The United States Supreme Court decision on the Alien Tort Statute (ATS) that was announced Wednesday has an interesting background related to Paraguay. The Paraguayan case ( Filartiga v. Pena-Irala,) led to an important decision in US law. I am not a lawyer but I think that the current court has reversed direction on the ATS.
The following material from Wikipedia is consistent with what I have previously read so it seems to be trustworthy. There is also a very good book about the Filartiga case but I can’t remember or retrieve the title or author. If anyone out there knows the book, please post a comment with the reference.
The Alien Tort Statute was part of the Judiciary Act of 1789. There is little surviving legislative history regarding the Act, and its original meaning and purpose are uncertain. However, scholars have surmised that the Act was intended to assure foreign governments that the U.S. would act to prevent and provide remedies for breaches of customary international law, especially breaches concerning diplomats and merchants.
In 1980, the U.S. Court of Appeals for the Second Circuit decided Filartiga v. Pena-Irala, which “paved the way for a new conceptualization of the ATS”. In Filartiga, two Paraguayan citizens resident in the U.S., represented by the Center for Constitutional Rights, brought suit against a Paraguayan former police chief who was also living in the United States. The plaintiffs alleged that the defendant had tortured and murdered a member of their family, and they asserted that U.S. federal courts had jurisdiction over their suit under the ATS. The district court dismissed for lack of subject-matter jurisdiction, holding that the “law of nations” does not regulate a state’s treatment of its own citizens.
The U.S. Court of Appeals for the Second Circuit reversed. First, it held that the ATS, which allowed jurisdiction in the federal courts over a suit between two aliens, was a constitutional exercise of Congress’s power, because “the law of nations…has always been part of the federal common law“, and thus the statute fell within federal-question jurisdiction. Second, the court held that the contemporary law of nations had expanded to prohibit state-sanctioned torture. The court found that multilateral treaties and domestic prohibitions on torture evidenced a consistent state practice of proscribing official torture. The court similarly found that United Nations declarations such as the Universal Declaration on Human Rights manifested an expectation of adherence to the prohibition of official torture. The court therefore held that the right to be free from torture had become a principle of customary international law. However, one of the judges on the panel hearing the case later wrote that Filartiga “should not be misread or exaggerated to support sweeping assertions that all (or even most) international human rights norms found in the Universal Declaration or in international human rights treaties have ripened into customary international law enforceable in the domestic courts”.
Since Filartiga, jurisdiction under the ATS has been upheld in dozens of cases. Until now.