The Alien Tort Act

8/13/2019 The Alien Tort Act

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A report by Llamas, Miguel Angel II G.


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28 U.S.C. 1350 provides:

The district courts shall have original

jurisdiction of any civil action by an alien fora tort only, committed in violation of the lawof nations or a treaty of the United States.


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Enacted as part of the Judiciary Act of1789

creating the United States Code which is theofficial compilation and codification of thegeneral and permanent federal laws of theUnited States.

The objective of the US in making theprovision was to cement the obligation ofevery state to uphold the law of nations as aconcomitant of Nationhood.

Compliance with international duty wouldresult in stability of commercial relations andgreater sense of national security.


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The Alien Tort Statute justifies exercise of

jurisdiction of a US court over completelyforeign torts because of the universal evilexemplified by human rights violations.

In order for the ATS to apply, there is a need

to establish that the tortious conductviolated an internationally protected humanright.


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Facts:

After Marcos arrived in the US in 1986, he wasserved with complaints by multiple partiesseeking damages for human-rights abusescommitted against them and their decedentsunder his regime.

The District courts of Hawaii and California,where the complaints were filed, dismissed themon the grounds that the human-rights abuseswere acts of state.

This was reversed on appeal and all the caseswere consolidated in the court of Hawaii as aclass action with nearly 10K class plaintiffs.

District court of Hawaii awarded nearly 2 billiondollars in damages.


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Jurisdiction:

The Estate of Marcos argued that the federalcourts have no jurisdiction as this case did notarise under federal law. The court, however,relying on its previous acquisition of jurisdictionover injunction and contempt proceedings,declined to consider the Estates arguments and

followed their prior decisions as the law of thecircuit and of the case.

The Estate also argued that the Alien TortsClaims Act does not apply to conduct thatoccurred abroad. The court ruled that it had

subject-matter jurisdiction even though theactions complained of occurred outside the USprecisely because of the extra-territorialjurisdiction granted by the ATCA.


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Statute of Limitations:

The Estate argued that Hilaosclaims werebarred by a 2-year statute of limitations. Thecourt found that the Alien Tort Claims Actdoes not contain a statute of limitations.

Hawaii courts have allowed equitable tollingof the statute of limitations in situationssimilar to the present case. Because of this,any action against Marcos was tolled duringthe time he was President.

He left office in February 1986 and theclaims were filed on March 1986. Such is wellwithin any suggested applicable statute oflimitations.


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Filartiga brought action against Pena in the

US for the kidnap, torture and death of hisson. Both are citizens of Paraguay.

Prior to the filing of the suit in the US,Filartiga had already filed a criminal

complaint against Pena in Paraguay, but hisattorney was arrested and threatened withdeath.

Cause of action arose from customaryinternational law of human rights and thelaw of nations.


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The case was dismissed in that the court was

constrained to construe narrowly the law ofnations as excluding that law which governs a

states treatment of its own citizens.

Jursidiction for the case was claimed under the

general question provision and under the AlienTort Statue only on the appeal.

The issue of the case lies in whether theconduct claimed against Pena violated the lawof nations. And if they do, whether therequirements for jurisdiction are met.


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The court ruled that, upon examining sources

from which customary international law isderived, official torture is now prohibited bythe law of nations.

The prohibition admits of no distinction

between treatment of aliens and citizens. International law confers fundamental right

upon all people vis--vis their owngovernmentsthe right to be free from

torture being among these rights.


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As to the jurisdiction of the US courts, it was held

that common law courts of general jurisdictionregularly adjudicate transitory tort claims betweenindividuals over whom they exercise personaljurisdiction, wherever the tort occurred.

Also, Congress enacted the Alien Tort Statute to

comply with its constitutional obligation to upholdthe law of nations which has always been a part offederal law.

Where in personam jurisdiction has been obtainedover the defendant, the parties agree that the actsalleged would violate Paraguayan law, and thepolicies of the forum are consistent with theforeign law, state court jurisdiction would beproper.


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In finding that the federal court has jurisdiction,

the action must be remanded for furtherproceedings.

Pena argued that the customary law of nations,being non self-executing, should not be applied

as rules for the decision in this case. Two distinct issues are involved here. It is the

question of jurisdiction under the ATS whichrequires consideration of the law of nations.

The issue of choice of law to be applied will beaddressed at a later stage in the proceedings.


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Guinto and Suarez, while residing in California,

filed a complaint for damages against Marcos,then in Hawaii, for restraining distribution oftheir film 100 Days in September and

arranging for their arrest on conspiracy charges,

making them flee to the US. They initially only asserted one basis for

jurisdiction, federal question jurisdiction, butlater argued for jurisdiction under the Alien

Torts Claims Act.


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As to Federal Question Jurisdiction

This applies when there is a violation under theConstitution, laws or treaties of the UnitedStates.

The rights provided in the United StatesConstitution does not apply to foreign officialsacting within their own country.

Also, Guinto was unable to allege any treaties ofthe US under which the claim is said to arise.


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As to Jurisdiction under the ATCA

In order for there to be jurisdiction under theATCA, there must be a tort committed against aperson which is in violation of a treaty of the USor a law of nations.

The term law of nations is yet to have a

universally accepted definition. It is said to dealprimarily with the relationship among nationsrather than among individuals.


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A test to determine whether there has been aviolation of the law of nations has occurred is:

a violation of the law of nations arises only when

there has been a violation by one or more individuals

of those standards , rules or customs (a) affectingthe relationship between states or between anindividual and a foreign state, and (b) used by thosestates for their common good and/or in dealingsinter se.

The case of Filartiga has evolved this concept,to the extent that the extent of internationallaw today limits a states power to torture.


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The court provided a list of violations ofinternational law that are state-practiced,encouraged or condoned; Genocide

Slavery or slave trade Murder or causing of murder

Torture or other inhuman/degrading treatment

Prolonged arbitrary detention

Systematic racial discrimination

Gross violations of internationally recognized humanrights

A violation of the right of free speech does notrise to the level of aforementioned rights.


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The Alien Tort Act

Documents

Transcript of The Alien Tort Act