The Alien Tort Statute, originally enacted as section 9 of the Judiciary Act of 1789, grants the district courts original jurisdiction over “any civil action by an alien for a tort only, committed in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 1980 the United States Court of Appeals for the Second Circuit breathed new life into these little-used and somewhat mysterious provisions. The case was Filartiga v. Pena-Irala, in which a Paraguayan family brought suit against a former Paraguayan police chief for the torture and death of one of its members. The court upheld federal jurisdiction under the Alien Tort Statute. Finding state torture to be a violation of “modern international law,” it pronounced itself willing to enforce this law even as between aliens whenever personal jurisdiction could be obtained over the defendant.

As this discourse is devoted to the sources of international law in Soviet doctrine and the diplomatic practice of the USSR, I think that it is necessary to begin by characterizing my understanding of the contemporary Soviet doctrine of international law.

In Western countries, the Soviet doctrine of international law is often regarded as monolithic, without internal contradictions and discussions. It is not so, though I would agree that there are some grains of truth in those allegations. On certain questions we have had too much unanimity in our social sciences at large, and in the doctrine of international law in particular. One could feel this unanimity particularly in the domain of the most sensitive political and legal problems.

The principle that treaty obligations must be fulfilled in good faith is one aspect of the fundamental rule that requires all subjects of international law to exercise in good faith their rights and duties under that law.

In the sociopolitical sphere, this fundamental principle may be seen as manifesting the need perceived by states for an international legal system that can ensure international order and prevent arbitrary behavior and chaos. In the legal sphere, the principle is confirmation of the character of international law as law. Subjects of international law are legally bound under the principle to implement what the law prescribes.

The U.S. refusal to permit Yasir Arafat, Chairman of the Palestine Liberation Organization, to attend the 43d annual meeting of the General Assembly in New York was almost universally condemned as a violation of international law. Because Arafat publicly complied, on December 14, 1988, with the conditions the United States had long prescribed as prerequisite for direct contacts with the PLO, many have tended retroactively to validate the refusal to grant the visa, as a pragmatic and legitimate technique of diplomatic suasion. Consequently, it is all the more urgent that the record of international legal violation be confirmed, lest the refusal be cited, in the idiosyncratic fashion of international law, as precedent for future violations. Such a development would hasten the deterioration of the regime of restraints on the discretion of host states and reduce the effectiveness of resident international organizations.

Nations typically act first and worry about legalities afterwards. International lawyers thus find themselves relegated, for the most part, to the passive role of sorting out rationalizations of past events. Once in a while, however, when a democratic government is contemplating an action that is legally questionable, international lawyers may have a chance to play a more active role. The government at that time might decide to introduce the issue of the legality of its contemplated action into the public forum, either in the hope that open debate may help pave the way for public acceptance of whatever action the government ultimately chooses to take or, more charitably, in a genuine search for the public will on the matter. The primary forums are the daily media aimed at an informed readership—in the United States, one thinks of the editorial pages of the New York Times and the Washington Post. In contrast, a quarterly journal such as the American Journal of International Law in nearly all cases is not published on a timely enough basis to influence specific planned policy initiatives.

This issue of our Journal highlights “new thinking” by two leading Soviet legal scholars. That, however, is only part of a larger transformation of the climate in which international law and institutions operate. Nowhere has this transformation been more remarkable than at the United Nations.

On March 24, 1989—Good Friday—President Bush and congressional leaders signed a landmark agreement committing them to support nonlethal aid for the Nicaraguan contras, together with Central American peace efforts. Under this “gentleman’s agreement,” aid would continue through February 1990. But in November 1989, the President must get letters from each of four congressional committees approving the continuation of aid after that month. If a majority of the membership of any one of those committees declines to authorize the letter, the President agreed, he will terminate the aid.

In his concurring opinion in the recent tax treaty case United States v. Stuart, Justice Scalia reports that “I have been unable to discover a single case in which this Court has consulted the Senate debate, committee hearings or committee reports” to interpret a treaty. Even more sweepingly, he says that two 1988 opinions in a district court are the “first (and, as far as I am aware, the only) federal decisions relying upon pre-ratification Senate materials for the interpretation of a treaty.” He moves from there to conclude that the “Restatement (Third) of the Foreign Relations Law of the United States §314, Comment d (1986); id., §325, Reporter’s [sic] Note 5 … must be regarded as a proposal for change rather than a restatement of existing doctrine.” Those are the paragraphs in which the Restatement approves the use of such materials.

The material in this section is arranged according to the system employed in the annual Digest of United States Practice in International Law, published by the Department of State.

Plaintiffs and respondents, Amerada Hess Shipping Corp. and United Carriers, Inc., were respectively the charterer and owner of the Hercules, a crude oil tanker that was bombed in international waters by Argentine military aircraft during the war over the Malvinas or Falkland Islands. The ship was severely damaged and had to be scuttled off the coast of Brazil. After unsuccessfully seeking relief in Argentina, the companies filed suit against defendant and appellant, the Argentine Republic, in the Southern District of New York. Plaintiffs argued that the federal courts had jurisdiction under the Alien Tort Statute (28 U.S.C. §1350 (1982)), which confers federal jurisdiction over “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.” The district court dismissed the suit for lack of subject matter jurisdiction, holding that the Foreign Sovereign Immunities Act of 1976 (28 U.S.C. §§1330, 1602-1611 (1982)) (FSIA) is by its terms the sole basis of federal jurisdiction over cases against foreign states. A divided panel of the U.S. Court of Appeals for the Second Circuit reversed. The Supreme Court (per Rehnquist, C.J.) unanimously reversed the Second Circuit and held that the FSIA provides the exclusive basis of federal jurisdiction over suits against foreign states.

The plaintiff, a Chinese citizen who entered the United States under a nonimmigrant student visa, appealed from a decision by the Immigration and Naturalization Service (INS) to deny his request for asylum. Plaintiff claimed that he had a “well-founded fear of persecution,” the prerequisite to attaining “refugee” status under the Immigration and Nationality Act of 1952 (the Act) and implementing regulations promulgated by the INS. He also claimed that the immigration judge had erred by refusing to obtain a second advisory opinion from the Department of State’s Bureau of Human Rights and Humanitarian Affairs (BHRHA). The U.S. Court of Appeals for the Sixth Circuit (per Nelson, J.) held that (1) the immigration judge had abused his discretion by not requesting a second advisory opinion from the BHRHA; and (2) the judge had incorrectly applied an objective standard in evaluating plaintiffs asylum request, when credible evidence demonstrated that plaintiff had a subjectively valid fear of persecution if deported to China. The court remanded the case to the immigration judge with instructions to obtain a second opinion from the BHRHA and to consider plaintiffs asylum request on the assumption that he qualified as a “refugee.”

In these three breach-of-contract actions, United States federal courts considered the liability of home offices of U.S. banks for obligations of their foreign branches in the event of foreign governmental expropriation or exchange control measures. In each decision the court of appeals did not apply the act of state doctrine and gave no effect to the foreign governmental action, largely on the ground either that the situs of the debt was not within the exclusive jurisdiction of the foreign state carrying out the governmental measure at issue or that the law governing the obligation was not that of the foreign state.

Plaintiff Sheets sought sanctions under Rule 11 of the Federal Rules of Civil Procedure against defendants, the Yamaha Motor Co. Ltd. (Yamaha Japan) and its wholly owned American subsidiary, Yamaha Motors Corp., U.S.A. (Yamaha U.S.A.), for misconduct in discovery and frivolous insistence that service on the foreign parent be made in conformity with the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, better known as the Hague Service Convention. Plaintiff had effected service under the Louisiana long-arm statute, which permitted service on the subsidiary as involuntary agent for the defendant parent company in an action arising out of business transacted or tortious conduct occurring in the state. The U.S. District Court for the Eastern District of Louisiana initially awarded $25,000 in sanctions to the plaintiff. On appeal, the U.S. Court of Appeals for the Fifth Circuit remanded the decision for further findings by the district court on the grounds for imposing sanctions. The district court held (per Schwartz, J.): in light of the decision of the Supreme Court in Volkswagenwerk Aktiengesellschaft v. Schlunk, involving a state service statute virtually identical to that of Louisiana, the defendants’ failure to waive service under the Hague Convention needlessly increased the cost of litigation and was properly the subject of Rule 11 sanctions.

Plaintiff bank, incorporated under the laws of the state of Hawaii, brought an action in the United States District Court for the District of Hawaii against defendants, residents and citizens of the Republic of the Marshall Islands (RMI). One of the defendants, Imata Kabua, moved to dismiss the complaint for lack of subject matter jurisdiction on the ground that diversity of citizenship did not exist because defendants were not citizens of a “foreign state” within the meaning of 28 U.S.C. §1332(a)(2). The district court (per King, J.) denied the motion and held that diversity jurisdiction exists because the RMI, although technically retaining membership in the Trust Territory of the Pacific Islands (TTPI), has de facto become a foreign state.

Appellant applied to an English court for the return of his son Thomas under the Child Abduction and Custody Act, 1985 (ch. 60), which gave statutory force to provisions of the Hague Convention on Child Abduction. The lower court refused the application on the ground that removal of Thomas to Australia without his mother would create a grave risk of serious psychological harm to the child. On appeal, the Court of Appeal unanimously held that the mother’s removal of Thomas from Australia was wrongful under the Hague Convention as a violation of the father’s rights of custody; that the exception in the Convention permitting courts to decline to order return of children when return would create a grave risk of harm to the child does not apply when this risk would occur only if the mother refused to accompany the child back to Australia; and that an order of the court for return of the child to Australia would issue on condition that the father fulfill his offer to give undertakings to the English court and the Australian Family Court regarding provision for Thomas and his mother in Australia.