Repression of the Political Emigre - The Underground to International Law: A Proposal for Remedy

Abstract

This article identifies an underground to international law consisting in part of harassment of and even attacks on, and assassinations of, emigres or their attorneys. In addition to its clear violation of domestic laws, this underground operates contrary to several international legal norms: the fundamental principle of territorial sovereignty that restricts the reach of the police forces of one sovereign into the territorial jurisdiction of another; the long standing recognition of rights of emigration; and recently developed and now widely accepted human rights principles.

This article proposes an avenue of redress for political emigres residing in the United States who are attacked by agents from their nation of citizenship. It argues that civil process in the United States federal courts provides the greatest promise for an effective remedy and that the remedy should be provided through the development of a statute-based federal common law of international tort - specifically an international tort of emigre repression. It further discusses the problems and practicalities of litigation to implement this tort remedy. The article concludes that the international tort model provides a basis for remedy that can develop through the common law, and yet, by relying upon international law as the source of standards for defining the delict, avoids the parochialism that is characteristically the failing of domestic adjudication as an instrument of international legal order. The international tort model is promising as a means to constrain the underground system because it rests on legal norms supported by international consensus. In addition, the international tort model allows for a remedy that is sensitive to foreign policy interests. Finally, it is a remedy that can be based on existing legislation, and it is compatible with the present American law of sovereign immunity.

Keywords: international law, human rights, political emigres, federal common law, international tort, Banco Nacional de Cuba v. Sabbatino, Alien Tort Claims Act, Foreign Sovereign Immunities Act of 1976