Remarks by Kenneth Keith

By Keith, Kenneth | Proceedings of the Annual Meeting-American Society of International Law, Annual 2012 | Go to article overview

Remarks by Kenneth Keith


Keith, Kenneth, Proceedings of the Annual Meeting-American Society of International Law


My task is to provide an international law perspective on this case and its related litigation. I will do that by addressing five issues. I would, as a preliminary, like to emphasize that after many years in the law I worry about over-specialization. Law is law, even if in the international context it may appear to, and in fact may, differ in some respects--some of which are very important. A related preliminary, a more general version of what I have just said, is captured in a saying often attributed to Albert Einstein: make things as simple as possible, but not simpler.

The first issue came into my mind when I noticed that Judge Henry Friendly had had a role in the revival of the legislative provision we are examining. That great judge recalled from his law school days the then-Professor Felix Frankfurter's three rules for the interpretation of statutes. Not the literal rule, the golden rule, and the purposive rule, or some equivalent list. But (1) read the statute, (2) read the statute, and (3) read the statute! 1 So I did.

There is, of course, no such statute as the Alien Tort Statute. The Judiciary Act of 1789, passed by Congress in its first session, is a statute consisting of 35 sections in a form familiar in common-law jurisdictions at that time. It is "an Act to establish the Judicial Courts of the United States." It sets up the district and circuit courts, provides for their sessions, allocates jurisdiction over criminal charges and civil cases and suits, regulates procedures, and provides for remedies. (2) Section 9 of the 1789 Act, along with many other provisions, confers jurisdiction on the newly established courts. That jurisdiction is concurrent with that of other courts when "an alien sues for a tort only in violation of the law of nations or a treaty of the United States." It assumes that the law of nations places substantive obligations and recognizes substantive rights that could have been litigated and could continue to be litigated in state courts. The distinction between substantive rights and jurisdiction was recognized just four years later by Chief Justice Marshall in Marbury v. Madison (3) when the Supreme Court ruled that Section 13 of the 1789 Act, insofar as it conferred original jurisdiction on the Supreme Court to order mandamus against federal officials, was in breach of the Constitution. The three steps in that elegant judgment, to recall a standard invoked by President Caron in his opening address, were as follows:

(1) Did Mr. Marbury have a right to his warrant (issued, as it happened, by Acting Secretary of State Marshall after he had taken up the office of Chief Justice)? Yes.

(2) Did Mr. Marbury have a right to a remedy against Secretary Madison? Yes.

(3) In this Court? No.

You might think that the Court could have gone directly to the third question to resolve the case, as it did nine years later in another elegant judgment by John Marshall in Schooner Exchange v. McFaddon, (4) and as the International Court of Justice did last month in the state immunity case between Germany and Italy. (5) The Court there emphasized the essential distinction between the substantive obligations of Germany, which all agreed it had breached in dreadful ways in 1943-1945, and the jurisdiction of Italian courts to rule on those breaches.

My second issue concerns those substantive obligations. I return to the comment I made earlier that the 1789 legislation assumes that wrongs under the law of nations could be the subject of suit in state courts brought by an alien plaintiff. I take it that this is a reflection of the proposition stated just a few years earlier by William Blackstone that the law of nations is adopted in its full extent by the common law and is held to be part of the law of the land. The law of piracy is a primary instance, a crime or a wrong, in terms of one issue raised in the current litigation, because it is usually thought that piracy can be committed only on the high seas. …

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