| by Darcie L. Christopher I. INTRODUCTION This Note discusses several issues involved in litigation concerning gross human rights violations. Specifically, it addresses human rights violations so serious they are included among those violations viewed as jus cogens: peremptory norms of international law from which no derogation is permitted.(1) Two recent decisions in the District Court for the District of New Jersey dismissed claims by victims of slave labor during the Holocaust against multinational corporations that they profited from the use of slave labor.(2) These claims were dismissed on the grounds that, though the Court possessed subject matter jurisdiction under the Alien Tort Claims Act (ATCA), prior reparation agreements between governments precluded individual victims from bringing private suits.(3) In addition, the court stated that the cases were non-justiciable under the political question doctrine and the principle of international comity.(4) This Note will begin by providing a short synopsis of the background factual information required to understand the breadth of these claims and a brief overview of the historical significance of the claims. Examining the court's dismissal of these actions, this Note suggests that the reparation agreements entered into by the United States should be found invalid because they, in effect, violated jus cogens by condoning the acts of the German government and the corporations that profited from the use of slave labor. The analytical section of this Note begins by providing a description of the jus cogens concept as it has evolved over time. It then continues with a discussion of whether private parties can violate jus cogens and additionally whether, as international law stands today, individuals have rights under international law to bring actions on their own behalf or whether they must rely on their respective states to bring such actions. Following this discussion, the Note addresses why it should not be within a state's power to bargain away an individual's remedy, as provided for under international law. Then, assuming that the international agreements were invalid under international law, this Note examines the question of whether a domestic court in the United States could still refuse to adjudicate the action on the basis of the political question doctrine. Finally, this Note addresses both the positive and negative effects such a determination would have on the international political community, as well as on the international business community. II. HOLOCAUST LITIGATION A. Historical Context Close to six million Jewish men, women, and children were killed at the instigation of Nazi Germany during World War II.(5) In addition, eight-to-ten million persons were forced to work as slave laborers in factories in Germany and throughout Europe during the War.(6) It is estimated that Nazis stole between 230 billion and 320 billion in assets in today's dollars.(7) Some historians have estimated that approximately 700,000 of these forced laborers are still alive; others place the number of survivors at 1.6 million.(8) Since 1950, postwar West Germany has made approximately $70 billion in reparation payments to Holocaust victims.(9) Nevertheless, even with such reparation payments, many Nazi victims have yet to receive adequate compensation. As a result, the reparations problem still persists today.(10) When one compares the large number of victims to the reparation payments that have been provided, the individual amounts provided to survivors thus far have been grossly inadequate in comparison to the suffering and losses these individuals have been forced to endure. The Holocaust-era litigation emerged in 1996, when Holocaust survivors began filing claims in U.S. courts at both the federal and state levels. These included: claims against Swiss banks;(11) claims against European insurance companies;(12) claims arising from the use of slave labor;(13) claims against German and Austrian banks;(14) and claims regarding art stolen by the Nazis.(15) This Note addresses exclusively those claims against corporations arising from the use of slave labor. B. Slave Labor Claims Against Corporations While postwar Germany paid reparations to some Jewish victims of Nazi persecution, the German government excluded slave laborers from these payments, claiming that it was not obligated to make reparations because the laborers worked for private German industry.(16) Similarly, German industry argued that payments should come from the government because industry had been acting under the control of the government during the War.(17) In October 1998, as part of an effort to compensate slave laborers, the German government announced that it would join with German industry in the creation of a joint fund to cover those not included in existing German reparation laws.(18) In addition, in late 1998, some German companies announced that they would develop commissions to investigate the role of their corporate forerunners in Nazi Germany and agreed to make payments to their former slave laborers who were still alive.(19) In February 1999, the German government and industry announced that a $1.7 billion fund was created to compensate slave laborers.(20) This fund is being financed solely by German industry with the German government's promise that it would create an additional "German Federal" fund in the future.(21) None of these actions has been effective in preventing litigation from going forward. 1. Iwanowa v. Ford Motor Co. The first slave labor action was filed against the Ford Motor Company in a federal class action in Newark, New Jersey, in March 1998.(22) In the action, the Ford Motor Company and its German subsidiary Ford Werke were accused of accepting substantial financial benefits from the use of forced labor in Nazi Germany during World War II.(23) The complaint alleged that by 1942, twenty-five percent of the work force utilized by Ford Werke A.G. consisted of unpaid forced laborers and that by 1943 that number had grown to fifty percent.(24) In 1942, when plaintiff Iwanowa was seventeen years old, Nazi troops abducted her and transported her to Germany with about 2000 other adolescents.(25) Once in Germany, Ford Werke purchased Iwanowa, and she was transported to work in Ford Werke's plant in Cologne.(26) From 1942 until 1945, Iwanowa was forced to perform heavy labor for Ford Werke and was housed with sixty-five other slave laborers in a hut without heat, running water, or sewage facilities.(27) In this suit, Iwanowa "sought compensation for the reasonable value of her services, restitution of unjust enrichment ... and damages for the pain and suffering" that resulted from the inhumane working conditions.(28) The District Court for the District of New Jersey dismissed Iwanowa's action on October 28, 1999.(29) Although the Court initially ruled that subject matter jurisdiction existed(30) and that postwar agreements had tolled the ten-year statute of limitations on claims under the Alien Tort Claims Act (ATCA) until 1991,(31) it found that these agreements had not tolled the statute of limitations for direct claims against the parent corporation.(32) The Court also held that the claims against the manufacturer must be dismissed because it was the intent of the post-war treaties and agreements that individual claims would be resolved as part of the reparation discussions between the governments.(33) It also found that the statute of limitations had run for claims filed under U.S. state law(34) and German law.(35) Furthermore, the Court found that even if statute of limitation problems did not exist, the claims would still be barred in U.S. courts by the political question doctrine(36) and basic principles of international comity.(37) 2. Burger-Fischer v. Degussa The second claim alleging violations of international law by the use of slave labor arose in Burger-Fischer v. Degussa.(38) In this complaint, four class actions arising out of slave labor allegations, as well as allegations regarding confiscated gold, were joined for the purposes of justiciability.(39) Like Iwanowa, this case was dismissed on the grounds that prior reparation treaties precluded plaintiffs' claims,(40) and also on grounds that slave labor involves a political question, not one to be decided by the judiciary.(41) 3. Other Forced Labor Litigation A third claim was filed by eleven World War II survivors on behalf of all Polish nationals who were compelled to perform forced labor for any German or Austrian company at any time from 1933 until 1945.(42) The suit, filed on January 28, 1999, names twenty-two corporations, as well as hundreds of German Doe and Austrian Doe corporations, as defendants in a claim alleging that the defendants enslaved civilian populations that were under the control of Nazi Germany.(43) This case had not yet been decided as of December 31, 1999, and is not discussed in this Note. III. THE RELATIONSHIP BETWEEN JUS COGENS AND INTERNATIONAL HUMAN RIGHTS Before concluding that prior reparation agreements settled individual claims for the atrocities committed by German corporations during the War, the courts in both Iwanowa and Degussa should have considered whether the international agreements arising out of World War II were justified in precluding individuals' rights to issue claims arising from the War. The court in Iwanowa determined that, although the Two Plus Four Treaty lifted the London Debt Agreement's moratorium on consideration of WWII claims, the London Debt Agreement only allowed for individual claims to be pursued government to government, thereby precluding any individual's right to private litigation.(44) Similarly, the Degussa court determined that the status of private claims in the reparation context, such as those arising out of war hostilities, should be treated differently than claims arising under other contexts.(45) The Degussa court held that claims belong to the state in which the injured individual is a citizen; the court also held that the long line of international agreements with regard to reparations arising out of the War settled claims such as those posed by victims of slave labor.(46) However, these courts failed to consider the importance of violations of jus cogens and peremptory norms of international law when interpreting whether an international agreement is valid. Jus cogens is a norm of international law from which no derogation is permitted and, as such, enjoys the highest status within international law.(47) The following paragraphs discuss the progression of the concept of jus cogens, while also considering whether, as international law stands today, private parties can indeed be held liable for a violation of international law. A. The Evolution of Jus Cogens The term jus cogens was first officially defined in Articles 53 and 64 of the Vienna Convention on the Law of Treaties in 1974 as a "peremptory norm of international law from which no derogation is permitted."(48) The concept of jus cogens arose from customary international law, those laws resulting from the consistent and general practice among states that arise from a sense of legal obligation.(49) However, jus cogens differs from customary international law in that while customary international law depends on the consent of states, jus cogens is binding on all nations(50) and consists of values viewed as fundamental by the international community as a whole rather than the self-interested choices of nations.(51) Historically, courts have looked to "works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law" to determine if an act is a violation of customary international law.(52) However, jus cogens takes customary international law one step further by transforming a violation of customary international law into a violation of jus cogens only when the act is so universally condemned that the international community as a whole recognizes it as a violation of a norm from which no derogation is permitted.(53) Historically, courts first recognized piracy as an actionable violation of jus cogens,(54) but more recently courts have begun to recognize a broader array of violations as meeting the requisites of jus cogens.(55) For example, one court recognized that a violation of jus cogens occurs when the state condones the act in question, there is a recognizable universal consensus of prohibition against it, there are sufficient criteria to determine whether a given action amounts to the prohibited act, and the prohibition is non-derogable and binding at all times on all actors.(56) In addition, the Third Restatement of Foreign Relations Law determined that a state violates jus cogens if it practices, encourages, or condones genocide, slavery, slave trade, murder or disappearance of individuals, torture, prolonged arbitrary detention, or systematic racial discrimination.(57) It was not until the Nuremberg trials that such a broad outlook was recognized. The Nuremberg trials categorized, for the first time, the following as international crimes: waging a war of aggression and oppressing individuals on political, racial, or religious grounds in relation to such a war; and exterminating, enslaving, or deporting a civilian population.(58) Several other commentators have suggested that it is unlikely that any other state has violated jus cogens to an extent comparable to those violations committed by the Third Reich.(59) In addition to its application in judicial proceedings, the concept of jus cogens has also been applied to the law of treaties. This is shown by the Vienna Convention's determination that "[a] treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law ... [which] is a norm accepted by the international community of States as a whole as a norm from which no derogation is permitted."(60) The Restatement concludes that an international agreement is invalid if it conflicts with a peremptory norm of general international law in existence when the agreement is concluded.(61) If an international agreement is invalid under the principles of jus cogens, "no party is obligated to perform further acts under the agreement; and the parties are to eliminate as far as possible the consequences of acts performed under the agreement that violate the principles specified in [sections] 331(2)."(62) However, the full agreement is not necessarily invalid if the terms of the portion of the agreement in violation of jus cogens can be separated from the agreement without affecting the continued performance of the remainder of the treaty.(63) B. Can Private Parties Violate Jus Cogens? Before World War II, international law was primarily concerned with the rights and duties of sovereign states and governed by state interaction.(64) However, following the War, the Nuremberg trials established the now widely recognized principle that international law "imposes duties and liabilities upon individuals as well as upon states."(65) This theory is supported in the international arena by overreaching issues of fairness. Beth Isenberg in her article, Genocide, Rape, and Crimes Against Humanity, explained the theory this way: | |
Fairness provides that those who receive the protection of international
law also be subject to the obligations which pertain under such law,
especially obligations to refrain from genocide, other crimes against
humanity and war crimes, as well as the responsibilities that flow from the
commission of such international derelicts.(66)
| | Evidencing support for this argument is dicta in the Iwanowa decision, stating that the court could find "[n]o logical reason ... for allowing private individuals and corporations to escape liability for universally condemned violations of international law merely because they were not acting under the color of law."(67) In fact, the court concluded that it would likely have found that the private entities violated international law, but that sufficient facts were pled to allege that the corporations acted as agents of the state.(68) C. Individual Remedies Under International Law The theory that an individual has a right to remedy under international law presents a more complicated issue. Courts have been reluctant to carve such paths into international law. As a result, several conflicting decisions leave uncertain the question of what remedies, if any, are available to individuals.(69) Given the general understanding that violations of jus cogens affect all persons, whether actual victims or incidental ones, it seems contradictory to the fundamental concern for fairness to rely on state action and diplomacy as the only source of resolution to crimes so awful that they are deemed in violation of the peremptory norms of all nations. If issues of fairness require both individual and state actors to be held liable for any actions in violation of jus cogens, and if those protected by international law are also subject to its obligations, how can the argument be made that the persons directly harmed by these violations do not also have the right to file individual claims? This section discusses how U.S. law continues to evolve regarding this issue. One view adopted by earlier courts is that international law does not provide a private cause of action to individuals.(70) The court in Handel while finding that violations of four different treaties did not create a private cause of action, also ruled that plaintiffs could not infer a right of action from the law of nations.(71) The court, as did other courts of that era, rationalized that in order to provide a consensus on what international law includes, the state must reserve the power to enforce international laws.(72) In 1979, prominent international law scholar Louis Henkin, in an attempt to define human rights under international law, proposed three different perspectives on the relationship between the state's obligation and individuals' rights.(73) The first viewed international agreements as undertakings between states and the individual as the "incidental beneficiary" of these undertakings.(74) The second, which Henkin seemed to adopt, gave individuals substantive rights, but not to the point of giving them separate remedies for the violation of such rights.(75) Under this theory individual rights would be enforceable only by interstate remedies through governments or international bodies.(76) The third perspective discussed by Henkin suggested that legislators have "legislated `human rights' into international law giving them status as affirmative independent values."(77) This perspective created the perception that "each state agrees to recognize and give legal status in the international system to `human rights' as claims that every individual has ... each state ... undertakes to respect and ensure these values for its own citizens, thereby also creating rights in other states, and perhaps individuals."(78) Decisions allowing individuals to bring actions in domestic courts for violations of international law support the proposition that the international community as it stands today has progressed toward recognizing individual rights in the world of foreign relations.(79) Courts have also granted individuals a private right of action under certain treaties and agreements by determining that the Alien Tort Claims Act (ATCA) provides both jurisdiction and a private cause of action for individuals claiming violations of international law.(80) The Iwanowa court agreed with such decisions and recognized that Iwanowa's complaint set forth a private cause of action.(81) However, the court determined that these claims were precluded by previous reparation agreements.(82) If the court had not looked to the prior agreements, it may not have found that Iwanowa had a claim under the ATCA. With the claim secured by the ATCA, there would be no need to make the more difficult argument that the claim should exist merely because there was a general violation of customary international law rather than a violation encoded within a treaty. However, even if the claim was not secured under the ATCA, some courts have adopted the minority view and have gone so far as to accept a claim on the basis that it is a violation of customary international law.(83) D. Does a State Have the Power to Bargain Away Individual Remedies? The very idea underpinning the concept of international human rights is that individuals have rights against their own states. However, victims "often find themselves without remedy because their own governments refuse to provide one and because most international tribunals will not entertain the claims of individuals."(84) The notion of individual rights under international law is based on individual dignity, and this conflicts with the traditional state-centered conception of international law.(85) As discussed in the previous section, even Louis Henkin, a prominent scholar and an advocate of human rights, recognized that international law provides remedies largely to states, not individuals.(86) However, because international law is an area of law open to change and new concepts as they arise within the international community, this state-centered concept may also have evolved.(87) Evidence of such change comes from the more recent declaration of the Sub-Commission on the U.N. Human Rights Commission, which declared that "all victims of gross violations of human rights and fundamental freedoms should be entitled to restitution, a fair and just compensation and the means for as full a rehabilitation as possible for any damage suffered by such victims, either individually or collectively."(88) Civil lawsuits can play an important role in enabling legal systems of individual states to deal with issues concerning gross violations of international law.(89) However, there is often a great reluctance in domestic courts to confer jurisdiction over international law violations that have occurred elsewhere.(90) The U.S. Constitution provides its citizens with many privileges and fundamental freedoms that are often taken for granted.(91) With those rights come duties and responsibilities--one of which is the responsibility of our nation to address horrendous human rights violations that occur worldwide.(92) Many international agreements have incorporated private rights and duties, including the Universal Declaration of Human Rights and the American Declaration of the Rights and Duties of Man.(93) The American Declaration emphasizes that "[t]he fulfillment of duty by each individual is a prerequisite to the rights of all. Rights and duties are interrelated in every social and political activity of man. While rights exalt individual liberty, duties express the dignity of that liberty."(94) Article 30 of the Universal Declaration also emphasizes such duties and adds that "[t]he duties implied are duties not to engage in action aimed at the destruction of the human rights of others."(95) Of course, it is a far stretch to find that a treaty, which merely settles individual claims for a horrendous act over fifty years old, violates jus cogens. However, examining the claims in the context of the U.S. Constitution and the purposes behind democracy, both of which recognize the sanctity of an individual's dignity and rights, makes it clear that the United States cannot ignore such flagrant violations of individual human rights. The United States needs to recognize that the real atrocity was not committed by the German Reich alone, but also by corporations, many with American connections, that benefited from the use of slave labor;(96) it is also crucial to recognize that Holocaust-related claims involve not only German corporations, but their American affiliates as well.(97) However, the Iwanowa court failed to recognize the significance of these claims. Instead it found that the statute of limitations period had tolled against Ford, the American company involved in the case, and therefore all claims against Ford were time barred.(98) If individual Holocaust victims possess the opportunity to bring claims against American corporations, but this opportunity is subsequently destroyed by state treaties created not to make individuals whole but instead to rebuild an economy, how can these treaties be viewed as valid under international law? Despite persuasive arguments supporting individuals' rights to bring these claims, it is unlikely that the U.S. court system is ready to create such an expansive definition of jus cogens. In light of our legal system's reaction to exceptions to principles of international law in the context of other jus cogens violations, it is unlikely that a U.S. court will invalidate a treaty because it takes away an individual's right to seek remedies or provides inadequate compensation.(99) However, at least one court has shown its reluctance to issue such an opinion, recognizing the appeal of the notion that a foreign state forfeits sovereign immunity when it engages in conduct that violates fundamental humanitarian standards.(100) Unfortunately, this and similar recent holdings are probably anomalies. It is doubtful that U.S. courts will look to the future of international human rights and recognize the importance of providing individual citizens an opportunity to bring individual claims resulting from violations committed during World War II. However, to take away an individual's right to bring a cause of action for a gross violation of international law is to take away a right guaranteed by the U.S. Constitution. A treaty that destroys those rights should not be upheld. IV. THE POLITICAL QUESTION DOCTRINE AND ITS RELATIONSHIP TO JUS COGENS A. Problems under the Political Question Doctrine If one assumes that the reparation agreements do violate jus cogens and are therefore invalid, a question arises as to whether courts will nevertheless be required by the political question doctrine to defer to the political branches and enforce the treaties. Would the Constitution's separation of powers doctrine continue to require deference to treaties even if they violate jus cogens? 1. Traditional Approach To Judicial Deference Taken By The United States Courts in the United States have historically restricted civil liberties and have refused to adjudicate such cases on the basis of judicial deference using three principal decisional techniques: (1) deferring almost absolutely to the government, particularly to the Executive Branch on questions of foreign policy;(101) (2) employing a "balancing test" that assesses the claims against asserted government interests;(102) and (3) dismissing lawsuits on justiciability grounds such as standing,(103) ripeness,(104) sovereign immunity, and political questions.(105) In fact, it has been said that, "[a]ll the doctrines that lead courts not to decide cases find a home in the field of foreign affairs."(106) Examples of courts deferring to the political branches when the government uses foreign affairs or national security interests to justify restraints on individuals occurred as early as the World War II Japanese internment cases, which showed that even when racial discrimination was present, the Fourteenth Amendment may be of no avail.(107) 2. A Less Restrictive Approach Recognized By Today's Courts The Supreme Court has repeatedly recognized that courts should not deal with issues constitutionally committed to other branches of government. In fact, the Court created the political question doctrine to prevent the judicial branch from deciding such issues. Nonetheless, it has also maintained that "it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance."(108) For example, in Kadic, the court ruled that not every case that "implicate[s] sensitive matters of diplomacy" is nonjusticiable, and judges should not invoke the political question doctrine to "avoid difficult and somewhat sensitive decisions in the context of human rights."(109) In Kadic, the court relied on Filartiga in determining that the political question doctrine did not apply because the ATCA provides judicially manageable standards for adjudicating suits within its boundaries.(110) In his article Deference or Deception: Treaty Rights as Political Questions, David Bederman recognizes a spectrum of deference that courts have accorded to the executive branch regarding treaty application.(111) On one end of the spectrum, courts freely consider whether a treaty is self-executing, whether a subsequent statute has superseded it, and whether the domestic legal effect of a treaty obligation was modified by a reservation made by the Senate.(112) On the other end of the spectrum, courts defer to the executive and legislative branches to answer questions concerning whether a treaty is invalid because a partner was incapable of entering into such an agreement.(113) Courts also defer when a treaty is terminated, suspended, or modified due to the breach of a treaty partner.(114) Iwanowa and Degussa are located somewhere between these two ends of the spectrum, and it was unclear whether the court would adjudicate the cases.(115) However, according to Bederman, courts faced with issues in the middle of the spectrum will often conduct "a full and independent review of the underlying legal claim while carefully weighing the position of the Executive Branch."(116) 3. The Baker Approach to the Political Question Doctrine Bederman discusses human rights litigation under the Alien Tort Claims Act (ATCA).(117) He states that"no suit brought under ATCA has been dismissed because of political question concerns."(118) However, the political question doctrine is routinely raised as a defense to an ATCA claim.(119) In raising the political question doctrine, defendants often argue that because ATCA cases make actionable the conduct of foreign officials, the cases touch on matters of U.S. foreign policy that must be left to the political branches, not the courts.(120) However, according to Bederman,(121) the Supreme Court rejected this reasoning in the landmark Baker v. Carr decision.(122) In Baker, the Supreme Court noted that not every case or controversy involving foreign relations is beyond the reach of the judiciary.(123) In Baker, the Court provided six factors that courts should look to when determining if a matter raises a political question.(124) Courts should first determine whether the Constitution has committed the issue to a particular political department or whether no judicially discoverable and manageable standards exist to resolve the issue.(125) The court should also determine whether, in order to make a decision, it would first have to make a policy decision of the type clearly outside judicial discretion.(126) Next, a court should observe whether it has the ability to resolve the issue without exhibiting a lack of respect to other branches of the government; there is a need to adhere to a political decision already made; and there is "embarrassment potential" from the multifarious pronouncements of various government authorities.(127) In its analysis of the political question doctrine, the Iwanowa court found that war reparations have traditionally fallen within the domain of the political branches of the government.(128) However, the Iwanowa court did not consider the fact that these claims were not claims against the government, but claims against multinational corporations that profited at the expense of the plaintiff's labor.(129) The court did not consider that these were claims brought under the ATCA and alleged violations of jus cogens,(130) but rather reduced the action to a claim merely filed against the German government.(131) Iwanowa goes beyond such a claim, however, and should not have been generically labeled as one of a series of cases allowing for war reparations.(132) If the war reparation agreements are found to violate jus cogens, the court is forced to decide between two extreme positions. It can recognize an agreement as a violation, thus giving the highest judicial deference to the peremptory norms of international law and condemning the political branches for executing such an agreement. Alternatively, it can defer to the political branches under the separation of powers doctrine and allow the matter to be resolved through politics. This leaves the court in a very awkward position. If it determines that the treaties should not be upheld because they violate jus cogens, it is essentially accusing the political branches of allowing a truly monstrous act to go unpunished. By vindicating the peremptory norm of international law, the judiciary would be accusing our country's political branches of violating that norm. On the other hand, if the court defers the issue to the political branches and recognizes the validity of these agreements, the court would be indirectly condoning the acts of the Reich. Historically, the United States judiciary has given great deference to the legislative and executive branches in interpreting treaties as well as in determining whether another nation is in violation of a treaty.(133) As early as 1913, the Supreme Court recognized that "[the] construction of a treaty by the political department of the government, while not conclusive upon a court called upon to construe such a treaty in the matter involving personal rights, is nevertheless of much weight."(134) Given the deference that U.S. courts have historically accorded to the political branches in the area of international law, it is not surprising that a present day court would invoke the political question doctrine as a reason for refusing to adjudicate a case, as it did in Iwanowa,(135) rather than taking a position that might require it to find that the U.S. government entered into a treaty in violation of jus cogens norms. Another example of such deference occurred in Goldwater v. Carter.(136) Although the Goldwater majority did not base its ruling on the political question doctrine, Chief Justice Rehnquist's concurrence demonstrated the role U.S. courts play in determining whether a treaty is valid.(137) In Goldwater, the court determined that the case was non-justiciable because it concerned a political issue and involved the President's power to conduct foreign relations.(138) In a similar decision, the Supreme Court found that there was no basis for judicial action where the legislature of a state ratified a proposed amendment in spite of earlier rejection, ruling that this was a political question to be determined by the branches of the state legislature.(139) More recently, in a brief regarding Domingues v. Nevada, 961 P.2d 1279 (Nev. 1998), cert. denied 526 U.S. 1156 (1999), the Solicitor General of the United States argued: | |
[t]he suggestion that the courts, by declaring that the asserted jus cogens
norm exists and applies here, should in effect override the judgment of the
political Branches that the United States should not be bound by an
international legal prohibition against the execution of 16-year old
offenders plainly raises serious separation of powers concerns. In other
contexts touching on foreign relations and international law, the courts
have declined to substitute their judgment for that of the political
Branches ... the courts have not applied the provisions of a treaty that
have been abrogated by an Act of Congress ... or rules of customary
international law that have been rejected by the controlling acts of the
political Branches.(140)
| | Similarly, the Court has struggled endlessly with the determination of whether the act of state doctrine is a political question for the legislative and executive branches or a question for the judiciary merely taking into consideration opinions of the executive and legislative branches.(141) For example, in Banco National de Cuba v. Sabbatino, the Court found that the scope of the act of state doctrine would be determined as a matter of federal law in light of the Constitution's entrustment of foreign relations to the national government. However, the court also recognized that the act of state doctrine would not be compelled by international law.(142) The Sabbatino decision accurately represented the separation of powers struggle, because it was a divided decision among the justices with even the majority having differing opinions as to the judiciary's role in determining whether the state's action fell under the act of state doctrine.(143) As a result of the judiciary's deference to the executive and legislative branches with respect to foreign relations, it is unlikely that a U.S. court would adjudicate any lawsuit alleging that international agreements entered into years earlier with the purpose of settling war claims were invalid because they settled individuals' claims. Another prong of the Baker test involves the likelihood that a judicial decision would cause embarrassment because there would be "multifarious pronouncements by various departments on one question."(144) Although the court would be within its jurisdiction under the ATCA and would be recognizing the peremptory norms of international law by adjudicating atrocious violations of international human rights, invalidating international agreements entered into by the legislative and executive branches would undoubtedly cause such embarrassment. By allowing these claims to go forward, the judiciary would be producing a pronouncement in conflict with those of the other branches of the government. Another problem arises under the political question doctrine when one considers whether these claims present an appropriate vehicle for addressing the far-reaching contentions this Note addresses. The acts of the German government and corporations were truly monstrous. It would not be too extreme to determine that these violations warrant judicial intervention in favor of the victims of these horrendous acts. However, it is much more difficult to argue that the expansive definition of jus cogens embraced in earlier sections of this Note warrants the same reaction by the courts. Under this type of circumstance where one could find reasonable disagreement as to what violates jus cogens, it is likely that, and arguably reasonable for, the judiciary to defer to the political branches of the government. V. EFFECTS OF ADOPTING A MORE EXPANSIVE VIEW OF JUS COGENS A. Implications for the International Community If the international community embraced an expansive definition of jus cogens, the effect would be vast and far-reaching. If individuals were able to receive remedies under international law, and private remedies could not be settled by agreements among nations, the number of domestic suits filed in United States courts would increase drastically. Because the United States court system traditionally provides higher monetary awards than courts of other countries,(145) and because the United States has traditionally been more sympathetic to human rights claims,(146) more claims would likely be brought in the United States than any other country. This would further clog already over-crowded dockets in federal courts and would result in longer waiting periods before claims are adjudicated. Issues of fairness could also arise if an exception under the treatment of jus cogens for human rights violations were made for victims of the Holocaust. Although these victims' plights are recognizably horrible, as were the acts committed against them, so too are the acts that have been committed against many other minority cultures. If Holocaust victims are compensated for their losses, victims of other atrocities throughout history will also expect their day in court. For example, it is conceivable that victims of slave labor here in the United States would seek to bring actions against the U.S. Government or against those corporations that profited from slave labor during the time it was prevalent in the United States. More recent issues of concern would include human rights claims by Bosnian Serbs and other oppressed individuals. Allowing Holocaust claims to go forward without the recognition of past settlements between governments would likely have a significant economic impact on the governments of several countries, as well as on multinational corporations. This is because of the extent of the injustices suffered by the Holocaust victims and the length of time that has elapsed since the violations occurred. Decades-old claims could be brought for issues that governments and corporations deemed long ago settled. Such claims would harm the predictability of the international legal system because, by removing protection against future litigation, countries would no longer have an incentive to settle such claims, even in light of a true desire to provide reparations to victims of acts for which no reparation will, truly, ever be enough. However, if the United States allows atrocities, such as those committed against the Holocaust victims to go uncompensated, the lack of compensation strongly implies that these agreements, though not officially "condoning" the acts of the German Reich, recognizably violate the law of nations. Further, allowing individuals to bring claims underscores the fact that the German corporations, which profited from slave labor, should not be allowed to continue to profit at the expense of the Holocaust victims. One commentator, when discussing the victims' plight, explained that the property confiscated or stolen during the war represents the moral and ethical issues that have arisen as a result of claims filed by or on behalf of the Holocaust victims: | |
[t]he notion that a state might enrich itself from the commission of crimes
against humanity, from the ashes of the Holocaust, is as reprehensible as
it is unjust--an assault on the very foundations of international law and
the international law of human rights and a foundational breach of the
Nuremberg Principles.(147)
| | The importance of individual rights in the United States suggests that it would be fundamentally wrong to deny adequate recovery and compensation to the Holocaust victims by hiding behind governmental doctrines like the political question doctrine. B. The Effect of the Litigation on International Business These claims against German and American corporations have renewed worldwide interest in the issue of slave laborers, whose claims had, until now, gone unrecognized by the German government and industry. These lawsuits have helped expose widespread complicity between German, Austrian, and American industry and the Nazi war machine.(148) They have helped bring the profit-based participation of these companies into the international spotlight and have caused corporate defendants to begin taking responsibility for their actions against humanity during World War II.(149) In addition, the filing of these claims brought about the creation of a $1.7 billion fund, created solely by twelve German corporations to compensate slave laborers.(150) The fund does not include any contributions from the German government.(151) Although the fund is grossly inadequate given the number of surviving slave laborers and the amount of suffering each endured, it is a step in the right direction. However, with the dismissal of Iwanowa and Degussa, one wonders whether such efforts will continue. Not only are the slave laborers' claims important to Holocaust litigation, they also represent a significant "next step" in international human rights litigation in the United States.(152) This litigation sends a message to multinational corporations that it is no longer acceptable to hide behind the corporate veil and operate on a business-as-usual standard in the midst of human rights abuses, even when the abuses occur in subsidiaries located outside the United States.(153) Multinational corporations must take responsibility for human rights violations occurring within their corporations, whether or not the violations occur on U.S. soil. Corporations should be held liable for both ongoing and past human rights abuses, and industrialists who profit from such abuses should be brought to justice. According to Bazyler, "[t]he slave labor lawsuits, dealing with the nefarious past conduct of the world's corporate giants, sets an important precedent for the corporate behavior of multinationals in the future."(154) However, the decisions in Iwanowa and Degussa do not demand a change in corporate behavior regarding human rights violations and leave human rights litigants with little room to maneuver with the exception of threatening to cause the corporations negative publicity. The failure of the two decisions to support positive change will cause multinational corporations merely to weigh the costs of mitigating behavior that violates human rights against the cost of negative publicity and the likelihood that the violation will even be noticed. In some cases, gross violations of human rights will cease; however, in others, the violations will continue, and in many cases, past victims will remain uncompensated. VI. CONCLUSION The purpose of this Note is to increase awareness about the importance of the slave labor claims filed by victims of the Holocaust and to explore alternative ways of viewing the doctrine of jus cogens and the political question doctrine in light of these cases. As a society, it is imperative for all of us to remember that the atrocities committed against the Jewish people during the Holocaust included not only the mass murder of Jewish citizens and the pillaging of their financial assets, but also the enslavement of large numbers of Holocaust victims--many of whom did not survive. This Note does not offer a neat, clean solution to the issues it discusses. After examining the implications of the slave labor claims for the international and business communities, it is difficult--and probably not possible--to provide any answer that effectively addresses the complicated issues presented by the slave labor claims. Although the thought of providing reparation payments to the victims of Holocaust slave labor is appealing, it is important to keep in mind that these cases would apply not only to Holocaust victims, but also to other groups who have been oppressed or enslaved in the past. While this too might sound attractive, its economic and practical feasibility grows more questionable as the award amounts, the number of governments, and the degree of business involvement increases. Reparation payments may be a necessary remedy, but any costs recognized by the business community will be passed on to consumers in the form of higher prices. Additionally, because slave laborers have already passed away, another issue has arisen: should reparation payments be made to their family members? These questions are not meant to suggest support for denying Holocaust slave labor victims the compensation they deserve, nor are they meant to suggest that the governments involved in authoring the reparation agreements and treaties were not at fault. The real inquiry is this: is the combination of all these issues enough to justify not granting reparation payments to these victims? It is difficult enough to grasp that governments have overlooked or even disregarded the harms that individuals have suffered by refusing to grant them any kind of compensation. The outcome of these cases represents another avenue of resolution that has been closed to Holocaust slave labor victims. It would be a true miscarriage of justice if a new avenue of resolution were not to open. An elegantly written article in a recent edition of the Wall Street Journal provided an intriguing discussion about the architecture of synagogues in Germany.(155) The article, like this Note, tried to describe something that is "not to be spoken of." The article discussed how architects designing the new synagogues in Germany have had to ask the difficult question, "Do you forget history, or take pains to acknowledge it?"(156) Could this be why courts, like architects, have been reluctant to reopen the Holocaust wounds? (1.) See Vienna Convention on the Law of Treaties, opened for signature, May 23, 1969, art. 53, 8 I.L.M. 679, 698-99. This Note is current through June 1, 2000. (2.) See, e.g., Iwanowa v. Ford Motor Co., 67 F. Supp.2d 424 (D.N.J. 1999); Burger-Fischer v. Degussa AG, 65 F. Supp.2d 248 (D.N.J. 1999). (3.) See Iwanowa, 67 F. Supp.2d at 424; Degussa, 65 F. Supp.2d at 248. (4.) See Iwanowa, 67 F. Supp.2d at 431; Degussa, 65 F Supp.2d at 248. (5.) See THE NEW ENCYCLOPEDIA BRITANNICA 13-14 (15th ed. 1997) (describing the upper limit of the death toll of Jews during the Holocaust as being six million). (6.) See John Authers et. al., Unsettled Business, FIN. TIMES, Aug. 25, 1998, at 14 (indicating eight million); German Ex-Slave Workers Plan Action, AP ONLINE, Nov. 6, 1998, at 1, available in 1998 WL 22415808 (indicating nine million); Ian Traynor, Schroeder Tries to Hammer Out Settlement for Slave Labourers, THE GUARDIAN, Oct. 23, 1998, at 19, available in 1998 WL 18673022 (indicating ten million). (7.) According to the World Jewish Congress, losses by Jewish victims during the war ranged from $23 billion to $32 billion in 1945. These figures are multiplied tenfold for today's values. See Marilyn Henry, U.S. Report on Neutral Countries' War-Time Conduct Due Tomorrow, THE JERUSALEM POST, June 1, 1998, at 6, available in 1998 WL 6530479. (8.) See Authers, supra note 6, at 14 (estimating that 700,000 of the forced laborers are still alive). But see Roger Cohen, German Companies Adopt Fund for Slave Laborers Under Nazis, N.Y. TIMES, Feb. 17, 1999, at A7 (citing the figure of 1.6 million surviving slave laborers, with over 500,000 living in Poland alone). (9.) See Traynor, supra note 6, at 19. But see Cohen, supra note 8, at A1 (citing $80 billion); Talks on Holocaust Reparations Held, L.A. TIMES, Feb. 9, 1999, at A4 (citing $60 billion). (10.) See Benjamin B. Ferencz, Die Wiedergutmachung Nationalsozialistischen Unrechts Durch Die Bundesrepublik Deutschland, 84 AM. J. INT'L L. 999, 1000 (1990) (book review). (11.) See, e.g., World Council of Orthodox Jewish Communities, Inc. v. Union Bank of Switz., No. 97-CV-0461 (E.D.N.Y. Jan. 29, 1997); Friedman v. Union Bank of Switz., No. CV-96-5161 (E.D.N.Y. Oct. 21, 1996); Weisshaus v. Union Bank of Switz., No. CV-96-4849 (E.D.N.Y. Oct. 3, 1996). (12.) See, e.g., Drucker Cornell v. Assicurazioni Generali, No. 97 Civ. 2262, 2000 WL 284222 (S.D.N.Y.), consolidated with Winters v. Assicurazioni Generali, No. 98 Civ. 9186. (13.) See, e.g., Iwanowa v. Ford Motor Co., 67 F. Supp.2d 424 (D.N.J. 1999); Burger-Fischer v. Degussa AG, 65 F. Supp.2d 248 (D.N.J. 1999). (14.) See, e.g., Duveen v. Deutsche Bank A.G., No. 99 Civ. 6620 (E.D.N.Y. Oct. 27, 1999); Watman v. Deutsche Bank, No. 98 Civ. 3938 (S.D.N.Y. June 3, 1998). (15.) See, e.g., Rosenberg v. Seattle Art Museum, 70 F.Supp.2d 1163 (W.D. Wash. 1999); Goodman v. Searle, No. 96C 6459 (N.D. Ill. Feb. 9, 1998); People v. Museum of Modern Art, 252 A.D.2d 211 (N.Y. App. Div. 1999). (16.) See Traynor, supra note 6, at 19. (17.) See id. (18.) See id. (19.) See id. (20.) See Cohen, supra note 8, at A1. (21.) See id. (22.) See Iwanowa v. Ford Motor Co., 67 F. Supp.2d 424, 424 (D.N.J. 1999). (23.) See id. at 432. (24.) See id. at 433. (25.) See id. (26.) See id. (27.) See id. at 433-34. (28.) See Iwanowa v. Ford Motor Co., 67 F. Supp.2d 424, 434 (D.N.J. 1999). (29.) See id. at 424-25. (30.) See id. at 446. (31.) See id. at 464. (32.) See id. at 466. (33.) See id. at 469. (34.) See Iwanowa v. Ford Motor Co., 67 F. Supp.2d 424, 475-76 (D.N.J. 1999). (35.) See id. at 482. (36.) See id. at 489. (37.) See id. at 491. (38.) See Burger-Fischer v. Degussa AG, 65 F. Supp.2d 248, 248 (D.N.J. 1999). (39.) See id. at 250, 253. (40.) See id. at 279. (41.) See id. at 284-85. (42.) See Polish Nationals Sue Banks and Corporations over WWII Forced Labor Claims, 4 No. 12 ANDREW'S BANK & LENDER LIAB. LITIG. REP. 7, Feb. 17, 1999. (43.) See id. (44.) See Iwanowa v. Ford Motor Co., 67 F. Supp.2d 424, 456 (D.N.J. 1999). (45.) See Burger-Fischer v. Degussa AG, 65 F. Supp.2d 248, 273 (D.N.J. 1999). (46.) See id. (47.) See Committee of United States Citizens Living in Nicaragua [CUSCLIN] v. Reagan, 859 F.2d 929, 939-40 (D.C. Cir. 1988). (48.) Vienna Convention, supra note 1, arts. 53 & 64. See also BARRY E. CARTER & PHILLIP R. TRIMBLE, INTERNATIONAL LAW, 125 (3d ed. 1999). (49.) See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW, [sections] 102(2) (1986) [hereinafter RESTATEMENT]; see also Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 715 (9th Cir. 1992) (noting that jus cogens is derived from customary international law in a decision based on a claim of official torture). (50.) See David F. Klein, A Theory for the Application of the Customary International Law of Human Rights by Domestic Courts, 13 YALE J. INT'L L. 332, 350-51 (1988). (51.) See Siderman de Blake, 965 F.2d at 715. (52.) United States v. Smith, 18 U.S. (5 Wheat) 153, 160-161 (1820). See Filartiga v. Pena-Irala, 630 F.2d 876, 880 (2d Cir. 1980) (adopting the Smith criteria for determining if an act violates customary international law). (53.) See Vienna Convention, supra note 1, art. 53; see also Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 715 (9th Cir. 1992) (official torture is recognized as a violation of jus cogens); Committee of United States Citizens Living in Nicaragua [CUSCLIN] v. Reagan, 859 F.2d 929, 940 (D.C. Cir. 1988) (recognizing that failure to recognize an International Court of Justice (ICJ) judgment is not a violation of a peremptory norm of international law). (54.) See Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 794 (D.C. Cir. 1984). (55.) See, e.g., Filartiga, 630 F.2d at 876 (recognizing torture under the Alien Tort Claims Act (ATCA) as a violation of international law); Siderman, 965 F.2d at 717 (finding official torture violates international law). But see CUSCLIN, 965 F.2d at 929 (recognizing that failure to recognize an ICJ judgment is not a violation of a peremptory norm of international law). (56.) See Xuncax v. Gramajo, 886 F. Supp. 162, 184 (D. Mass. 1995) (finding a violation of jus cogens for summary execution, official torture, and arbitrary detention). (57.) See RESTATEMENT, supra note 49, at [sections] 702 (summarizing the definition of a violation of international law, Comment n clarifies that Section 702 Comments a to f refers to violations of jus cogens). (58.) See R. Jackson, Final Report to the President on the Nuremberg Trials (Oct. 7, 1946) (cited in R. Jackson, The Nuremberg Case xiv-xv (1971)); see also Klein, supra note 50, at 340. (59.) See Jackson, supra note 58. (60.) Vienna Convention, supra note 1, art. 53. (61.) See RESTATEMENT, supra note 49, at [subsections] 102 cmt. k [sections] 331(2)(b); Vienna Convention, supra note 1, art. 53. (62.) RESTATEMENT, supra note 49, at [sections] 338(2). (63.) See id. [sections] 338 cmt. e. (64.) See Maura Mullen de Bolivar, A Comparison of Protecting the Environmental Interests of Latin American Indigenous Communities From Transnational Corporations Under International Human Rights and Environmental Law, 8 J. TRANSNAT'L L. & POL'Y 105, 119 (1998); see also Louis B. Sohn, The New International Law: Protection of the Rights of Individuals Rather Than States, 32 AM. U. L. REV. 1, 9 (1982) (noting that the status of individuals' rights in international law completely changed after the War because of the punishment of war crimes and the consensus to prevent the recurrence of similar crimes). (65.) The Nuremberg Trial, 6 F.R.D. 69, 110 (1946). See also Kadic v. Karadzic, 70 F.3d 232, 239 (2d Cir. 1995) (stating that "certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals."); Gregory G.A. Tzeutschler, Corporate Violator: The Alien Tort Liability of Transnational Corporations for Human Rights Abuses Abroad, 30 COLUM. HUM. RTS. L. REV. 359, 393 (Spring 1999) (expressing the view that certain violations of international law are binding on "every conceivable actor, whether individual or corporate, public or private, or acting for profit or not for profit."). (66.) Beth A. Isenberg, Genocide, Rape, and Crimes Against Humanity: An Affirmation of Individual Accountability in the Former Yugoslavia in the Karadzic Actions, 60 ALB. L. REV. 1051, 1058 (1997). (67.) Iwanowa v. Ford Motor Co., 67 F. Supp.2d 424, 445 (D.N.J. 1999). (68.) See id. at 445. (69.) See generally Dreyfus v. Von Finck, 534 F.2d 24 (2d Cir. 1976) (in dicta, the court stated that the law of nations dealt primarily with relationships among nations, not individuals); Handel v. Artukovic, 601 F. Supp. 1421 (C.D. Cal. 1985) (finding that individuals cannot infer a right of action from international law). But see Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) (allowing a Bosnian citizen to bring an action against the self-proclaimed president of an unrecognized Bosnian-Serb entity for violations of international law), Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) (allowing an action against a Paraguayan official for wrongful death caused by torture because it was a violation of the law of nations). (70.) See generally Handel, 601 F. Supp. at 1421 (holding that individuals are not conferred a private right of action from international law); Dreyfus, 534 F.2d at 24 (stating that the law of nations deals primarily with relationships among nations, not individuals). (71.) See Handel, 601 F. Supp. at 1421. (72.) See id. at 1427; see also Dreyfus 534 F.2d at 30 (stating in dicta that the law of nations deals primarily with relationships among nations, not individuals). (73.) See Louis Henkin, International Human Rights as "Rights," 1 CARDOZO L. REV. 425, 438-42 (1979). (74.) See id. at 439. (75.) See id. at 441. (76.) See id. (77.) Id. (78.) Id. at 442. (79.) See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971) ("[w]here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief."); White v. Paulsen, 997 F. Supp. 1380, 1383 (E.D. Wa. 1998) (recognizing that federal courts have the authority to "imply existence of a private right of action for violations of jus cogens norms of international law."); see also Forti v. Suarez-Mason, 672 F. Supp. 1531, 1540 (N.D. Cal. 1987) (recognizing that the Law of Nations applies not only to sovereigns, but to individuals). (80.) See, e.g., Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir. 1995) (allowing an alien to bring claims for a violation of international law under the ATCA); Filartiga v. Pena-Irala, 630 F.2d 876, 876 (2d Cir. 1980) (allowing an individual's action for a violation of the Law of Nations to proceed under the ATCA); see also Kevin M. McDonald, Corporate Civil Liability Under the U.S. Alien Tort Claims Act for Violations of Customary International Law During the Third Reich, 1997 ST. LOUIS-WARSAW TRANSATLANTIC L.J. 167, 185-88 (1997) (discussing a private cause of action under ATCA). A judge in a D.C. Circuit case argued that Congress' grant of subject-matter jurisdiction under the ATCA did not also confer a private cause of action. See Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 799 (D.C. Cir. 1984) (concurring opinion); c.f. Kadic, 70 F.3d at 238-241 (disregarding the Tel-Oren concurrence and concluding that international law should not be interpreted as it was in 1789 but rather as it has evolved and exists among the nations today); Forti, 672 F. Supp. at 1539 (discarding the restrictive views set forth in Tel-Oren as unrealistic considering the increasing importance of international human rights law). (81.) See Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 445 (D.N.J. 1999). (82.) See id. at 469. (83.) See White, 997 F. Supp. at 1383. Though the White court denied a private right of action for the plaintiffs in the case, the court adopted the view in Bivens that there may be situations where private rights of action may be implied for violations of federal constitutional rights. The court in White determined that this same rationale should apply with equal or greater force to jus cogens. See id.; see also Bivens, 403 U.S. at 392 (finding that courts have authority to imply the existence of a private right of action for violations of federal constitutional rights). (84.) Jennifer Correale, The Torture Victim Protection Act: A Vital Contribution to International Human Rights Enforcement or Just a Nice Gesture?, 6 PACE INT'L L. REV. 197, 198 (1994). (85.) See Henkin, supra note 73, at 438-42 (discussing generally the relationship between states' development of international law and individual's rights); see also John H. Barton & Barry E. Carter, International Law and Institutions for a New Age, 81 GEO. L.J. 535, 538 (Mar. 1993) (describing the emergence of the individual as an independent and recognized actor within international law). (86.) See Henkin, supra note 73, at 438-42. As discussed in the previous section, it is arguable that the concept of individual remedies under international law has expanded since 1979, when Louis Henkin wrote this article. (87.) See, e.g., Barton & Carter, supra note 85, at 539 (describing general changes in international law and the emergence of the person as an individual protected by international law). (88.) Sub-Commission on the Prevention of Discrimination and Protection of Minorities, E.S.C. Res. 1988/11, U.N. ESCOR, 42d Sess. at 1, U.N. Doc. E/CN.4/Sub2/1990/10 (1990). (89.) See Cynthia R.L. Fairweather, Obstacles to Enforcing International Human Rights Law in Domestic Courts, 4 U.C. DAVIS J. INT'L L. & POL'Y 119, 131 (1998). (90.) See id. at 132; see also ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND HOW WE USE IT 211 (1994) (stating that jurisdictional rules make courts reluctant to accept jurisdiction over international law violations that occurred in a different state). The idea that domestic courts will defer to other branches of the government when such an issue arises is discussed in more detail later in this Note. (91.) See Isenberg, supra note 66, at 1054 (discussing how private duties arise from private rights in the context of international human rights). (92.) See id. (stating that all citizens have private rights, that with those rights come certain duties and responsibilities, and that with the fulfillment of these duties, the world has the responsibility to address horrendous human rights violations such as those that occurred in Bosnia in the late 1990s). (93.) See id. (94.) American Declaration of Human Rights and Duties of Man, O.A.S. Res. XXX, International Conference of American States, 9th Conf., O.A.S. Doc. OEA/Ser. L/V/I.4 Rev. XX (1948). (95.) Universal Declaration of Human Rights, art. 30, G.A. Res. 217A (III), U.N. GAOR, 27th Sess., Supp. No. 49, at 71, U.N. Doc. A/810 (1948). (96.) See Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 466 (D.N.J. 1999). Iwanowa not only sued the German subsidiary of Ford Motor Co., but also the American corporation, claiming that the American corporation benefited from the atrocities committed by its German subsidiary. See id. See also Berger-Fischer v. Degussa AG, 65 F. Supp. 2d 248, 281 (D.N.J. 1999) (listing many of the companies that have had slave labor claims filed against them including, inter alia, the German subsidiaries of Bayer, Daimler-Chrysler, Audi, Continental, Schering, and Volkswagen). (97.) See, e.g., Iwanowa, 67 F. Supp.2d at 432 (noting that Ford Werke, a German subsidiary of Ford, was established in 1925); see also Degussa, 65 F. Supp.2d at 254 (describing that relief was sought from both Siemens and any of its wholly owned American subsidiaries). (98.) See Iwanowa, 67 F. Supp.2d at 476. (99.) See Smith v. Socialist People's Libyan Arab Jamahiriya, 101 F.3d 239, 244 (2d Cir. 1996) (refusing reluctantly to recognize the jus cogens theory of implied waiver); Denegri v. Republic of Chile, No. 86-3085, 1992 Dist. LEXIS 4233 (D.D.C. 1992) (refusing to allow an implied exception under the Foreign Sovereign Immunities Act (FSIA) for those countries that have committed clear violations of jus cogens); Hirsh v. State of Israel, 962 F. Supp. 377, 380 (S.D.N.Y. 1997) (refusing to recognize the jus cogens theory of implied waiver). (100.) See Smith, 101 F.3d at 244. The court, however, reluctantly refused the notion. After reviewing the legislative history behind the FSIA, the court found it was not Congress' intent to carry implied waiver to such an extent. See id. (101.) See, e.g., Haig v. Agee, 453 U.S. 280, 292 (1981) (finding that "matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention"). (102). See id, at 301 (holding that the President, acting through the Secretary of State, has authority to reserve a passport on the ground that the holder's activities are causing, or are likely to cause, severe damage to national security or foreign policy); Snepp v. United States, 444 U.S. 507, 513 (1980) (finding that a former CIA agent harmed the nation by not submitting material for clearance before publication). (103.) See, e.g., Velvel v. Nixon, 415 F.2d 236, 239 (10th Cir. 1969), cert. denied, 396 U.S. 1042 (1970) (denying a taxpayer standing to sue to end the Vietnam War). (104.) See, e.g., Laird v. Tatum, 408 U.S. 1, 8-9 (1972) (denying relief from U.S. army surveillance of lawful activity because of lack of injury). (105.) See, e.g., Dalton v. Specter, 511 U.S. 462, 476-77 (1994) (finding that judicial review of the president's discretion is not available where a statute commits decision making directly to the president). In an article rifled Civil Liberties, National Security and Human Rights, Norman Dorsen recognizes the three decision making techniques as described above. See Norman Dorsen, Civil Liberties, National Security and Human Rights Treaties: A Snapshot in Context, 3 U.C. DAVIS J. INT'L L. & POL'Y 143, 146-47 (Spring 1997). (106.) Andreas F. Lowenfeld, Book Review, 87 HARV. L. REV. 494, 506 (1973) (reviewing LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION (1972)). (107.) See Korematsu v. United States, 323 U.S. 214, 218 (1944) (holding that Japanese residents, including Japanese-Americans, could be confined because of possible disloyalty). (108.) Forti v. Suarez-Mason, 672 F. Supp. 1531, 1549 (N.D. Cal. 1987). (109.) Kadic v. Karadzic, 70 F.3d 232, 249 (2d Cir. 1995). See also Filartiga v. Pena-Irala, 630 F.2d 876, 887 (2d Cir. 1980) (allowing federal courts jurisdiction to adjudicate a claim regarding the violation of the Law of Nations). (110.) See id. (111.) See David J. Bederman, Deference or Deception: Treaty Rights as Political Questions, 70 U. COLO. L. REV. 1439, 1461 (1999). (112.) See id. (113.) See id. (114.) See id. (115.) See generally Iwanowa v. Ford Motor Co., 67 F. Supp.2d 424 (D.N.J. 1999); Berger-Fischer v. Degussa AG, 65 F. Supp.2d 248 (D.N.J. 1999). These cases would fall in the middle of the spectrum as discussed above because one of the issues presented to the court, and the issue of most concern in this Note, is whether the reparation agreements continue to be binding on Holocaust victims since they, in effect, represent a violation of jus cogens. (116.) Bederman, supra note 111, at 1461. (117.) See id. at 1470. (118.) Id. at 1471. (119.) See id. (120.) See id. (121.) See id. (122.) See Baker v. Carr, 369 U.S. 186, 217 (1962). (123.) See id. (124.) See id. (125.) See id. (126.) See id. (127.) See id. (128.) See Iwanowa v. Ford Motor Co., 67 F. Supp.2d 424, 485 (D.N.J. 1999). (129.) See id. (130.) See id. (131.) See id. (132.) See id. (133.) See Charlton v. Kelly, 229 U.S. 447 (1913). (134.) Id. at 468. (135.) See Iwanowa v. Ford Motor Co., 67 F. Supp.2d 424, 489 (D.N.J. 1999) (refusing to adjudicate the slave labor claim on the basis that it was barred by the political question doctrine). (136.) See Goldwater v. Carter, 444 U.S. 996, 1002 (1979) (Rehnquist, C.J., concurring, with Stewart, J, and Stevens, J.). (137.) See id. (138.) See id. The Goldwater court stated that "[i]n light of the absence of any constitutional provision governing the termination of a treaty, and the fact that different termination procedures may be appropriate for different treaties ... the instant case ... `must surely be controlled by political standards.'" Id. at 1003. The Goldwater court also found that "[a] court's resolution of a question that is `political' in character can create far more disruption among the three coequal branches of Government than the resolution of a question presented in a moot controversy." Id. at 1006. See also Dyer v. Blair, 390 F. Supp. 1291, 1302 (N.D. Ill. 1975) ("A question that might be answered in different ways for different amendments must surely be controlled by political standards rather than standards easily characterized as judicially manageable."). (139.) See Coleman v. Miller, 307 U.S. 433, 450 (1939). (140.) Solicitor General's Brief for the United States as Amicus Curiae, Michael Domingues v. Nevada, No. 98-8327, available in. (141.) See, e.g., Oetjen v. Central Leather Co., 246 U.S. 297 (1918) (deciding that the issue of sovereign immunity is a political question for the legislative and executive branches); Underhill v. Hernandez, 168 U.S. 250 (1897) (finding the court bound to respect the sovereign interests of other sovereign states and that the courts in one country may not sit in judgment of the acts of the government of another country). (142.) See Banco National de Cuba v. Sabbatino, 376 U.S. 398, 427 (1964). (143.) See Sabbatino, 376 U.S. at 398. The majority opinion consisted of five justices. Three applied the Bernstein exception, which states that the President ordered that the act of state doctrine was not to apply. One justice found that by filing a counterclaim, the act of state doctrine was waived, and a fifth justice found that the court has jurisdiction unless it would interfere with delicate foreign relations. The four dissenting justices found that where an act of state is involved, a straightforward political question exists that the court should not decide. See generally id. (144.) Baker v. Carr, 369 U.S. 186, 217 (1962). (145.) See, e.g., Michael S. Gill, Turbulent Times or Clear Skies Ahead? Conflict of Laws in Aviation Delict and Tort, 64 J. AIR L. & COM. 195 (1998) (discussing generally the fact that American courts award higher damages because juries almost always subscribe higher rewards than judges and under American law contingency fees are permitted). (146.) See, e.g., Michael J. Bazyler, Litigating the Holocaust, 33 U. RICH. L. REV. 601, 605 (1999) (discussing that an important factor in allowing a Holocaust lawsuit to be brought in the United States today is the "victory achieved by the human rights bar in the last two decades in convincing American courts that human rights victims injured abroad can sue in the United States."). (147.) Irwin Cotter, Confiscated Jewish Property: The Holocaust, Thefticide, and Restitution: A Legal Perspective, 20 CARDOZO L. REV. 601, 615 (1998). (148.) See Bazyler, supra note 146, at 620. (149.) See id. (150.) See Cohen, supra note 8, at A1. (151.) See id. (152.) See Bazyler, supra note 146, at 620. (153.) See id. (154.) Id. (155.) See David Aalund & David Wessel, The Property Report: New Synagogues For Germany, WALL ST. J., June 21, 2000, at B1. (156.) Id. DARCIE L. CHRISTOPHER, J.D. Candidate, expected December 2001, Georgetown University Law Center. B.A., English, 1995, and M.S., Community Health Education, 1996, West Virginia University. I would like to thank Professor Vazquez for his helpful comments on the many drafts of this Note and the editorial staff of LPIB. I would also like to thank Scott Christopher, my husband, and Donna Evans, my mother, for their support. |
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