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TEL-OREN v. LIBYAN ARAB REPUBLIC

June 30, 1981

HANOCH TEL-OREN, etc., et al., Plaintiffs,
v.
LIBYAN ARAB REPUBLIC, et al., Defendants; HANOCH TEL-OREN, et al., Plaintiffs, v. LIBYAN ARAB REPUBLIC, Defendant



The opinion of the court was delivered by: GREEN

MEMORANDUM OPINION AND ORDER

These two actions allege multiple tortious acts as the result of the March 11, 1978 attack on a bus containing numerous citizens of and visitors to Israel, that occurred on a main highway between Haifa and Tel Aviv, Israel. The matter was widely reported in the international press. The complaints charge the various defendants with torts in violation of both international law and criminal statutes of the United States of America, and seek compensatory and punitive damages.

 Plaintiffs in Civil Action No. 81-0563 are the personal representatives of twenty-nine persons who died in the carnage, and in Civil Action No. 81-0564 are the individuals injured. Defendants are the Libyan Arab Republic ("Libya"), the Palestine Liberation Organization ("PLO"), the Palestine Information Office ("PIO"), the National Association of Arab Americans ("NAAA"), and the Palestine Congress of North America ("PCNA"). *fn1"

 Pending before the Court are the motions of the PCNA and the PIO for summary judgment, and the motion of the NAAA to dismiss the actions for lack of subject matter jurisdiction and because they are barred by the statute of limitations.

 Plaintiffs allege four separate bases of jurisdiction: 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1332 (diversity of citizenship), 28 U.S.C. § 1350 (the statute providing for jurisdiction of actions brought by an alien alleging a tort in violation of the laws of the United States or the law of nations), and the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1330, §§ 1602-1611.

 For a cause of action to satisfy the requisite elements of federal question jurisdiction, it must state a cause of action arising under the Constitution, laws, or treaties of the United States. The NAAA, in its motions to dismiss, argues that these actions do not emanate under the laws or treaties of the United States because there is no cause of action expressly provided by or implied in the criminal statutes cited by plaintiffs, because there is no nexus between plaintiffs' causes of action and federal law, and because no treaty cited by plaintiffs gives them an express private cause of action. Plaintiffs maintain that the acts complained of clearly violate the law of nations, which has been held to be part of the federal common law, and that the treaties allegedly violated by defendants permit them to bring private actions to vindicate their rights.

 Critically, a complaint requires the application of some aspect of federal law to survive a jurisdictional assault under § 1331. See Gomez v. Wilson, 155 U.S. App. D.C. 242, 477 F.2d 411, 420 (D.C.Cir.1973); Ivy Broadcasting Co. v. American Telephone & Telegraph Co., 391 F.2d 486, 493 (2d Cir. 1968). Plaintiffs contend that they assert causes of action that require the application of both federal criminal statutes and the federal common law including the law of nations.

 In an argument beyond dispute the NAAA maintains, and plaintiffs do not disagree, that none of the several criminal statutes cited in the complaint specifically provides plaintiffs a private right of action. Whether a statute creates an implied private right of action depends on whether the plaintiff is a member of a class for whose special benefit the federal statute was enacted, whether there is any evidence of legislative intent to create or deny a private right of action, whether the underlying purposes of the statutory scheme are consistent with implying a remedy for the plaintiff, and whether the cause of action is one traditionally considered under state law. Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975).

 18 U.S.C. §§ 956, 960 are aimed at conspiracies to injure foreign governments and any activity that occurs in the United States in preparation for an expedition against a nation friendly to our own. In no way do these statutes include individuals such as the plaintiffs within their umbrella of relief. 18 U.S.C. § 957 offers protection to the United States, because it punishes activity, with the aid of any foreign government, aimed at violations of American law. Moreover, the piracy statutes, found at 18 U.S.C. §§ 1651-1661, focus on activity on the high seas and in connection therewith. Not one of these statutes offers protection to plaintiffs as a member of a particular class, and there is no indication that Congress intended that they be anything but criminal statutes.

 Abandoning their position that federal criminal law gives them a right of action, plaintiffs then resort to the claim that numerous treaties and international conventions, to which the United States is a party, offer them a basis for federal jurisdiction. Plaintiffs' complaints refer the Court to the Geneva Convention for the Protection of Civilian Persons in Time of War (August 12, 1949); Protocols I and II to the Geneva Convention of 12 August 1949 (June 7, 1977); the Charter of the United Nations; the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States, United Nations General Assembly Resolution 2625 (XXV), October 24, 1970); Universal Declaration of Human Rights, General Assembly Resolution 217(A)(III) (December 10, 1948); the International Covenant on Civil and Political Rights, General Assembly Resolution 2200(A)(XXI) (December 16, 1966); the Basic Principles for Protection of Civilian Populations in Armed Conflicts, General Assembly Resolution 2675 (XXV) (December 9, 1970); the Hague Conventions of 1899 (II) and 1907 (IV) Respecting the Laws and Customs of Wars on Land; the Convention on the Prevention and Punishment of the Crime of Genocide, General Assembly Resolution 260A (III) (December 9, 1948); the Declaration of the Rights of the Child, General Assembly Resolution 1386 (XIV) (1959); the American Convention of Human Rights, OAS Treaty Series No. 36 (November 22, 1969); the Geneva Convention Relative to the Treatment of Prisoners of War (August 12, 1949); and the Organization of American States: Convention to Prevent and Punish Acts of Terrorism (February 2, 1971).

 When defendants proffer that eight of these treaties are not presently obligations of the United States, plaintiffs counter that "the fact that some of these documents may not have been ratified or may not constitute treaties is totally irrelevant to the question of what is the law of nations...." Pl.Mem. in Opp. at 15, n.22. It is correct that the body of international law is not determined merely by examining the obligations of the United States. The law of nations "may be ascertained by consulting the 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." United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61, 5 L. Ed. 57 (1820). The question whether the conduct complained of here violated the law of nations, a question the court does not reach, is fundamentally different, however, from the question whether treaties or even international law generally provide the plaintiffs with a cause of action.

 In maintaining that their actions indeed state claims for recovery under treaties and the law of nations, plaintiffs ignore the fundamental proposition, articulated one hundred fifty-two years ago by Chief Justice Marshall in Foster v. Neilson, 27 U.S. (2 Pet.) 253, 7 L. Ed. 415 (1829), that treaties must provide expressly for a private right of action before an individual can assert a claim thereunder in federal court. In a clairvoyant passage, marked by restraint, that eminent jurist declared:

 
Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract when either of the parties engages to perform a ...

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