iv. Treaties of Friendship, Commerce, and Navigation

Treaties of friendship, commerce, and navigation exist with a number of foreign states. 147 These agreements often guarantee that nationals of each state, “individually or through associations . . . have the right to gather and transmit information" in the other state and “to communicate with other persons inside and outside such territories." 148 Commonly, nationals of one state must "receive the most constant protection and security" within the territory of the other, 149 and these treaties further prohibit each state from applying unreasonable or discriminatory measures that would impair the acquired rights and interests. 150

Although some treaties do not "imply any right to engage in political activities,"151 that prohibition seems to apply to electoral conduct, such as participation in political campaigns, and not to activities involving modes of expression guaranteed by the previous

a foreign state shall not be immune from the jurisdiction of the courts of the United States or of the States in any case . . . in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or ommission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment. 28 U.S.C. § 1605(a)(5) (1976). The Act was construed in 1980 as providing no immunity to the Government of Chile in a wrongful death action brought by the widow and widower of Orlando Letelier and Ronni Moffitt. Letelier v. Republic of Chile, 488 F. Supp. 665 (D.D.C. 1980).

147. See, e.g., Treaty of Friendship, Establishment and Navigation, Feb. 23, 1962, United States-Luxembourg, 14 U.S.T. 251, T.I.A.S. No. 5306; Treaty of Friendship, Establishment and Navigation, Feb. 21, 1961, United States-Belgium, 14 U.S.T. 1284, T.I.A.S. No. 5432; Treaty of Friendship, Commerce and Navigation, Mar. 27, 1956, United States-Netherlands, 8 U.S.T. 2043, T.I.A.S. No. 3942; Treaty of Amity, Economic Relations, and Consular Rights, Aug. 15, 1955, United States-Iran, 8 U.S.T. 899, T.I.A.S. No. 3853; Treaty of Friendship, Commerce and Navigation, Apr. 2, 1953, United States-Japan, 4 U.S.T. 2063, T.I.A.S. No. 2863; Treaty of Friendship, Commerce and Navigation, Aug. 23, 1951, United States-Israel, 5 U.S.T. 550, T.I.A.S. No. 2948.

148. Iran, art. II, para. 2, 8 U.S.T. 899, T.I.A.S. No. 3853. Nearly identical language is found in United States treaties with Luxembourg, art. II, para. 4, 14 U.S.T. 251, T.I.A.S. No. 5306; Belgium, art. II, para. 4, 14 U.S.T. 1284, T.I.A.S. No. 5432; Netherlands, art. II, para. 3, 8 U.S.T. 2043, T.I.A.S. No. 3942; Japan, art. I, para. 2., 4 U.S.T. 2063, T.I.A.S. No. 2863; and Israel, art. II, para. 2, 5 U.S.T. 550, T.I.A.S. No. 2948.

149. Japan, art. II, para 1, 4 U.S.T. 2063, T.I.A.S. No. 2863. Likewise, similar provisions are stated in United States treaties with Luxembourg, art. III, para. 1, 14 U.S.T. 251, T.I.A.S. No. 5306; Belgium, art. III, para. 1, 14 U.S.T. 1284, T.I.A.S. No. 5432; Netherlands, art. VI, para. 1, 8 U.S.T. 2043, T.I.A.S. No. 3942; Iran, art. II, para. 4, 8 U.S.T. 899, T.I.A.S. No. 3853; and Israel, art. III, para. 1, 5 U.S.T. 550, T.I.A.S. No. 2948.

150. Luxembourg, art. IV, para. 2, 14 U.S.T. 251, T.I.A.S. No. 5306. Again, comparable guarantees are part of United States treaties with Belgium, art. IV, para. 2, 4 U.S.T. 1284, T.I.A.S. No. 5432; Netherlands art. VI, para. 3, 8 U.S.T. 2043, T.I.A.S. No. 3942; Iran, art. IV, para. 1, 8 U.S.T. 899, T.I.A.S. No. 3853; Japan, art. V, para. 1, 4 U.S.T. 2063, T.I.A.S. No. 2863; and Israel, art. III, para. 4, 5 U.S.T. 550, T.I.A.S. No. 2948.

151. Belgium, art. VI, para. 7, 14 U.S.T. 1284, T.I.A.S. No. 5432. Similarly, these rights also are not accorded in United States treaties with Luxembourg, art. VI, para. 4, 14 U.S.T. 251, T.I.A.S. No. 5306; Iran, art. XX, para. 2, 8 U.S.T. 899, T.I.A.S. No. 3853; and Israel, art. VIII, para. 3, 5, U.S.T. 550, T.I.A.S. No. 2948.

provisions. The first amendment would provide foreign nationals with rights that are coextensive with free speech and association. The violation of these rights would also lead to breaches of the treaties. The Alien Tort Claims Act would also afford a remedy to foreign nationals if the violation of their rights was tortious. 152

v. The United Nations Charter

The United Nations Charter contains a number of provisions relating to human rights. Article 1 of the United Nations Charter was intended to provide international co-operation in solving international problems of an “economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion."153 Article 55 provides that the United Nations shall promote "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion."154 All members of the United Nations commit themselves, moreover, to “fulfill in good faith the obligations assumed by them in accordance with the present charter.

152. See supra notes 143-46 and accompanying text.

"155

Subject matter jurisdiction has been granted sparingly under the Alien Tort Claims Act, 28 U.S.C. § 1350 (1976), and typically only those cases deciding a violation of the “law of nations” may be heard. Traditionally, the phrase “in violation of the law of nations" has been construed to mean “a violation by one or more individuals of those standards, rules or customs (a) affecting the relationship between states or between an individual and a foreign state, and (b) used by those states for their common good and or in dealing inter se." Lopes v. Reederei Richard Schroder, 225 F. Supp. 292, 297 (E.D. Pa. 1963) (footnote omitted). The argument that certain "universally recognized” torts qualify under the jurisdictional requirement of section 1350 is usually unsuccessful. Cohen v. Hartman, 634 F.2d 318 (5th Cir. 1981) (conversion of property); IIT v. Vencap, Ltd., 519 F.2d 1001 (2d Cir. 1975) (stealing); Abiodun v. Martin Oil Service, Inc., 475 F.2d 142 (7th Cir.), cert. denied, 414 U.S. 866 (1973) (fraud); Trans-Continental Inv. Corp. v. Bank of the Commonwealth, 500 F. Supp. 565 (C.D. Cal. 1980) (fraud). But see Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) (section 1350 jurisdiction found in an action between two Paraguayan nationals for wrongful death by torture contrary to international law), Nguyen Da Yen v. Kissinger, 528 F.2d 1194 (5th Cir. 1975) (although not relied on by the court, unlawful removal of Vietnamese children by an INS "babylift" might fall under section 1550 jurisdiction), Abdul-Rahman Omar Adra v. Clift, 195 F. Supp. 857 (D. Md. 1961) (smuggling a Lebanese child into the United States on an Iraqi passport for the purpose of avoiding a Lebanese child custody law amounted to a tort and action was cognizable under section 1350).

However, even if, as in Trans-Continental, a district court conditioned its grant of jurisdiction on a requirement that the controversy implicate a treaty, those foreign nationals covered by a treaty of friendship, commerce, and navigation ought at least be able to meet the jurisdictional requirement of the federal court.

ISA UN CHARTER, art 1, para. 3.

155 de, art. 2, para 2. Sw, eg, Wright, National Charts and Human Rights--the Fujii Case, AY AM ] INT 1. 62, 3, (1981), H. Lauterpacht, InterNATIONAL LAW AND HUMAN Rians 14 49 (1990), P. JESSUP, A Modern Law of Nations—AN INTRODUCTION 91 (1948) Thux ix, in any event, the prevailing scholariv opinion, and it now is the interpretation

States which are parties to the Charter have undertaken legal obligations with respect to human rights. The scope of those obligations, and specifically, the extent to which they correspond to provisions of the Universal Declaration of Human Rights, 156 is less clear. However, the Declaration appears to comprise not only a part of customary international law, 157 but also an authoritative interpretation of the Charter's human rights provisions. Indeed, the non-governmental Assembly for Human Rights declared in 1968, in the Montreal Statement, that the Universal Declaration "defines in important detail the 'human rights and fundamental freedoms' which Members of the United Nations have in the Charter bound themselves to respect and protect. "158 Later that year, in Teheran, the International Conference on Human Rights (sponsored by the United Nations) stated that the Declaration "constitutes an obligation for members of the international community. "159

Under United States law, if the Declaration of Human Rights is viewed as a binding interpretation of treaty obligations undertaken in the United Nations Charter, courts may use it to inform their judgment concerning questions of applicable law. 160 For purposes of determining Congress's will, it is clear that one should consider the Declaration in conjunction with the human rights provisions of the Charter. These provisions provide a moral standard by which to condemn the activities carried out in the hypothetical by THRUSH with CIA acquiescence.

vi. The International Covenant on Civil and Political Rights

Numerous provisions of the International Covenant on Civil and Political Rights (hereinafter the "Covenant") 161 which entered into force on March 23, 1976, relate to the conduct set forth above. 162

accorded the above provisions by the International Court of Justice. Advisory Opinion on the Continued Presence of South Africa in Namibia, 1971 I.C.J. 16 (1971).

156. See supra note 53.

157. Id.

158. Montreal Statement of the Assembly for Human Rights, March 22-77, 1968 in 9 J. INT'L. COMMISsion Jurists 94, 94–95 (1968).

159. Proclamation of Teheran, 23 U.N. GAOR, U.N. Doc. A/Conf. 32/41 (1968). 160. Rodriquez-Fernandez v. Wilkinson, 654 F.2d 1382, 1388 (10th Cir. 1981); Filartia v. Pena-Irala, 630 F.2d 876, 881-85 (2d Cir. 1980).

161. International Covenant on Civil and Political Rights, G.A. Res. 2200, 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1967).

162. These include the right not to be "subjected to arbitrary or unlawful interference with privacy, family, home or correspondence . . . ." (art. 17); the right "to hold opinions without interference . . . the right to freedom of expression [which] shall include freedom to seek, receive and impart information and ideas of all kinds . . . .” (art. 19); the right of "peaceful assembly" (art. 21); and the right "to freedom of association with others. at 52-53.

(art. 22). Id.

While the United States has not ratified the Covenant, it became a signatory on October 5, 1977. International law requires that a signatory state refrain from acts which would defeat the object and purpose of a treaty. 163 Under the hypothetical, United States support of and acquiescence in THRUSH's activities in the United States would defeat the purpose of the Covenant.

c. Application to CIA-THRUSH Agreement

The foregoing has reviewed the actions taken by Congress to express its will. The CIA's support of THRUSH in its activities in the United States, as found in the hypothetical, is clearly incompatible with that will. The hypothetical CIA-THRUSH relationship would be legal only if it disabled "Congress from acting upon the subject."164 "Presidential claims to a power at once so conclusive and preclusive must be scrutinized [under Jackson's analysis] with caution, for what is at stake is the equilibrium of our constitutional system. "165 The "appropriate conclusion," stated by Professor Corwin in analyzing the Steel Seizure Case, applies here as well: Congress having entered the field its ascertainable intention supplies the law of the case.

III. TOWARDS A SOLUTION

166

However clear Congress's intent, that intent has not been carried out. From January 1, 1970, to January 1, 1979, according to the Justice Department, not a single registration took place under 50 U.S.C. § 851, nor did the Justice Department ever bring a prosecution under that section. No prosecution was commenced under 18 U.S.C. § 951 (eight notifications were filed under that provision during that period) except to reinforce espionage cases.

A. Reasons For the Non-Enforcement of Existing Statutes

Enforcement of the registration statutes has failed to occur for a number of reasons. The statutes are overbroad, the Executive lacks 163. Article 18, Vienna Convention on the Law of Treaties, supra note 58. 164. Justice Jackson wrote:

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitution.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637–38 (Jackson, J., concurring). 165. Id.

166. Corwin, The Steel Seizure Case: A Judicial Brick Without Straw, 53 COLUM. L. Rev. 53, 64-66 (1953).

the will to enforce them, and they are subject to two alternative problems of proof: either (1) they require that the foreign agents report themselves (which is unlikely); or (2) the evidence necessary to establish the existence and operation of foreign intelligence agents is apt to come from human intelligence sources protected by the Executive for reasons of national security.

B. Difficulties With the Intentional Tort Remedy

The proof problem is, in addition, the principal weakness in the proposal for an "international tort of emigre repression. "167 Proof of an agency relationship, a nexus between the foreign intelligence service and the individual wrongdoer, is necessarily an element of the tort: "[the] delict occurs when the political emigre is threatened with or suffers damage to himself or family caused by the activities in the United States of foreign agents, particularly when perpetrated to stifle expression of political views. "168

1. The Proof Problem

Victims of threatening telephone calls, muggings, and hit-and-run accidents are seldom able to identify their assailants. Often, in fact, the targets do not even realize they are targets. This is particularly true where intelligence techniques such as infiltration and surveillance are employed, but it also is true of more direct invasions. As a result of this lack of awareness on the part of victims, it is not surprising that the National Association of Foreign Student Advisers could conduct a study concluding that no such activity was evident on college campuses. 169

Assuming that her rights were violated, the emigre confronts the virtually insurmountable problem of establishing a relationship between the assailant and a foreign intelligence agency. Few agents or foreign states would volunteer evidence of such a relationship. In addition, various immunities would preclude its compulsion. 170 For

167. Garvey, Repression of the Political Empire--The Underground to International Law: A Proposal for Remedy, 90 Yale L.J. 78 (1980).

168. Id. at 106.

169. "Though reports have been received for years," its inquiry concluded, "to date no university has been able to conclusively prove the existence of [a surveillance system to keep tabs on its students] . . . . [W]hether for determining institutional policy or for advising complaining parties on available legal recourse, the chief problem facing foreign student advisers in this area is that almost no real evidence of spying or student harrassment is available for submission either in prosecution, or in defense of an accessing party who might be challenged in a libel suit." NAFSA Newsletter, March 1977, at 7.

170. See generally RESTATEMENT (Second) of Foreign Relations Law of the United STATES 88 63–93 (1965).