Sue and Be Recognized: Collecting § 1350 Judgments Abroad

Yale Law Journal

Volumn 107, Issue 7, 1998, Pages 2177-2210

  Amley Jr , Edward A ^a  

^a NONE

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EID: 0346943087     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797419     Document Type: Article

References (237)

1. 28 U.S.C. § 1350 (1994) (empowering federal district courts to hear "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").
2. Pub. L. No. 102-256, § 2, 106 Stat. 73, 73 (1992) (codified at 28 U.S.C. § 1350) (enabling federal courts to hear claims against "[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation . . . subjects an individual to torture").
3. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-07 (1947).
4. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 417-18 (1964) ("To permit the validity of the acts of one sovereign state to be reexamined and perhaps condemned by the courts of another would very certainly 'imperil the amicable relations between governments and vex the peace of nations.'" (quoting Oetjen v. Central Leather Co., 246 U.S. 297 (1918))); see also Kadic v. Karadžić, 70 F.3d 232, 250 (2d Cir. 1995) ("The act of state doctrine, under which courts generally refrain from judging the acts of a foreign state within its territory, might be implicated in some cases arising under section 1350. However, . . . we doubt that the acts of even a state official, taken in violation of a nation's fundamental law and wholly unratified by that nation's government, could properly be characterized as an act of state." (citations omitted)); Trajano v. Marcos, 978 F.2d 493, 498 n.10 (9th Cir. 1992) ("[The conclusion that Marcos-Manotoc's acts were not taken pursuant to an official mandate] is consistent with our earlier decision that the same allegations against former President Marcos are not nonjusticiable 'acts of state.' In so holding, we implicitly rejected the possibility that the acts set out in Trajano's complaint were public acts of the sovereign." (citations omitted)).
5. See Foreign Sovereign Immunity Act (FSIA), 28 U.S.C. §§ 1602-1611; see also infra text accompanying notes 92-93.
6. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 880-81 (2d Cir. 1980). In Filartiga, the court held that, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is. Id. In the context of TVPA suits, a plaintiff must analogously show that the alleged misconduct constitutes torture or extrajudicial killing. See 28 U.S.C. § 1350-2(a)(1)(2).
7. See, e.g., Allison J. Flom, Note, Human Rights Litigation Under the Alien Tort Statute: Is the Forti v. Suarez-Mason Decision the Last of Its Kind?, 10 B.C. THIRD WORLD L.J. 321, 354 (1990).
8. See, e.g., Filartiga, 630 F.2d at 877 (plaintiffs represented by the Center for Constitutional Rights); Xuncax v. Gramajo, 886 F. Supp. 162, 168 (D. Mass. 1995) (plaintiffs represented by the Center for Constitutional Rights, El Rescate Legal Services, and the Lowenstein International Human Rights Clinic); Paul v. Avril, 901 F. Supp. 330, 331 (S.D. Fla. 1994) (plaintiffs represented by the Center for Constitutional Rights and the International Human Rights Clinic).
9. Recognition and enforcement are not the same acts. See Behrooz Moghaddam, Note, Recognition of Foreign Country Judgments - A Case for Federalization, 22 TEX. INT'L L.J. 331, 332 (1987) (noting that a "judgment cannot be enforced without first being recognized, and recognition neither compels nor guarantees enforcement"). But see Arthur T. von Mehren & Donald T. Trautman, Recognition of Foreign Adjudications: A Survey and a Suggested Approach, 81 HARV. L. REV. 1601, 1608 (1968) (asserting that "few distinctions are drawn between recognition and enforcement of foreign judgments"). For the sake of verbal economy, this Note will refer to both acts as recognition.
10. Recognition and enforcement are not the same acts. See Behrooz Moghaddam, Note, Recognition of Foreign Country Judgments - A Case for Federalization, 22 TEX. INT'L L.J. 331, 332 (1987) (noting that a "judgment cannot be enforced without first being recognized, and recognition neither compels nor guarantees enforcement"). But see Arthur T. von Mehren & Donald T. Trautman, Recognition of Foreign Adjudications: A Survey and a Suggested Approach, 81 HARV. L. REV. 1601, 1608 (1968) (asserting that "few distinctions are drawn between recognition and enforcement of foreign judgments"). For the sake of verbal economy, this Note will refer to both acts as recognition.
11. This possibility has been raised on at least one occasion. See John H. Barton & Barry E. Carter, International Law and Institutions for a New Age, 81 GEO. L.J. 535, 548 (1993) ("Judgments by . . . domestic courts [rendering § 1350 judgments] are, of course, enforceable within their own country, just like any other judgment by the domestic court. As for foreign enforcement, such judgments are usually given considerable respect in other countries, but practices differ among nations and even among the fifty states of the United States."). Barton and Carter, however, do not engage in a sustained discussion of the viability of this course of action.
12. Swiss law entitles individuals to "the remedy of attachment." Markus H. Wirth, Attachment of Swiss Bank Accounts: A Remedy for International Debt Collection, 36 BUS. LAW. 1029, 1029 (1981). As Wirth explains, the filing of a suit in a U.S. court could sustain a attachment order sought in a Swiss court. See id. at 1038; cf. Otto Sandrock, Prejudgment Attachments: Securing Loans or Other Claims for Money, 21 INT'L LAW. 1 (1987) (surveying the approaches to prejudgment relief utilized by the United States, the United Kingdom, Germany, and France).
13. Swiss law entitles individuals to "the remedy of attachment." Markus H. Wirth, Attachment of Swiss Bank Accounts: A Remedy for International Debt Collection, 36 BUS. LAW. 1029, 1029 (1981). As Wirth explains, the filing of a suit in a U.S. court could sustain a attachment order sought in a Swiss court. See id. at 1038; cf. Otto Sandrock, Prejudgment Attachments: Securing Loans or Other Claims for Money, 21 INT'L LAW. 1 (1987) (surveying the approaches to prejudgment relief utilized by the United States, the United Kingdom, Germany, and France).
14. See George A. Bermann, Provisional Relief in Transnational Litigation, 35 COLUM. J. TRANSNAT'L L. 553, 558 (1997) ("Not surprisingly, I conclude that transnational provisional relief is both an imperative of, and a potential threat to, contemporary international litigation.").
15. Exploring this issue is crucial in the context of an initiative to have a § 1350 judgment recognized outside of the United States. One of the objectives of Part III of this Note is to differentiate ATCA and TVPA suits from other claims that arise in transnational litigation. It shows that the political dimensions of cases that courts are routinely called upon to resolve pale in comparison with those that permeate most § 1350 actions. Even parties seeking the ratification of decisions rendered in commercial suits, however, desire assurances that the judicial machinery will not kowtow to other actors that wield influence in the recognizing jurisdiction. See Carlos E. Martinez, Early Lessons of Latin American Privatizations, 15 SUFFOLK TRANSNAT'L L. REV., 468, 486 (1992) ("The government should also ensure that the judiciary remains politically independent. Foreign investors are less likely to invest if they lack confidence that local courts will enforce existing laws."). Rule-of-law concerns are likely to matter very little to the domestic judiciaries of countries where the torts that turn into § 1350 suits took place. In many ACTA cases, plaintiffs have already exhausted local remedies, both civil and criminal. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 878 (2d Cir. 1980); Forti v. Suarez-Mason, 672 F. Supp. 1531, 1538 (N.D. Cal. 1987). Section 2(b) of the TVPA likewise mandates that "[a] court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred." 28 U.S.C. § 1350-2(b) (1994). In addition, if a functioning court system existed where the alleged violation took place, the claim brought in federal court would presumably have been dismissed on forum non conveniens grounds. See, e.g., Koster v. (American) Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947). When determining whether a given suit ought to be dismissed on forum non conveniens grounds, modern courts apply a list of "private interest" factors affecting the convenience of the litigants and a list of "public interest" factors affecting the convenience of the forum. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947).
16. See Mark C. Lewis, Note, Contract Law in the People's Republic of China - Rule or Tool: Can the PRC's Foreign Economic Contract Law Be Administered According to the Rule of Law?, 30 VAND. J. TRANSNAT'L L. 495, 500-01 (1997); Law School for China, PROVIDENCE J.-BULL., Mar. 31, 1997, at B4.
17. See Mark C. Lewis, Note, Contract Law in the People's Republic of China - Rule or Tool: Can the PRC's Foreign Economic Contract Law Be Administered According to the Rule of Law?, 30 VAND. J. TRANSNAT'L L. 495, 500-01 (1997); Law School for China, PROVIDENCE J.-BULL., Mar. 31, 1997, at B4.
18. See Berta Esperanza Hernández Truyol, Out in Left Field: Cuba's Post-Cold War Strikeout, 18 FORDHAM INT'L L.J. 15, 74 (1994).
19. See Roger Gocking, Ghana's Public Tribunals: An Experiment in Revolutionary Justice, AFR. AFF., Apr. 1, 1996, at 197.
20. See Ed Blanche, Lebanese Militias Enforce a Rough and Bloody Justice, STAR-TRIB. (Minneapolis-St. Paul), June 1, 1986, at 18A.
21. Cf., e.g., Elaine Ganley, Lebanese Terrorist Jailed for Life, AP, Feb. 28, 1987, available in 1987 WL 3134089 (reporting that a French "special court ignored a prosecution plea for leniency and sentenced a Lebanese terrorist to life in prison Saturday for complicity in the shooting deaths of two diplomats and the attempted killing of a third"); Jan M. Olsen, Danish Court: EU Treaty Is Constitutional, Opponents Likely To Appeal, AP, June 27, 1997, available in 1997 WL 4872828 (reporting that "[a] trial court ruled . . . that Denmark's participation in a treaty designed to create a closer European Union does not violate the country's constitution"). Also increasing the desirability of locating recognition efforts in the judiciaries of Western Europe is the fact that this region serves as a platform for some of the world's great commercial and banking centers, including London and Frankfurt. See James H. Freis, Jr., An Outsider's Look into the Regulation of Insider Trading in Germany: A Guide to Securities, Banking, and Market Reform in Finanzplatz Deutschland, 19 B.C. INT'L & COMP. L. REV. 1, 24 (1996). These centers service a truly international clientele, including elites with problematic human rights backgrounds. See, e.g., Return of Marcos Funds Blocked in Switzerland on Appeal, Agence France-Presse, Feb. 13, 1998, available in 1998 WL 2221716; Swiss Banking Commission Scolds Bank over Mobutu Money, Dow Jones Int'l News Serv., Feb. 11, 1998, available in 1998 WL 2221716; Rone Tempest, Ex-Despots Can't Bank on Swiss To Hide Funds, COURIER-J. (Louisville, Ky.), Feb. 4, 1990, at 01E, available in 1990 WL 4447605. Additionally, and rarely to their credit, many European states maintain tight relationships with those who rule their former colonies, sometimes intervening in the political affairs of these countries at will. See, e.g., France's "Mr. Africa," Maker of Presidents, Dies at 83, AP, Mar. 19, 1997, available in 1997 WL 4858219; Italy Committed to Consolidating Diplomatic Ties with Ethiopia, Agence France-Presse, Nov. 24, 1997, available in 1997 WL 13441128. The personalities with whom European states interact are often situated against human rights activists on the front lines of the struggle to ensure the respect of international human rights standards. One aspect of such special relationships is the maintenance of significant amounts of property by these persons in the ex-metropolitan power. See Stephane Barbier, "Friends of Congo" Meet To Discuss Best Way To Aid Kinshasa, Agence France-Presse, Dec. 4, 1997, available in 1997 WL 13447383.
22. Cf., e.g., Elaine Ganley, Lebanese Terrorist Jailed for Life, AP, Feb. 28, 1987, available in 1987 WL 3134089 (reporting that a French "special court ignored a prosecution plea for leniency and sentenced a Lebanese terrorist to life in prison Saturday for complicity in the shooting deaths of two diplomats and the attempted killing of a third"); Jan M. Olsen, Danish Court: EU Treaty Is Constitutional, Opponents Likely To Appeal, AP, June 27, 1997, available in 1997 WL 4872828 (reporting that "[a] trial court ruled . . . that Denmark's participation in a treaty designed to create a closer European Union does not violate the country's constitution"). Also increasing the desirability of locating recognition efforts in the judiciaries of Western Europe is the fact that this region serves as a platform for some of the world's great commercial and banking centers, including London and Frankfurt. See James H. Freis, Jr., An Outsider's Look into the Regulation of Insider Trading in Germany: A Guide to Securities, Banking, and Market Reform in Finanzplatz Deutschland, 19 B.C. INT'L & COMP. L. REV. 1, 24 (1996). These centers service a truly international clientele, including elites with problematic human rights backgrounds. See, e.g., Return of Marcos Funds Blocked in Switzerland on Appeal, Agence France-Presse, Feb. 13, 1998, available in 1998 WL 2221716; Swiss Banking Commission Scolds Bank over Mobutu Money, Dow Jones Int'l News Serv., Feb. 11, 1998, available in 1998 WL 2221716; Rone Tempest, Ex-Despots Can't Bank on Swiss To Hide Funds, COURIER-J. (Louisville, Ky.), Feb. 4, 1990, at 01E, available in 1990 WL 4447605. Additionally, and rarely to their credit, many European states maintain tight relationships with those who rule their former colonies, sometimes intervening in the political affairs of these countries at will. See, e.g., France's "Mr. Africa," Maker of Presidents, Dies at 83, AP, Mar. 19, 1997, available in 1997 WL 4858219; Italy Committed to Consolidating Diplomatic Ties with Ethiopia, Agence France-Presse, Nov. 24, 1997, available in 1997 WL 13441128. The personalities with whom European states interact are often situated against human rights activists on the front lines of the struggle to ensure the respect of international human rights standards. One aspect of such special relationships is the maintenance of significant amounts of property by these persons in the ex-metropolitan power. See Stephane Barbier, "Friends of Congo" Meet To Discuss Best Way To Aid Kinshasa, Agence France-Presse, Dec. 4, 1997, available in 1997 WL 13447383.
23. Cf., e.g., Elaine Ganley, Lebanese Terrorist Jailed for Life, AP, Feb. 28, 1987, available in 1987 WL 3134089 (reporting that a French "special court ignored a prosecution plea for leniency and sentenced a Lebanese terrorist to life in prison Saturday for complicity in the shooting deaths of two diplomats and the attempted killing of a third"); Jan M. Olsen, Danish Court: EU Treaty Is Constitutional, Opponents Likely To Appeal, AP, June 27, 1997, available in 1997 WL 4872828 (reporting that "[a] trial court ruled . . . that Denmark's participation in a treaty designed to create a closer European Union does not violate the country's constitution"). Also increasing the desirability of locating recognition efforts in the judiciaries of Western Europe is the fact that this region serves as a platform for some of the world's great commercial and banking centers, including London and Frankfurt. See James H. Freis, Jr., An Outsider's Look into the Regulation of Insider Trading in Germany: A Guide to Securities, Banking, and Market Reform in Finanzplatz Deutschland, 19 B.C. INT'L & COMP. L. REV. 1, 24 (1996). These centers service a truly international clientele, including elites with problematic human rights backgrounds. See, e.g., Return of Marcos Funds Blocked in Switzerland on Appeal, Agence France-Presse, Feb. 13, 1998, available in 1998 WL 2221716; Swiss Banking Commission Scolds Bank over Mobutu Money, Dow Jones Int'l News Serv., Feb. 11, 1998, available in 1998 WL 2221716; Rone Tempest, Ex-Despots Can't Bank on Swiss To Hide Funds, COURIER-J. (Louisville, Ky.), Feb. 4, 1990, at 01E, available in 1990 WL 4447605. Additionally, and rarely to their credit, many European states maintain tight relationships with those who rule their former colonies, sometimes intervening in the political affairs of these countries at will. See, e.g., France's "Mr. Africa," Maker of Presidents, Dies at 83, AP, Mar. 19, 1997, available in 1997 WL 4858219; Italy Committed to Consolidating Diplomatic Ties with Ethiopia, Agence France-Presse, Nov. 24, 1997, available in 1997 WL 13441128. The personalities with whom European states interact are often situated against human rights activists on the front lines of the struggle to ensure the respect of international human rights standards. One aspect of such special relationships is the maintenance of significant amounts of property by these persons in the ex-metropolitan power. See Stephane Barbier, "Friends of Congo" Meet To Discuss Best Way To Aid Kinshasa, Agence France-Presse, Dec. 4, 1997, available in 1997 WL 13447383.
24. Cf., e.g., Elaine Ganley, Lebanese Terrorist Jailed for Life, AP, Feb. 28, 1987, available in 1987 WL 3134089 (reporting that a French "special court ignored a prosecution plea for leniency and sentenced a Lebanese terrorist to life in prison Saturday for complicity in the shooting deaths of two diplomats and the attempted killing of a third"); Jan M. Olsen, Danish Court: EU Treaty Is Constitutional, Opponents Likely To Appeal, AP, June 27, 1997, available in 1997 WL 4872828 (reporting that "[a] trial court ruled . . . that Denmark's participation in a treaty designed to create a closer European Union does not violate the country's constitution"). Also increasing the desirability of locating recognition efforts in the judiciaries of Western Europe is the fact that this region serves as a platform for some of the world's great commercial and banking centers, including London and Frankfurt. See James H. Freis, Jr., An Outsider's Look into the Regulation of Insider Trading in Germany: A Guide to Securities, Banking, and Market Reform in Finanzplatz Deutschland, 19 B.C. INT'L & COMP. L. REV. 1, 24 (1996). These centers service a truly international clientele, including elites with problematic human rights backgrounds. See, e.g., Return of Marcos Funds Blocked in Switzerland on Appeal, Agence France-Presse, Feb. 13, 1998, available in 1998 WL 2221716; Swiss Banking Commission Scolds Bank over Mobutu Money, Dow Jones Int'l News Serv., Feb. 11, 1998, available in 1998 WL 2221716; Rone Tempest, Ex-Despots Can't Bank on Swiss To Hide Funds, COURIER-J. (Louisville, Ky.), Feb. 4, 1990, at 01E, available in 1990 WL 4447605. Additionally, and rarely to their credit, many European states maintain tight relationships with those who rule their former colonies, sometimes intervening in the political affairs of these countries at will. See, e.g., France's "Mr. Africa," Maker of Presidents, Dies at 83, AP, Mar. 19, 1997, available in 1997 WL 4858219; Italy Committed to Consolidating Diplomatic Ties with Ethiopia, Agence France-Presse, Nov. 24, 1997, available in 1997 WL 13441128. The personalities with whom European states interact are often situated against human rights activists on the front lines of the struggle to ensure the respect of international human rights standards. One aspect of such special relationships is the maintenance of significant amounts of property by these persons in the ex-metropolitan power. See Stephane Barbier, "Friends of Congo" Meet To Discuss Best Way To Aid Kinshasa, Agence France-Presse, Dec. 4, 1997, available in 1997 WL 13447383.
25. Cf., e.g., Elaine Ganley, Lebanese Terrorist Jailed for Life, AP, Feb. 28, 1987, available in 1987 WL 3134089 (reporting that a French "special court ignored a prosecution plea for leniency and sentenced a Lebanese terrorist to life in prison Saturday for complicity in the shooting deaths of two diplomats and the attempted killing of a third"); Jan M. Olsen, Danish Court: EU Treaty Is Constitutional, Opponents Likely To Appeal, AP, June 27, 1997, available in 1997 WL 4872828 (reporting that "[a] trial court ruled . . . that Denmark's participation in a treaty designed to create a closer European Union does not violate the country's constitution"). Also increasing the desirability of locating recognition efforts in the judiciaries of Western Europe is the fact that this region serves as a platform for some of the world's great commercial and banking centers, including London and Frankfurt. See James H. Freis, Jr., An Outsider's Look into the Regulation of Insider Trading in Germany: A Guide to Securities, Banking, and Market Reform in Finanzplatz Deutschland, 19 B.C. INT'L & COMP. L. REV. 1, 24 (1996). These centers service a truly international clientele, including elites with problematic human rights backgrounds. See, e.g., Return of Marcos Funds Blocked in Switzerland on Appeal, Agence France-Presse, Feb. 13, 1998, available in 1998 WL 2221716; Swiss Banking Commission Scolds Bank over Mobutu Money, Dow Jones Int'l News Serv., Feb. 11, 1998, available in 1998 WL 2221716; Rone Tempest, Ex-Despots Can't Bank on Swiss To Hide Funds, COURIER-J. (Louisville, Ky.), Feb. 4, 1990, at 01E, available in 1990 WL 4447605. Additionally, and rarely to their credit, many European states maintain tight relationships with those who rule their former colonies, sometimes intervening in the political affairs of these countries at will. See, e.g., France's "Mr. Africa," Maker of Presidents, Dies at 83, AP, Mar. 19, 1997, available in 1997 WL 4858219; Italy Committed to Consolidating Diplomatic Ties with Ethiopia, Agence France-Presse, Nov. 24, 1997, available in 1997 WL 13441128. The personalities with whom European states interact are often situated against human rights activists on the front lines of the struggle to ensure the respect of international human rights standards. One aspect of such special relationships is the maintenance of significant amounts of property by these persons in the ex-metropolitan power. See Stephane Barbier, "Friends of Congo" Meet To Discuss Best Way To Aid Kinshasa, Agence France-Presse, Dec. 4, 1997, available in 1997 WL 13447383.
26. Cf., e.g., Elaine Ganley, Lebanese Terrorist Jailed for Life, AP, Feb. 28, 1987, available in 1987 WL 3134089 (reporting that a French "special court ignored a prosecution plea for leniency and sentenced a Lebanese terrorist to life in prison Saturday for complicity in the shooting deaths of two diplomats and the attempted killing of a third"); Jan M. Olsen, Danish Court: EU Treaty Is Constitutional, Opponents Likely To Appeal, AP, June 27, 1997, available in 1997 WL 4872828 (reporting that "[a] trial court ruled . . . that Denmark's participation in a treaty designed to create a closer European Union does not violate the country's constitution"). Also increasing the desirability of locating recognition efforts in the judiciaries of Western Europe is the fact that this region serves as a platform for some of the world's great commercial and banking centers, including London and Frankfurt. See James H. Freis, Jr., An Outsider's Look into the Regulation of Insider Trading in Germany: A Guide to Securities, Banking, and Market Reform in Finanzplatz Deutschland, 19 B.C. INT'L & COMP. L. REV. 1, 24 (1996). These centers service a truly international clientele, including elites with problematic human rights backgrounds. See, e.g., Return of Marcos Funds Blocked in Switzerland on Appeal, Agence France-Presse, Feb. 13, 1998, available in 1998 WL 2221716; Swiss Banking Commission Scolds Bank over Mobutu Money, Dow Jones Int'l News Serv., Feb. 11, 1998, available in 1998 WL 2221716; Rone Tempest, Ex-Despots Can't Bank on Swiss To Hide Funds, COURIER-J. (Louisville, Ky.), Feb. 4, 1990, at 01E, available in 1990 WL 4447605. Additionally, and rarely to their credit, many European states maintain tight relationships with those who rule their former colonies, sometimes intervening in the political affairs of these countries at will. See, e.g., France's "Mr. Africa," Maker of Presidents, Dies at 83, AP, Mar. 19, 1997, available in 1997 WL 4858219; Italy Committed to Consolidating Diplomatic Ties with Ethiopia, Agence France-Presse, Nov. 24, 1997, available in 1997 WL 13441128. The personalities with whom European states interact are often situated against human rights activists on the front lines of the struggle to ensure the respect of international human rights standards. One aspect of such special relationships is the maintenance of significant amounts of property by these persons in the ex-metropolitan power. See Stephane Barbier, "Friends of Congo" Meet To Discuss Best Way To Aid Kinshasa, Agence France-Presse, Dec. 4, 1997, available in 1997 WL 13447383.
27. Cf., e.g., Elaine Ganley, Lebanese Terrorist Jailed for Life, AP, Feb. 28, 1987, available in 1987 WL 3134089 (reporting that a French "special court ignored a prosecution plea for leniency and sentenced a Lebanese terrorist to life in prison Saturday for complicity in the shooting deaths of two diplomats and the attempted killing of a third"); Jan M. Olsen, Danish Court: EU Treaty Is Constitutional, Opponents Likely To Appeal, AP, June 27, 1997, available in 1997 WL 4872828 (reporting that "[a] trial court ruled . . . that Denmark's participation in a treaty designed to create a closer European Union does not violate the country's constitution"). Also increasing the desirability of locating recognition efforts in the judiciaries of Western Europe is the fact that this region serves as a platform for some of the world's great commercial and banking centers, including London and Frankfurt. See James H. Freis, Jr., An Outsider's Look into the Regulation of Insider Trading in Germany: A Guide to Securities, Banking, and Market Reform in Finanzplatz Deutschland, 19 B.C. INT'L & COMP. L. REV. 1, 24 (1996). These centers service a truly international clientele, including elites with problematic human rights backgrounds. See, e.g., Return of Marcos Funds Blocked in Switzerland on Appeal, Agence France-Presse, Feb. 13, 1998, available in 1998 WL 2221716; Swiss Banking Commission Scolds Bank over Mobutu Money, Dow Jones Int'l News Serv., Feb. 11, 1998, available in 1998 WL 2221716; Rone Tempest, Ex-Despots Can't Bank on Swiss To Hide Funds, COURIER-J. (Louisville, Ky.), Feb. 4, 1990, at 01E, available in 1990 WL 4447605. Additionally, and rarely to their credit, many European states maintain tight relationships with those who rule their former colonies, sometimes intervening in the political affairs of these countries at will. See, e.g., France's "Mr. Africa," Maker of Presidents, Dies at 83, AP, Mar. 19, 1997, available in 1997 WL 4858219; Italy Committed to Consolidating Diplomatic Ties with Ethiopia, Agence France-Presse, Nov. 24, 1997, available in 1997 WL 13441128. The personalities with whom European states interact are often situated against human rights activists on the front lines of the struggle to ensure the respect of international human rights standards. One aspect of such special relationships is the maintenance of significant amounts of property by these persons in the ex-metropolitan power. See Stephane Barbier, "Friends of Congo" Meet To Discuss Best Way To Aid Kinshasa, Agence France-Presse, Dec. 4, 1997, available in 1997 WL 13447383.
28. Cf., e.g., Elaine Ganley, Lebanese Terrorist Jailed for Life, AP, Feb. 28, 1987, available in 1987 WL 3134089 (reporting that a French "special court ignored a prosecution plea for leniency and sentenced a Lebanese terrorist to life in prison Saturday for complicity in the shooting deaths of two diplomats and the attempted killing of a third"); Jan M. Olsen, Danish Court: EU Treaty Is Constitutional, Opponents Likely To Appeal, AP, June 27, 1997, available in 1997 WL 4872828 (reporting that "[a] trial court ruled . . . that Denmark's participation in a treaty designed to create a closer European Union does not violate the country's constitution"). Also increasing the desirability of locating recognition efforts in the judiciaries of Western Europe is the fact that this region serves as a platform for some of the world's great commercial and banking centers, including London and Frankfurt. See James H. Freis, Jr., An Outsider's Look into the Regulation of Insider Trading in Germany: A Guide to Securities, Banking, and Market Reform in Finanzplatz Deutschland, 19 B.C. INT'L & COMP. L. REV. 1, 24 (1996). These centers service a truly international clientele, including elites with problematic human rights backgrounds. See, e.g., Return of Marcos Funds Blocked in Switzerland on Appeal, Agence France-Presse, Feb. 13, 1998, available in 1998 WL 2221716; Swiss Banking Commission Scolds Bank over Mobutu Money, Dow Jones Int'l News Serv., Feb. 11, 1998, available in 1998 WL 2221716; Rone Tempest, Ex-Despots Can't Bank on Swiss To Hide Funds, COURIER-J. (Louisville, Ky.), Feb. 4, 1990, at 01E, available in 1990 WL 4447605. Additionally, and rarely to their credit, many European states maintain tight relationships with those who rule their former colonies, sometimes intervening in the political affairs of these countries at will. See, e.g., France's "Mr. Africa," Maker of Presidents, Dies at 83, AP, Mar. 19, 1997, available in 1997 WL 4858219; Italy Committed to Consolidating Diplomatic Ties with Ethiopia, Agence France-Presse, Nov. 24, 1997, available in 1997 WL 13441128. The personalities with whom European states interact are often situated against human rights activists on the front lines of the struggle to ensure the respect of international human rights standards. One aspect of such special relationships is the maintenance of significant amounts of property by these persons in the ex-metropolitan power. See Stephane Barbier, "Friends of Congo" Meet To Discuss Best Way To Aid Kinshasa, Agence France-Presse, Dec. 4, 1997, available in 1997 WL 13447383.
29. Cf., e.g., Elaine Ganley, Lebanese Terrorist Jailed for Life, AP, Feb. 28, 1987, available in 1987 WL 3134089 (reporting that a French "special court ignored a prosecution plea for leniency and sentenced a Lebanese terrorist to life in prison Saturday for complicity in the shooting deaths of two diplomats and the attempted killing of a third"); Jan M. Olsen, Danish Court: EU Treaty Is Constitutional, Opponents Likely To Appeal, AP, June 27, 1997, available in 1997 WL 4872828 (reporting that "[a] trial court ruled . . . that Denmark's participation in a treaty designed to create a closer European Union does not violate the country's constitution"). Also increasing the desirability of locating recognition efforts in the judiciaries of Western Europe is the fact that this region serves as a platform for some of the world's great commercial and banking centers, including London and Frankfurt. See James H. Freis, Jr., An Outsider's Look into the Regulation of Insider Trading in Germany: A Guide to Securities, Banking, and Market Reform in Finanzplatz Deutschland, 19 B.C. INT'L & COMP. L. REV. 1, 24 (1996). These centers service a truly international clientele, including elites with problematic human rights backgrounds. See, e.g., Return of Marcos Funds Blocked in Switzerland on Appeal, Agence France-Presse, Feb. 13, 1998, available in 1998 WL 2221716; Swiss Banking Commission Scolds Bank over Mobutu Money, Dow Jones Int'l News Serv., Feb. 11, 1998, available in 1998 WL 2221716; Rone Tempest, Ex-Despots Can't Bank on Swiss To Hide Funds, COURIER-J. (Louisville, Ky.), Feb. 4, 1990, at 01E, available in 1990 WL 4447605. Additionally, and rarely to their credit, many European states maintain tight relationships with those who rule their former colonies, sometimes intervening in the political affairs of these countries at will. See, e.g., France's "Mr. Africa," Maker of Presidents, Dies at 83, AP, Mar. 19, 1997, available in 1997 WL 4858219; Italy Committed to Consolidating Diplomatic Ties with Ethiopia, Agence France-Presse, Nov. 24, 1997, available in 1997 WL 13441128. The personalities with whom European states interact are often situated against human rights activists on the front lines of the struggle to ensure the respect of international human rights standards. One aspect of such special relationships is the maintenance of significant amounts of property by these persons in the ex-metropolitan power. See Stephane Barbier, "Friends of Congo" Meet To Discuss Best Way To Aid Kinshasa, Agence France-Presse, Dec. 4, 1997, available in 1997 WL 13447383.
30. Although there are a number of compelling arguments for the development of a single standard that would be brought to bear by domestic courts around the world when deciding whether to endorse a foreign judgment, one has yet to emerge. See Robert H. Davis, NAFTA: Resolving International Payments Conflicts, 49 DISP. RESOL. J. 76, 81 (1994). The absence of a common approach leads to uncertainty and difficulty. See id. (stating that the "enforcement of a judgment abroad is complex, expensive and can take up to 15 years to resolve"). Without a common framework regulating the recognition of foreign judgments in force at the international level, a judgment given effect in one jurisdiction may be impeached by the courts of another. There may, of course, be overlap between the approaches utilized by jurisdictions in different states.
31. Deficiencies in judgments can fall under a number of rubrics, including personal jurisdiction, subject matter jurisdiction, exclusive jurisdiction, reciprocity, public policy, fraud, inconsistent judgments, final judgment, choice of law, notice and opportunity to be heard, judgment for a definite sum of money, treaty or government order, default judgment, protective legislation, review of the merits, foreign sovereign immunity, inconvenient forum, and judgment in a criminal or administrative law case. See Ronald A. Brand, Enforcement of Foreign Money-Judgments in the United States: In Search of Uniformity and International Acceptance, 67 NOTRE DAME L. REV. 253, 266 (1991) (listing exceptions to the rule favoring the recognition of judgments codified in various domestic regimes, including the Uniform Foreign Money-Judgments Recognition Act and the Restatement (Third) of Foreign Relations Law).
32. Although codification of a uniform approach to the recognition of foreign judgments would be a dramatic improvement, one could argue that liberalization should accompany standardization, as both would simplify collection efforts. See Eric B. Fastiff, Note, The Proposed Hague Convention on the Recognition and Enforcement of Civil and Commercial Judgments: A Solution to Butch Reynolds's Jurisdiction and Enforcement Problems, 28 CORNELL INT'L L.J. 469, 485 (1995); see also Mathew H. Adler, If We Build It, Will They Come? - The Need for a Multilateral Convention on the Recognition and Enforcement of Civil Monetary Judgments, 26 LAW & POL'Y INT'L BUS. 79, 81 (1994) ("The denial of recognition and enforcement of American judgments is particularly notable in light of the increased cooperation in other areas of international litigation.").
33. Although codification of a uniform approach to the recognition of foreign judgments would be a dramatic improvement, one could argue that liberalization should accompany standardization, as both would simplify collection efforts. See Eric B. Fastiff, Note, The Proposed Hague Convention on the Recognition and Enforcement of Civil and Commercial Judgments: A Solution to Butch Reynolds's Jurisdiction and Enforcement Problems, 28 CORNELL INT'L L.J. 469, 485 (1995); see also Mathew H. Adler, If We Build It, Will They Come? - The Need for a Multilateral Convention on the Recognition and Enforcement of Civil Monetary Judgments, 26 LAW & POL'Y INT'L BUS. 79, 81 (1994) ("The denial of recognition and enforcement of American judgments is particularly notable in light of the increased cooperation in other areas of international litigation.").
34. Summaries of assertions of personal jurisdiction by rendering courts that foreign tribunals will ratify appear in Adler, supra note 22, at 96-98; L.I. De Winter, Excessive Jurisdiction in Private International Law, 17 INT'L & COMP. L.Q. 706, 707 (1968); Friedrich K. Juenger, The Recognition of Money Judgments in Civil and Commercial Matters, 36 AM. J. COMP. L. 1, 13-16 (1988); Robert B. von Mehren & Michael E. Patterson, Recognition and Enforcement of Foreign-Country Judgments in the United States, 6 LAW & POL'Y INT'L Bus. 37, 48-56 (1974); Arthur T. von Mehren & Donald T. Trautman, Jurisdiction To Adjudicate: A Suggested Analysis, 79 HARV. L. REV. 1121, 1135-36 (1966); and von Mehren & Trautman, supra note 9, at 1611-36. At least one of these articles tracks the continuing struggle between civil law and common law states over the permissibility of two bases of personal jurisdiction: the defendant's brief presence and the presence of his or her assets in the rendering jurisdiction. See De Winter, supra. Judicial decisionmakers in countries where common law traditions prevail recoil at the thought of ratifying decisions in foreign cases where the presence of the defendant's assets established jurisdiction. An "alien who leaves his slippers in a hotel in Germany can be sued there for a debt of, e.g., 100,000 DM., due to the presence of assets within the jurisdiction." Id. at 707. On the other hand, "[i]f, for instance, a person on his way from New York to South Africa is served with a writ during a stop at London Airport, a judgment rendered against him by an English court will hardly be recognised in civil law countries, at least if the judgment is given in default." Id. at 712-13.
35. Summaries of assertions of personal jurisdiction by rendering courts that foreign tribunals will ratify appear in Adler, supra note 22, at 96-98; L.I. De Winter, Excessive Jurisdiction in Private International Law, 17 INT'L & COMP. L.Q. 706, 707 (1968); Friedrich K. Juenger, The Recognition of Money Judgments in Civil and Commercial Matters, 36 AM. J. COMP. L. 1, 13-16 (1988); Robert B. von Mehren & Michael E. Patterson, Recognition and Enforcement of Foreign-Country Judgments in the United States, 6 LAW & POL'Y INT'L Bus. 37, 48-56 (1974); Arthur T. von Mehren & Donald T. Trautman, Jurisdiction To Adjudicate: A Suggested Analysis, 79 HARV. L. REV. 1121, 1135-36 (1966); and von Mehren & Trautman, supra note 9, at 1611-36. At least one of these articles tracks the continuing struggle between civil law and common law states over the permissibility of two bases of personal jurisdiction: the defendant's brief presence and the presence of his or her assets in the rendering jurisdiction. See De Winter, supra. Judicial decisionmakers in countries where common law traditions prevail recoil at the thought of ratifying decisions in foreign cases where the presence of the defendant's assets established jurisdiction. An "alien who leaves his slippers in a hotel in Germany can be sued there for a debt of, e.g., 100,000 DM., due to the presence of assets within the jurisdiction." Id. at 707. On the other hand, "[i]f, for instance, a person on his way from New York to South Africa is served with a writ during a stop at London Airport, a judgment rendered against him by an English court will hardly be recognised in civil law countries, at least if the judgment is given in default." Id. at 712-13.
36. Summaries of assertions of personal jurisdiction by rendering courts that foreign tribunals will ratify appear in Adler, supra note 22, at 96-98; L.I. De Winter, Excessive Jurisdiction in Private International Law, 17 INT'L & COMP. L.Q. 706, 707 (1968); Friedrich K. Juenger, The Recognition of Money Judgments in Civil and Commercial Matters, 36 AM. J. COMP. L. 1, 13-16 (1988); Robert B. von Mehren & Michael E. Patterson, Recognition and Enforcement of Foreign-Country Judgments in the United States, 6 LAW & POL'Y INT'L Bus. 37, 48-56 (1974); Arthur T. von Mehren & Donald T. Trautman, Jurisdiction To Adjudicate: A Suggested Analysis, 79 HARV. L. REV. 1121, 1135-36 (1966); and von Mehren & Trautman, supra note 9, at 1611-36. At least one of these articles tracks the continuing struggle between civil law and common law states over the permissibility of two bases of personal jurisdiction: the defendant's brief presence and the presence of his or her assets in the rendering jurisdiction. See De Winter, supra. Judicial decisionmakers in countries where common law traditions prevail recoil at the thought of ratifying decisions in foreign cases where the presence of the defendant's assets established jurisdiction. An "alien who leaves his slippers in a hotel in Germany can be sued there for a debt of, e.g., 100,000 DM., due to the presence of assets within the jurisdiction." Id. at 707. On the other hand, "[i]f, for instance, a person on his way from New York to South Africa is served with a writ during a stop at London Airport, a judgment rendered against him by an English court will hardly be recognised in civil law countries, at least if the judgment is given in default." Id. at 712-13.
37. Summaries of assertions of personal jurisdiction by rendering courts that foreign tribunals will ratify appear in Adler, supra note 22, at 96-98; L.I. De Winter, Excessive Jurisdiction in Private International Law, 17 INT'L & COMP. L.Q. 706, 707 (1968); Friedrich K. Juenger, The Recognition of Money Judgments in Civil and Commercial Matters, 36 AM. J. COMP. L. 1, 13-16 (1988); Robert B. von Mehren & Michael E. Patterson, Recognition and Enforcement of Foreign-Country Judgments in the United States, 6 LAW & POL'Y INT'L Bus. 37, 48-56 (1974); Arthur T. von Mehren & Donald T. Trautman, Jurisdiction To Adjudicate: A Suggested Analysis, 79 HARV. L. REV. 1121, 1135-36 (1966); and von Mehren & Trautman, supra note 9, at 1611-36. At least one of these articles tracks the continuing struggle between civil law and common law states over the permissibility of two bases of personal jurisdiction: the defendant's brief presence and the presence of his or her assets in the rendering jurisdiction. See De Winter, supra. Judicial decisionmakers in countries where common law traditions prevail recoil at the thought of ratifying decisions in foreign cases where the presence of the defendant's assets established jurisdiction. An "alien who leaves his slippers in a hotel in Germany can be sued there for a debt of, e.g., 100,000 DM., due to the presence of assets within the jurisdiction." Id. at 707. On the other hand, "[i]f, for instance, a person on his way from New York to South Africa is served with a writ during a stop at London Airport, a judgment rendered against him by an English court will hardly be recognised in civil law countries, at least if the judgment is given in default." Id. at 712-13.
38. See, e.g., Kadic v. Karadžić, 70 F.3d 232, 246-48 (2d Cir. 1995); Filartiga v. Pena-Irala, 630 F.2d 876, 885 (2d Cir. 1980); Xuncax v. Gramajo, 886 F. Supp. 162, 193 (D. Mass. 1995); cf. Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir.) (asserting personal jurisdiction over a foreign national defendant who resided in the United States), cert. denied, 117 S. Ct. 96 (1996). "Tag" service refers to the physical service of process on an individual who comes within a judicial district of the United States pursuant to FED. R. Civ. P. 4(e)(2). See Kadic, 70 F.3d at 347. This has been accomplished in human rights cases by serving papers on defendants when they are present in the United States. See id.
39. See supra note 23.
40. See 1 ALBERT V. DICEY & JOHN H.C. MORRIS ON THE CONFLICT OF LAWS 475-76 (Lawrence Collins ed., 12th ed. 1993).
41. Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, Sept. 27, 1968, 8 I.L.M. 229 [hereinafter Brussels Convention].
42. Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, Sept. 16, 1988, 28 I.L.M. 620 [hereinafter Lugano Convention].
43. These two instruments play a large role in managing the currency of judgments that are validated in Western Europe. See John F. Powell & Chris Hurt, Brussels and Lugano Conventions: What They Are, What They Do, 61 DEF. COUNS. J. 371, 371 (1994) ("The principle purpose of the [Brussels and Lugano] conventions is to facilitate the enforcement of judgments among the contracting states [of the European Union and European Free Trade Association . . . .").
44. Lugano Convention, supra note 28, art. 4, 28 I.L.M. at 624; Brussels Conventions, supra note 27, art. 4, 8 I.L.M. at 232.
45. Lugano Convention, supra note 28, art. 31, 28 I.L.M. at 630; Brussels Convention, supra note 27, art. 31, 8 I.L.M. at 237.
46. No member of the European Union (EU) or European Free Trade Association (EFTA), which are where the Brussels and Lugano Conventions are in force, is currently associated with the sort of human rights abuses that often figure in suits based on the ATCA and TVPA. If a European country did commit such violations, relief could be sought at the European Commission of Human Rights or the European Court of Human Rights. See Laurence R. Helfer & Anne-Marie Slaughter, Toward a Theory of Effective Supranational Adjudication, 107 YALE L.J. 273, 290-97 (1997).
47. See supra text accompanying note 26.
48. See Lugano Convention, supra note 28, art. 26, 28 I.L.M. at 629; Brussels Convention, supra note 27, art. 26, 8 I.L.M. at 236.
49. Case C-129/92, 1994 E.C.R. 1-117 (1994).
50. According to Owens Bank, double execution would allow judgment-creditors to circumvent the conditions laid down by a Contracting State for the recognition of judgments of the courts of the non-contracting State in question. If, for example, Contracting State A makes the recognition and enforcement of a judgment of the courts of a non-contracting State conditional on certain criteria, whereas judgments from the non-contracting State are declared enforceable unconditionally in Contracting State B, the judgment creditor could first obtain a declaration of enforceability in Contracting State B and then (pursuant to Article 31 of the Brussels Convention) enforce the judgment without difficulty in Contracting State A by virtue of the decision obtained in Contracting State B. Id. at I-127. Until the decision in this case was handed down, uncertainty prevailed over whether Article 26 applied to a contracting-state-issued decree calling for the recognition of a judicial decision rendered by a jurisdiction outside of the EU or EFTA. See Jeremy Carver & Christopher Napier, United Kingdom, in ENFORCEMENT OF FOREIGN JUDGMENTS WORLDWIDE 194, 206 (Charles Platto ed., 1989) (stating that "it appears that 'judgments' do not include: . . . 'judgments on judgments', i.e., a judgment of Country A enforcing a judgment of Country B"); Patrick E. Thieffry, The European Integration and Transnational Disputes, in THE EUROPEAN ECONOMIC COMMUNITY: PRODUCTS LIABILITY RULES AND ENVIRONMENTAL POLICY 153, 200-01 (PLI Litig. & Admin. Practice Course Handbook Series No. 388, 1990) ("By making explicit reference to writs of execution, the Convention can therefore be read to grant facilitated recognition and enforcement to judgments whereby Member States' courts ordered enforcement of non-Member State judgments. This point, however, has not been decided by the Court of Justice, and thus remains open.").
51. According to Owens Bank, double execution would allow judgment-creditors to circumvent the conditions laid down by a Contracting State for the recognition of judgments of the courts of the non-contracting State in question. If, for example, Contracting State A makes the recognition and enforcement of a judgment of the courts of a non-contracting State conditional on certain criteria, whereas judgments from the non-contracting State are declared enforceable unconditionally in Contracting State B, the judgment creditor could first obtain a declaration of enforceability in Contracting State B and then (pursuant to Article 31 of the Brussels Convention) enforce the judgment without difficulty in Contracting State A by virtue of the decision obtained in Contracting State B. Id. at I-127. Until the decision in this case was handed down, uncertainty prevailed over whether Article 26 applied to a contracting-state-issued decree calling for the recognition of a judicial decision rendered by a jurisdiction outside of the EU or EFTA. See Jeremy Carver & Christopher Napier, United Kingdom, in ENFORCEMENT OF FOREIGN JUDGMENTS WORLDWIDE 194, 206 (Charles Platto ed., 1989) (stating that "it appears that 'judgments' do not include: . . . 'judgments on judgments', i.e., a judgment of Country A enforcing a judgment of Country B"); Patrick E. Thieffry, The European Integration and Transnational Disputes, in THE EUROPEAN ECONOMIC COMMUNITY: PRODUCTS LIABILITY RULES AND ENVIRONMENTAL POLICY 153, 200-01 (PLI Litig. & Admin. Practice Course Handbook Series No. 388, 1990) ("By making explicit reference to writs of execution, the Convention can therefore be read to grant facilitated recognition and enforcement to judgments whereby Member States' courts ordered enforcement of non-Member State judgments. This point, however, has not been decided by the Court of Justice, and thus remains open.").
52. For example, von Mehren and Patterson have argued that "United States courts will not recognize or enforce foreign-country judgments - at least not against U.S. citizens or residents - rendered by courts that did not acquire jurisdiction over the parties or property in question," von Mehren & Patterson, supra note 23, at 48-49, and that U.S. "[c]ourts have indicated that U.S. notions of judicial jurisdiction and other policies will not be applied vigorously to cases not involving U.S. citizens or residents," id. at 49 n.56.
53. Only a small part of the literature on recognition of foreign judicial decisions deals with this subject. As George Delaume has noted, "At the present time, there is no definite answer as to the question of what should be the attitude of a 'disinterested' forum to issues of recognition. This is an issue which does not appear to be the object of much litigation." GEORGE R. DELAUME, Recognition and Enforcement of Foreign Judgments in the Civil Law Countries of the EEC, TRANSNATIONAL CONTRACTS: APPLICABLE LAW AND SETTLEMENT OF DISPUTES § 10.02 (1990) (describing a French decision upholding a Swiss judgment involving litigation between American and Swiss parties). For one example of a brief discussion of this issue, see Juenger, supra note 23, at 29-31.
54. See Juenger, supra note 23, at 6 (quoting the Code Michaut and citing TRAITÉ ÉLÉMENTAIRE DE DROIT INTERNATIONALE PRIVÉ 826-27 (2d ed. 1980)).
55. Id.
56. This urge may be resisted by courts sitting in jurisdictions that derive significant amounts of tax revenue from activities such as banking and investment. If these states acquire reputations for being receptive to the interests of judgment-creditors, by relaxing the test for validating decisions against non-national judgment-debtors, consumers of banking services and investors might move their capital elsewhere, a feat that can be accomplished with remarkable ease. See KENICHI OHMAE, THE END OF THE NATION STATE: THE RISE OF REGIONAL ECONOMIES 39 (1995).
57. See Christopher B. Kuner, Personal Jurisdiction Based on the Presence of Property in German Law: Past, Present, and Future, 5 TRANSNAT'L LAW. 691, 695 (1992) (noting that a "long list" of jurisdictions adopted provisions similar to the German approach, including Austria, several Swiss cantons, Liechtenstein, Greece, Sweden, Norway, Denmark, Japan, two Canadian provinces (Ontario and Quebec), Hungary, Russia, Poland, and Turkey).
58. One approach is for the recognizing court to project the jurisdictional rules it must normally adhere to onto the litigation that produced the judgment to be ratified. See Juenger, supra note 23, at 15 ("The largest single group of reporting countries measure the foreign court's jurisdiction by reference to the bases found in their own laws.").
59. As von Mehren and Trautman note, "Relatively little consideration has been given to whether a basis that was perhaps unavailable to the rendering court but was present on the facts of the case and would satisfy the requested court's jurisdictional test should be acceptable." Von Mehren & Trautman, supra note 9, at 1621. They go on to describe a case in which a domestic court, sitting in the United Kingdom, was called upon to embrace a decision rendered by a French court that, under English jurisdictional rules, did not enjoy jurisdiction over the defendant. See id. at 1621-22. Despite this, "the English court went on to consider such possibly acceptable bases as the defendant's French nationality, French residence, and presence in France when the litigation was commenced, but it concluded that none of these bases could be made out in the actual case and refused recognition." Id. at 1622.
60. Relatively little has been written on whether, when a request for ratification has been made, an inquiry into the subject matter jurisdiction of the foreign tribunal should be conducted. For what exists on this topic, see Adler, supra note 22, at 101-02; Juenger, supra note 23, at 18; von Mehren & Patterson, supra note 23, at 54-55 & n.90; and Moghaddam, supra note 9, at 338-39.
61. See Juenger, supra note 23, at 18 n.72.
62. See, e.g., Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 799 (D.C. Cir. 1984) (Bork, J., concurring).
63. Forti v. Suarez-Mason, 672 F. Supp. 1531, 1540 (N.D. Cal. 1987).
64. See, e.g., Kadic v. Karadžić, 70 F.3d 232 (2d Cir. 1995); Tel-Oren, 726 F.2d at 777-91 (Edwards, J., concurring); id. at 801-23 (Bork, J., concurring).
65. See, e.g., Kenneth C. Randall, Further Inquiries into the Alien Tort Statute and a Recommendation, 18 N.Y.U. J. INT'L L. & POL'Y 473, 477-88 (1986); Jean-Marie Simon, The Alien Tort Claims Act: Justice or Show Trials?, 11 B.U. INT'L L.J. 1, 37-38 (1993).
66. See, e.g., Kenneth C. Randall, Further Inquiries into the Alien Tort Statute and a Recommendation, 18 N.Y.U. J. INT'L L. & POL'Y 473, 477-88 (1986); Jean-Marie Simon, The Alien Tort Claims Act: Justice or Show Trials?, 11 B.U. INT'L L.J. 1, 37-38 (1993).
67. See Abebe-Jira v. Negewo, 72 F.3d 844, 847 (11th Cir.) (reading "the statute as requiring no more than an allegation of a violation of the law of nations in order to invoke section 1350"), cert. denied, 117 S. Ct. 96 (1996); Kadic, 70 F.3d at 246 (finding that the "Act appears to provide a remedy for the appellants' allegations of violations related to genocide, war crimes, and official torture"); Hilao v. Estate of Marcos, 25 F.3d 1467, 1474-75 (9th Cir. 1994) (rejecting the assertion that § 1350 is a jurisdictional provision that does not grant a cause of action and concluding that the provision "creates a cause of action for violations of specific, universal and obligatory international human rights standards"). But see Trajano v. Marcos, 978 F.2d 493, 503 (9th Cir. 1992) (noting the district court's agreement with the plaintiff that § 1350 "is simply a jurisdictional statute and creates no cause of action itself").
68. According to Juenger, such rules mandating "the recognition court to wrestle with highly technical rules of foreign law on the allocation of judicial power serve[] no useful purpose." Juenger, supra note 23, at 18. This difficulty has been confronted by American courts. See, e.g., John Deere Ltd. v. Sperry Corp., 754 F.2d 132, 136 (3d Cir. 1985) (stating that federal courts should not decide technical questions of other nation's laws); In re Trinidad & Tobago, 117 F.R.D. 177, 178 (S.D. Fla. 1987) ("Foreign tribunals are far more competent to decide issues of their own making than are United States courts. If the situation were reversed, this court would certainly prefer to interpret United States law rather than have a foreign tribunal sit in judgment."). The In re Trinidad & Tobago court stated: As a matter of law and policy, United States courts should refrain from undertaking an extensive analysis of foreign law in determining whether to honor a request for judicial assistance, and should confine its inquiry solely to whether the evidence requested comports with language of 28 U.S.C. § 1782 . . . . Our courts should not become entangled in interpreting foreign law when deciding whether to grant requests for judicial assistance. In re Trinidad & Tobago, 117 F.R.D. at 179.
69. Yoav Gery, Note, The Torture Victim Protection Act: Raising Issues of Legitimacy, 26 GEO. WASH. J. INT'L L. & ECON. 597, 601 (1993) (quoting 28 U.S.C. § 1350).
70. 672 F. Supp. 1531 (N.D. Cal. 1987).
71. Id. at 1540. For scholarship on the process by which norms evolve into customary international law, see ANTHONY A. D'AMATO, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW (1971); R.R. Baxter, Multilateral Treaties as Evidence of Customary International Law, 41 BRIT. Y.B. INT'L L. 275 (1965-1966); I.M. Lobo
72. Id. at 1540. For scholarship on the process by which norms evolve into customary international law, see ANTHONY A. D'AMATO, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW (1971); R.R. Baxter, Multilateral Treaties as Evidence of Customary International Law, 41 BRIT. Y.B. INT'L L. 275 (1965-1966); I.M. Lobo de Souza, The Role of State Consent in the Customary Process, 44 INT'L & COMP. L.Q. 521 (1995); Michael P. Scharf, Swapping Amnesty for Peace: Was There a Duty To Prosecute International Crimes in Haiti?, 31 TEX. INT'L L.J. 1, 41 (1996); Gary L. Scott & Craig L. Carr, Multilateral Treaties and the Formation of Customary International Law, 25 DENY. J. INT'L L. & POL'Y 71, 72 (1996); and Rex J. Zedalis, Protection of Nationals Abroad: Is Consent the Basis of Legal Obligation?, 25 TEX. INT'L L.J. 209 (1990).
73. Id. at 1540. For scholarship on the process by which norms evolve into customary international law, see ANTHONY A. D'AMATO, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW (1971); R.R. Baxter, Multilateral Treaties as Evidence of Customary International Law, 41 BRIT. Y.B. INT'L L. 275 (1965-1966); I.M. Lobo de Souza, The Role of State Consent in the Customary Process, 44 INT'L & COMP. L.Q. 521 (1995); Michael P. Scharf, Swapping Amnesty for Peace: Was There a Duty To Prosecute International Crimes in Haiti?, 31 TEX. INT'L L.J. 1, 41 (1996); Gary L. Scott & Craig L. Carr, Multilateral Treaties and the Formation of Customary International Law, 25 DENY. J. INT'L L. & POL'Y 71, 72 (1996); and Rex J. Zedalis, Protection of Nationals Abroad: Is Consent the Basis of Legal Obligation?, 25 TEX. INT'L L.J. 209 (1990).
74. Id. at 1540. For scholarship on the process by which norms evolve into customary international law, see ANTHONY A. D'AMATO, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW (1971); R.R. Baxter, Multilateral Treaties as Evidence of Customary International Law, 41 BRIT. Y.B. INT'L L. 275 (1965-1966); I.M. Lobo de Souza, The Role of State Consent in the Customary Process, 44 INT'L & COMP. L.Q. 521 (1995); Michael P. Scharf, Swapping Amnesty for Peace: Was There a Duty To Prosecute International Crimes in Haiti?, 31 TEX. INT'L L.J. 1, 41 (1996); Gary L. Scott & Craig L. Carr, Multilateral Treaties and the Formation of Customary International Law, 25 DENY. J. INT'L L. & POL'Y 71, 72 (1996); and Rex J. Zedalis, Protection of Nationals Abroad: Is Consent the Basis of Legal Obligation?, 25 TEX. INT'L L.J. 209 (1990).
75. Id. at 1540. For scholarship on the process by which norms evolve into customary international law, see ANTHONY A. D'AMATO, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW (1971); R.R. Baxter, Multilateral Treaties as Evidence of Customary International Law, 41 BRIT. Y.B. INT'L L. 275 (1965-1966); I.M. Lobo de Souza, The Role of State Consent in the Customary Process, 44 INT'L & COMP. L.Q. 521 (1995); Michael P. Scharf, Swapping Amnesty for Peace: Was There a Duty To Prosecute International Crimes in Haiti?, 31 TEX. INT'L L.J. 1, 41 (1996); Gary L. Scott & Craig L. Carr, Multilateral Treaties and the Formation of Customary International Law, 25 DENY. J. INT'L L. & POL'Y 71, 72 (1996); and Rex J. Zedalis, Protection of Nationals Abroad: Is Consent the Basis of Legal Obligation?, 25 TEX. INT'L L.J. 209 (1990).
76. Id. at 1540. For scholarship on the process by which norms evolve into customary international law, see ANTHONY A. D'AMATO, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW (1971); R.R. Baxter, Multilateral Treaties as Evidence of Customary International Law, 41 BRIT. Y.B. INT'L L. 275 (1965-1966); I.M. Lobo de Souza, The Role of State Consent in the Customary Process, 44 INT'L & COMP. L.Q. 521 (1995); Michael P. Scharf, Swapping Amnesty for Peace: Was There a Duty To Prosecute International Crimes in Haiti?, 31 TEX. INT'L L.J. 1, 41 (1996); Gary L. Scott & Craig L. Carr, Multilateral Treaties and the Formation of Customary International Law, 25 DENY. J. INT'L L. & POL'Y 71, 72 (1996); and Rex J. Zedalis, Protection of Nationals Abroad: Is Consent the Basis of Legal Obligation?, 25 TEX. INT'L L.J. 209 (1990).
77. For an assessment of how this task might be executed, see Jorge Cicero, The Alien Tort Statute of 1789 as a Remedy for Injuries to Foreign Nationals Hosted by the United States, 23 COLUM. HUM. RTS. L. REV. 315, 360-75 (1992).
78. See, e.g., Kadic v. Karadžić, 70 F.3d 232, 243-44 (2d Cir. 1995); Trajano v. Marcos, 978 F.2d 493, 499 (9th Cir. 1992); Filartiga v. Pena-Irala, 630 F.2d 876, 884 (2d Cir. 1980); Xuncax v. Gramajo, 886 F. Supp. 162, 184 (D. Mass. 1995); Forti, 672 F. Supp. at 1541.
79. See, e.g., Kadic, 70 F.3d at 242-43; Xuncax, 886 F. Supp. at 184; Forti, 672 F. Supp. at 1541.
80. See, e.g., Xuncax, 886 F. Supp. at 184; Forti, 672 F. Supp. at 1542.
81. See, e.g., Xuncax, 886 F. Supp. at 184; Forti v. Suarez-Mason, 694 F. Supp. 707, 711 (N.D. Cal. 1988).
82. See, e.g., Kadic, 70 F.3d at 241-42.
83. See, e.g., id. at 242-43.
84. Examples of these instruments include the European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222, and the International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171 (entered into force Nov. 23, 1976). Much of the human rights litigation that takes place in European courts addresses the scope and interpretation of the European Convention on Human Rights. Compared with the "law of nations," which may strike many foreign judges as a rather amorphous concept, the European Convention contains precise standards. See sources cited supra note 55.
85. For a sampling of scholarly work on the public policy requirement for recognition, see, for example, Juenger, supra note 23, at 21-23; von Mehren & Patterson, supra note 23, at 61-64; and von Mehren & Trautman, supra note 9, at 1670-71. Closely linked to this requirement is that the foreign decision dovetail with the recognizing tribunal's perspective on "natural justice." British courts apply this standard. See Dennis Campbell & Dharmendra Popat, Enforcing American Money Judgments in the United Kingdom and Germany, 18 S. ILL. U. L.J. 517, 532 (1994).
86. Many observers characterize the public policy requirement as a "catch-all reason for denying recognition to a foreign judgment." R. Doak Bishop & Susan Burnette, United States Practice Concerning the Recognition of Foreign Judgments, 16 INT'L LAW. 425, 436 (1982). Adler asserts that "the notion of public policy defies concrete definition, and its application tends to be somewhat ad hoc." Adler, supra note 22, at 104. This ambiguity points to the need for judicial guidance regarding what methodology courts should use to ascertain the content of public policy at any given time. As Adler observes, "[I]deas about what constitutes public policy go to the heart of a country's existence as an independent and individual 'society . . . .'" Id. But see Volker Behr, Enforcement of United States Money Judgments in Germany, 13 J.L. & COM. 211, 221 (1994) (stating that "the public policy requirement also fails to leave much room for ambiguity").
87. Many observers characterize the public policy requirement as a "catch-all reason for denying recognition to a foreign judgment." R. Doak Bishop & Susan Burnette, United States Practice Concerning the Recognition of Foreign Judgments, 16 INT'L LAW. 425, 436 (1982). Adler asserts that "the notion of public policy defies concrete definition, and its application tends to be somewhat ad hoc." Adler, supra note 22, at 104. This ambiguity points to the need for judicial guidance regarding what methodology courts should use to ascertain the content of public policy at any given time. As Adler observes, "[I]deas about what constitutes public policy go to the heart of a country's existence as an independent and individual 'society . . . .'" Id. But see Volker Behr, Enforcement of United States Money Judgments in Germany, 13 J.L. & COM. 211, 221 (1994) (stating that "the public policy requirement also fails to leave much room for ambiguity").
88. See Juenger, supra note 23, at 22 & n.97 (citing to German, Polish, and Israeli examples). Many of the jurisdictions that fit into this category refuse the recognition of judgments that are deemed to be procedurally defective. These requirements simply exist independently of the prohibition on the ratification of foreign decisions that violate public policy. For example, a court's refusal to recognize a judgment could be made on notice or opportunity-to-be-heard grounds.
89. See Behr, supra note 65, at 225.
90. See id. at 228-29.
91. See, e.g., Hilao v. Estate of Marcos, 25 F.3d 1467, 1469 (9th Cir. 1994) (authorizing an injunction to ensure collection of a jury award to the plaintiff class of $1.2 billion in exemplary damages); Xuncax v. Gramajo, 886 F. Supp. 162, 197-98 (D. Mass. 1995) (awarding a total of $27.75 million in punitive damages to seven plaintiffs); Paul v. Avril, 901 F. Supp. 330, 336 (S.D. Fla. 1994) (awarding $4 million in punitive damages to each of six plaintiffs); Todd v. Panjaitan, No. CIV.A. 92-12255-PBS, 1994 WL 827111, at *1 (D. Mass. Oct. 26, 1994) (awarding $10 million to one defendant); Filartiga v. Pena-Irala, 577 F. Supp. 860, 867 (E.D.N.Y. 1984) (awarding $5 million in punitive damages to surviving family members).
92. See Behr, supra note 65, at 231 (discussing a German case in which a California judgment was enforced, except for punitive damages).
93. See id. at 228-29.
94. 726 F.2d 774 (D.C. Cir. 1984) (per curiam).
95. According to Judge Bork, the "prospect of a federal court ordering discovery on such an issue [as whether a principal-agent relationship existed between Libya and the Palestine Liberation Organization], to say nothing of actually deciding it, is, or ought to be, little short of terrifying. If anything is likely to disturb the 'PEACE of the CONFEDERACY,' this is." Id. at 821-22 (Bork, J., concurring).
96. See Behr, supra note 65, at 230 (citing Judgment of June 4, 1992, BGHZ, 1992 WM 1451 (F.R.G.), translated in 32 I.L.M. 1320 (1993)).
97. Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, opened for signature Mar. 18, 1970, 23 U.S.T. 2555, 847 U.N.T.S. 231. Professor Brand, for example, states: As with the Service Convention, the U.S. Supreme Court has ruled that exclusive resort to the Evidence Convention is not required. While this may allow short-cuts in the discovery process, the ability to enforce any resulting judgment should be considered at all stages, and Convention procedures should be followed wherever possible. Reliance on Convention channels to obtain evidence should diminish the possibility of grounds for denial of recognition or enforcement in a foreign court. Ronald A. Brand, Enforcement of Judgments in the United States and Europe, 13 J.L. & COM. 193, 206-07 (1994) (footnote omitted).
98. For speculation on whether there is a political dimension to the public policy exception, see infra text accompanying note 157.
99. For an overview of the choice-of-law requirement, see Bishop & Burnette, supra note 65, at 437; Juenger, supra note 23, at 34; and von Mehren & Trautman, supra note 9, at 1636-55.
100. Juenger, supra note 23, at 34 n. 194 (citing to the Philippines, France, and Poland as examples).
101. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 782 (D.C. Cir. 1984) (Edwards, J., concurring).
102. In Trajano v. Marcos, 978 F.2d 493, 503 (9th Cir. 1992), the Ninth Circuit endorsed a variant of this approach, affirming the district court's view that the ATCA "is simply a jurisdictional statute and creates no cause of action itself. [The district court] proceeded to determine damages on default under Philippine law. From this we assume that the court did not rely on treaties or international law to provide the cause of action, only to establish federal jurisdiction." For a comment on this approach, see Clyde H. Crockett, The Role of Federal Common Law in Alien Tort Statute Cases, 14 B.C. INT'L & COMP. L. REV. 29, 48-49 (1991). Interestingly, Crockett argues that the district court in Filartiga on remand "applied a common-law choice-of-law approach." Id. at 48 (discussing Filartiga v. Pena-Irala, 577 F. Supp. 860 (E.D.N.Y. 1984)). It seems doubtful whether this was really the case. Indeed, the district court held that, where the nations of the world have adopted a norm in terms so formal and unambiguous as to make it international "law," the interests of the global community transcend those of any one state. That does not mean that traditional choice-of-law principles are irrelevant. Clearly the court should consider the interests of Paraguay to the extent they do not inhibit the appropriate enforcement of the applicable international law or conflict with the public policy of the United States. Filartiga, 577 F. Supp. at 863-64. The court strove to reconcile this approach with one that was faithful to "the principles collected under the rubric of conflict of laws." Id. at 863.
103. In Xuncax v. Gramajo, 886 F. Supp. 162, 181-83 (D. Mass. 1995), the district court toyed with the idea of traveling down the path Judge Edwards recommended, implying that it would be possible to apply either Massachusetts or Guatemalan law. See id. at 181-83. It noted, however, that it might not matter which domestic law was chosen. For example, Judge Woodlock asserted, "I note, however, that I would reach substantially the same result here if I were to apply Massachusetts tort law, such as the Wrongful Death Act, or Guatemalan law." Id. at 182 n.22 (citations omitted).
104. 630 F.2d 876 (2d Cir. 1980).
105. See id. at 886-87.
106. See, e.g., Trajano, 978 F.2d at 496; Todd v. Panjaitan, No. CIV.A.92-12255-PBS, 1994 WL 827111, at *1 (D. Mass. Oct. 26, 1994); Paul v. Avril, 901 F. Supp. 330, 331 n.1 (S.D. Fla. 1994); Filartiga, 577 F. Supp. at 861.
107. Von Mehren and Trautman therefore conclude: The potential for unfairness is clearly greater when one party does not appear; moreover, in such cases the trial court is proceeding with no immediate prospect of appellate review. When the original judgment was not by default, it may be thought that the unsuccessful party either sought review - in which even he presumably has had an appellate testing of the fact-finding procedures - or acquiesced in the findings, in which event he should not be allowed to reopen the matter. Von Mehren & Trautman, supra note 9, at 1627.
108. See Adler, supra note 22, at 106 ("A judgment rendered in default complicates the recognition and enforcement process because the enforcing court is compelled to conduct a more searching review to ensure that the defendant was accorded fundamental fairness.").
109. 886 F. Supp. 162 (D. Mass. 1995).
110. Id. at 169.
111. Id.
112. See Amy L. Chua, The Privatization-Nationalization Cycle: The Link Between Markets and Ethnicity in Developing Countries, 95 COLUM. L. REV. 223, 225 (1995); Edward Carr, Survey of Business in Europe (2): What the Ministry Managed - The State Is Retreating from European Business, but Not Yet Far Enough, ECONOMIST, Nov. 23, 1996, at S5; Clive Crook, The World Economy: Spend, Spend, Spend: In All of the Advanced Economies, Government Has Grown Fat, ECONOMIST, Sept. 20, 1997, at S7; First Nation Singular, ECONOMIST, Nov. 25, 1995, at S3.
113. See Amy L. Chua, The Privatization-Nationalization Cycle: The Link Between Markets and Ethnicity in Developing Countries, 95 COLUM. L. REV. 223, 225 (1995); Edward Carr, Survey of Business in Europe (2): What the Ministry Managed - The State Is Retreating from European Business, but Not Yet Far Enough, ECONOMIST, Nov. 23, 1996, at S5; Clive Crook, The World Economy: Spend, Spend, Spend: In All of the Advanced Economies, Government Has Grown Fat, ECONOMIST, Sept. 20, 1997, at S7; First Nation Singular, ECONOMIST, Nov. 25, 1995, at S3.
114. See Amy L. Chua, The Privatization-Nationalization Cycle: The Link Between Markets and Ethnicity in Developing Countries, 95 COLUM. L. REV. 223, 225 (1995); Edward Carr, Survey of Business in Europe (2): What the Ministry Managed - The State Is Retreating from European Business, but Not Yet Far Enough, ECONOMIST, Nov. 23, 1996, at S5; Clive Crook, The World Economy: Spend, Spend, Spend: In All of the Advanced Economies, Government Has Grown Fat, ECONOMIST, Sept. 20, 1997, at S7; First Nation Singular, ECONOMIST, Nov. 25, 1995, at S3.
115. See Amy L. Chua, The Privatization-Nationalization Cycle: The Link Between Markets and Ethnicity in Developing Countries, 95 COLUM. L. REV. 223, 225 (1995); Edward Carr, Survey of Business in Europe (2): What the Ministry Managed - The State Is Retreating from European Business, but Not Yet Far Enough, ECONOMIST, Nov. 23, 1996, at S5; Clive Crook, The World Economy: Spend, Spend, Spend: In All of the Advanced Economies, Government Has Grown Fat, ECONOMIST, Sept. 20, 1997, at S7; First Nation Singular, ECONOMIST, Nov. 25, 1995, at S3.
116. According to Rebecca Simmons, [U]nder the [Foreign Sovereign Immunities Act (FSIA)] "agencies or instrumentalities" of foreign governments are always granted sovereign status, and the same principles are used to determine the availability of sovereign privileges in cases involving these enterprises as in cases involving sovereign states. Because these entities are generally engaged in commercial activities, the FSIA rarely grants them immunity . . . . Rebecca J. Simmons, Note, Nationalized and Denationalized Commercial Enterprises Under the Foreign Sovereign Immunities Act, 90 COLUM. L. REV. 2278, 2278 (1990).
117. 28 U.S.C. §§ 1602-1611 (1994).
118. For background material on foreign sovereign immunity and the reciprocity requirement, see Behr, supra note 65, at 222; and von Mehren & Patterson, supra note 23, at 75-76.
119. See, e.g., Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989); Hilao v. Estate of Marcos, 25 F.3d 1467, 1469-72 (9th Cir. 1994); Trajano v. Marcos, 978 F.2d 493, 496-98 (9th Cir. 1992); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 797 n.30 (D.C. Cir. 1984) (Edwards, J., concurring); id. at 805 n.13 (Bork, J., concurring); Xuncax v. Gramajo, 886 F. Supp. 162, 175-76 (D. Mass. 1995); Paul v. Avril, 812 F. Supp. 207, 210-12 (S.D. Fla. 1993).
120. See, e.g., Anne Bayefsky & Joan Fitzpatrick, International Human Rights Law in United States Courts: A Comparative Perspective, 14 MICH. J. INT'L L. 1, 9-13 (1992); Joan Fitzpatrick, The Future of the Alien Tort Claims Act of 1789: Lessons from In re Marcos Human Rights Litigation, 67 ST. JOHN'S L. REV. 491, 503-17 (1993); Tom Lininger, Overcoming Immunity Defenses to Human Rights Suits in U.S. Courts, 1 HARV. HUM. RTS. J. 177, 182-84, 185-88 (1994); Simon, supra note 50, at 57-67.
121. See, e.g., Anne Bayefsky & Joan Fitzpatrick, International Human Rights Law in United States Courts: A Comparative Perspective, 14 MICH. J. INT'L L. 1, 9-13 (1992); Joan Fitzpatrick, The Future of the Alien Tort Claims Act of 1789: Lessons from In re Marcos Human Rights Litigation, 67 ST. JOHN'S L. REV. 491, 503-17 (1993); Tom Lininger, Overcoming Immunity Defenses to Human Rights Suits in U.S. Courts, 1 HARV. HUM. RTS. J. 177, 182-84, 185-88 (1994); Simon, supra note 50, at 57-67.
122. See, e.g., Anne Bayefsky & Joan Fitzpatrick, International Human Rights Law in United States Courts: A Comparative Perspective, 14 MICH. J. INT'L L. 1, 9-13 (1992); Joan Fitzpatrick, The Future of the Alien Tort Claims Act of 1789: Lessons from In re Marcos Human Rights Litigation, 67 ST. JOHN'S L. REV. 491, 503-17 (1993); Tom Lininger, Overcoming Immunity Defenses to Human Rights Suits in U.S. Courts, 1 HARV. HUM. RTS. J. 177, 182-84, 185-88 (1994); Simon, supra note 50, at 57-67.
123. 488 U.S. 428 (1989).
124. Id. at 434.
125. See, e.g., Joan Fitzpatrick, The Claim to Foreign Sovereign Immunity by Individuals Sued for International Human Rights Violations, 15 WHITTIER L. REV. 465, 466 (1994) (arguing that the "legislative history of [the FSIA] indicates that Congress never adverted to the possibility of a natural person falling within its scope").
126. The contention that individuals fall outside the scope of the FSIA is said to be in line with case law on this subject. In Amerada Hess, the Supreme Court found that "[t]he Alien Tort Statute by its terms does not distinguish among classes of defendants, and it of course has the same effect after the passage of the FSIA as before with respect to defendants other than foreign states." 488 U.S. at 438. Lininger presents a number of reasons that individuals should not be able to rely on the FSIA as a protection from suit. See Lininger, supra note 95, at 185-88. In 1990, however, the Ninth Circuit defied this conventional wisdom by holding, in Chuidian v. Philippine National Bank, 912 F.2d 1095 (9th Cir. 1990), that the FSIA blocked some suits against individuals. According to Lininger, however, "[e]ven under the Ninth Circuit's standard, plaintiffs in human rights suits should encounter little difficulty. Where the defendants have exceeded the scope of their authority, the FSIA does not apply." Lininger, supra note 95, at 188.
127. See Hilao v. Estate of Marcos, 25 F.3d 1467, 1472 (9th Cir. 1994) ("In this case, the action is against the estate of an individual official who is accused of engaging in activities outside the scope of his authority. FSIA thus does not apply to this case.").
128. See, e.g., Paul v. Avril, 812 F. Supp. 207, 210 (S.D. Fla. 1993).
129. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 878 (2d Cir. 1980) (involving an ATCA action against Americo Norberto Pena-Irala, "Inspector General of Police in Asuncion, Paraguay"); Xuncax v. Gramajo, 886 F. Supp. 162, 169 (D. Mass. 1995) (against Hector Gramajo, "formerly Guatemala's Minister of Defense"); Paul, 812 F. Supp. at 209 (against Haiti's "Lieutenant General Prosper Avril"); Forti v. Suarez-Mason, 694 F. Supp. 707, 708 (N.D. Cal. 1988) (against Carlos Guillermo Suarez-Mason, "former Argentine general").
130. See State Immunity Act, 1978, ch. 33, reprinted in 17 I.L.M. 1123; see also RALPH H. FOLSOM ET AL., INTERNATIONAL BUSINESS TRANSACTIONS 375 (5th ed. 1996) (describing the British foreign sovereign immunity regime).
131. See supra Section II.F.
132. Both types of suits are governed by the Federal Rules of Civil Procedure.
133. See Harold Hongju Koh, Transnational Public Law Litigation, 100 YALE L.J. 2347, 2349 (1991) (claiming that "broader strategic goals" of the human rights community "are often served by a declaratory or default judgment announcing that a transnational norm has been violated" and stating that "[e]ven a judgment that the plaintiff cannot enforce . . . empowers the plaintiff by creating a bargaining chip for use in other political fora").
134. See, e.g., Forti, 694 F. Supp. at 708 (reporting that the "complaint in this action alleged numerous causes of action against defendant . . . growing out of events which allegedly occurred in the . . . Argentine military's so-called 'dirty war' against suspected subversion").
135. See Philip A. Akakwam, The Standard of Review in the 1994 Antidumping Code: Circumscribing the Role of GATT Panels in Reviewing National Antidumping Determinations, 5 MINN. J. GLOBAL TRADE 277, 287 (1986); Behr, supra note 65, at 211; Raymond Paretzky, A New Approach to Jurisdictional Questions in Transnational Litigation in U.S. Courts, 10 U. PA. J. INT'L BUS. L. 663, 663 (1988).
136. See Philip A. Akakwam, The Standard of Review in the 1994 Antidumping Code: Circumscribing the Role of GATT Panels in Reviewing National Antidumping Determinations, 5 MINN. J. GLOBAL TRADE 277, 287 (1986); Behr, supra note 65, at 211; Raymond Paretzky, A New Approach to Jurisdictional Questions in Transnational Litigation in U.S. Courts, 10 U. PA. J. INT'L BUS. L. 663, 663 (1988).
137. An example of a commercial case with ideological implications might involve a dispute between a massive multinational entity (MNE) and a small private enterprise hailing from a developing state that is forced to declare bankruptcy because of the defendant MNE's failure to perform a contractual obligation. Finding for the plaintiff in such a controversy might be regarded as furthering agendas favoring the Third World. Such sympathies are sometimes suspected of shaping the outcomes of particular controversies, such as the International Centre for the Settlement of Investment Disputes (ICSID) arbitration involving the Klöckner Group, a German multinational, and Cameroon. See generally Jan Paulsson, The ICSID Klöckner v. Cameroon Award: The Duties of Partners in North-South Economic Development Agreements, 1 J. INT'L ARB. 145 (1984).
138. See OLIVER WENDELL HOLMES, The Path of the Law, in COLLECTED LEGAL PAPERS 167, 175 (1920) ("The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it - and nothing else."); see also Thomas D. Morgan & Robert W. Tuttle, Legal Representation in a Pluralist Society, 63 GEO. WASH. L. REV. 984, 1021 (1995) ("[O]ver the past century, breach of contract has lost much of its normative significance."). Even governments can stomach the breaching of contracts that result in the expropriation of property belonging to their nationals as long as the taking is accompanied by "prompt, adequate, and effective" compensation. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 712 cmt. c (1987).
139. See OLIVER WENDELL HOLMES, The Path of the Law, in COLLECTED LEGAL PAPERS 167, 175 (1920) ("The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it - and nothing else."); see also Thomas D. Morgan & Robert W. Tuttle, Legal Representation in a Pluralist Society, 63 GEO. WASH. L. REV. 984, 1021 (1995) ("[O]ver the past century, breach of contract has lost much of its normative significance."). Even governments can stomach the breaching of contracts that result in the expropriation of property belonging to their nationals as long as the taking is accompanied by "prompt, adequate, and effective" compensation. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 712 cmt. c (1987).
140. See OLIVER WENDELL HOLMES, The Path of the Law, in COLLECTED LEGAL PAPERS 167, 175 (1920) ("The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it - and nothing else."); see also Thomas D. Morgan & Robert W. Tuttle, Legal Representation in a Pluralist Society, 63 GEO. WASH. L. REV. 984, 1021 (1995) ("[O]ver the past century, breach of contract has lost much of its normative significance."). Even governments can stomach the breaching of contracts that result in the expropriation of property belonging to their nationals as long as the taking is accompanied by "prompt, adequate, and effective" compensation. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 712 cmt. c (1987).
141. For example, politics bled into the tort litigation in Indian courts spawned by the environmental disaster in Bhopal. See generally JAMIE CASSELS, THE UNCERTAIN PROMISES OF LAW: LESSONS FROM BHOPAL (1993).
142. See, e.g., Albright Criticizes Malaysia on Human Rights, ORLANDO SENTINEL, July 29, 1997, at A4; Britain Condemns Nigeria's "Appalling" Human Rights Record, Agence France-Presse, Dec. 12, 1997, available in 1997 WL 13453413; Cuba's Official Newspaper Strikes Back, Criticizes US on Human Rights, Agence France-Presse, Dec. 6, 1997, available in 1997 WL 13449161; Stewart M. Powell, Lawmakers Press Jiang on China's Human Rights, ARIZ. REPUBLIC, Oct. 31, 1997, at A2.
143. See, e.g., Albright Criticizes Malaysia on Human Rights, ORLANDO SENTINEL, July 29, 1997, at A4; Britain Condemns Nigeria's "Appalling" Human Rights Record, Agence France-Presse, Dec. 12, 1997, available in 1997 WL 13453413; Cuba's Official Newspaper Strikes Back, Criticizes US on Human Rights, Agence France-Presse, Dec. 6, 1997, available in 1997 WL 13449161; Stewart M. Powell, Lawmakers Press Jiang on China's Human Rights, ARIZ. REPUBLIC, Oct. 31, 1997, at A2.
144. See, e.g., Albright Criticizes Malaysia on Human Rights, ORLANDO SENTINEL, July 29, 1997, at A4; Britain Condemns Nigeria's "Appalling" Human Rights Record, Agence France-Presse, Dec. 12, 1997, available in 1997 WL 13453413; Cuba's Official Newspaper Strikes Back, Criticizes US on Human Rights, Agence France-Presse, Dec. 6, 1997, available in 1997 WL 13449161; Stewart M. Powell, Lawmakers Press Jiang on China's Human Rights, ARIZ. REPUBLIC, Oct. 31, 1997, at A2.
145. See, e.g., Albright Criticizes Malaysia on Human Rights, ORLANDO SENTINEL, July 29, 1997, at A4; Britain Condemns Nigeria's "Appalling" Human Rights Record, Agence France-Presse, Dec. 12, 1997, available in 1997 WL 13453413; Cuba's Official Newspaper Strikes Back, Criticizes US on Human Rights, Agence France-Presse, Dec. 6, 1997, available in 1997 WL 13449161; Stewart M. Powell, Lawmakers Press Jiang on China's Human Rights, ARIZ. REPUBLIC, Oct. 31, 1997, at A2.
146. Humanitarian interventions have occurred in East Pakistan (Bangladesh), Cambodia, Uganda, Iraq, and Somalia. See generally Michael J. Reppas, Note & Comment, The Lawfulness of Humanitarian Intervention, 9 ST. THOMAS L. REV. 463 (1997).
147. See, e.g., Amnesty Int'l Criticizes Human Rights Abuses in Lebanon, Dow Jones Int'l News Serv., Oct. 9, 1997, available in Westlaw, All News Plus Wires; Commonwealth Lawyers Assoc. Criticizes Zambia Human Rights, Emerging Mkts. Rep., Oct. 24, 1997, available in Westlaw, All News Plus Wires.
148. See, e.g., Amnesty Int'l Criticizes Human Rights Abuses in Lebanon, Dow Jones Int'l News Serv., Oct. 9, 1997, available in Westlaw, All News Plus Wires; Commonwealth Lawyers Assoc. Criticizes Zambia Human Rights, Emerging Mkts. Rep., Oct. 24, 1997, available in Westlaw, All News Plus Wires.
149. For example, United Nations human rights activities are carried out under the auspices of the U.N. High Commissioner for Human Rights. See, e.g., Yadira Ferrer, Colombia-Human Rights: U.N. Delegate Condemns Murders of Activists, Inter Press Serv., May 20, 1997, available in 1997 WL 7075453. The Human Rights Committee also plays a key role. See, e.g., U.N. Human Rights Committee Condemns Senegal, Sudan, Africa News Serv., Nov. 13, 1997, available in 1997 WL 15137239. The punishment and deterrence of human rights violations lies at the heart of the work of the two international criminal tribunals, one for Rwanda and the other for the former Yugoslavia, that the U.N. Security Council established. See James E. Dorsey, International Human Rights, 31 INT'L LAW. 659, 659 (1997) ("The [Yugoslav] Tribunal has four goals: (1) stopping the commission of war crimes; (2) bringing perpetrators to justice; (3) ending the cycle of crime and recrimination between the contending parties; and (4) documenting the crimes for history before the guilty can attempt to rewrite the historical record.").
150. For example, United Nations human rights activities are carried out under the auspices of the U.N. High Commissioner for Human Rights. See, e.g., Yadira Ferrer, Colombia-Human Rights: U.N. Delegate Condemns Murders of Activists, Inter Press Serv., May 20, 1997, available in 1997 WL 7075453. The Human Rights Committee also plays a key role. See, e.g., U.N. Human Rights Committee Condemns Senegal, Sudan, Africa News Serv., Nov. 13, 1997, available in 1997 WL 15137239. The punishment and deterrence of human rights violations lies at the heart of the work of the two international criminal tribunals, one for Rwanda and the other for the former Yugoslavia, that the U.N. Security Council established. See James E. Dorsey, International Human Rights, 31 INT'L LAW. 659, 659 (1997) ("The [Yugoslav] Tribunal has four goals: (1) stopping the commission of war crimes; (2) bringing perpetrators to justice; (3) ending the cycle of crime and recrimination between the contending parties; and (4) documenting the crimes for history before the guilty can attempt to rewrite the historical record.").
151. For example, United Nations human rights activities are carried out under the auspices of the U.N. High Commissioner for Human Rights. See, e.g., Yadira Ferrer, Colombia-Human Rights: U.N. Delegate Condemns Murders of Activists, Inter Press Serv., May 20, 1997, available in 1997 WL 7075453. The Human Rights Committee also plays a key role. See, e.g., U.N. Human Rights Committee Condemns Senegal, Sudan, Africa News Serv., Nov. 13, 1997, available in 1997 WL 15137239. The punishment and deterrence of human rights violations lies at the heart of the work of the two international criminal tribunals, one for Rwanda and the other for the former Yugoslavia, that the U.N. Security Council established. See James E. Dorsey, International Human Rights, 31 INT'L LAW. 659, 659 (1997) ("The [Yugoslav] Tribunal has four goals: (1) stopping the commission of war crimes; (2) bringing perpetrators to justice; (3) ending the cycle of crime and recrimination between the contending parties; and (4) documenting the crimes for history before the guilty can attempt to rewrite the historical record.").
152. United Nations Convention on Contracts for the International Sale of Goods, Apr. 11, 1980, Annex I, U.N. Doc. A/Conf. 97/18, reprinted in 19 I.L.M. 668 [hereinafter CISG].
153. For treatment of the damages to which an injured party is entitled, see Delchi Carrier SpA v. Rotorex Corp., 71 F.3d 1024, 1028 (2d Cir. 1995), which held that, under the CISG, if the breach is "fundamental" the buyer may either require delivery of substitute goods or declare the contract void and seek damages.
154. Cf. Fleming James, Jr. & John J. Dickinson, Accident Proneness and Accident Law, 63 HARV. L. REV. 769, 769-77 (1950) (arguing that industrial and vehicular accidents are simply "inevitable" tragedies caused by accident-prone individuals whose physical and psychological make-up and unconscious habits cause them to pose inordinate dangers to themselves and others).
155. See, e.g., Leslie Bender, Teaching Torts as if Gender Matters: Intentional Torts, 2 VA. J. SOC. POL'Y & L. 115, 125-26 (1994).
156. For example, a recognizing court experiencing doubts about the jurisdictional pedigree of a given § 1350 judgment might, in some situations, feel compelled nonetheless to recognize it, justifying this result by stressing the need for comity.
157. See, e.g., Abebe-Jira v. Negewo, 72 F.3d 844, 845 (11th Cir.) ("Shortly after her arrest Negewo and guards interrogated and tortured her for a period of several hours. Negewo and several guards instructed Taye to remove her clothes, bound her arms and legs together, hung her from a pole and severely beat her. They then poured water onto her wounds to increase her pain. Taye received no medical care for the wounds and, as a result of the torture, bears permanent physical scars."), cert. denied, 117 S. Ct. 96 (1996); Kadic v. Karadžić, 70 F.3d 232, 237 (2d Cir. 1995) (mentioning that "two groups of plaintiffs asserted causes of action for genocide, rape, forced prostitution and impregnation, torture and other cruel, inhuman, and degrading treatment, assault and battery, sex and ethnic inequality summary execution, and wrongful death"); Filartiga v. Pena-Irala, 630 F.2d 876, 878 (2d Cir. 1980) ("Joelito Filartiga was kidnapped and tortured to death by Pena, who was then Inspector General of Police in Asuncion, Paraguay."). Some § 1350 suits, especially those that have failed, have not involved as ghastly conduct See, e.g., Jafari v. Islamic Republic of Iran, 539 F. Supp. 209, 215 (N.D. Ill. 1982) (holding that the expropriation of property is not prohibited by customary international law).
158. Allegations made in the Kadic case fit into this category. See Kadic, 70 F.3d at 236-37 (alleging "various atrocities, including brutal acts of rape, forced prostitution, forced impregnation, torture, and summary execution, carried out by Bosnian-Serb military forces as part of a genocidal campaign conducted in the course of the Bosnian civil war").
159. Cf. Doe v. Karadžić, 866 F. Supp. 734, 740 (S.D.N.Y. 1994) (finding the "acts alleged in the instant action . . . grossly repugnant"), rev'd on other grounds sub nom. Kadic, 70 F.3d 232 (2d Cir. 1995).
160. Cf., e.g., Susan L. Pilcher, Justice Without a Blindfold: Criminal Proceedings and the Alien Defendant, 50 ARK. L. REV. 269, 311 (1997) (noting that aliens who commit certain crimes of moral turpitude, which have been described as "conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one's fellow man or society in general," are subject to deportation); Leslie Holdcroft Brutality of Murder Earns Long Sentence, NEWS TRIB. (Tacoma, Wash.), Feb. 12, 1994, at B1 ("In the sentencing Friday of an Auburn man convicted of killing his wife, a King County Superior Court judge made two things clear: She had seen a lot of murders. This one was unforgettable.").
161. Cf., e.g., Susan L. Pilcher, Justice Without a Blindfold: Criminal Proceedings and the Alien Defendant, 50 ARK. L. REV. 269, 311 (1997) (noting that aliens who commit certain crimes of moral turpitude, which have been described as "conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one's fellow man or society in general," are subject to deportation); Leslie Holdcroft Brutality of Murder Earns Long Sentence, NEWS TRIB. (Tacoma, Wash.), Feb. 12, 1994, at B1 ("In the sentencing Friday of an Auburn man convicted of killing his wife, a King County Superior Court judge made two things clear: She had seen a lot of murders. This one was unforgettable.").
162. See, e.g., Abebe-Jira, 72 F.3d at 845 (arising out of a brutal military dictatorship in Ethiopia in the mid-1970s); Kadic, 70 F.3d at 236 (discussing "atrocities committed in Bosnia"); Paul v. Avril, 901 F. Supp. 330, 331 (S.D. Fla. 1994) (involving "the claims of six prominent Haitian citizens, opponents of the ruling military regime, for damages suffered by torture and false imprisonment directed by Prosper Avril who was then military ruler").
163. 630 F.2d 876 (2d Cir. 1980).
164. 901 F. Supp. 330 (S.D. Fla. 1994).
165. 886 F. Supp. 162 (D. Mass. 1995).
166. 72 F.3d 844 (11th Cir.), cert. denied, 117 S. Ct. 96 (1996).
167. See Christopher Hanson, As Cold War Fades, Information Flows but Not from Third World, SEATTLE POST-INTELLIGENCER, Aug. 1, 1991, at A1 ("Most information flows among the Northern Hemisphere's developed countries - the United States, Europe, Japan - and from North to South. Very little flows from South to North, or from one Southern Hemisphere nation directly to another."); Robert Walker, We Have Blind Spots Everywhere, Not Just in Latin America, MONTREAL GAZETTE, June 4, 1990, at B3 (discussing the lack of coverage of events in Sudan); Lawrence Weschler, Baghdad in Brazil, COLUM. JOURNALISM REV., Jan. 1, 1991, at 10 (discussing the limited coverage of former President George Bush's trip to Latin America as illustrative of the media's inattention to regional topics).
168. See Christopher Hanson, As Cold War Fades, Information Flows but Not from Third World, SEATTLE POST-INTELLIGENCER, Aug. 1, 1991, at A1 ("Most information flows among the Northern Hemisphere's developed countries - the United States, Europe, Japan - and from North to South. Very little flows from South to North, or from one Southern Hemisphere nation directly to another."); Robert Walker, We Have Blind Spots Everywhere, Not Just in Latin America, MONTREAL GAZETTE, June 4, 1990, at B3 (discussing the lack of coverage of events in Sudan); Lawrence Weschler, Baghdad in Brazil, COLUM. JOURNALISM REV., Jan. 1, 1991, at 10 (discussing the limited coverage of former President George Bush's trip to Latin America as illustrative of the media's inattention to regional topics).
169. See Christopher Hanson, As Cold War Fades, Information Flows but Not from Third World, SEATTLE POST-INTELLIGENCER, Aug. 1, 1991, at A1 ("Most information flows among the Northern Hemisphere's developed countries - the United States, Europe, Japan - and from North to South. Very little flows from South to North, or from one Southern Hemisphere nation directly to another."); Robert Walker, We Have Blind Spots Everywhere, Not Just in Latin America, MONTREAL GAZETTE, June 4, 1990, at B3 (discussing the lack of coverage of events in Sudan); Lawrence Weschler, Baghdad in Brazil, COLUM. JOURNALISM REV., Jan. 1, 1991, at 10 (discussing the limited coverage of former President George Bush's trip to Latin America as illustrative of the media's inattention to regional topics).
170. 25 F.3d 1467 (9th Cir. 1994).
171. 70 F.3d 232 (2d Cir. 1995).
172. See Challenger Disaster Rated the Top News Story in '86, DALLAS MORNING NEWS, Dec. 31 1986, at 9A (rating the Philippine political drama the fifth most covered story of 1986); Robert Dvorchak, Nexus of '93: Flood and Fire Generate Top News Stories, AP, Dec. 26, 1993, available in 1993 WL 4573416 (characterizing the Bosnian conflagration as the 10th most significant press story of 1993); Mitchell Landsberg, US Election, LA Riots, Hurricane Andrew Top News Stories of '92, AP, Dec. 28, 1992, available in 1992 WL 5331551 (ranking Yugoslavia as the fifth most important news story of 1992); The Top Ten Stories, Listed, AP, Dec. 22, 1995, available in 1995 WL 4420560 (ranking the Bosnian situation as the second most important news event of 1995).
173. See Challenger Disaster Rated the Top News Story in '86, DALLAS MORNING NEWS, Dec. 31 1986, at 9A (rating the Philippine political drama the fifth most covered story of 1986); Robert Dvorchak, Nexus of '93: Flood and Fire Generate Top News Stories, AP, Dec. 26, 1993, available in 1993 WL 4573416 (characterizing the Bosnian conflagration as the 10th most significant press story of 1993); Mitchell Landsberg, US Election, LA Riots, Hurricane Andrew Top News Stories of '92, AP, Dec. 28, 1992, available in 1992 WL 5331551 (ranking Yugoslavia as the fifth most important news story of 1992); The Top Ten Stories, Listed, AP, Dec. 22, 1995, available in 1995 WL 4420560 (ranking the Bosnian situation as the second most important news event of 1995).
174. See Challenger Disaster Rated the Top News Story in '86, DALLAS MORNING NEWS, Dec. 31 1986, at 9A (rating the Philippine political drama the fifth most covered story of 1986); Robert Dvorchak, Nexus of '93: Flood and Fire Generate Top News Stories, AP, Dec. 26, 1993, available in 1993 WL 4573416 (characterizing the Bosnian conflagration as the 10th most significant press story of 1993); Mitchell Landsberg, US Election, LA Riots, Hurricane Andrew Top News Stories of '92, AP, Dec. 28, 1992, available in 1992 WL 5331551 (ranking Yugoslavia as the fifth most important news story of 1992); The Top Ten Stories, Listed, AP, Dec. 22, 1995, available in 1995 WL 4420560 (ranking the Bosnian situation as the second most important news event of 1995).
175. See Challenger Disaster Rated the Top News Story in '86, DALLAS MORNING NEWS, Dec. 31 1986, at 9A (rating the Philippine political drama the fifth most covered story of 1986); Robert Dvorchak, Nexus of '93: Flood and Fire Generate Top News Stories, AP, Dec. 26, 1993, available in 1993 WL 4573416 (characterizing the Bosnian conflagration as the 10th most significant press story of 1993); Mitchell Landsberg, US Election, LA Riots, Hurricane Andrew Top News Stories of '92, AP, Dec. 28, 1992, available in 1992 WL 5331551 (ranking Yugoslavia as the fifth most important news story of 1992); The Top Ten Stories, Listed, AP, Dec. 22, 1995, available in 1995 WL 4420560 (ranking the Bosnian situation as the second most important news event of 1995).
176. See Holly B. Fechner, Note, Toward an Expanded Conception of Law Reform: Sexual Harassment Law and the Reconstruction of Facts, 23 U. MICH. J.L. REFORM 475 (1990).
177. Id. at 486. Fechner argues that "[s]exual harassment law changed because judges and society at large began to look at facts differently, not because courts simply decided a new theory was more appropriate. Facts previously discounted could now be categorized under the rubric of sexual harassment." Id. at 487.
178. Estes v. Texas, 381 U.S. 532, 544 (1965). The Court drew attention to the fact that "there had been a bombardment of the community with the sights and sounds of a two-day hearing during which the original jury panel, the petitioner, the lawyers and the judge were highly publicized." Id. at 538.
179. See, e.g., Ann E. Donlan, Ex-Lover Charges Hub Cop Threatened Her with Sex Tape, BOSTON HERALD, Dec. 8, 1993, at 24 (reporting the defense attorney's complaint "that the judge's bail decision was influenced unfairly by media coverage"); Asher Felix Landau, Fairness for Demjanjuk, JERUSALEM POST, Nov. 22, 1989, at 5 (reporting an Israeli Supreme Court justice's claim that "[h]e was . . . far from holding . . . that a professional judge could never be influenced by a newspaper publication"); Sandy Usui, Miura's Daughter Pleads for Help, Information in LA, Japan Econ. Newswire, Nov. 18, 1994, available in Westlaw, All News Plus Wires (quoting a daughter's claim that her father's conviction was erroneous, based on her belief that the "judges must have been influenced by the Japanese mass media, which presented him as a criminal long before his trial"). But cf. No Trial by the Press in Indonesia, Says Expert, JAKARTA POST, June 9, 1997, available in 1997 WL 11478750 (reporting that "[j]udges' verdicts are often influenced by economics or pressure from authorities but not by the press, [Indonesian] legal experts said yesterday").
180. See, e.g., Ann E. Donlan, Ex-Lover Charges Hub Cop Threatened Her with Sex Tape, BOSTON HERALD, Dec. 8, 1993, at 24 (reporting the defense attorney's complaint "that the judge's bail decision was influenced unfairly by media coverage"); Asher Felix Landau, Fairness for Demjanjuk, JERUSALEM POST, Nov. 22, 1989, at 5 (reporting an Israeli Supreme Court justice's claim that "[h]e was . . . far from holding . . . that a professional judge could never be influenced by a newspaper publication"); Sandy Usui, Miura's Daughter Pleads for Help, Information in LA, Japan Econ. Newswire, Nov. 18, 1994, available in Westlaw, All News Plus Wires (quoting a daughter's claim that her father's conviction was erroneous, based on her belief that the "judges must have been influenced by the Japanese mass media, which presented him as a criminal long before his trial"). But cf. No Trial by the Press in Indonesia, Says Expert, JAKARTA POST, June 9, 1997, available in 1997 WL 11478750 (reporting that "[j]udges' verdicts are often influenced by economics or pressure from authorities but not by the press, [Indonesian] legal experts said yesterday").
181. See, e.g., Ann E. Donlan, Ex-Lover Charges Hub Cop Threatened Her with Sex Tape, BOSTON HERALD, Dec. 8, 1993, at 24 (reporting the defense attorney's complaint "that the judge's bail decision was influenced unfairly by media coverage"); Asher Felix Landau, Fairness for Demjanjuk, JERUSALEM POST, Nov. 22, 1989, at 5 (reporting an Israeli Supreme Court justice's claim that "[h]e was . . . far from holding . . . that a professional judge could never be influenced by a newspaper publication"); Sandy Usui, Miura's Daughter Pleads for Help, Information in LA, Japan Econ. Newswire, Nov. 18, 1994, available in Westlaw, All News Plus Wires (quoting a daughter's claim that her father's conviction was erroneous, based on her belief that the "judges must have been influenced by the Japanese mass media, which presented him as a criminal long before his trial"). But cf. No Trial by the Press in Indonesia, Says Expert, JAKARTA POST, June 9, 1997, available in 1997 WL 11478750 (reporting that "[j]udges' verdicts are often influenced by economics or pressure from authorities but not by the press, [Indonesian] legal experts said yesterday").
182. See, e.g., Ann E. Donlan, Ex-Lover Charges Hub Cop Threatened Her with Sex Tape, BOSTON HERALD, Dec. 8, 1993, at 24 (reporting the defense attorney's complaint "that the judge's bail decision was influenced unfairly by media coverage"); Asher Felix Landau, Fairness for Demjanjuk, JERUSALEM POST, Nov. 22, 1989, at 5 (reporting an Israeli Supreme Court justice's claim that "[h]e was . . . far from holding . . . that a professional judge could never be influenced by a newspaper publication"); Sandy Usui, Miura's Daughter Pleads for Help, Information in LA, Japan Econ. Newswire, Nov. 18, 1994, available in Westlaw, All News Plus Wires (quoting a daughter's claim that her father's conviction was erroneous, based on her belief that the "judges must have been influenced by the Japanese mass media, which presented him as a criminal long before his trial"). But cf. No Trial by the Press in Indonesia, Says Expert, JAKARTA POST, June 9, 1997, available in 1997 WL 11478750 (reporting that "[j]udges' verdicts are often influenced by economics or pressure from authorities but not by the press, [Indonesian] legal experts said yesterday").
183. In Kadic, Alliances (an African Women's Network), Human Rights Watch, and the International Human Rights Law Group filed briefs as amici curiae. See Kadic v. Karadžić, 70 F.3d 232, 236 (2d Cir. 1995). On the brief for plaintiffs were practitioners affiliated with the Center for Constitutional Rights, the International Women's Human Rights Clinic, the International League of Human Rights, the Allard K. Lowenstein International Human Rights Clinic, and the NOW Legal Defense and Education Fund. See id. at 235-36.
184. See id. at 232.
185. See, e.g., Douglass W. Cassel, Jr., Court Threatened by Post-Cold War Fallout, CHI. DAILY L. BULL., Mar. 12, 1996, at 5 (reporting that, according to Human Rights Watch, "[i]t is entirely inappropriate . . . for Europe's foremost human rights body [the Council of Europe] to admit as a member a country [Russia] whose government has so repeatedly and so recently shown scorn for civilian life"); Martin Walker, Pressed Down in the Wicked Kingdom US Human Rights Monitors Are Attacking Growing Restrictions on Liberty in Britain, GUARDIAN (London), Mar. 3, 1993, at 13 (reporting that "Britain is the new Wicked Kingdom, according to a highly critical report to be published in the US this week by Human Rights Watch").
186. See, e.g., Douglass W. Cassel, Jr., Court Threatened by Post-Cold War Fallout, CHI. DAILY L. BULL., Mar. 12, 1996, at 5 (reporting that, according to Human Rights Watch, "[i]t is entirely inappropriate . . . for Europe's foremost human rights body [the Council of Europe] to admit as a member a country [Russia] whose government has so repeatedly and so recently shown scorn for civilian life"); Martin Walker, Pressed Down in the Wicked Kingdom US Human Rights Monitors Are Attacking Growing Restrictions on Liberty in Britain, GUARDIAN (London), Mar. 3, 1993, at 13 (reporting that "Britain is the new Wicked Kingdom, according to a highly critical report to be published in the US this week by Human Rights Watch").
187. Cf. Marvette Darien, Rights: Tribunal Attacks Violations Against Indigenous Groups, Inter Press Serv., Dec. 11, 1997, available in 1997 WL 13258073 (noting that the Nigerian National Youth Council of Ogoni People accused the Royal Dutch Shell Company of consorting with that country's military dictators to exploit Ogoni oil land).
188. See, e.g., Hilao v. Estate of Marcos, 94 F.3d 539, 541 (9th Cir. 1996); Kadic, 70 F.3d at 236; Sanchez-Espinoza v. Reagan, 770 F.2d 202, 204 (D.C. Cir. 1985); Filartiga v. Pena-Irala, 630 F.2d 876, 878 (2d Cir. 1980). U.S. courts have usually followed the President's lead.
189. See Eric Rasmusen, Judicial Legitimacy as a Repeated Game, 10 J.L. ECON. & ORG. 63, 65 n.4 (1994) (observing that, "[e]ven in modern Europe, an independent judiciary does not mean the same thing as in the United States: 'Oversight and disciplinary measures may be directed toward judicial activity outside the core (Kernbereich) decisional process protected by judicial independence'" (quoting David Clark, The Selection and Accountability of Judges in West Germany: Implementation of the Rechtsstaat, 61 S. CAL. L. REV. 1797, 1840 (1988))).
190. See Eric Rasmusen, Judicial Legitimacy as a Repeated Game, 10 J.L. ECON. & ORG. 63, 65 n.4 (1994) (observing that, "[e]ven in modern Europe, an independent judiciary does not mean the same thing as in the United States: 'Oversight and disciplinary measures may be directed toward judicial activity outside the core (Kernbereich) decisional process protected by judicial independence'" (quoting David Clark, The Selection and Accountability of Judges in West Germany: Implementation of the Rechtsstaat, 61 S. CAL. L. REV. 1797, 1840 (1988))).
191. Cf. Bangkok Summit Urged To Address Human Rights, Agence France-Presse, Feb. 27, 1996, available in 1996 WL 3812196 (reporting that, "[i]n Brussels, European Commission President Jacques Santer indicated Tuesday that his side would downplay human rights and stress instead 'the things that bring us together rather than divide us'"); Steve Glain & Charles Fleming, Turf War: Europe Inc. Muscles U.S. and Japan Aside in Rich Asian Market, WALL ST. J. EUR., Oct. 7, 1997, at 1 ("U.S. companies also complain of getting undercut by sanctions imposed out of Washington's emphasis on human rights and residual Cold War concerns. European governments aren't so squeamish.").
192. Cf. Bangkok Summit Urged To Address Human Rights, Agence France-Presse, Feb. 27, 1996, available in 1996 WL 3812196 (reporting that, "[i]n Brussels, European Commission President Jacques Santer indicated Tuesday that his side would downplay human rights and stress instead 'the things that bring us together rather than divide us'"); Steve Glain & Charles Fleming,
193. See Unconventional: Human Rights (Human Rights Case May Set Precedent), ECONOMIST, Sept. 24, 1994, at 56.
194. See Mark D. Welton, The NATO Stationing Agreements in the Federal Republic of Germany: Old Law and New Politics, 122 MIL. L. REV. 77, 90 (1988) (noting that "the Green Party filed suit in the Federal Constitutional Court, alleging that the decision to allow the stationing of missiles on the territory of the Federal Republic violated the Basic Law (Grundgesetz)").
195. For a description of the Reagan Administration's efforts, as well as the obstacles it faced, see Strobe Talbott, Playing Nuclear Poker, TIME, Jan. 31, 1983, at 10, 14, which quotes President Reagan as saying that "[t]he collapse of the deployments . . . would leave Europe with 'no deterrent on our side.'" Cf. Elaine Ganley, Lawyer for United States Says France May Fear New Bombings, AP, Feb. 26, 1987, available in 1987 WL 3133886 (quoting a lawyer representing the United States as saying that "[I] hope the court will be very indulgent toward someone who, in my opinion, is a big terrorist").
196. For a description of the Reagan Administration's efforts, as well as the obstacles it faced, see Strobe Talbott, Playing Nuclear Poker, TIME, Jan. 31, 1983, at 10, 14, which quotes President Reagan as saying that "[t]he collapse of the deployments . . . would leave Europe with 'no deterrent on our side.'" Cf. Elaine Ganley, Lawyer for United States Says France May Fear New Bombings, AP, Feb. 26, 1987, available in 1987 WL 3133886 (quoting a lawyer representing the United States as saying that "[I] hope the court will be very indulgent toward someone who, in my opinion, is a big terrorist").
197. See West Germany's High Court Won't Bar U.S. Missiles, SAN DIEGO UNION-TRIB., Dec. 22, 1983, at A5.
198. The opposite result might obtain if it was thought that the United States had overreached on a specific issue. For example, the hard-line stance taken by Washington on Cuba could derail the recognition of a hypothetical ATCA or TVPA suit brought by individuals who had suffered at the hands of the Castro regime. Cf. Council of Europe Calls for Lifting of Helms-Burton Law, Deutsche Presse-Agentur, Sept. 25, 1997, available in Westlaw, All News Plus Wires (discussing European hostility to U.S. sanctions on firms doing business with Cuba).
199. See Community Nutrition Inst. v. Block, 698 F.2d 1239, 1252 n.74 (D.C. Cir. 1983) ("If a question is abstract, the constitutional limits on standing require dismissal. If on the other hand, the concern is that other governmental institutions are more competent to address the question, the political question doctrine, a prudential consideration, would appear to require dismissal."), rev'd on other grounds, 467 U.S. 340 (1984).
200. In Baker v. Carr, 369 U.S. 186 (1962), for example, the Court noted in dictum: There are sweeping statements to the effect that all questions touching foreign relations are political questions. Not only does resolution of such issues frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature; but many such questions uniquely demand single-voiced statement of the Government's views. Yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Id. at 211.
201. 726 F.2d 774 (D.C. Cir. 1984) (per curiam).
202. See id. at 823-27 (Robb, J., concurring); see also Sanchez-Espinoza v. Reagan, 568 F. Supp. 596, 599 (D.D.C. 1983) (refusing to hear a suit on the grounds that it "presents a nonjusticiable political question"). But see Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir.) (finding the political question doctrine inapplicable), cert. denied, 117 S. Ct. 96 (1996).
203. The political question doctrine enjoys varying levels of popularity with judicial decisionmakers in Europe. For example, German courts are hesitant to characterize a given controversy as nonjusticiable because of its political nature. See THOMAS FRANCK, POLITICAL QUESTIONS/JUDICIAL ANSWERS 115 (1992). In the foreign policy arena, meanwhile, "German courts grant broad discretionary power to the governmental authority whose decision is in dispute." Justus R. Weiner, Human Rights in Limbo During the Interim Period of the Israeli-Palestinian Peace Process: Review, Analysis, and Implications, 27 N.Y.U. J. INT'L L. & POL'Y 761, 792 (1995). Of course, the recognition of a decision rendered in a § 1350 suit would not require a court to review an action undertaken by the German government unless the defendant was a German official (which is not likely to be the case) or if Bonn were to request that the U.S. decision not be ratified. British courts have also embraced this doctrine. See id. at 785. In some cases, French courts are likely to defer to their counterparts in the political branches. See Elisabeth Zoller, Book Review, 82 AM. J. INT'L L. 385, 386 (1988) (reviewing DOMINIQUE CARREAU, DROIT INTERNATIONAL (1986)).
204. The political question doctrine enjoys varying levels of popularity with judicial decisionmakers in Europe. For example, German courts are hesitant to characterize a given controversy as nonjusticiable because of its political nature. See THOMAS FRANCK, POLITICAL QUESTIONS/JUDICIAL ANSWERS 115 (1992). In the foreign policy arena, meanwhile, "German courts grant broad discretionary power to the governmental authority whose decision is in dispute." Justus R. Weiner, Human Rights in Limbo During the Interim Period of the Israeli-Palestinian Peace Process: Review, Analysis, and Implications, 27 N.Y.U. J. INT'L L. & POL'Y 761, 792 (1995). Of course, the recognition of a decision rendered in a § 1350 suit would not require a court to review an action undertaken by the German government unless the defendant was a German official (which is not likely to be the case) or if Bonn were to request that the U.S. decision not be ratified. British courts have also embraced this doctrine. See id. at 785. In some cases, French courts are likely to defer to their counterparts in the political branches. See Elisabeth Zoller, Book Review, 82 AM. J. INT'L L. 385, 386 (1988) (reviewing DOMINIQUE CARREAU, DROIT INTERNATIONAL (1986)).
205. The political question doctrine enjoys varying levels of popularity with judicial decisionmakers in Europe. For example, German courts are hesitant to characterize a given controversy as nonjusticiable because of its political nature. See THOMAS FRANCK, POLITICAL QUESTIONS/JUDICIAL ANSWERS 115 (1992). In the foreign policy arena, meanwhile, "German courts grant broad discretionary power to the governmental authority whose decision is in dispute." Justus R. Weiner, Human Rights in Limbo During the Interim Period of the Israeli-Palestinian Peace Process: Review, Analysis, and Implications, 27 N.Y.U. J. INT'L L. & POL'Y 761, 792 (1995). Of course, the recognition of a decision rendered in a § 1350 suit would not require a court to review an action undertaken by the German government unless the defendant was a German official (which is not likely to be the case) or if Bonn were to request that the U.S. decision not be ratified. British courts have also embraced this doctrine. See id. at 785. In some cases, French courts are likely to defer to their counterparts in the political branches. See Elisabeth Zoller, Book Review, 82 AM. J. INT'L L. 385, 386 (1988) (reviewing DOMINIQUE CARREAU, DROIT INTERNATIONAL (1986)).
206. The political question doctrine enjoys varying levels of popularity with judicial decisionmakers in Europe. For example, German courts are hesitant to characterize a given controversy as nonjusticiable because of its political nature. See THOMAS FRANCK, POLITICAL QUESTIONS/JUDICIAL ANSWERS 115 (1992). In the foreign policy arena, meanwhile, "German courts grant broad discretionary power to the governmental authority whose decision is in dispute." Justus R. Weiner, Human Rights in Limbo During the Interim Period of the Israeli-Palestinian Peace Process: Review, Analysis, and Implications, 27 N.Y.U. J. INT'L L. & POL'Y 761, 792 (1995). Of course, the recognition of a decision rendered in a § 1350 suit would not require a court to review an action undertaken by the German government unless the defendant was a German official (which is not likely to be the case) or if Bonn were to request that the U.S. decision not be ratified. British courts have also embraced this doctrine. See id. at 785. In some cases, French courts are likely to defer to their counterparts in the political branches. See Elisabeth Zoller, Book Review, 82 AM. J. INT'L L. 385, 386 (1988) (reviewing DOMINIQUE CARREAU, DROIT INTERNATIONAL (1986)).
207. For a list of the many legal requirements that a jurisdiction can invoke to refuse the recognition of a foreign judgment, see supra note 21.
208. See, e.g., Prosecutor v. Tadić, U.N. Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia Since 1991, Case No. IT-94-1-AR72 (App. Chamber 1995), reprinted in 35 I.L.M. 32, 41 ("The doctrines of 'political questions' and 'non-justiciable disputes' are remnants of the reservations of 'sovereignty', 'national honour', etc. in very old arbitration treaties. They have receded from the horizon of contemporary international law.").
209. Jonathan H. Pittman, Note, The Public Policy Exception to the Recognition of Foreign Judgments, 22 VAND. J. TRANSNAT'L L. 969, 995 (1989).
210. See, e.g., Maureen Johnson, Newborn Supporter of Democracy Takes Over with Kalashnikov Rifle, AP, May 30, 1991, available in 1991 WL 6188374 (reporting on new Ethiopian leaders coming to power).
211. See, e.g., Barry Schweid, US Assured of Two More Years' Use of Philippines Bases, AP, Oct. 17, 1988, available in 1988 WL 3817380 (reporting that then-Secretary of State George Schultz was pleased with the return of democracy in the Philippines).
212. See, e.g., Francis Kohn, Guatemala President Ready To Negotiate Personally with Guerrillas, Agence France-Presse, Nov. 24, 1994, available in 1994 WL 9640160 (referring to the election of Guatemala's human rights ombudsman as President).
213. See, e.g., Editor Says Sentence of General Shows Argentine Justice Works, AP, Dec. 3, 1986, available in 1986 WL 3084408 (noting that the return of Argentine democracy triggered trials of military officers).
214. See, e.g., Michelle Faul, V.N. Mission Ends with Fragile Democracy in Impoverished Haiti, AP, Nov. 30, 1997, available in 1997 WL 4894510 (documenting the end of the U.N. peacekeeping mission to Haiti following the restoration of a fragile democracy in that country).
215. See, e.g., Hugo Ruiz Olazar, Thousands of Cotton Farmers March on Asuncion Demanding Government Help, Agence France-Presse, Mar. 16, 1994, available in 1994 WL 9546592 (quoting President Juan Carlos Wasmosy as saying that "nothing would stop the success of the democratic process" in Paraguay).
216. See Ed McCullough, Peronists on the Move Again in Argentina, AP, Dec. 25, 1988, available in 1988 WL 3828786 (mentioning that during military rule in Argentina, Peronist politicians, including President Carlos Menem, were jailed).
217. See US Court Orders 105 Million Dollars in Rwanda Genocide, Agence France-Presse, Apr. 9, 1996, available in 1996 WL 3835262 (reporting the Rwandan government's waiver of any claim to immunity pressed by Jean Bosco Barayagwiza, former head of the political affairs office of the foreign ministry).
218. See Lloyd N. Cutler, The Marcos Millions: What the Law Says, WASH. POST, Mar. 13, 1986, at A23 (arguing that newly elected Philippine President Corazon Aquino "can obtain one other personal satisfaction out of the American legal system. Under our Alien Tort statute, . . . she and her family could bring a damage action against Gen. Fabian Ver and other Marcos retainers, perhaps even the former president himself, for participating in the conspiracy to murder her husband").
219. For a graphic example of this competition for property, see Hilao v. Estate of Marcos, 94 F.3d 539, 542-43 (9th Cir. 1996).
220. See Harold Hongju Koh, Why Do Nations Obey International Law?, 106 YALE L.J. 2599, 2630 (1997) (review essay) ("The post-Cold War era has seen international law, transnational actors, decisional fora, and modes of regulation mutate into fascinating hybrid forms.").
221. For details surrounding the establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY), see 2 VIRGINIA MORRIS & MICHAEL P. SCHARF, AN INSIDER'S GUIDE TO THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA: A DOCUMENTARY HISTORY AND ANALYSIS (1995). For a similar discussion of the Rwanda Tribunal, see Paul J. Magnarella, Expanding the Frontiers of Humanitarian Law: The International Criminal Tribunal for Rwanda, 9 FLA. J. INT'L L. 421 (1994).
222. For details surrounding the establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY), see 2 VIRGINIA MORRIS & MICHAEL P. SCHARF, AN INSIDER'S GUIDE TO THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA: A DOCUMENTARY HISTORY AND ANALYSIS (1995). For a similar discussion of the Rwanda Tribunal, see Paul J. Magnarella, Expanding the Frontiers of Humanitarian Law: The International Criminal Tribunal for Rwanda, 9 FLA. J. INT'L L. 421 (1994).
223. This overlap already exists for both U.N. criminal tribunals. For example, the ICTY has indicted the defendant in the Kadic suit, Radovan Karadžić. For details on the complaint against him, see 20 Indictments. 74 Indictees (visited Feb. 17, 1998) 〈http://www.un.org/icty/list2.htm〉. See also Annan Asked To Allow Senior Official [To] Testify on War Crimes, Agence France-Presse, Nov. 20, 1997, available in 1997 WL 13438040 (reporting that the U.N. International Tribunal for Rwanda had taken Jean Bosco Barayagwiza, "former head of the political affairs office of the foreign ministry and figure on the board of the propagandist Mille Collines radio station," into custody). For details of the § 1350 suit initiated against Barayagwiza, see Mushikiwabo v. Barayagwiza, No. 94 Civ. 3627 (JSM), 1996 WL 164496 (S.D.N.Y. Apr. 9, 1996) (awarding plaintiffs $150 million for torts committed by the defendant).
224. This overlap already exists for both U.N. criminal tribunals. For example, the ICTY has indicted the defendant in the Kadic suit, Radovan Karadžić. For details on the complaint against him, see 20 Indictments. 74 Indictees (visited Feb. 17, 1998) 〈http://www.un.org/icty/list2.htm〉. See also Annan Asked To Allow Senior Official [To] Testify on War Crimes, Agence France-Presse, Nov. 20, 1997, available in 1997 WL 13438040 (reporting that the U.N. International Tribunal for Rwanda had taken Jean Bosco Barayagwiza, "former head of the political affairs office of the foreign ministry and figure on the board of the propagandist Mille Collines radio station," into custody). For details of the § 1350 suit initiated against Barayagwiza, see Mushikiwabo v. Barayagwiza, No. 94 Civ. 3627 (JSM), 1996 WL 164496 (S.D.N.Y. Apr. 9, 1996) (awarding plaintiffs $150 million for torts committed by the defendant).
225. See William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 YALE L.J. 1, 31 (1997) (discussing the use of forfeiture laws by state and federal prosecutors). Examples of legal provisions allowing the ICTY to freeze and seize assets and provide for monetary compensation are Rules 61 and 106 of its rules of procedure and evidence. See INT'L CRIM. TRIB. FOR FORMER YUGO., R.P. & EVID. 61, 106, available in Rules of Procedure and Evidence (visited Feb. 17, 1998) 〈http://www.un.org/icty/rev11e.htm〉.
226. See William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 YALE L.J. 1, 31 (1997) (discussing the use of forfeiture laws by state and federal prosecutors). Examples of legal provisions allowing the ICTY to freeze and seize assets and provide for monetary compensation are Rules 61 and 106 of its rules of procedure and evidence. See INT'L CRIM. TRIB. FOR FORMER YUGO., R.P. & EVID. 61, 106, available in Rules of Procedure and Evidence (visited Feb. 17, 1998) 〈http://www.un.org/icty/rev11e.htm〉.
227. See Thomas W. Dunfee & Aryeh S. Friedman, The Extra-Territorial Application of United States Antitrust Laws: A Proposal for an Interim Solution, 45 OHIO ST. L.J. 883, 914 (1984) ("'Despite the real obligation of courts to apply international law and foster comity, domestic courts do not sit as internationally constituted tribunals.'" (quoting Laker Airways Ltd. v. Sabena Belgian World Airlines, 731 F.2d 909, 951 (D.C. Cir. 1984))).
228. This is a valid concern. In other highly specialized transnational litigation contexts, there have been shortages of legal practitioners. See Larry Smith, After Lockheed . . . FCPA Concerns Drive New Compliance Programs, INSIDE LITIG. 1, 5 (1997) (documenting a shortage of lawyers in the context of the Foreign Corrupt Practices Act).
229. Since this Note assumes that most validation efforts will be mounted in Western European jurisdictions, it is possible that some consumers of legal services would be underrepresented if lawyers concerned with human rights began devoting increasing amounts of resources to representing § 1350 judgment-creditors. These are parties seeking relief from judicial and quasi-judicial bodies like the European Court of Human Rights and the European Commission of Human Rights. This Note offers no view as to whether this would actually be the case. It seems quite likely, however, especially if the chance of actually recovering property is relatively great, that the entire task of achieving the validation of ATCA and TVPA judgments could be outsourced to parties motivated by market incentives. This would allow practitioners who currently represent parties before the region's human rights machinery to continue engaging in this important activity.
230. Cf. Leo Katz, Blackmail and Other Forms of Arm-Twisting, 141 U. PA. L. REV. 1567, 1611 (1993) (delineating the relationship between civil and criminal law); John T. Nockleby, Hate Speech in Context: The Case of Verbal Threats, 42 BUFF. L. REV. 653, 690 (1994) (commenting on the desirability of tort remedies in some contexts).
231. Cf. Leo Katz, Blackmail and Other Forms of Arm-Twisting, 141 U. PA. L. REV. 1567, 1611 (1993) (delineating the relationship between civil and criminal law); John T. Nockleby, Hate Speech in Context: The Case of Verbal Threats, 42 BUFF. L. REV. 653, 690 (1994) (commenting on the desirability of tort remedies in some contexts).
232. Beth Stephens, Conceptualizing Violence Under International Law: Do Tort Remedies Fit the Crime?, 60 ALB. L. REV. 579, 581 (1997).
233. 70 F.3d 232 (2d Cir. 1995).
234. Naomi Roht-Arriaza, Punishment, Redress, and Pardon: Theoretical and Psychological Approaches, in IMPUNITY AND HUMAN RIGHTS IN INTERNATIONAL LAW AND PRACTICE 13, 21 (Naomi Roht-Arriaza ed., 1995).
235. See id. at 19. But see, e.g., All Things Considered (NPR radio broadcast, Sept. 10, 1997) (reporting that South Africa's Truth and Reconciliation Commission has caused some victims' psychological wounds to reopen).
236. See, e.g., Debra A. Harvey, The Alien Tort Statute: International Human Rights Watchdog or Simply "Historical Trivia"?, 21 J. MARSHALL L. REV. 341, 341 (1988).
237. See sources cited supra notes 11, 21, 22.