALIST, supra note 17, No. 3, at 98–99 (J. Jay) (particularly commending the Framers for their wisdom in committing questions concerning treaties and the law of nations “to the jurisdiction and judgment of courts appointed by and responsible only to one national government”). Concurrent jurisdiction with the state courts would only reintroduce the specter of conflicting decisions and insufficient attention to the national interest. On the other hand, the specific motive behind this provision—to ensure a forum for the redress of these wrongs—may have outweighed this general concern. See text following note 89 infra.

⁸⁶ On the basis of The Federalist, it appears that the Framers also anticipated that diversity and alienage cases would be the exclusive province of the federal courts. See The Federalist, supra note 17, No. 80, at 501–02 (“in order to the inviolable maintenance [sic] of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens”).

⁸⁷ The exceptions to this scheme were admiralty and maritime jurisdiction, jurisdiction over maritime and all other seizures under the laws of the United States, and all suits against consuls and vice-consuls. As Hamilton pointed out, not even the most ardent Anti-Federalist opposed federal admiralty jurisdiction. Id. at 502. The reason, according to Frankfurter and Landis, was that “maritime commerce was then the jugular vein of the Thirteen States.” F. Frankfurter & J. Landis, supra note 22, at 7. Interstate and foreign trade, they thought, could flourish only under a uniform body of law.

The exception for suits against consuls and vice-consuls parallels the exclusivity given the Supreme Court in cases against ambassadors and other public ministers. The risk of offending a foreign sovereign by rendering an unjust verdict against one of its representatives may have been thought to increase if that representative were forced into court as a defendant. In addition, however, cases against foreign officials automatically triggered a host of diplomatic immunities that the federal judiciary was presumably better equipped to sort out.

⁸⁸ Section 12 of the First Judiciary Act gave alien and out-of-state defendants in all cases brought in state court for more than $500 the option of removal to the nearest circuit court. 1 Stat, at 79.

⁸⁹ Alien defendants in these cases would not have had this choice unless the amount in controversy exceeded $500, making the case eligible for the general diversity jurisdiction and concomitant removal provision. But this restriction would only take effect in a case between two aliens for a few hundred dollars, in which the injured alien had deliberately chosen state court. Further, the defendant alien could on no account have been a foreign ambassador, other public minister, consul or vice-consul, since cases against all these figures could only be brought in federal court.

⁹⁰ Hamilton even justified federal maritime jurisdiction on this ground: “maritime causes … so generally depend on the laws of nations, and so commonly affect the rights of for eigners, that they fall within the considerations which are relative to the public peace.” The Federalist, supra note 17, No. 80, at 502.

⁹¹ W. Blackstone, supra note 39, at 881.

⁹² Blackstone outlined the path from courtroom to battlefield:

[T]he nation injured … first … demand[s] satisfaction and justice to be done on the offender, by the state to which he belongs; and, if that be refused or neglected, the sovereign then avows himself an accomplice or abettor of his subject’s crime, and draws upon his community the calamities of foreign war.

Id.

⁹³ I am indebted to Gregory H. Fox, a practicing attorney in Boston, for first suggesting this possibility. It comports with Madison’s well-known remark in the Virginia convention: “We well know, sir, that foreigners cannot get justice done them in these courts, and this has prevented many wealthy gentlemen from trading or residing among us.” 3 Elliot’s Debates, supra note 22, at 583. Here again, this concern is routinely cited in explanation of the alienage clause. See, e.g., P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart & Wechsler’s The Federal Courts and the Federal System 17 (2d ed. 1973). Yet, unlike denial of justice concerns, it also offers a positive rationale that is akin to the positive vision of why states should comply with the law of nations. See infra p. 487.

⁹⁴ W. Blackstone, supra note 39, at 881.

⁹⁵ The language of the 1781 resolution offers further support for this possibility, urging the states to proscribe “the commission of acts of hostility against such as are in amity, league, or truce with the United States, or who are within the same, under a general implied safe conduct.” 21 J. Cont. Cong., supra note 71, at 1136 (emphasis added).

⁹⁶ In addition to those quoted in the text and note 99 infra, see James Wilson and the Pennsylvania Attorney General arguing for the prosecution in the de Longchamps case: “The necessity of sustaining the law of nations, of protecting and securing the persons and privileges of Ambassadors; … and the effect which the decision of this case must have upon the honor of Pennsylvania, and the safety of her Citizens abroad, were stated at length … .” 1 U.S. (1 Dall.) at 113 (emphasis in original). The Pennsylvania Supreme Court adopted this view, deftly integrating it with Blackstone. Admonishing the defendant prior to pronouncing sentence, the court explained:

[I]t is now the interest as well as duty of the government, to animadvert upon your conduct with a becoming severity,—such a severity as may tend to reform yourself, to deter others from the commission of the like crime, preserve the honor of the State, and maintain peace with our great and good Ally, and the whole world.

Id. at 117. Further, Thomas Jefferson wrote in a letter to Thomas Pinckney, dated May 7, 1793: “Where [our treaties] are silent, the general principles of the law of nations[ ] must give the rule … as [those principles] have been liberalized in latter times by the refinement of manners and morals, and evidenced by the Declarations, Stipulations, and Practice of every civilized Nation.” 6 The Writings of Thomas Jefferson 243 (P. Ford ed. 1895); cf. Blackstone on the adoption of the law of nations by the law of England:

[T]hose acts of parliament which have from time to time been made to enforce this universal law … are not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the kingdom: without which it must cease to be a part of the civilized world.

W. Blackstone, supra note 39, at 880.

⁹⁷ Trial of Gideon Henfield (C.C.D. Pa. 1793), reprinted in F. Wharton, State Trials 49, 52–53 (1849).

⁹⁸ The Schooner Exchange v. M’Faddon, 11 U.S. (7 Cranch) 116, 137 (1812).

⁹⁹ 21 J. Cont. Cong., supra note 71, at 1137. Blackstone also refers to the “public faith.” He explains that violations of either an express or an implied safe-conduct are “breaches of the public faith, without the preservation of which there can be no intercourse or commerce between one nation and another.” W. Blackstone, supra note 39, at 881.

Similarly, Hamilton, defending the 1793 Proclamation of Neutrality:

Faith and Justice between nations are virtues of a nature sacred and unequivocal. They cannot be too strongly inculcated nor too highly respected. Their obligations are definite and positive their utility unquestionable: they relate to objects, which with probity and sincerity generally admit of being brought within clear and intelligible rules.

Pacificus, No. 4, in 15 Hamilton Papers 82, 84 (Syrett & Cooke eds. 1969). Again, defending Article 10 of the 1794 Jay Treaty, which prohibited the sequestration of British debts as a means of reprisal, he argued: “I derive the vindication of the article from a higher source; from the natural or necessary law of nations, from the eternal principles of morality and good faith.” The Defense, No. 20, in 19 id. at 329, 342 (1973).

¹⁰⁰ The examples given could be multiplied indefinitely. They reflect the intellectual categories of the time. Robert Keohane, a leading political scientist at Harvard, has researched the politics of treaty compliance during this period and has similarly identified reputation as a major factor encouraging compliance. He also concludes, however, that whereas the concept of reputation in contemporary political science is essentially instrumental—hypothesizing that governments will prize a reputation for honoring existing commitments to the extent that they need to rely on it in persuading future partners to enter into new international agreements—the 18th-century equivalent also incorporated domestic political and moral culture. R. Keohane, Reciprocity, Reputation, and Compliance with International Commitments 35, 41–42 (unpublished paper presented at the 1988 Annual Meeting of the American Political Science Association, Sept. 1–4, 1988). As he further observes, “[N]ew ideas do occasionally percolate into the political system, and leaders’ values and senses of honor also differ.” Id. at 40. A more rigorous methodological approach to this subject should yield important insights for international lawyers.

¹⁰¹ See also Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 474 (1793) (Jay, C.J.) (“The United States, by taking a place among the nations of the earth, [became] amenable to the law of nations”); and Henkin, supra note 38, at 1556 (“A different conception sees the law of nations as coming into our law not by ‘inheritance’ but by implication from our independence, by virtue of international statehood”).

¹⁰² Opinion on the French Treaties, 6 The Writings of Thomas Jefferson, supra note 96, at 219, 220.

¹⁰³ E. de Vattel, the Law of Nations; or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns (J. Chitty trans. 1844) (6th ed.).

¹⁰⁴ D. Lang, Foreign Policy in the Early Republic (1985).

¹⁰⁵ Vattel believed that the law of nature applied equally to nations as to men, but that it generated only one set of international legal obligations: the “necessary” law of nations. This he supplemented with the “voluntary” law of nations: a more limited set of obligations taking into account the differences between men and nations. Nations are externally bound only by this “voluntary” law. E. De Vattel, supra note 103, Preliminaries, §60; see D. Lang, supra note 104, at 23–25. As Lang points out, James Wilson borrowed these concepts wholesale in his celebrated lectures on law at the College of Pennsylvania in 1790-91, observing that the different nature of states required “a proportional difference in the application of the law of nature.” Id. at 22.

¹⁰⁶ Pacificus, No. 4, 15 Hamilton Papers, supra note 99, at 85–86; see D. Lang, supra note 104, at 24, 105.

¹⁰⁷ See D. LANG, supra note 104, at 92, 100 and 132.

¹⁰⁸ See id. at 100.

¹⁰⁹ As noted above, Blackstone coupled these two in his original explication of why nations should criminalize offenses against the law of nations. See text at note 91 supra. The Pennsylvania Supreme Court adopted precisely the same formulation in explaining the importance of punishing the luckless de Longchamps. See supra note 96. The nation’s policymakers followed suit. Washington’s 1793 proclamation of neutrality in the war between France and Britain, for instance, declared that “the duty and interest of the United States require, that they should with sincerity and good faith adopt and pursue a conduct friendly and impartial toward the belligerent Powers.” Documents of American History 163 (H. Commager ed. 1963). Likewise Jefferson, who bemoaned Spanish misdeeds along the Mississippi some years later with a slightly different turn of phrase; “We ought still to hope that time and a more correct estimate, of interests as well as of character, will produce the justice we are bound to expect.” Draft of Fifth Annual Message to the Congress, Dec. 3, 1805, 8 The Writings of Thomas Jefferson, supra note 96, at 391.

The very duality of this phrase suggests that duty was more than a rhetorical disguise for less palatable motives; the Framers were clearly not afraid to argue from interest where it played a role.

¹¹⁰ The great Dutch jurist, Hugo Grotius, paved the way for Vattel in the 17th century by deriving the principles of natural law from reason rather than divine authority.

¹¹¹ D. Lang, supra note 104, at 10. Lang illustrates in the first chapters of his book how Vattel accomplished this feat by “combin[ing] the universalism and categories of the just-war tradition with aspects of modern natural rights theory derived from Hobbes and praise for the balance of power system, making a new synthesis.” Id. Although Vattel’s distinction between the law of nature as applied to states and individuals essentially laid the foundations for 19th-century positivism, Lang argues that Vattel himself understood states to be bound by a higher morality than their own will. Id. at 22–25.

¹¹² Id. at 1. Duncan Kennedy also argues that 18th-century lawyers did not perceive any conflict between law and morality in their domestic jurisprudence. Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685, 1725 (1976). See generally Kennedy, The Structure of Blackstone’s Commentaries, 28 Buffalo L. Rev. 205 (1979). The apparent parallel is enticing, and certainly worth further study.

¹¹³ Documents of American History, supra note 109, at 173; cf. E. de Vattel, supra note 103, bk. II, ch. 1, § 1: “And why should we not hope to find, among those who are at the head of affairs, some wise individuals who are convinced of this great truth, that virtue is, even for sovereigns and political bodies, the most certain road to prosperity and happiness?”

¹¹⁴ As Lang points out, the omnipresent threat to the balance of power system was that a great power might seek short-term advantage without regard to the long-term community interest. He explains that “[t]his possibility was one reason why Vattel argued more strongly from duty than from interest. He fervently hoped that when such situations arose states would refrain from seeking immediate advantage in favor of a more far-sighted policy of general stability.” D. Lang, supra note 104, at 46.

¹¹⁵ The apparent predomination of this type of explanation in The Federalist most likely reflects the essential mission of its authors. They were trying to persuade a skeptical audience of the value of the Constitution. The avoidance of wars resulting from casual or even inadvertent slights to foreign sovereigns was an effective rallying cry for the centralization of federal power, and hence an effective selling point. In short, the reasons put forward in defense or explanation of various constitutional provisions may reflect an advocate’s estimate of their popular appeal as much as the true motivations of the Framers. See Wright, Introduction, The Federalist, supra note 17, at 77–86 (contrasting the authors’ deliberate appeal to their readers’ self-interest with the more passionate, principled approach of Tom Paine’s Common Sense).

¹¹⁶ In the defense of Article 10 of the Jay Treaty quoted above, Hamilton relied extensively on a 1793 report to the British King concerning a Silesian debt sequestered by the King of Prussia. He particularly emphasized the following passage: “A private man lends money to a Prince upon an engagement of honor, because a prince cannot be compelled like other men in an adversary way by a Court of Justice.” The Defense, No. 20, supra note 99, at 343 (emphasis in original).

¹¹⁷ Cf. ITT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975) (Friendly, J.) (“This old but little used section is a kind of legal Lohengrin; … no one seems to know whence it came”).

¹¹⁸ In 1794 an American citizen led a French privateer fleet in a mission to ransack the British colony of Sierra Leone. When the British ambassador protested to the U.S. Government in Washington, the U.S. Attorney General concluded that the attack violated the Treaty of Amity with Britain, and thus that the victims had a civil remedy against the American leader under the Alien Tort Statute. 1 Op. Att’y Gen. 57, 58 (1795); see also Casto, supra note 16, at 502–04. The First Congress could well have foreseen the likelihood of such breaches of neutrality or amity treaties by Americans abroad.

¹¹⁹ The Marbois affair certainly would have brought this possibility to mind. And more plebeian instances of this type of incident, involving protected aliens other than ambassadors, could also have been anticipated: the violation by a resident Englishman of a safe-conduct given a Frenchman as an ally of the United States, or an attack by a French Catholic on a Dutch Protestant in violation of a treaty of amity and commerce guaranteeing Dutch nationals freedom of worship. See Casto, supra note 16, at 507 (explaining how a tort might arise in violation of a treaty of the United States). The United States would have been obliged to safeguard these rights against violation by anyone resident on U.S. territory—citizen and alien alike—either by prosecuting the offender, or, if it so chose, by allowing the victim to sue directly.

¹²⁰ Piracy, while not included in the enumeration of potential crimes or torts in the 1781 resolution, was certainly not excluded by the language of the Alien Tort Statute.

¹²¹ See supra note 12 and accompanying text.

¹²² Trajano amicus brief, supra note 12, at 10–11, 15. The brief also marshals all the standard quotations from The Federalist, including Hamilton’s explanation for the alienage clause: “the responsibility for an injury ought ever to be accompanied with the faculty of preventing it.” Id. at 17 n.14 (the rest of this passage is quoted in the text at note 17 supra).

¹²³ Id. at 15 (emphasis added).

¹²⁴ Id. at 16 (citations omitted).

¹²⁶ 630 F.2d at 885.

¹²⁶ See La Jeune Eugenie, 26 F.Cas. 832, 847 (D. Mass. 1822) (No. 15,551) (Story, J.):

If a nation were to violate as to its own subjects in its domestic regulation the clearest principles of public law, I do not know, that that law has ever held them amenable to the tribunals of other nations for such conduct. It would be inconsistent with the equality and sovereignty of nations, which admit no common superior.

See also Blum & Steinhardt, supra note 4, at 65.

¹²⁷ GA Res. 217A, UN Doc. A/810, at 71 (1948).

¹²⁸ Nov. 4, 1950, 213 UNTS 221.

¹²⁹ Opened for signature Nov. 22, 1969, reprinted in Organization of American States, Basic Documents Pertaining To Human Rights In The Inter-American System 25, OEA/Ser.L/V/II.71, doc. 6, rev.l (1988), and 9 ILM 673 (1970).

¹³⁰ Aug. 1, 1975, 73 DEP’T ST. BULL. 323 (1975).

¹³¹ See, e.g., Higgins, Conceptual Thinking about the Individual in International Law, 24 N.Y.L. Sch. L. Rev. 11 (1978); Janis, Individuals as Subjects of International Law, 17 Cornell Int’l L.J. 61 (1984); Sohn, The New International Law: Protection of the Rights of Individuals Rather than States, 32 Am. U.L. Rev. 1 (1982); Henkin, International Human Rights as “Rights,” 1 Cardozo L. Rev. 425(1979).

¹³² Judgment of the International Military Tribunal at Nuremberg, Oct. 1, 1946, 41 AJIL 172 (1947). In a critical passage, the Tribunal concluded: “That international law imposes duties and liabilities upon individuals as well as upon States has long been recognized. … Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” Id. at 220–21.

While most frequently associated with the Nuremberg proceedings, this principle extends beyond the military or even the criminal context. It has most recently been codified in the 1984 United Nations Draft Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 39/46 (Dec. 10, 1980), draft reprinted in 23 ILM 1027 (1984), substantive changes noted in 24 ILM 535 (1985). Article 2(3) of the Convention provides: “An order from a superior officer or a public authority may not be invoked as a justification of torture.” 23 ILM at 1028.

¹³³ Prospective application of the doctrine in this context raises a three-way dilemma. Without formally addressing the issue, the Filartiga court nevertheless noted that defendant’s act of torture was illegal under Paraguayan law and it speculated on the difficulty of characterizing such an act as an official act of state. 630 F.2d at 889. On the assumption or, more accurately, the fiction that the accused government official in such a suit committed such an illegal act in his or her private capacity, considerable support exists for nonapplication of the act of state doctrine.

True, a “private acts” exception to the doctrine has not been conclusively established. See Restatement (Third), supra note 38, §443 Reporters’ Note 3. But here again the jurisprudence is confused. First is the public-private distinction, generally meaning an exception roughly equivalent to the restrictive theory of sovereign immunity for private commercial acts. In such cases, the state is acting in its official capacity, but is conducting activities traditionally confined to private citizens. Second is the distinction between official and unofficial acts, where a government official is acting either out of purely private motives or in ways that contravene his or her official responsibilities. This second distinction has been recognized from the outset of modern act of state jurisprudence, beginning with Underhill v. Hernandez, 168 U.S. 250 (1897), where the Supreme Court applied the doctrine’to an act committed by a member of a provisional government. Id. at 252. The Court established that the defendant’s act was effectively “official” by pointing to the absence of a finding by the jury “that the defendant was actuated by malice or any personal or private motive.” Id. at 254.

On the other hand, in cases alleging human rights violations, the act in question must be official to qualify as a violation of international law and thus support jurisdiction under the Alien Tort Statute. International law does not prohibit one private citizen from torturing another. The Filartiga court squares this circle by resorting to the familiar U.S. concept of private suits against government officials charged with violating fundamental constitutional rights while acting under “color of law.” 630 F.2d at 890 (citing, by analogy, Ex parte Young, 209 U.S. 123 (1908)); see also 42 U.S.C. §1983 (1982); Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

This solution leaves a loophole for governments brazen enough to admit to torture as an official policy. More likely, a defendant official might be able to prove a direct chain of command authorizing his acts. Such evidence would negate a “color of law” theory by showing the act to be a genuine act of state, thereby, at least under the act of state doctrine, effectively shielding the actor from ever having to answer for his acts. But this result would bring the doctrine directly into conflict with the Nuremberg principles, by which higher orders cannot excuse crimes against humanity. In essence, the act of state doctrine cannot be reconciled with the notion of individual accountability at international law.

There are several possible routes out of this maze. On a strictly doctrinal level, the best alternative is to revisit Sabbatino. Although the Supreme Court held that the act of state doctrine applied even in the face of an alleged violation of international law on the facts before it, it listed the following three factors as general criteria for consideration in deciding on the application of the doctrine in subsequent cases posing the same question: (1) “the degree of codification or consensus concerning a particular area of international law”; (2) the importance of “the implications of an [international law] issue … for our foreign relations”; and (3) whether “the government which perpetrated the challenged act of state is … still in existence.” Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964). Application of these criteria to the Trajano case argues for nonapplication of the doctrine. The international consensus against torture is virtually absolute; foreign governments are unlikely to decry, at least publicly, a civil suit against an alleged torturer; and the Marcos Government is no longer in existence.

A second approach would be to reexamine the entire theoretical basis for the doctrine in light of changing notions of sovereignty. According to the canonical formulation of the doctrine, “Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory.” Underhill, 168 U.S. at 252. Yet the entire international law of human rights is founded on the assumption that modern sovereignty is far more permeable, at least in some dimensions; that sovereign independence regarding treatment of domestic citizens is limited by the collective scrutiny, and ultimately the judgment, of fellow sovereigns.

¹³⁴ This question is sufficiently vexed to fuel an entirely separate debate. See generally Tel-Oren, 726 F.2d at 816; Trajano amicus brief, supra note 12, at 20; and Casto, supra note 16, at 473. The goal here is only to outline one possible framework for analysis.

¹³⁵ See Restatement (Third), supra note 38, §§906-07.

¹³⁶ A full exposition of whether the Alien Tort Statute should cover suits against foreign officials currently in office is beyond the scope of this article. Even a cursory analysis, however, suggests that such suits should not be allowed. A candid assessment of the internal conditions in a high number of the world’s countries indicates that withdrawal of official immunity in these circumstances could bring diplomatic exchanges to a virtual halt.

¹³⁷ The analogy is Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), where the Supreme Court implied a private right of action to enforce a constitutional right. Under the Alien Tort Statute, the source of the right remains international law, which, after all, “is part of our law.” The Paquete Habana, 175 U.S. 677, 700 (1900). But the precise scope and nature of the remedy is domestic law—specifically, judgemade federal common law. Absent a world government, international law itself must necessarily contemplate this result, recognizing that its enforcement below the state level will differ according to the domestic laws of its subject states. Precisely this understanding led Blackstone to exhort all governments to criminalize certain offenses against the law of nations as a matter of municipal law. See text at note 70 supra.

¹³⁸ Cf. Judge Kaufman’s conclusion, 630 F.2d at 890: “Our holding today, giving effect to a jurisdictional provision enacted by our First Congress, is a small but important step in the fulfillment of the ageless dream to free all people from brutal violence.”

¹³⁹ This image of an international community is reemerging on many levels, fueled by factors ranging from the potential destruction of the ozone layer to millennial musings on our common humanity. On the jurisprudential plane, Professor Thomas Franck has recently reemphasized how an understanding of international society as a self-consciously regulated community —the way in which its member states perceive it—is critical to an understanding of the nature and function of international law. See Franck, Legitimacy in the International System, 82 AJIL 705, 754–55, 758–59 (1988).