Correspondence
Reviewed work(s):
Source: The American Journal of International Law, Vol. 83, No. 4, The United States
Constitution in its Third Century: Foreign Affairs (Oct., 1989), pp. 901-904
Published by: American Society of International Law
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NOTES
AND COMMENTS
ANNE PATRICIA
SIMONS
(1923-1989)
The readers and editors of thisJournalnote withsadness the passing of
formerAssistantEditor Anne Patricia Simons. A specialistin international
organizationaffairsand treaties,Miss Simons was a graduate of Stanford
Universityand held a master's degree in political science from Columbia
University.
She began to acquire expertise in internationalorganizationswhile still
young,as a memberof the originalSecretariatof the United Nations,in the
General Political Division of the Department of SecurityCouncil Affairs.
Her subsequent experience included a stintas an editor for the Carnegie
Endowmentfor InternationalPeace and service on the staffsof the Johns
Hopkins UniversitySchool of Advanced International Studies and the
President'sCommissionforthe Observance of the 25th Anniversaryof the
United Nations.
Miss Simons became AssistantEditor of the American
JournalofInternationalLaw in 1972, serving for 6 years and at the same time editing the
of the Society. In that capacity,she is warmlyrememannual Proceedings
bered by manymembersof the Board of Editors and of the Society's staff.
She brought to the tasks both professionalismand intimateknowledge of
the field.
She joined the Officeof the Legal Adviser of the Departmentof State in
1980 as editor of Treatiesin Force,a positionshe held untilApril 1989. She
was also coauthor of four books on the United Nations and peacekeeping:
TheUnitedNationsand theMaintenanceofInternational
Peace and Security,
with
Leland M. Goodrich (1955); Charterof theUnitedNations:Commentary
and
Documents,with Leland M. Goodrich and Edvard Hambro (3d rev. ed.
1969); The UnitedStatesand theUnitedNations:The Searchfor International
Peace and Security,
withLawrence D. Weiler (1967); and International
Peacekeepingat theCrossroads:National Support-Experienceand Prospects,with
David W. Wainhouse (1973).
MARIAN NASH LEICH*
CORRESPONDENCE
TO THE EDITOR
IN CHIEF:
June 12, 1989
Considerable ink has been spilton the subject of 28 U.S.C. ?1350,1 the
Alien Tort Statute. My limitedpurposes here are to address Anne-Marie
* Officeof the Legal Adviser,Departmentof State.
I See,e.g.,Casto, TheFederalCourts'ProtectiveJurisdiction
in Violationofthe
OverTortsCommitted
Law ofNations,18 CONN. L. REV. 467 (1986).
901
902
THE AMERICAN JOURNAL OF INTERNATIONAL
LAW
[Vol. 83
Burley's appealing analysisof the statutepresented in the last issue of the
Journal2and to draw attentionto significantlegislationthatcasts additional
lighton the framingof the statute.My commentsrelate to Oliver Ellsworth,
the drafterof section 1350 and the most influentialsenator in the First
Congress,whichenacted the Alien Tort Statute.3
ProfessorBurleyhas taughtus thatwe mustnot take a narrowand cynical
view of the foundinggeneration'scommitmentto the law of nations.They
doubtless were worldly men who feared the practical consequences of
United States implicationin violationsof internationallaw. But Professor
Burley remindsus that public internationallaw is more than a superstructure of concepts for rationalizingthe pursuitof national securityinterests.
She makes a good case thatthe foundinggenerationunderstoodthe law of
nationsas an independentsystemof self-executingnatural law thatdefined
internationalduties and relations.Therefore, she argues thatregardlessof
practicalimplicationsfor the nation's securityinterests,the Founders must
have viewed section 1350 as an overt recognitionof a pervasive natural
obligation to comply generallywith the law of nations. Under this aspiraour nation's committional view,the statuteis a badge of honor signifying
ment to the ideals of public internationallaw.
My continuingresearch on the lifeof Oliver Ellsworthis consistentwith
the badge of honor thesis. In particular, Ellsworth was a New Divinity
Calvinistwho drew much of his personal philosophyfroma theologythat
viewed the world as minutelypredestined by an infiniteand omnipotent
God.4 Therefore, Ellsworthnaturallywould have seen the law of nationsas
reflectingGod's predestinedorderingof the world. When viewed through
this lens, compliance with the law of nations is a matterof conformingto
This analysisis
God's will and most certainlynot a matterof self-interest.
exemplifiedby an 1804 religious tract published by the Connecticut MissionarySociety in which the societyurged on purely theological grounds
that everyone'sduty,"whetheras magistratesor people-[lies] in respecting the rightsof nations-in regardingthe faithof treaties,and in avoiding,
as the greatestof evils,offensiveand unjustwar."5 Ellsworthwas a trusteeof
the MissionarySociety and served on the nine-mancommitteeresponsible
fordraftingthistract.6
mirroredin a 1782 Connecticut
The badge of honor thesisis imperfectly
statuteentitled"An Act to prevent Infractionsof the Laws of Nations."7
This statuteclearlywas enacted in response to the ContinentalCongress's
1781 law of nations resolution. Furthermore,Ellsworth,who draftedsection 1350 just 7 years later, was a member of the Connecticut General
2
Actof 1789: A Badge ofHonor,83 AJIL 461
Burley,The Alien TortStatuteand theJudiciary
(1989).
3 In the first Senate, Ellsworth "was a shrewder political operator than all the others com31 (1974).
bined." F. MCDONALD, THE PRESIDENCY OF GEORGE WASHINGTON
'
and theRole ofReligionin theEarlyRepublic(forthcoming).
See Casto, OliverEllsworth
5 MISSIONARY
PRACTICE:
THE UNITED
SOCIETY
DESIGNED
STATES
OF CONNECTICUT,
ESPECIALLY
OF AMERICA,
A SUMMARY
OF CHRISTIAN
FOR THE USE OF THE PEOPLE
DOCTRINE
IN THE NEW SETTLEMENTS
AND
OF
ch. XX, ?3 (1804).
6 See Casto, supra note 4.
7 4 THE PUBLIC RECORDS OF THE STATE OF CONNECTICUT
FOR THE YEAR 1782, at 156-57
(L. Labaree ed. 1942) [hereinafter PUBLIC RECORDS]. I have searched the ConnecticutState
Archivesand found no manuscriptrecordsof the passage of thisAct. The onlyarchivalrecord
is its appearance in the official1784 compilationof the state's laws. ACTS AND LAWS OF THE
1989]
NOTES AND COMMENTS
903
Assembly'supper house when the Act was passed.8 The preamble begins
withthe statementthat"any violationor Infractionof the Laws of Nations is
. . . unjust in itself."9But this statementcannot serve as an ideal typefor
the badge of honor thesis. In the same sentence we are informedthat a
violationof internationallaw "is not onlyunjustin itselfbut ifnot prevented
directlytends to the Dishonour and Ruin of any Nation."'0
The ConnecticutAct exemplifiesa problem in the evidence supporting
the badge of honor thesis. The preamble (as well as the primarysources
cited in ProfessorBurley's article) advances both national securityand innate dutyas bases for givingeffectto public internationallaw. Therefore,
we cannot knowwhetherone or the otheror both takentogetherconstitute
the fundamental motivation for vindicating international law. Notwithstandingthis conundrum, we may safelyassume that the badge of honor
thesis is valid at least as a partial explanation of section 1350's origin.
Certainly,the thesisringstrue in the case of Oliver Ellsworth,the statute's
drafter.
In addition to providingimperfectsupportforthe badge of honor thesis,
the ConnecticutAct providesfurtherevidence on the fundamentalquestion
whetherthe Alien Tort Statute should be given a narrow or broad interpretation.In compliance withthe ContinentalCongress's request, the Connecticut General Assemblyprovided for criminal sanctions and civil tort
remedies.The criminalsanctionswere aimed at the usual specificviolations
of public internationallaw, coupled withan omnibus clause aimed at "any
other Infractionsor Violations of or Offencesagainst the known received
and establishedLaws of Civilized Nations."" The civil tortremedyis even
broader. Withoutregard to violationsof the law of nations, the Act provided a damage remedyagainst
[for]any Injury . . . to anyforeignPower
any . . . Persons whatsoever
by means
or to the Subjects thereof,eitherin TheirPersonsor Property,
whereofanyDamage shallor mayanywaysarise happen or accrue either
to anysuch foreignPower, to the said United States,to thisState or to
anyparticularPerson.'2
When Ellsworthdrafted the Alien Tort Statute, he must have remembered the earlier ContinentalCongress resolve and the earlier Connecticut
Act. He was a memberof both the ContinentalCongress and the Connecticut legislature.Both earlier measures were quite expansive, and he chose
similarlyopen-ended language forhis federaljurisdictionalstatute.
Although much of the literatureon the Alien Tort Statute includes extensivehistoricalanalyses,the implementationof thisancient statutein the
late 20th and early 21st centuries must transcend simple antiquarianism.
vests the federal districtcourts with
The Alien Tort Statute self-evidently
STATE OF CONNECTICUT IN AMERICA 82-83 (R. Sherman& R. Law eds. 1784). The Act's title
in the 1784 compilation is "An Act for securing to Foreigners in this State, their Rights,
according to the Laws of Nations,and to preventany Infractionsof said Laws." Id. at 82. The
IN
Act was still in effectin 1796. See ACTS AND LAWS OF THE STATE OF CONNECTICUT
AMERICA 211-12 (1796).
8 4 PUBLIC RECORDS, supra note 7, at 130.
9Id. at 156.
'0Id.
" Id. at 156-57 (1st and 3d unnumberedsectionsof the Act).
12
Id. at 157 (finalunnumberedsection) (emphasisadded).
904
THE AMERICAN JOURNAL OF INTERNATIONAL
[Vol. 83
LAW
originaljurisdiction,and the enactingCongress clearlyintended that a liberal constructionshould be given to the statute.Given the special natureof
the Congress's constitutionalstewardshipover the lower federal courts,'3
the federaljudiciary should be reluctantto reject this clear congressional
purpose. More important,as a matterof late 20th-centuryjurisdictional
policy,the Congress'soriginaldecision stillmakes sense. Regardlessof one's
view of section 1350 litigation,these internationalhuman rightscases raise
obvious concerns for the federal Government,charged under our Constitutionwithplenarypower over mattersaffectingforeignaffairs.Therefore,
the federal courtsshould not be disabled fromaddressingthese important
federalquestions.Under our federalsystem,a narrowinterpretationwould
forcethislitigationinto the statecourts,leaving these questionsto sporadic
supervisionby our single, national Supreme Court. In contrast,a liberal
interpretationof section 1350 empowers the entire federal judiciary to
fashionappropriatelimitationsto section 1350 litigation.
I have urged elsewherethe necessityof a fundamentaldistinctionbetween
subject matterjurisdictionand other issues that may arise in section 1350
litigation.'4The Alien Tort Statutewas intendedby the enactingCongress
as a jurisdictional statute and has been so understood by all subsequent
Congresses. For thisreason the statute'shistoricalcontext has virtuallyno
relevance to mattersunrelated to the narrow and quite technical issue of
originalsubject matterjurisdiction.'5A broad grantof subject matterjurisdictiongives the federalcourtspower to elaborate federalrules of decision
binding on all United States courts-both state and federal. In fashioning
these rules, the federaljudiciary should consider the institutionalcompetence of domestic courts to resolve essentiallypolitical questions having
obvious foreignaffairsimplications.This considerationsuggeststhe need
fora significantforeclosureof section 1350 litigationbut does not seem as
pertinentto the narrowcategoryof torturerswho seek a retirementhaven
in the United States.
WILLIAM
13 See Casto, supra note
R.
CASTO*
14 See Casto, supra note 1.
1, at 489.
Of course, the very existence of the statute necessarilyimplies the existence of some
substantiveclaims encompassed by the statute.See id. at 478-86.
* Professorof Law, Texas Tech University.
15