I.

14 TRNATLAW 207 THE UNITED STATES AS A FORUM FOR HUMAN RIGHTS LITIGATION: IS
THIS THE BEST SOLUTION?

 However simple the language of the Statute may seem, succeeding in an Alien
Tort claim is easier said than done. Numerous questions arise when seeking
redress under the Alien Tort Statute. What exactly does the "Law of Nations"
consist of? Did the framers intend to include human rights violations? How can
a plaintiff circumvent the act of state doctrine, separation of powers, and the
political question doctrine barriers? How does the Foreign Sovereign Immunities
Act [FN7] affect the Alien Tort Statute? Are these suits a proper utilization
of the Federal Court system and American tax dollars? Even if a plaintiff
overcomes these challenges, is it possible to recover damages from a defendant,
especially since no Alien Tort Statute lawsuit has ever produced payment to an
injured plaintiff? [FN8]
 This Comment discusses the Alien Tort Statute and its applicability to
modern human rights cases. Part II of this Comment addresses the background and
historical development of the Alien Tort Statute. Part III focuses on the
seminal human rights case of Filartiga v. Pena-Irala [FN9] and other recent
cases to clarify where the law currently stands. Part IV examines the
difficulties in establishing a successful lawsuit under the Statute by
examining such hurdles as the Foreign Sovereign Immunities Act, the act of
state doctrine, and the political question doctrine, while trying to understand
the original intent of the Statute. The Comment also discusses the Torture
Victim Protection Act [FN10] passed in 1992, which sheds some light on
Congress' intent for the ambiguous Alien Tort Statute. However, the practical
effect of the Torture Victim Protection Act conflicts with the Alien Tort
Statute, raising even more questions about the original intent of the Alien
Tort Statute.
 Part V of this Comment analyzes the current case against Li Peng in light of
all of the relevant statutes and cases and concludes it is unlikely that the
plaintiffs will succeed in their quest for justice in the Tiananmen Square
Massacre. Finally, Part VI concludes that the Alien Tort Statute is not the
correct avenue to redress human rights abuses because of the numerous
roadblocks that cannot be overcome to secure a judgment. The novel use of the
law is clearly inconsistent with the intent of the drafters of the Alien Tort
Statute. The Statute was originally designed to provide relief for foreigners
against sea pirates and slavers, [FN11] not to allow individuals to file *210
million dollar lawsuits against foreign dictators. If the United States wishes
to be a forum for international law and human rights, it must do so clearly and
unambiguously, not with a two-hundred year old law that has little application
in the 21st Century.
 A. The Alien Tort Statute Described

   The first U.S. Congress enacted the Alien Tort Statute on September 24,
1789, as part of the Federal Judiciary Act. [FN12] By enacting the Statute,
Congress intended to provide extraterritorial jurisdiction over the crimes of
piracy, slave trading, violations of safe conduct, and the kidnapping of
ambassadors. [FN13] By its terms, a suit brought under 28 U.S.C. s 1350
requires three elements: (1) a civil suit for tort only, (2) brought by an
alien plaintiff, and (3) committed in violation of either the Law of Nations or
a treaty of the United States. [FN14] Due to a lack of congressional record,
the actual meaning of the Statute's language and the intent of its principal
drafter, former U.S. Supreme Court Chief Justice Oliver Ellsworth, is difficult
to determine.
 HISTORY The framers of the Constitution, most of whom were lawyers, [FN25]
recognized this responsibility and perceived the Law of Nations as part of the
common law. [FN26] Delegates to the Constitutional Convention expressed their
desire to form a national government with paramount authority in regard to the
Law of Nations and treaty obligations. [FN27]
 Ultimately, the Pennsylvania Supreme Court tried and convicted De Longchamps
for "a crime against the law of nations," which the Pennsylvania Supreme Court
held to be part of Pennsylvania's common law. [FN38] In the wake of the Marbois
affair, the Continental Congress recommended that all states pass similar *213
laws, and even directed John Jay, Secretary of Foreign Affairs, to draft a
model statute for the states to adopt. [FN39] The birth of the cryptic Alien Tort
Statute followed shortly thereafter in
the Judiciary Act of 1789. [FN40] With the exception of two admiralty
jurisdiction cases, the Statute was quickly forgotten for over a century.
[FN41] Since its enactment, the Alien Tort Statute has undergone some language
changes, but these changes have not given further guidance on the meaning of
the Law of Nations. [FN42]
 THe Supreme Court applies international law, often described as the Law of
Nations. As Chief Justice John Marshall pronounced in 1815, "the Court is bound
*214 by the law of nations which is part of the law of the land." [FN43]
Marshall stated in another case that same year that "[t]he law of nations is
the great source from which we derive those rules, respecting belligerent and
neutral rights, which are recognized by all civilized and commercial states."
[FN44] Eighty-five years later, the Supreme Court again stated through Justice
Grey that "[i]nternational law is part of our law." [FN45] Justice Grey gave a
guideline for determining the Law of Nations, stating "[t]he Law of Nations may
be ascertained by consulting the customs and usages of civilized nations as
well as works by learned jurists and commentators." [FN46] The Court also
indicated the Law of Nations evolved through "[a]n ancient usage among
 civilized nations, beginning centuries ago, and gradually ripening into a rule
of international law." [FN47] The Law of Nations is certainly not an easy
concept to grasp, as many courts and commentators have determined; however, it
seems clear that it encompasses customary international law.
 Filartiga set legal precedent in several respects. [FN66] First, the court
held that the Law of Nations included the violation of human rights,
specifically torture. [FN67] Second, the holding in Filartiga also recognized
that the Alien Tort Statute could serve as a vehicle for adjudicating human
rights violations. [FN68] The court further held that torture by a state actor
violated customary international law and thus violated the Law of Nations.
[FN69] The Law of Nations is part of U.S. federal law and because Congress
explicitly provided implementing legislation through 28 U.S.C. s 1350,
jurisdiction therefore attached. In reviving the Alien Tort Statute, Filartiga
stated: "Indeed, for purposes of civil liability, the torturer has become like
the pirate and slave trader before him--hostis humani generis, an enemy of all
mankind." [FN70] The common denominator of hostis humani generis seems to be
the magnitude of the threat posed by the acts, coupled with the universality of
condemnation of the acts. [FN71] *217 The "transitory tort doctrine," [FN72] as
well as the U.S. Constitution, [FN73] strengthened the Filartiga court's
finding of torture as a violation of the Law of Nations.
 Further policy supporting another precedent Filartiga set was including
torture as a violation of the Law of Nations. The court held that the Alien
Tort Statute should not be interpreted according to its original meaning in
1789, but rather as an evolving statute with broadening legal significance.
[FN74] Thus, Judge Kaufman, by defining torture as a violation of the Law of
Nations, acknowledged that torture was a universally recognized crime. [FN75]
 An additional legal principle underlying Filartiga is the finding that
customary international law is a matter of universal jurisdiction, such that
any national court may hear extra-territorial claims brought under
international law. [FN76] In the United States, the Alien Tort Statute
constitutes a jurisdictional grant allowing U.S. district courts to hear such
claims. [FN77] Finally, a defendant accused of using torture under the color of
state authority may not always use the affirmative defenses usually available
to sovereigns and their agents. [FN78] The defendants in Filartiga were accused
of violating international law, which generally requires a state actor, however
the act of state defense [FN79] was not available to them because their actions
were ultra vires in violation of the laws of their own country. [FN80]
 In In re Estate of Ferdinand E. Marcos, Human Rights Litigation, [FN98] the
Ninth Circuit held that official torture violated the Law of Nations under the
Alien Tort Statute and thereby conferred subject matter jurisdiction on the
district court. [FN99] On August 31, 1977, Archimedes Trajano attended an open
discussion meeting in the Philippines where the defendant, Imee Marcos-Monotoc,
 daughter of former Philippine president Ferdinand Marcos, was speaking. [FN100]
During the meeting, Trajano questioned Marcos-Monotoc's appointment as
National Chairman of the Kabataang Baranggay, a position within the Philippine
government. [FN101] After the meeting, members of the Philippine intelligence
kidnapped Trajano and tortured him to death. [FN102] Marcos-Monotoc knew of
the torture and where Trajano was taken. [FN103]  In February 1986, Trajano's
mother filed suit against Marcos-Monotoc in the
U.S. District Court in Hawaii, where Marcos-Monotoc and her father fled after
his *220 removal from power. [FN104] In 1994, a jury awarded plaintiffs $1.2
billion in damages. [FN105] Later, the Eleventh Circuit in Abebe-Jira v. Negewo
[FN106] upheld a district court's finding that an Ethiopian defendant was
liable under the Alien Tort Statute for acts of torture committed while he
worked for the military dictatorship in Ethiopia. [FN107] For the first time
since Filartiga revived the Alien Tort Statute, there was a real possibility
that victims of human rights abuse would be compensated by their tormentors
with real dollars. [FN108]
 A Major Step in Human Rights Litigation: Kadic v. Karadzic

   Perhaps the most significant post-Filartiga decision is the Second Circuit

Court's ruling in Kadic v. Karadzic. [FN109] Kadic involved two actions brought
by plaintiffs, S. Kadic and Jane Doe, on behalf of themselves and others who
alleged they were victims of atrocious human rights violations in the former
Yugoslavia, against Radovan Karadzic, the former Bosnian Serb wartime leader.
[FN110] It was alleged that these atrocities committed by ultra-nationalist
soldiers included "genocide, rape, forced prostitution and impregnation,
torture and other cruel, inhuman, and degrading treatment, assault and battery,
sex and ethnic inequality, summary execution, and wrongful death." [FN111
 In reversing the district court's dismissal, the Second Circuit added more
depth to the Alien Tort Statute by explaining that the Law of Nations, as
understood in the modern era, is not confined to state action. Therefore,
private individuals as well as state actors can violate international law.
[FN113] The appellate court held that with respect to the torts of genocide and
war crimes, both state and non-state actors can be held responsible for
violating customary international law. [FN114] Chief Judge Jon Newman
distinguished the earlier holding in Tel-Oren by analyzing whether or not an
entity constitutes a "state for purposes of international law" under the
standards set forth in the Restatement of Foreign Relations. [FN115] By
applying the Restatement standard, the appellate court concluded that statehood
does not require formal recognition by another state. [FN116]
 IV. PROBLEMS IN ESTABLISHING A SUCCESSFUL LAWSUIT UNDER THE ALIEN TORT
STATUTE
    Bringing a lawsuit alleging a violation of the Law of Nations under the
Alien Tort Statute is no small task. There are numerous hurdles that can
prevent a court from even reaching the merits of a case, let alone ruling in
favor of a plaintiff. Judicial doctrines such as the act of state and political
question doctrines limit a foreign plaintiff's accessibility to U.S. courts.
Additionally, legislation severely narrowed the specific type of defendant that
can be sued. Even assuming that all other barriers are overcome, the
impossibility of collecting a judgment defeats the practical purpose of the
law.

*223 A. The Act of State Doctrine

   In the past, defendants in actions brought under the Alien Tort Statute
[FN125] raised the act of state doctrine as a defense. [FN126] The judicially
created act of state doctrine prohibits U.S. courts from reviewing the validity
of public acts of a recognized foreign sovereign that are carried out in the
foreign territory. [FN127] In Banco Nacional de Cuba v. Sabbatino, [FN128] the
Supreme Court suggested that there were circumstances under which U.S. courts
might adjudicate the validity of foreign acts of state. [FN129] However, the
Court refused to create an "inflexible and all-encompassing rule." [FN130]
Justice Harlan, writing for the majority, indicated that while it is not
required by the text of the Constitution, the act of state doctrine "expresses
the strong sense of the Judicial Branch that its engagement in the task of
passing on the validity of foreign acts of state may hinder rather than further
this country's pursuit of goals both for itself and for the community of
nations as a whole in the international sphere." [FN131] In short, the
separation of powers doctrine and judicial incompetence are the primary reasons
why American courts should not adjudicate cases arising under international
law. [FN132] Justice Harlan also cautioned that "[t]o permit the validity of
the acts of one sovereign state to be reexamined and perhaps condemned by the
courts of another would very certainly 'imperil the amicable relations between
governments and vex the peace of nations."' [FN133]

   *224 Banco Nacional identified three factors to be balanced in an act of
state analysis: (1) the extent to which the international rule implicated by
the claim has been codified and embraced by the consensus of states, (2)
whether a decision on the merits would interfere with the executive functions
in foreign relations, and (3) whether the government whose act is challenged
continues to exist. [FN134] A more direct indication, according to Banco
Nacional, of whether a court should adjudicate a dispute is to consider,
       the greater the degree of codification or consensus concerning a
   particular area of international law, the more appropriate it is for the
   judiciary to render decisions regarding it, since the courts can then focus
   on the application of an agreed principle to circumstances of fact rather
   than on the sensitive task of establishing a principle not inconsistent with
   the national interest or with international justice. [FN135]
   Plaintiffs seeking to enforce human rights under the Alien Tort Statute
faced one of two dilemmas: either an officer of the state committed the
tortious deprivation of rights an officer of the state in his official
capacity, in which case, the suit is barred by the act of state doctrine; or
the state did not authorize the actions, in which case no violation of
international law occurred. [FN136] The Filartiga court remedied both dilemmas.
[FN137] Judge Kaufman suggested that the state's failure to ratify an
official's action would preclude its characterization as an act of state.
 WHEN NOT:  This interpretation moves away from the Supreme Court's decision in
Alfred
Dunhill of London v. Republic of Cuba. [FN139] The Dunhill Court refused to
apply the act of state doctrine without a showing by defendants that "the
conduct in question was the public act of those with authority to exercise
sovereign powers and was entitled to respect in our courts." [FN140] With
respect to human rights claims, the Dunhill *225 requirement of state
authorization forces the distinction between unauthorized acts of individual
officers from official acts of state. Therefore, abstention based on the act of
state doctrine cannot be triggered by conduct which is not ratified by the
state. [FN141] Under Dunhill, individual defendants, who can not prove that
their conduct was governmentally sanctioned or within the scope of their duties
are unable to invoke the act of state defense. [FN142]
  The court in Kadic also examined whether the act of state doctrine barred
adjudication. [FN143] The court stated that while the act of state doctrine
might be applicable to some cases brought under the Alien Tort Statute, it
doubted "that the acts of even a state official, taken in violation of a
nation's fundamental law and wholly unratified by that nation's government,
could properly be characterized as an act of state." [FN144] However, the court
also noted that the act of state doctrine has previously applied in cases that
lacked unambiguous agreements regarding controlling legal principles. [FN145]
The Kadic court found that there is a universal agreement regarding the legal
principles underlying international human rights. [FN146]
 he political fallout the
United States may face as a result of judicial intervention is perhaps the most
troublesome factor facing an action under the Alien Tort Statute. [FN148]
Strict adherence to the Banco Nacional test might necessitate judicial
abstention in a majority of human rights cases because an alien's human rights
 claims often touch national political nerves. [FN149] The Executive's concern
with international human rights combined with the judiciary's difficulty in
gauging the international ramifications of human rights litigation only adds to
the potential political fallout a plaintiff may face. [FN150] The inescapable
problem is that enforcing *226 international human rights in U.S. courts may
offend the governments whose officials are accused of torture or other human
rights violations. [FN151] Thus, rather than risk aggravating political
tension, a court should use the act of state doctrine in section 1350 human
rights cases. [FN152]
 The Political Question Doctrine

   The political question doctrine is "founded primarily on the policies of

separation of power and judicial self-restraint," and essentially maintains
that some issues are too difficult for judicial resolution, even though they
involve actual controversies. [FN153] In adhering to this doctrine, courts must
abstain from deciding political questions and instead allow other branches of
government to resolve them. [FN154] Relying on the factors set forth in Baker
v. Carr, [FN155] the seminal case on the political question doctrine, U.S.
courts have found that some human rights cases raise nonjusticiable political
questions. [FN156] The difficult task facing a court is balancing its statutory
responsibilities against possible adverse impacts on U.S. foreign policy.
[FN157] The doctrine is relatively simple to apply to human rights cases, as
the judge need only make vague reference to the political nature of a human
rights case and the interference with the President's human rights policies.
[FN158] For example, Judge Robb's concurrence in Tel-Oren invoked the political
question doctrine to dismiss the plaintiff's claims and questioned why courts
should involve *227 themselves in such difficult subjects. [FN159] Judge Robb's
approach reflects the opinion held by many courts that the courtroom is no
place to remedy either terrorist actions or any other international human
rights claim. [FN160]
 Foreign Sovereign Immunities Act

   The doctrine of sovereign immunity has been said to stem from the ancient
maxim rex non potest peccare, meaning "the king can do no wrong." [FN165] In
1976, Congress passed the Foreign Sovereign Immunities Act. [FN166] The Act
departed from the historical notion that foreign countries were protected by
"an absolute wall of *228 immunity." [FN167] The Supreme Court characterized
immunity as "a matter of grace and comity on the part of the United States, and
not a restriction imposed by the Constitution." [FN168]

   There are three general objectives of the Foreign Sovereign Immunities Act.
[FN169] Primarily, the Act codifies the principle of restrictive sovereign
 immunity. [FN170] Second, the issue of sovereign immunity was placed into the
hands of the judiciary and taken out of the hands of the Department of State to
ensure the restrictive principle of sovereign immunity was applied in
litigation before U.S. courts. [FN171] Finally, the Act established a statutory
procedure to procure service of process and to obtain personal jurisdiction
over a foreign state. [FN172]
 Chuidian v. Philippine National Bank. [FN187]
There, the court clearly stated that immunity is afforded to any individual
acting in his or her official capacity as an agent for the foreign state
 At the very least, Amerada Hess and the other circuit court decisions on
foreign sovereign immunity seem to have limited the application of the Alien
Tort Statute to suits involving state actors that act outside the scope of
their authority. [FN189] The Foreign Sovereign Immunities Act has been
interpreted to mean that if a foreign state's conduct does not fall within one
of its enumerated exceptions, the sovereign is immune from the jurisdiction of
U.S. courts. [FN190] While some courts liberally construed the Foreign
Sovereign Immunities Act to exclude violations of international law, the Act
does not, as Amerada Hess requires, expressly provide for an exception to
immunity for international law violations. This suggests that Congress
specifically intended to bar any suits against foreign nations and individuals
acting within their official capacity. [FN191]
 In the Torture Victims Protection Act, Congress explicitly granted a
private right of action for aliens and U.S. citizens that were victims of
torture or extrajudicial killing at the hand of "an individual acting under
color of law of any foreign nation." [FN195] By clearly defining extrajudicial
killing and torture, [FN196] the Torture Victim Protection Act eliminates the
need for judges to define and apply principles of international law, to
determine whether a particular right achieved the status of customary
international law, or to find a violation of the Law of Nations when issues of
international practices of human rights are involved. [FN197] The Congressional
hearing also clarified Judge Bork's concerns about construing the legislative
intent of the drafters of the Alien Tort Statute. [FN198]
 Not all cases sustained under the Alien Tort Statute would survive the
scrutiny of the Torture Victim Protection Act indicating a possible conflict
between the two statutes. For example, Forti v. Suarez-Mason [FN206] is
significant for extending the Filartiga analysis beyond torture to include
prolonged arbitrary detention and "causing disappearances." [FN207] Under the
Torture Victim Protection Act, a court would likely exclude these claims
because they do not fall within the mere limited definitions of the Act,
indicating that for the assertion of human rights claims, access to U.S. courts
under the Torture Victim Protection Act is much more limited. [FN208] The Bush
administration foresaw complications with the provisions of the Torture Victim
 Protection Act, and President Bush noted that, "potential abuse of this statute
undoubtedly would give rise to serious frictions in international relations and
would also be a waste of our own limited and already overburdened judicial
resources." [FN209] It appears that Congress intended torture and extrajudicial
killing claims be brought under the Torture Victim Protection Act, which would
in effect repeal the Alien Tort Statute, or at least make it inapplicable to
torture and extrajudicial killings. [FN210]
 udgment Collection

   The Filartiga judgment opened the door for other massive monetary judgments
[FN211] and new legislation. [FN212] However, success in a U.S. court does not
*234 necessarily lead to success in recovering a judgment. [FN213] The
litigation alone is extremely difficult, mainly because the accused is a
high-ranking governmental official who can easily return to his or her home
country and hide assets. [FN214] Further, most plaintiffs in Alien Tort Statute
claims require the assistance of non-profit legal organizations, and the
difficulty in collection hampers an organization's ability to effectively
continue representing clients at a reduced fee. [FN215] Even when a defendant
is properly served, tried, and a judgment entered against him, the problem of
enforceability still exists. [FN216] Successful collection evades all Alien
Tort Statute plaintiffs, making a courtroom victory only the "tip of the
iceberg." [FN217] While the Filartiga case provided significant insight, it has
very little practical value. [FN218]
 HOW THE LI PENG PLAINTIFFS MIGHT FARE

   In 1988, China's Communist Party Chairman and paramount leader, Deng
Xiaoping, hand-selected Li-Peng to act as China's Prime Minister. [FN223] When
pro-democracy protests erupted in Communist China in April 1989, Deng and Li
differed in their opinions on how to deal with the thousands of student
demonstrators who were demanding their constitutional rights to freedom of
expression and assembly. [FN224] Finally, on June 3, the Chinese government
sent tanks and armed soldiers into Tiananmen Square to end the protests. It is
alleged that Li was the man who ordered the crackdown. [FN225] Although never
released by the Chinese government, the death toll is estimated to be in the
thousands. [FN226] The Chinese government continues to insist that the protests
were a counter-revolutionary rebellion and therefore the crackdown was "highly
necessary." [FN227]

   *236 Based on the actions of Li Peng and the Chinese government, a lawsuit
seeking monetary damages and redress for China's actions was filed on behalf of
five student demonstrators against Li Peng. [FN228] Plaintiffs alleged
violations of both the Alien Tort Statute and the Torture Victim Protection
 Act. [FN229] However, as previously discussed, succeeding in such a lawsuit is
a difficult task. The plaintiffs in this case must be able to allege a
violation of the Law of Nations for success under the Alien Tort Statute, and
show either torture or extrajudicial killing to sustain a lawsuit under the
Torture Victim Protection Act. In addition, the plaintiffs must overcome the
hurdles of the act of state doctrine, the political question doctrine, and the
Foreign Sovereign Immunities Act before they can even be given consideration of
the merits of their claims.
 The Torture Victim Protection Act

   The Torture Victim Protection Act is not likely to provide Chinese

dissidents with an outlet into U.S. courts. Unlike the Alien Tort Statute, the
Torture Victim Protection Act explicitly confers a cause of action only for
"torture or extrajudicial killing." [FN233] The plaintiffs face the uphill
battle of proving that the Chinese government's actions constituted either
torture or extrajudicial killings.

a.Torture

   The Torture Victim Protection Act describes torture as "any act, directed
against an individual in the offender's custody by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on that
individual ... for such purposes as obtaining information or a confession ...."
[FN234]
 . Finally, the Foreign
Sovereign Immunities Act, as interpreted by the Supreme Court of the United
States in Amerada Hess, clearly declares that when a foreign state's conduct
does not fall within one of the enumerated exceptions, the sovereign is immune
from the jurisdiction of U.S. courts. For these reasons, the Alien Tort Statute
cannot provide these plaintiffs the reparations they desire and the court
should dismiss the cause of action.
 While the Alien Tort Statute is the foremost method to redress human rights
abuses, the law is so burdened with impediments that its application is nearly
impossible. The numerous judicial abstention doctrines, the statutory barriers,
and the general ambiguities of the Statute make the law inapplicable to a
majority of cases under which it is brought. Even assuming the lawsuit
succeeds, the reality of the Alien Tort Statute is that the plaintiffs will not
receive a cent of the judgment. The best a plaintiff can hope for is that a
judge and jury agree that torture and other human rights violations are wrong
and should not be condoned. However, a plaintiff's desire to hear those words
or to have his or her story printed in newspapers cannot justify the waste of
scarce judicial resources. Without putting some teeth behind the law, a
 majority of cases brought under the Alien Tort Statute do not justify the use
of the judicial system.
 Using the Alien Tort Statute
for the purpose of redressing human rights violations is certainly a noble one:
to announce to the world that the United States does not tolerate violations of
the Law of Nations, and is not a safe-haven for the world's torturers. However,
it is impossible to attach a dollar sign to human suffering, and attempting to
do so in a lawsuit unlikely to produce anything but newspaper headlines does
not accomplish the goal of ridding the world of torture and human rights
abuses.

II. 20 Yale J. Int'l L. 65

FULFILLING THE PROMISE OF FILARTIGA: LITIGATING HUMAN RIGHTS CLAIMS

  AGAINST THE ESTATE OF FERDINAND MARCOS

 In a recent confirmation that private liability may be imposed for public

wrongs, an American jury held the estate of Ferdinand Marcos liable for human
rights violations that occurred in the Philippines during the Marcos
presidency. After six years of pre-trial maneuvering, multiple appeals to the
Ninth Circuit, and two weeks of trial, the estate was found specifically liable
to a class of ten thousand Filipinos and twenty-three named plaintiffs for *66
torture, summary execution, disappearance, and prolonged arbitrary detention.
[FN1] In February 1994 the jury awarded $1.2 billion in exemplary damages.
[FN2] The Marcos verdict is the latest in a series of U.S. decisions holding
former officials of foreign regimes liable for human rights violations
committed abroad.
 The primary statutory authorization for the lawsuits against Marcos is the
Alien Tort Claims Act ("ATCA"), which grants the federal district courts
"original jurisdiction of any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the United States."
[FN6] Enacted as part of the First Judiciary Act of 1789, [FN7] s 1350 seemed
an inconsequential curiosity until 1980 when, with the decision in Filartiga v.
Pena-Irala, [FN8] the Act became a vehicle for the enforcement of international
human rights law. In Filartiga, the United States Court of Appeals for the
Second Circuit sustained federal subject matter jurisdiction under s 1350 in a
suit by two Paraguayan citizens against a Paraguayan police official accused of
committing torture in Paraguay. [FN9] On remand, the district court awarded the
plaintiffs a default judgment in excess of ten million dollars. [FN10]
 hough the Marcos verdict is consistent with the plain language and
legislative intent of the ATCA, it is unprecedented in many respects. The
decision marks the first time a former head of state, as distinct from some
lower functionary, has faced a civil action in a U.S. court for a pattern and
practice of human rights violations. Marcos is also the first class action to
view human rights abuses in effect as mass torts, in which the plaintiffs
establish that they are victims of a single orchestrated and illegal policy.
The Marcos case is in fact the first full-scale civil trial of human rights
claims in the United States; all prior claims had been resolved through either
criminal or default proceedings. [FN13] Moreover, the Marcos estate may prove
to be the first ATCA defendant that is not effectively judgment-proof in the
United States. [FN14]

  Yet, the Marcos verdict is also significant in a more abstract sense. By both
reflecting precedent and expanding it, the case offers a fresh context for
recurring issues of domestic and international law in the United States.
Primary among these issues is the direct enforceability of customary
international law in domestic courts. In the wake of the Marcos cases, federal
judges face a myriad of issues in the law of federal jurisdiction,
constitutional separation of powers and due process, civil procedure, evidence,
and remedies. By what statutory warrant can such cases come before the federal
judiciary? From what source of law may plaintiffs derive a private right of
action? What impact will forum non conveniens, the political question doctrine,
or the various forms of immunity have on such litigation? How can plaintiffs
prove abuses, much less attribute them to the head of state, on a class basis?
Even if liability is established, how can damages for human rights violations
be determined class-wide? What legal difficulties arise when judgment creditors
seek enforcement of such an award in a foreign jurisdiction, as they generally
must?

  The common concern among those who resist the Filartiga and Marcos
dispositions is the assertedly inadequate jurisdictional nexus among the wrong,
the wrong-doer, and the United States. In this view, the United States cannot
properly exercise jurisdiction unless it is responsible for either the tort or
its rectification; the mere physical presence of the defendant is insufficient.
But this argument asserts what no one denies. The real controversy is whether
an adequate link exists through the combination of the defendant's physical
presence, the traditional doctrine of transitory torts, the abiding federal
interest in interpretations of international law, and the recognition that
certain human rights violations are of universal concern. [FN26] Defenders of
the Filartiga and Marcos verdicts argue that diffidence in the face of this
combination of factors is unnecessary and deprecates the courts' historical
 role in the application of international standards; moreover, discretionary
doctrines of deference including forum non conveniens, sovereign immunity, and
the act of state or political question doctrines constrain excessive exercises
of jurisdiction under the Act. Courts have no compelling reason to depart from
the plain language of the statute when existing doctrines assure a sufficient
U.S. stake in cases that go to trial.
 Private right action:
  Quite apart from jurisdiction, the circumstances under which customary or
conventional international law may provide the rule of decision in U.S. cases
remain controversial. Litigants under the ATCA have often addressed the issues
of domestic status and enforceability in terms of whether there is a "private
right of action" to enforce international law norms. That single rubric,
however, fractures into four quite separate assertions: (i) that Congress must
expressly adopt a customary norm before private persons can invoke that norm in
domestic litigation; (ii) that neither treaties nor the law of nations specify
that torture and other violations of human rights may be adjudicated in
domestic civil suits at the instance of individuals as distinct from states;
(iii) that customary international law is incompetent to address a state's
treatment of its own citizens; and (iv) that there can be no customary right to
be free from torture and similar harms, because custom is a function of state
practice and states routinely engage in human rights violations.
 As to jurisdiction:
    [T]here can be no doubt that the company or individuals who have been
injured by these acts of hostility have a remedy by a civil suit in the courts
of the United States; jurisdiction being expressly given to these courts in all
cases where an alien sues for a tort only, in violation of the law of nations
or a treaty of the United States. [FN36]

That understanding was reiterated in 1907 when Attorney General Bonaparte

concluded that s 1350 "provide[s] a forum and a right of action" for torts
committed in violation of the law of nations. [FN37] Certainly as of 1980, the
Departments of Justice and State had decided that, because torture is a "tort .
. . in violation of the law of nations," it gives rise to a
judicially-cognizable remedy under s 1350. [FN38] In short, s 1350 enables
aliens to vindicate in U.S. courts the rights they enjoy by virtue of
international law. Viewed in this light, the cause of action is a creature of
federal common law, compelled by the incorporation of international law
standards into U.S. law. [FN39]
 COA: Of course, federal common law may not be the only or even the best source for
the cause of action in cases under s 1350. The ATCA itself, unlike the s 1331
"arising under" jurisdictional provision, [FN40] may provide the requisite
cause of action. Judges Jensen [FN41] and Edwards [FN42] adopted this approach,
 as did the Ninth Circuit in Estate II when it "conclud[ed] that the Alien Tort
Act . . . creates a cause of action for violations of specific, universal, and
obligatory international human rights standards which 'confer [[[ ] *74
fundamental rights upon all people vis-a-vis their own governments."' [FN43]
The law of the situs, i.e., that of the Philippines in Marcos or Paraguay in
Filartiga, provides another possible source for the cause of action. Under this
analysis s 1350 authorizes a form of "protective jurisdiction." [FN44] A tort
violating the law of nations might occur abroad, and, by virtue of the
transitory tort doctrine, follow the tortfeasor into the United States. This
view of the ATCA instructs the federal courts to assume jurisdiction over cases
arising under foreign law that implicate the federal plenary interest in
adjudicating issues of international law.
 Emerging out of these competing approaches is a rough consensus among the
courts that the ATCA itself provides a cause of action only in narrow, indeed
exceptional, circumstances: the norm allegedly violated must be "specific,
universal, and obligatory," in the words of the Ninth Circuit. [FN45] That test
conforms to the traditional standards for defining the content of customary
international law in U.S. courts [FN46] and assures that the courts have some
efficient means of screening out frivolous suits. As shown below, the consensus
also resolves the issues for which "cause of action" has been only an
analytical marker.
 Emerging out of these competing approaches is a rough consensus among the
courts that the ATCA itself provides a cause of action only in narrow, indeed
exceptional, circumstances: the norm allegedly violated must be "specific,
universal, and obligatory," in the words of the Ninth Circuit. [FN45] That test
conforms to the traditional standards for defining the content of customary
international law in U.S. courts [FN46] and assures that the courts have some
efficient means of screening out frivolous suits. As shown below, the consensus
also resolves the issues for which "cause of action" has been only an
analytical marker.
 VERY IMPORTANT: The Filartiga decision has concededly spawned some dubious claims. In
Trans-Continental Investment Corp., S.A. v. Bank of the Commonwealth, [FN73]
for example, the plaintiff claimed that fraud violated the law of nations
because it is a tort recognized in virtually all legal systems around the
world. The court could find no treaty-based or customary condemnation of
private acts of fraud and rightly denied jurisdiction under the ATCA. [FN74]
Similarly, in Guinto v. Marcos, [FN75] the court denied s 1350 jurisdiction
over claims that a government embargo on a film amounted to a violation of the
plaintiffs' internationally guaranteed rights to free expression. The court
understandably declined to find any duplicate of the First Amendment to the
U.S. Constitution in either customary or conventional international law. [FN76]
   Nonetheless, the problem of "quality control" does not warrant a prophylactic
rule against all private causes of action under the ATCA. The rights asserted
in cases that fit the Filartiga-Marcos paradigm, in contrast to the rights
advanced in Trans-Continental Investment Corp. and Guinto, are universally
recognized human rights norms that are limited in scope and number. According
to the Restatement (Third) of Foreign Relations Law, these norms include at a
minimum a prohibition of the following acts:

    *81 (a) genocide,

    (b) slavery or slave trade,

    (c) murder or causing the disappearance of individuals,

    (d) torture or other cruel, inhuman, or degrading treatment or punishment,

    (e) prolonged arbitrary detention,

    (f) systematic racial discrimination, and

    (g) a consistent pattern of gross violations of internationally recognized

human rights. [FN77]
 contrast, states have historically preserved a domain of
auto-interpretation with respect to free speech. In short, the repeated
prohibitions on torture and similar wrongs in virtually every human rights
instrument, combined with the unwillingness of deviant states to assert a legal
right to their violations, undermine the argument that continuing occurrences
of torture disprove a customary international norm in favor of such human
rights.

  With the rise of democracy in the last five years and the liberalization of
political rights generally, the stage is set for the evolution of additional
human rights norms, especially free speech and the right to be free from
discrimination based on gender as well as race. Although controversy may
continue in any given case about whether a norm was violated, the consensus
that a norm exists should increase. As long as violations of these norms take
tortious form, there should be no jurisdictional obstacle to vindicating them
through ATCA litigation. The proliferation of human rights treaties in the last
decade should at least give the treaty wing of s 1350 renewed significance.
 Human rights norms are frequently subsumed in the
category of jus cogens, those preemptive norms of international law from which
states may not derogate. [FN78] Yet considerable disagreement exists about
 which norms qualify for inclusion in this privileged class, along with some
skepticism that any principle of international law is beyond alteration by
treaty or consistent state practice. [FN79] The Restatement enumeration, though
it may *82 overlap with the asserted jus cogens norms of human rights law, need
not clear that additional threshold; the traditional standards of customary
law, state practice combined with opinio juris, fully ground the list.
 Limiting: Putting aside the question of whether it is possible to construct an
exhaustive catalogue of human rights norms at customary law, at a minimum any
violation of the rights identified in s 702 of the Restatement -- assuming the
violation takes tortious form -- ought to be actionable under the ATCA. The
difficulty lies not in identifying the core, but in defining the margins.
[FN80] The Marcos verdict, which establishes liability for torture, summary
execution, disappearance, and prolonged arbitrary detention, lies comfortably
within the Restatement standards.
 Why state doc would not apply: he Ninth Circuit had previously established that the act of state
doctrine
applies only when a state exercises its sovereignty in pursuit of the public
interest. [FN88] In its unpublished, per curiam disposition of the Marcos human
rights cases, [FN89] the court of appeals equated individuals' allegations of
torture with a foreign government's allegations of financial crimes. As
explained in Estate II, "Marcos' alleged illegal acts" -- whether financial
crimes or human rights abuses -- "were not official acts pursuant to his
authority as President of the Philippines," and "the illegal acts of a dictator
are not 'official acts' unreviewable by federal courts." [FN90] The public
interest inquiry, though consistent with act of state precedents, potentially
involves the courts in the very political and legal maelstrom the doctrine was
designed to avoid -- a symptom of the dysfunctional role the doctrine has made
for itself. Apparently unconcerned with that abstraction, the court's act of
state analysis turned *84 explicitly on considerably more pragmatic factors,
including the private status of the defendant at the time of decision [FN91]
and the apparent acquiescence of the existing Philippine government. [FN92]
From this perspective, the act of state doctrine did not apply because it would
have been more embarrassing not to adjudicate these human rights claims,
thereby granting Ferdinand Marcos a form of judicially created sanctuary not
offered by the executive branch. In other words, the potential for
embarrassment in holding Ferdinand Marcos responsible for these specific acts
was miniscule given that the Philippine and U.S. governments were both
attempting similar action.

  Of course, the act of state principle as the Supreme Court applies it is not
a free-wheeling discretionary concern with embarrassment. Rather, it is subject
to specific limitations and exceptions that give the principle structure and
 suggest its presumptive inapplicability to human rights abuses of the sort
recognized as violations of customary law in the Restatement. [FN95] Claiming
act of state "immunity" also creates for Marcos and similar defendants the
dilemma of adopting torture or other violations as a matter of state policy:
they must claim that the mistreatment of dissidents and prisoners was an *85
expression of public authority ratified (at least metaphorically) by the state
itself. Yet, no government or government official will generally make such a
claim. As a consequence, the act of state doctrine, which cannot immunize
unofficial or unacknowledged acts of government officials, must be foreclosed.
[FN96]
 Prominent on the surface of any case held to involve a political question
is found a textually demonstrable constitutional commitment of the issue to a
coordinate political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of deciding without
an initial policy determination of a kind clearly for nonjudicial discretion;
or the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political decision already made;
or the potentiality of embarrassment from multifarious pronouncements by
various departments on one question. [FN98]
 Standard: In short, the jurisdictional finding that the "law of nations or a treaty of
the United States" has been violated ought to remove an action from the typical
political question model, precisely because the finding implies the existence
of standards that are legal and not "political." While the political question
doctrine may be relevant to actions under the ATCA, the doctrine does not
provide systematic grounds for barring such cases altogether; in any event, it
is unlikely to apply to a case that clears the statutory hurdles.
 Soveign FIA: For example, the Marcos estate claimed that the former president was entitled
to sovereign immunity under the Foreign Sovereign Immunities Act ("FSIA").
[FN108] That act establishes a presumption of immunity for states and their
agencies or instrumentalities, subject to exceptions for commercial activities,
torts in the United States, and waiver, inter alia. Although some human rights
cases have been successfully prosecuted in the United States against foreign
governments, the regime of exceptions under the FSIA remains fairly strict.
Accordingly, most plaintiffs under the Alien Tort Claims Act will instead name
the state officers who were allegedly responsible for the abuses as individual
defendants. Several courts, however, have held that in some circumstances
individuals qualify as an agency or instrumentality of the state, entitled to
immunity under the FSIA. The issue is therefore likely to arise routinely in
litigation under s 1350.

  The Marcos estate would not qualify as a state actor under current court
 analysis. According to the Ninth Circuit's decision in Chuidian v. Philippine
National Bank, a government official is entitled to sovereign immunity only for
acts committed in his or her official capacity and within the scope of his or
her authority. [FN109] The Chuidian rule virtually assured that immunity would
be unavailable to the Marcos estate because torture, summary execution, and
similar acts were illegal throughout the Marcos presidency and therefore could
not have been within the president's scope of authority. As the Ninth Circuit
noted in a somewhat different context:

    Although sometimes criticized as a ruler and at times invested with

extraordinary powers, Ferdinand Marcos does not appear to have had the
authority of an absolute autocrat. He was not the state, but the head of state,
bound by the laws that applied to him. Our courts have *88 had no difficulty in
distinguishing the legal acts of a deposed ruler from his acts for personal
profit that lack a basis in law. [FN110]
 PHILIPPINE GOVE WAIVER: Sovereign immunity was an implausible defense for the Marcos
estate for a
separate reason. In the Marcos cases, the Philippine government specifically
requested the courts of the United States to proceed to trial on the human
rights claims against the former president. Because the sovereign immunity of
an individual, like that of an agency or instrumentality of a state, is
derivative and can be no greater than the immunity of the state itself, the
Philippine government's request waived whatever sovereign immunity might
otherwise have attached to Ferdinand Marcos. [FN112]
 In summary, the defendants of choice under s 1350 will continue to be the
state actors who commit human rights violations under color of their offices
but in violation of local and international law. Until Congress acts to the
contrary, even violations of jus cogens norms will not ground jurisdiction over
state defendants, unless one of the statutory exceptions is also satisfied.
[FN114] Yet, individual state officers, even high-ranking ones and their
estates, cannot qualify for immunity as to acts committed under color of
authority that are nonetheless illegal.
 Dati prez immunity: One can construct a superficially more attractive rationale for such a
doctrine by drawing on the principles of Nixon v. Fitzgerald. [FN118] That case
established a former U.S. president's "absolute immunity from damages liability
predicated on his official acts." [FN119] The Supreme Court expressly based its
decision on the president's "unique position in the constitutional scheme"
[FN120] and stressed the impossibility of performing the executive's sensitive
functions if the president were "subjected to the distraction of suits by
disappointed private citizens." [FN121] By analogy, failing to recognize a
former head of state's immunity potentially compromises the nation's foreign
*90 relations with current heads of state.
 The analogy, however, is highly problematic. Executive officials other than
the president are not entitled to the absolute immunity recognized in
Fitzgerald, and it would be anomalous if the separation of powers calculus
favored former heads of foreign states over current cabinet-level executive
officials. In addition, the balancing of interests that supported absolute
immunity in Fitzgerald depended largely on the availability of alternative
constitutional procedures -- including impeachment and congressional oversight
-- that offered protection against the president's illegal conduct. No
analogous set of constitutional mechanisms is available for enforcing
applicable U.S. law against a former head of a foreign state, even
acknowledging that U.S. courts usually have an attenuated interest in such
cases.

  In addition, the Fitzgerald opinion recognizes that absolute immunity from

damages liability applies only to acts within the "'outer perimeter' of [the
president's] official responsibility." [FN122] A U.S. president's order to
torture or summarily execute political opponents hardly fits within that
fictive perimeter. Regardless, that part of the doctrine should not apply to
former heads of foreign states residing in this country. After all, U.S
presidents, unlike Ferdinand Marcos, have no immunity in the United States from
impeachment or voter rejection for such acts. Thus, to extend Fitzgerald to
former heads of foreign states is to create an effective and unprecedented
sanctuary for lawlessness without executive, statutory, or constitutional
authorization or limit.

  Forum non conveniens issues will constantly arise by the very nature of
Filartiga-like suits under the Alien Tort Claims Act. Witnesses and evidence
may be costly to obtain in a U.S. forum, compulsory process may not be
available in all cases, and aspects of the case may depend on the law of a
foreign state. Nevertheless, because application of the inconvenient forum
doctrine is fact-dependent, it does not favor dismissal as a matter of course.
Indeed, the forum non conveniens argument was not particularly compelling in
the initial phases of the Marcos cases even though the evidence and witnesses
were almost exclusively in the Philippines. No adequate alternative forum
existed in the Philippines, as required by Gulf Oil Corp. v. Gilbert [FN123]
*91 and its progeny. No court in the Philippines could have established
personal jurisdiction over the defendant because the Aquino government had
revoked Marcos's passport soon after his departure from Manila and specifically
prohibited his re-entry into the country. Nor was there any applicable
Philippine provision establishing the long-arm jurisdiction of local courts.
These circumstances led the Ninth Circuit to reject the forum non conveniens
argument in a related case against Marcos in 1988. [FN124]
 The federal question origins of the ATCA arguably preclude such a
disposition. The Ninth Circuit, like many other jurisdictions, has held that
the applicability of federal law can trump the forum non conveniens doctrine.
[FN125] Under the ATCA, federal law is implicated because international law
became part of the federal common law when the states adopted the Constitution.
[FN126] However, because the ATCA lies figuratively between diversity
jurisdiction, where forum non conveniens is routinely recognized, and federal
question jurisdiction, where it is not, a prophylactic rule against dismissal
is unlikely to emerge. Litigants will be obliged to demonstrate the balance of
public and private factors behind the "ultimate inquiry" of "where [[[ the]
trial will best serve the convenience of the parties and the ends of justice."
[FN127]

  That calculus, impressionistic as it may be, cuts in favor of exercising

jurisdiction in cases within the Filartiga-Marcos paradigm. As a general
matter, the United States has a compelling interest in the interpretation and
application of international legal standards. The incorporation of
international law into federal common law invests the courts of this country in
its construction. [FN128] Courts should take special interest in the
interpretation of international human rights norms that come within the
universal principle of prescriptive jurisdiction.

  The posture of the Marcos case reinforced this interest. Because the
Philippine government agreed to cooperate during the discovery stage of the *92
trial, the concern with foreign-sited evidence was less pressing. In addition,
the Judicial Panel on Multi-District Litigation consolidated the various human
rights cases against Marcos, in part to streamline the proceedings for the
convenience of the defense -- an intermediate concession preferable to an
outright dismissal on convenience grounds. Criminal proceedings initiated
against Marcos in October of 1988 heightened the interest of the United States
in the defendant's continued presence. The fact that part of his estate was to
be administered in the United States similarly cut against dismissal.

  Of course, the convenience test is intrinsically fact-dependent, and none of

these characteristics standing alone is dispositive. Nevertheless, forum non
conveniens clearly does not operate as an automatic bar to the litigation of
human rights claims under s 1350. In applying the doctrine, courts will take
into account the simultaneous presence of the plaintiffs and the defendant, the
interest of the United States in the vindication of accepted human rights
standards, and the existence (or absence) of an adequate foreign forum.
 A mass human rights tort trial inevitably compromises claim autonomy and
therefore raises the difficulties catalogued by Professor Roger Trangsrud and
 others. [FN131] These difficulties include confusion of causation issues and
the consequent impairment of the jury function, profound extrapolation from the
experience of nine victims to that of ten thousand, distortion of the
relationship between counsel and client (especially when the attorney has taken
the case on a contingency fee), and overreaching by judges in pre-trial
management and the coercion of settlement. Designation of the class counsel as
lead attorney in the trial can also cause sharp disagreements about the
fundamental trial strategy, the admission and order of evidence, and the
preparation of witnesses.

  In addition, the impropriety of the class mechanism has grown more pronounced
in the damages phase of the trial. Class counsel has suggested an unwieldy
process for distributing and collecting claim forms in the Philippines. The
effect of this scheme may be to underestimate drastically the number of
victims, making the next phase of litigation more manageable for counsel
without reducing the prospect of a multi-billion-dollar recovery. Class counsel
suggested the appointment of a special master to collect evidence in the
Philippines and to recommend damage awards for each member of the class.
Alternatively, trial of a dozen exemplary cases might establish parameters for
the award of damages. It might also be possible to recruit the machinery of the
Philippine government or nongovernmental organizations to collect and assess
the evidence of damages for every class member. Yet, these procedures
compromise the right to have each damage award tried by the jury that
established liability. Whether any mechanism can be devised to serve the
competing objectives of actually compensating victims and preserving judicial
resources seems doubtful, and the law and logistics of proving damages thus
undermine the propriety of the class certification.
 In the course of the Marcos trial, Judge Real made numerous evidentiary
rulings, the most prominent of which involved the use of expert testimony. As
noted above, the plaintiffs established liability on the basis of a pattern and
practice of human rights abuses during the Marcos presidency. To achieve this
class liability, the plaintiffs had to show that Marcos bore a form of command
responsibility heretofore limited to criminal proceedings. Establishing command
responsibility as a matter of principle or international legitimacy is one
thing, however, and proving it as a matter of fact is quite another. Plaintiffs
in the Marcos cases relied heavily on several different witnesses to establish
the factual predicates for command responsibility. One expert witness testified
as to the effect of Marcos's presidential decrees. Others described the
structure, organization, and control of the Philippine military, security, and
intelligence forces. Still others, including former officials of the U.S. State
Department, described the efforts of the U.S. government to monitor and reduce
human rights violations during the Marcos regime.

  Perhaps more decisive was the expert testimony of two human rights
investigators who described the pattern and practice of human rights atrocities
in the Philippines, including Marcos's personal role in the abuse. They
testified on the basis of their own investigations, as well as corroborated
reports from investigations by the State Department and by nongovernmental
organizations. They also testified about Marcos's responses to allegations of
abuse and to the source and status of international human rights standards.

  Taken cumulatively, this expert testimony convinced the jury that human
rights violations in the Philippines were widespread. It allowed the jury to
assess Marcos's relationship with such institutions as the Presidential
Security Command, the Armed Forces of the Philippines, and the Philippine
Constabulary, among others. The testimony also enabled the jury to gauge the
likelihood that Marcos had personal knowledge of human rights violations and to
assess his powers to have done something about them. It gave context to the
live testimony of victims and thereby enabled the jury to assess their
credibility. And, at least subliminally, it conveyed the sense that human
rights standards are not some form of utopian moralizing, but are in fact
capable of *97 definition and enforcement.

  This expert testimony also affected the judge's hearsay rulings. On the day
after the first experts' testimony about Marcos's operational control of the
military and police functions, Judge Real decided to admit all statements
attributed to any member of the Philippine armed forces or security units, on
the grounds, inter alia, that they amounted to party admissions [FN145] and
declarations against interest. [FN146] The court also declared that such
statements fell within the residual categories of reliable hearsay. [FN147] As
a consequence, victims could testify about the motives of their torturers,
(e.g., "We [the police] are doing this because the President wants you dead"),
and the agency affiliations of their tormentors (e.g., testimony admitted for
the truth of the matter asserted that armed men in civilian clothes said they
were from the Presidential Security Command). Though the judge allowed counsel
to protect the record on this issue, he permitted virtually no argument on the
propriety of the rulings.

  One may well wonder whether the agency relationship that justifies the
inclusion of a party admission can be proved by expert testimony or by the
out-of-court declaration of the purported agent; the theory that the Marcos
estate vicariously adopted these statements may strain credulity. Yet, these
 hearsay rulings, however broad, may not qualify as reversible error. If the
court of appeals agrees that liability can be predicated on a pattern and
practice of human rights abuses ordered or acquiesced in by Marcos, the
cumulative effect of the scattered hearsay rulings may be negligible or fail to
affect a "substantial right" of the defendant. [FN148] Besides, a substantial
number of plaintiffs intentionally did not rely on such testimony to establish
the liability link to Marcos. Their favorable verdicts ought to be immune from
whatever taint the hearsay rulings may carry.

  As a general matter, although the use of expert testimony has been the
subject of recent controversy, [FN149] plaintiffs were clearly entitled to
present expert testimony in their cases as long as the witness's expertise
would be helpful to the trier of fact. Under Rule 702 of the Federal Rules of
Evidence,

    [I]f scientific, technical, or other specialized knowledge will assist the

trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise. [FN150]

This concededly liberal standard appears to cover such specialized information

as Marcos's relationship with governmental agencies, the likelihood vel non
that Marcos would take personal or vindictive action against those he perceived
as opponents, and the existence of a pattern or practice of violations *98 for
which Marcos was responsible and to which the plaintiff's treatment conformed.
[FN151]

  Plaintiffs also alleged various violations of international law (or the law
of nations), including torture, summary execution, cruel and unusual or
degrading treatment or punishment, and prolonged arbitrary detention. These
terms are not self-defining but are, like all international law standards, a
function of state practice and treaty interpretation. For that reason, courts
have generally received the evidence of experts in determining the content of
international law. [FN152] Although courts are understandably reluctant to
allow expert testimony on matters of general knowledge, litigation under the
ATCA will inevitably involve questions and issues well beyond the daily
experience of most jurors. [FN153] Expert testimony will therefore continue to
be a staple of that litigation.
 You may find the defendant Estate liable to plaintiffs if you find, by a
preponderance of the *99 evidence, that Ferdinand Marcos acting under color of
law either (1) directed, ordered, conspired with or aided Philippine military,
paramilitary and/or intelligence forces to torture, summarily execute or cause
 the disappearance of [or arbitrarily detain] plaintiffs and the class or (2)
had knowledge that Philippine military, paramilitary and/or intelligence forces
tortured, summarily executed, caused the disappearance of, or arbitrary
detention [sic] plaintiffs and the class, and having the power failed to take
effective measures to prevent the practices. [FN155]
III. n international treaty on the redress of human rights violations could fill
this void. Building on the remedial provisions of the Universal Declaration of
Human Rights, [FN160] such a treaty could define the specific violations that
would be actionable in the courts of all signatory states. [FN161] In doing so,
the treaty should draw, at least initially, on the work of the International
Law Commission, [FN162] the International Court of Justice's articulation of
obligations erga omnes, [FN163] and the range of universal treaties defining
the actionable core of rights. [FN164] The treaty might also define the choice
of law in such cases, articulate an international law of evidence, and define
the measure of compensatory damages or impose an international obligation to
recognize and enforce judgments rendered under the treaty. Such an agreement
would thereby resolve once and for all whether punitive damages are appropriate
for gross violations, and whether the estate of the defendant (as distinct from
a *103 living person) ought to be vulnerable to such damages.

III. 23 Colum. Hum. Rts. L. Rev. 315 HE ALIEN TORT STATUTE OF 1789 AS A REMEDY
FOR INJURIES TO FOREIGN NATIONALS HOSTED BY THE UNITED STATES

 History The Alien Tort Statute was enacted on September 24, 1789, as part of the
First Judiciary Act. [FN33] In its pristine form, it authorized the district
courts to have cognizance, "concurrent with the courts of the several states,
or the circuit courts, as the case may be, of all causes where an alien sues
for a tort only in violation of the law of nations or a treaty of the United
States." [FN34] For more than two hundred years, the Statute has remained
virtually unchanged. [FN35]

   *325 Despite evidence to the contrary, the origin and purpose of the Statute
have been considered "obscure". [FN36] This "ancient yet uncelebrated law"
[FN37] has been labeled as troublesome by federal courts. [FN38] The language
of the Statute, moreover, has also been described as cryptic [FN39] and vague.
[FN40] Judge Friendly's Wagnerian characterization of the Statute as a "kind of
legal Lohengrin" is well-known. [FN41] According to Judge Friendly, although
the Statute "has been with us since the First Judiciary Act . . . no one seems
to know from whence it came." [FN42] The origin and purposes of the Statute,
however, are not a total mystery. [FN43] Professor Randall, for example, has
rejected Friendly's often-quoted comment and similar observations as somehow
 *326 exaggerated and inaccurate. [FN44] For, as documented by Randall and
others, although "no specific legislative history exists on the Judiciary Act .
. . other historical and legislative sources, when pieced together, adequately
indicate the Statute's origins and purposes." [FN45]

   The Statute's historical context, in effect, would seem to indicate that it

was designed to prevent local denial of justice [FN46] to aliens [FN47] and the
resulting international consequences for the United States. [FN48] It is
familiar international law that an injury to a national is an injury to the
state to which he belongs. [FN49] During the last half of the eighteenth
century, Vattel had already stated that " w hoever illtreats *327 a citizen
injures the state, which must protect that citizen." [FN50] Consequently, in
cases of denial of justice, "the treatment of an alien ceases to be a question
of municipal law, and it may become the occasion for the assertion by his home
state of an international right to secure proper redress for him." [FN51]
 even at the dawn of the Republic it was already well-established
that the law of nations bound the several states as part of their common law.
[FN75] Accordingly, early Americans considered it the judiciary's duty to
ascertain that law and apply it, where appropriate, in administering justice.
[FN76] Yet the framers of the constitution deemed it in the national interest
to vest on federal, rather than state, courts the duty of resolving
controversies implicating the law of nations. [FN77] John Jay, for example,
stated:

      It is of high importance to the peace of America that she observe the law
   of Nations . . . and . . . it appears evident that this will be more
   perfectly and punctually done by one national government than it could be .
   . . by the thirteen separate states . . . . [FN78]

   Likewise, the framers decided to ensure the enforcement of treaty

obligations in American courts by explicitly declaring treaties the supreme law
of the land, binding judges in every state, anything in the constitution or
laws of any state to the contrary notwithstanding. [FN79] The origin of this
provision of the Supremacy Clause can be found precisely in the refusal of
state courts to enforce an article of the treaty of peace with Great Britain
granting British creditors judicial remedies to recover their debts. [FN80] Not
surprisingly, *332 then, "the necessity of meeting obligations imposed by
international law had much to do with bringing about the formulation and
adoption of the Federal Constitution." [FN81]

   That international law, either conventional or customary, [FN158] is
incorporated into the law of the United States is a principle firmly founded in
 the Federal Constitution. [FN159] True, unlike conventional international law
(i.e., treaties), customary international law (i.e., the law of nations) is
expressly mentioned neither in Article III nor in the Supremacy Clause. [FN160]
But customary international law, as part of the "law of nations" and,
therefore, of "the laws of the United States," is as federal and supreme over
state laws as treaties made under the authority of the United States. [FN161]
That the law of nations is a part of the law of the land, "is an ancient and
salutary feature of the Anglo-American legal tradition." [FN162]

   Early in American judicial history, the Supreme Court unambiguously

recognized the Judiciary to be "bound by the law of *344 nations, which is a
part of the law of the land." [FN163] Justice Gray's much-quoted dictum in The
Paquete Habana [FN164] pronouncing "international law" to be "part of our law"
was "neither new nor controversial when made in 1900, since he was merely
restating what had been established principle for the fathers of American
jurisprudence and for their British legal ancestors." [FN165] Yet the
constitutional recognition of customary international law as federal, rather
than state, law was not completely realized until a few decades ago, [FN166]
despite the clear intention of the framers of the Constitution to federalize
it. [FN167]
  Not until the Supreme Court's landmark decision in Banco *345 Nacional de
Cuba v. Sabbatino, [FN173] was federal authority to determine customary
international law clearly established. [FN174] In declaring the Act of State
doctrine to be a principle of federal law binding on the several states,
[FN175] the Court expressly invoked authority rejecting the applicability of
Erie to international law. [FN176] As a result of this aspect of Sabbatino

      [t]here is now general agreement that international law, as incorporated

   into domestic law in the United States, is federal, not state law; that
   cases arising under international law are "cases arising under . . . the
   laws of the United States" and therefore are within the jurisdictional power
   of the United States under Article III of the Constitution; that principles
   of international law as incorporated into the law of the United States are
   "laws of the United States" and supreme under Article VI; that international
   law, therefore, is to be determined independently by the federal courts, and
   ultimately by the United States Supreme Court, with its determination
   binding on the state courts; and that a determination of international law
   by a state court is a federal question subject to review by the Supreme
   Court. [FN177]

It is also important to emphasize that international law has been incorporated

into United States law both directly and indirectly. Directly, not only under
 Article III, the Supremacy Clause, and other Articles of the Constitution,
[FN178] but also through the use of several *346 constitutional amendments
[FN179] and by reference in the statutory scheme, [FN180] as well as in the
Alien Tort Statute. [FN181] Indirectly, this incorporation has occurred either
as: (1) an expression of government policies or interests, widely-accepted
standards, or experience relevant to judicial decisions, [FN182] or (2) an aid
for constitutional or statutory interpretation, in order to reach, where
possible, decisions which are compatible with the international obligations of
the United States. [FN183] In Professor Jordan Paust's words: " I t is too
simplistic to argue that customary international law is incorporable merely as
some sort of 'common law". [FN184]
  International human rights norms have been asserted before and invoked by
American courts since the very dawn of the international law of human rights.
[FN199] As early as 1948, the same *349 year that the Universal Declaration of
Human Rights was proclaimed in Paris, [FN200] Justices Black and Murphy invoked
in Oyama v. California, [FN201] the United States' pledge, through the United
Nations Charter, to "promote . . . universal respect for, and observance of,
human rights and fundamental freedoms for all without distinction as to race,
sex, language or religion," [FN202] in support of the Supreme Court's
condemnation of certain features of the California Alien Land Law on equal
protection grounds. [FN203] The efficacy of the international law of human
rights as United States law, however, has been variable and the issues raised
by its enforcement in American courts, complex and controversial. [FN204]
Essentially, four lines of cases can be identified in this field.
  In Professor Jordan Paust's opinion the primary value of Filartiga,
Rodriguez-Fernandez or other cases such as Laureau v. Manson lies "with the
authoritative use of general methods of direct and indirect incorporation of
human rights in a continuing effort to provide more effective implementation of
human rights for all persons and more meaningful sanctions in the case of
deprivations." [FN233]
 A second approach, started with Oyama, [FN213] considers international human
rights norms a most relevant aid for constitutional and statutory
interpretation. [FN214] In 1948, for example, Justice Frankfurter in analyzing
the constitutionality of state "right to work laws" noted that the Universal
Declaration of Human Rights forbade anyone's being compelled to belong to an
association. [FN215] A year later, the Oregon Supreme Court followed the
reasoning of Justices Black and Murphy in Oyama that the United Nations
Charter's human rights provisions were to be taken into account in declaring
unconstitutional discriminatory state Alien Land Laws. [FN216]
   The international obligation to observe human rights without discrimination
of any kind, in effect, constitutes a fundamental principle of contemporary
international law in accordance with the Charter of the United Nations. [FN246]
 But the obligation to observe human rights is not limited to their passive
respect by state *356 authorities. [FN247] As interpreted in major human rights
instruments, it also comprises the duty to ensure that any person whose rights
have been violated, either by private individuals or by governmental
authorities, shall have an effective remedy by competent domestic authorities.
[FN248] The international obligation to observe human rights, then, would be
frustrated without the enforcement of international human rights by domestic
courts.

   In fact, the right to an effective remedy in domestic courts is required by

the very nature of the international law of human rights. Unlike traditional
international law, the international law of human rights is concerned with the
rights of individuals, rather than with the reciprocal duties of states.
[FN249] That such rights must be guaranteed primarily -- although not
exclusively -- in the domestic plane is evident. [FN250] Given the relatively
primitive character of the *357 international society, domestic courts often
must be relied upon to perform the international function of upholding rights
and duties grounded in international law. [FN251] This is particularly true in
the human rights field, where competent international bodies generally lack the
power to enforce their rulings [FN252] and many states have proven consistently
reluctant to accept their jurisdiction to adjudicate individual claims
concerning human rights abuses. [FN253]
 The Filartiga Court narrowed its landmark construction of the meaning of
"the law of nations" described above by establishing a requirement that a rule
command "the general assent of civilized nations" to become enforceable through
the Alien Tort Statute. [FN289] Were this not so, explained Judge Kaufman in
Filartiga, "the courts of *362 one nation might feel free to impose
idiosyncratic legal rules upon others, in the name of applying international
law." [FN290] For the Filartiga court, " i t is only where the nations of the
world have demonstrated that the wrong is of mutual, and not merely several,
concern, by means of express international accords, that a wrong generally
recognized becomes an international law violation within the meaning of the
Statute." [FN291] It is critical, then, to analyze the methodology for
determining the internationally recognized rights of aliens in order to
determine in which areas of the law the required consensus currently exists.
  Following a long-standing line of Supreme Court opinions, judicial authority
interpreting the Alien Tort Statute has ascertained the law of nations by
resort to "the customs and usages of civilized nations" (i.e., customary
international law). [FN292] Customary international law, underscores Professor
Paust, "actually has two primary components which must be generally cojoined:
(1) patterns of practice or behavior, and (2) patterns of legal expectation,
"acceptance" as law, or opinio juris". [FN293] Traditionally, American courts
 have accepted as evidence of the required patterns of expectation and behavior
"the works of jurists and commentators" [FN294] and "judicial decisions
recognizing and enforcing. . .  international  law." [FN295] Both sources are
expressly recognized by the Statute of the International Court of Justice as
auxiliary methods for determining international law. [FN296]
 ditionally, the Filartiga court documented practice and opinio juris
in the human rights field with other sources mentioned in the International
Court's Statute: Treaties, although not necessarily signed or ratified by the
United States or self-executing as conventional law, [FN297] and general
principles of law. [FN298] Declarations, reports, studies, resolutions, and
other documents of multilateral bodies have also been accepted by Filartiga and
its offspring as evidence of custom. [FN299] Significant weight has also been
accorded in human rights litigation under the Alien Tort Statute to expert
testimony of prestigious scholars [FN300] and governmental memoranda amicus
curiae determining international law. [FN301]
 International human rights law governs relations between a state and its
   own inhabitants. Other states are only occasionally involved in monitoring
   such law through ordinary diplomatic practice. Therefore, the practice of
   states that is accepted as building customary international law of human
   rights includes some forms of conduct different from those building
   customary international law generally. [FN313]

   *366 Chief among those forms of conduct is the unique form of state practice
which occurs in multilateral organizations, such as the United Nations. [FN314]
Within this framework, "international conventions, declarations and resolutions
are a higher form of state practice, the existence of which mitigates the
importance of unofficial  human rights  derogations." [FN315] One of the most
characteristic features of the multilateral law-making process is that
international instruments are seen "not as necessarily binding by themselves,
but as incrementally building blocks of an order which can be seen with
increasing clarity as the number and authoritativeness of the supporting
instruments mount." [FN316]
  Furthermore, it is well-established international jurisprudence that
"multilateral conventions may have an important role to play in recording and
defining rules deriving from custom, or indeed in developing them." [FN326] The
Restatement stresses in this regard that *369 "codification  itself assumes the
essential validity of the customary rule that is being codified and the
authenticity of its substantive content. Even after codification, moreover,
custom maintains its authority, particularly as regards states that do not
adhere to the codifying treaty." [FN327] Even " t reaties that do not purport
to be declaratory of customary international law at the time they enter into
 force may nevertheless with the passage of time pass into customary
international law." [FN328] It is difficult to argue that customary human
rights law lacks specificity, when its content can be ascertained by resort to
a highly developed network of human rights treaties documenting it in
reasonable detail. [FN329]
IV.
82 Am. J. Int'l L. 323 ALIEN TORT CLAIMS, SOVEREIGN IMMUNITY AND INTERNATIONAL
LAW IN U.S.
  "The modern view," according to the court, "is that sovereigns are not
immune from suit for their violations of international law." [FN6]  The court
*325 discussed this view in terms that failed to differentiate between (1)
"immunity" from international responsibility, which of course does not exist
when a state violates international law, and (2)  immunity from the
jurisdiction of the domestic courts of other states.  Nothing it said
demonstrated the absence of the latter type of immunity, at least in modern
times. [FN7]
 ection 1604 of the FSIA says that, subject to
certain international agreements, "a foreign state shall be immune from the
jurisdiction of the courts of the United States and of the States except as
provided in sections 1605 to 1607 of this chapter."  Those exceptions deal
primarily, but not exclusively, with commercial matters.  One of them, not
mentioned by the majority of the panel, deals expressly with expropriations in
violation of international law. [FN13]  Thus, Congress did focus on
international law violations, and permitted an exception from immunity for
certain ones--not including attacks on neutral vessels. The residual immunity
of section 1604 would apply.  Its subordination to certain international
agreements relates to agreements delineating immunities in domestic courts, not
to agreements rendering unlawful such conduct as the bombing of a merchant
vessel on the high seas.
 In Filartiga, the court showed convincingly that customary international law
prohibits torture.  That is not the same, however, as showing that an
individual who commits torture is personally responsible under customary
international law. [FN26]  A persuasive argument to this effect can be made if
the perpetrator or instigator is a public official acting under color of state
authority, and if the act otherwise fits within the accepted definition of
torture [FN27]--despite the fact that the relevant international instruments
focus on the duties of states rather than individuals. The reason is the same
as in the case of war crimes: the acts not only are committed by individuals
who abuse official positions of power, but also are universally condemned on
humanitarian grounds. Unfortunately, the court in Filartiga made only the most
fleeting reference to individual responsibility for torture under international
law. [FN28]
    The court in Filartiga thus reached a justifiable result, [FN29] but it
missed an excellent opportunity to provide the full justification.  This
reminder of *330 the difficulties of federal judges in dealing with subtle or
complex international law questions does not mean that they can or should avoid
all international law issues.  As long as they are circumspect in exerting
their power directly over foreign governments (a circumspection dictated by the
FSIA, but not observed in Amerada Hess) and are diffident about questioning the
official acts of recognized foreign governments taken within their own
territories (the province of the act of state doctrine, but not at issue in
Amerada Hess), [FN30] they have a role to play in the development of
international law.

(Cite as: 8 Chap. L. Rev. 103) NO LONGER LITTLE KNOWN BUT NOW A DOOR AJAR: AN
OVERVIEW OF THE EVOLVINGAND DANGEROUS ROLE OF THE ALIEN TORT STATUTE IN
HUMAN RIGHTS AND INTERNAT  LAW JURISPRUDENCE

 One of the most interesting avenues for such enforcement has been the Alien
Tort Statute ("ATS"). [FN1]  Old but little known [FN2] *104 until very recent
years, the Alien Tort Statute has become the primary vehicle for injecting
international norms and human rights into United States courts - against
nation-states, state actors, and even private individuals or corporations
alleged to actually or in complicity or conspiracy been responsible for
supposed violations of international law.  The federal Alien Tort Statute (or
Alien Tort Claims Act ("ATCA")), [FN3] 28 U.S.C. s 1350, has seen an
interesting evolution in the past twenty-five years after remaining almost
entirely dormant for nearly two hundred years since its passage with the
Judiciary Act of 1789.
 Given its increasing prominence today, many are shocked that such an old law
with prolonged dormancy has seen such new life and debate.  The ATS grants
the
federal courts subject-matter jurisdiction over cases in which an alien sues
for a tort only committed in violation of the law of nations. [FN5]  The ATS
provides: "The district courts shall have original jurisdiction of any civil
action by an alien for a tort only, committed in violation of the law of
nations or a treaty of the United States." [FN6]  This grant exists apart from
both federal question [FN7] and diversity [FN8] jurisdiction, as well as from
jurisdiction over admiralty, maritime and prize cases. [FN9] There is little
evidence of Congress's legislative intent in relation to the ATS.  The Senate
 debates over the Judiciary Act of 1789 were not recorded and the provision is
never mentioned in the debates of the House of Representatives. [FN10]
 Until June 2004, in the case of Sosa v. Alvarez-Machain, [FN11] neither the
U.S. Supreme Court nor Congress had provided any useful guidance for the
application of the ATS. [FN12]  Prior to 1980, *106 jurisdiction under the ATS
was hardly exercised - only two cases involved its application. [FN13]
Therefore, for over 200 years this statute remained essentially unaccessed,
unused, and largely unknown.

   The evolution of ATS litigation began in 1980 when the ATS was raised from
dormancy, and a federal appeals court found that suits based on customary
international law for human rights abuses could be entertained under the ATS.
[FN14]  It expanded most notably again in 1995 when a federal appeals court
held that quasi-public and even private actors might be bound by customary
international law for certain egregious violations. [FN15]  It evolved further
in 1997 when a federal district court held that a private corporation was
subject to ATS jurisdiction for alleged human rights abuses abroad. [FN16]
Since then, dozens of lawsuits against private actors - principally
corporations - have been filed.  Since the U.S. Supreme Court finally addressed
the ATS in part in 2004, the continued evolution and the form that evolution
will take is now in flux awaiting future applications in light of the Supreme
Court's limited guidance provided by its interpretation of the ATS in Sosa v.
Alvarez-Machain. [FN17]

   *107 Principally - under the ATS - United States district and appeals courts
have, with increasing frequency, recognized various treaties, as well as
resolutions, understandings, declarations, proclamations, conventions,
programmes, protocols, and similar forms of inter- or multi-national
"legislation" as evidence of a body of "customary international law"
enforceable in domestic courts, particularly in the area of tort liability.
These instruments, referred to herein as customary international law outputs
("CILOs"), are seen by some courts as evidence of norms that bind not only
nations and state actors, but also private individuals.  ATS plaintiffs often
allege "a veritable cornucopia of international law violations" [FN18] stuffed
with a feast of potentially applicable customary international law outputs in
an attempt to establish liability.  As this Article examines the waves of ATS
litigation, the question becomes how courts will treat CILOs in their attempt
to analyze customary international law complaints.

iv. HE ALIEN TORT CLAIMS ACT: THEORETICAL AND HISTORICAL FOUNDATIONS OF

          THE ALIEN TORT CLAIMS ACT AND ITS DISCONTENTS: A REALITY CHECK (Cite
as: 16 St. Thomas L. Rev. 585) (Cite as: 16 St. Thomas L. Rev. 585)

 Origins: The Founders and Their Understanding of International Law and the
Transitory Tort Doctrine

   In its modern form, the ATCA provides that "the district courts shall have
original jurisdiction of any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the United States."
The text of the statute suggests that claims under it must satisfy three
requirements: (1) the plaintiff must be an alien; (2) the claim must be a tort
(that is a civil wrong, as distinct from a breach of contract or a violation of
the criminal law); and (3) the tort must be in violation of the law of nations,
which is now understood to refer to customary international law, [FN3] or a
treaty of the United States.

   As a result of these changes in international law itself, eventually the
courts of the United States recognized that the ATCA established jurisdiction
over particularly serious violations of human rights, so long as the defendant
was within the personal jurisdiction of the court.  So held the Second Circuit
in Filartiga v. Pena-Irala.  In Filartiga, a Paraguayan national was tortured
to death by Pena, the Inspector General of Police in Asuncion.  Pena then came
to the United States, where Dolly Filartiga--the victim's sister--and Joel
Filartiga - the victim's father - sued Pena under the ATCA.  Because the
Filartigas were plainly aliens in the United States, and because death by
torture is plainly a tort, the only litigated issue was whether a government's
torture of its own citizens constitutes a violation of the law of nations or
not.  The precedents were not favorable on that issue, because of the received
orthodoxy that a state's treatment of its own nationals was not within the
reach of international law, and the lower court dismissed the case on precisely
those grounds.  The Court of Appeals reversed, reinstated the case, and ruled
that deliberate torture perpetrated under color of official authority violates
universally accepted principles of *592 international law.

   To reach that conclusion, the court drew on a variety of declarations,

treaties, constitutions, and submissions from the executive branch to establish
that the law of nations had changed.  States were no longer free to treat their
citizens any way they wished, and jurisdiction under the ATCA would be proper
whenever the torturer could be properly served within the boundaries of the
United States.  A default judgment was ultimately awarded, though Dolly
Filartiga to this day has not received the compensation she was awarded by the
court.
    In the intervening quarter century, numerous cases that fit the Filartiga
paradigm have been brought successfully against a variety of defendants:
Ferdinand Marcos, former president of the Philippines, for human rights abuses
during the Marcos regime; against an Ethiopian policeman for torture and rape
during the Red Terror; and against numerous commandantes and superior officers
who bore command responsibility for abuses on their watch. [FN20]  Actual
recovery of damages in these cases continues to be an issue, but every court
fully to address the issue has ruled that the ATCA not only provides
jurisdiction, it also recognizes a cause of action, meaning that no additional
legislation is necessary before an alien can sue for a tort in violation of the
law of nations or a treaty of the United States. [FN21]
 For centuries, the Supreme Court has explicitly approved the application of
the law of nations in U.S. courts in the absence of Congressional enactment,
and it has erected a high standard of proof for establishing the content of
customary international law.  Specifically, the law of nations can arise only
from a consistent state practice followed out of a sense of legal obligation
(opinio juris). [FN47]  As expressed by the Supreme Court in the Paquete
Habana,

      International law is part of our law, and must be ascertained and

   administered by the courts of appropriate jurisdiction as often as questions
   of right depending upon it are duly presented for their determination.  For
   this purpose, where there is no treaty, and no controlling executive or
   legislative act or judicial decision, resort must be had to the customs and
   usages of civilized nations; and as evidence of these, to the works of
   jurists and commentators who by years of labor, research, and experience
   have made themselves peculiarly well acquainted with the subjects of which
   they treat. Such works are resorted to by judicial tribunals, not for the
   speculations of their authors concerning what the law ought to be, but for
   trustworthy evidence of what the law really is. [FN48]

   In Paquete Habana, the Court faced the issue of whether civilian fishing
vessels were exempt from seizure as a prize in time of war.  There were no
treaties or statute on point, nor had the Executive branch done *599 anything
other than announce that the conflict would be conducted in accordance with the
laws of war.  Not once did the court in Paquete Habana refer to some cause of
action provided by Congress under which the owners of fishing vessels seized in
violation of the law of nations can recover compensatory damages from the
United States, and yet that is precisely what the court ordered. [FN49]

   According to the Habana court, because there was:

      [N]o complete collection of the instances illustrating . . . [the norm,
   it was] worth the while to trace the history of the rule, from the earliest
   accessible sources, through the increasing recognition of it, with
   occasional setbacks, to what we may now justly consider as its final
   establishment in our own country and generally throughout the civilized
   world. [FN50]

   Then, in an almost showy display of historical erudition, the Court traced

the actual practice of states going back to King Henry IV of England (1403); a
treaty of 1521 between Emperor Charles V and Francis I of France; Dutch edicts
in 1536; a French compilation of maritime law dated 1661; agreements between
Louis XIV and the States General of Holland in 1675; a directive of June 5,
1779, in which Louis XVI ordered his commanders to exempt English fishermen
from seizure; a treaty between the United States and Prussia dated 1785, and
repeated in later treaties with Prussia dated 1799 and 1828; a treaty between
the United States and Mexico in 1848; the practice of the belligerents in the
Crimean War (1854), France vs. Austria (1859), France vs. Germany (1870); and
Japan vs. China (1894).

   The Paquete Habana court also carefully considered exceptions to the

putative norm.  Since the United States became a nation, the only serious
interruptions, so far as we are informed, of the general recognition of the
exemption of coast fishing vessels from hostile capture, arose out of the
mutual suspicions and recriminations of England and France during the wars of
the French Revolution. [FN51]

   The Court concluded however that "the period of a hundred years *600 which
has since elapsed is amply sufficient to have enabled what originally may have
rested in custom or comity, courtesy or concession, to grow, by the general
assent of civilized nations into a settled rule of international law." [FN52]

   Most importantly, on each question of international law, the Court looked

for and found redundancy: state practice, treaties in consistent forms,
unilateral statements by governments, decisions of domestic prize courts in
various nations, jurists writing professedly on international law summarizing
the practice of states and attesting to its legal status.  The writers included
various academics from Argentina, Italy, Portugal, Spain, France, Japan,
Germany, Austria, Holland, the United Kingdom, and the United States.  The
court concluded with a reminder from Kent's Commentaries with special
timeliness today: "no civilized nation that does not arrogantly set all
ordinary law and justice at defiance, will venture to disregard the uniform
sense of the established writers on international law."

   The Filartiga court engaged in very much the same process in determining
that the law of nations had evolved to the point that it prohibited a
government's torture of its own citizens.  First, it considered a submissions
from the Executive Branch in which the Departments of Justice and State told
the Second Circuit that "a refusal to recognize a private cause of action in
these circumstances might seriously damage the credibility of our nation's
commitment to the protection of human rights."  Second, the court considered
state practices and diplomatic exchanges in which torture had been repeatedly
condemned, and even though some states did commit torture, they never asserted
a legal right to it.  To the contrary, they would deny that it happened or say
that the perpetrator would be brought to justice - all of which reinforces the
idea that torture is illegal.

   The Second Circuit also found that the same conclusion was compelled by the
prohibition on torture contained in various treaties around the world, used not
because they were binding on the United States but because they were evidence
of how the rest of the world agreed with the United States that torture was
illegal.  So too the laws, constitutions, and high court decisions in various
countries all pointed in one direction, as did the writings of publicists -
which the Supreme Court had used as additional evidence in Paquete Habana.
Additionally, there were various resolutions and declarations in consistent
form, on legal issues, adopted without significant opposition in international
organizations.  Although these *601 sources are not binding by themselves, they
are not irrelevant, and the Second Circuit gave them weight in trying to
determine the current content of the law of nations.  The decisions of
international tribunals offered additional confirmation, as did the Restatement
of Foreign Relations Law compiled and published by the American Law Institute.

   Crucially, any one of these sources alone would be insufficient to bind the
United States, and since no government objected to Filartiga, reliance on these
sources did not lead the court into error on the key question of whether
torture violated international law.  At bottom, the key principle is that the
law of nations is a modest body of law that can only be proven in exceptional
circumstances of universality and redundancy.

   The lower courts now routinely dismiss ATCA cases that do not satisfy this
high burden of proof. [FN53]  "Universally recognized norms of international
law provide judicially discoverable and manageable standards for adjudicating
suits brought under the Alien Tort Act, which obviates any need to make initial
policy decisions of the kind normally reserved for nonjudicial discretion."
 [FN54]  The American Law Institute, in the Restatement (Third) of U.S. Foreign
Relations Law, carefully catalogued basic customary norms of human rights as of
1987, a modest and well-defined list that generated no opposition from foreign
states or from the U.S. government itself:

      A state violates international law if, as a matter of state policy, it

   practices, encourages, or condones (a) genocide, (b) slavery or slave trade,
   (c) the murder or causing the disappearance of individuals, (d) torture or
   other cruel, inhuman, or degrading treatment or punishment, (e) prolonged
   arbitrary detention, (f) systematic racial discrimination, or (g) a
   consistent pattern of gross violations of internationally recognized human
   rights. [FN55]

VI
(Cite as: 11 B.U. Int'l L.J. 1) THE ALIEN TORT CLAIMS ACT: JUSTICE OR SHOW TRIALS?

 Over the past decade, Title 28 section 1350 of the United States Code  (the
"Alien Tort Statute"), [FN1] has been characterized as representing symbolic
justice for both victims of human rights abuses and their attorneys. By
allowing U.S. district courts to exercise subject matter jurisdiction over
claims of torture and "disappearances" committed abroad, section 1350 appears
to offer an alternative to the futility of seeking justice in the plaintiffs'
own foreign courts which may be under de facto military or other abusive
control, or mired in judicial incompetency.
 The Alien Tort Statute Defined

   Title 28 section 1350 of the United States Code provides: "The district
courts shall have original jurisdiction of any civil action by an alien for a
tort only, committed in violation of the law of nations or treaty of the United
States." [FN27] By enacting the Alien Tort Statute--also known as the Alien
Tort Claims Act--in 1789, Congress intended to provide extraterritorial
jurisdiction over the crimes of piracy, slave trading, violations of safe
conduct, and the kidnapping of ambassadors. [FN28] A section 1350 lawsuit
requires three elements: (1) a civil suit for a tort only [FN29] (2) brought by
an alien plaintiff [FN30] and (3) an action committed in violation of either *9
the law of nations [FN31] or a treaty of the U.S. [FN32] In essence, section
1350 provides an exception to the general rule of non-interference in a
country's own internal affairs. Since states universally accepted piracy and
slave trading as lawless acts potentially affecting all states' citizens,
states permitted offenders to lose the normal protection of their home states.
States, viewing these offenders as hostis humani generis, or "enemies of all
mankind," agreed in customary law to subject them to universal jurisdiction.
 [FN33] The offenders then became susceptible to suit by any state that captured
them, providing an exception to the normal dictate that international law does
not permit extraterritorial jurisdiction for unofficial acts. [FN34]

B. History of the Alien Tort Statute

   For one-hundred fifty years, parties seldom invoked section 1350

successfully. [FN35] Until the Filartiga case in 1979, [FN36] courts only found
two cases *10 which supported federal subject matter jurisdiction. [FN37]
Drawing on principles of admiralty law, in Bolchos v. Darrel, the Supreme Court
upheld a treaty between France and the United States which provided that
property captured on board an enemy vessel was "forfeited to capture." [FN38]
Almost one-hundred seventy years later in Abdul-Rahman Omar Adra v. Clift,
[FN39] a U.S. court granted injunctive relief to the father of a Lebanese
national after the mother concealed her daughter's identity by using an Iraqi
passport, thus violating international law. [FN40] Other cases brought under
section 1350, however, did not support subject matter jurisdiction. In a 1975
decision, IIT v. Vencap, [FN41] the Second Circuit held that a law of nations
violation did not occur simply because states universally proscribed certain
acts. [FN42] Even Judge Kaufman, who in the Filartiga decision *11 held that
torture was a violation of the law of nations, acknowledged that the dismissal
of cases brought under section 1350 was attributable to the lack of universally
recognized norms of international law. [FN43] Perhaps, most important, none of
the pre-Filartiga cases involved human rights violations, although virtually
every case brought since 1980 concerned such offenses. As a result, despite the
statute's two-hundred year-old history, courts did not apply the statute to
alleged human rights violations until the last decade.
 Applications of Customary Law to Human Rights Violations in Filartiga

   International law, or the law of nations, [FN44] is derived from two general
sources: 1) custom, or customary law, and 2) international agreements, or
treaty law. [FN45] Customary law constitutes the "general and consistent
practices of states followed out of a sense of legal obligation." [FN46] Though
a practice need not be universally acknowledged, states must widely accept a
particular practice in order for that practice to constitute customary law.
[FN47] Recent discussion of the applicability of the Alien Tort Statute has
frequently invoked violations embodied in the emerging customary international
law of human rights. [FN48]

   Treaty law binds only those states which are parties to the agreement.
[FN49] Although the United States is a party to several human rights
instruments which may be applicable under the Alien Tort Statute, human rights
lawyers eschew the fact that the judge-made doctrine of self-executing treaties
*12 reflects constitutional provisions that a treaty is "self-executing" only
when its provisions explicitly enable courts to carry them out. [FN50]

   Human rights instruments are not generally considered self-executing. This

was first articulated in Sei Fuji v. California, [FN51] where the court held
that the Preamble and Article 1 of the United Nations Charter were not
self-executing because they merely stated "general purposes and objectives of
the United Nations Organization and do not purport to impose legal obligations
on the individual member nations or create rights in private persons." [FN52]
Further, the requirement of implementing legislation is not unique to the
United States.

   Virtually all other common law countries maintain an even narrower approach
to self-executing treaties, and typically do not recognize self-execution at
all. [FN53] Even when the Executive can unilaterally ratify a treaty in such
countries, it will customarily delay ratification until the treaty has also
received legislative approval. [FN54] Finally, under U.S. law, treaties are not
superior to federal statutes; they are equal in status, [FN55] which means that
a treaty cannot automatically trump either the Foreign Sovereign Immunities Act
or the act of state doctrine.

   Few treaties to which the United States is a party and that invoke the
jurisdiction of section 1350, are either self-executing or stipulate
enforcement provisions. Without either of these elements, the treaty lacks
enforceability under the Alien Tort Statute. In certain circumstances, however,
customary law may result from treaty law. First, because treaty law may evince
custom, and thus may codify existing customary law, [FN56] treaty law may be
binding even on states which are not parties to the *13 agreement. [FN57]
Second, if an international agreement is both intended to reflect general
acceptance and it is widely accepted by the non-signatories, either through
practice or ratification of similar agreements, the treaty becomes customary
law. [FN58]

   In The Paquete Habana, [FN59] the United States Supreme Court described the
classic definition of customary international law as a precursor to the concept
that section 1350 encompassed more than piracy in its scope. [FN60] The Court
held that the capture of unarmed fishing smacks, a type of fishing vessel, as a
war prize violated the ancient custom of civilized nations, which provided
wartime immunity to civilian vessels. [FN61] Further, the Court defined
customary law by process of elimination: " W here no treaty or decision of the
executive, legislative or judicial branch of government was available, resort
must be had to the customs and usages of civilized nations." [FN62] Although
the Paquete Habana case was brought under admiralty law and not under section
1350, it is relevant to subsequent discussion of the Alien Tort Statute because
the Court granted relief not to a state but to private plaintiffs for the
violation of international customary law. [FN63] As a result, The Paquete
Habana is frequently referred to in the context of the Alien Tort Statute
because it provides an exception to the usual standard of non-interference in
the regulation of foreign states' affairs.

   According to the Restatement (Third) of Foreign Relations Law, modern

violations of customary law include: (a) genocide; (b) slavery; (c) murder or
causing the disappearance of individuals; (d) torture or other cruel, inhuman,
or degrading treatment or punishment; (e) prolonged arbitrary detention; (f)
systematic racial discrimination; and (g) consistent patterns of gross
violations of internationally recognized human rights violations. [FN64]

   Despite the deference ordinarily accorded customary law through the general
assent of nations, customary law is not necessarily binding upon *14 states. In
Anglo-Norwegian Fisheries, [FN65] the World Court held that where a custom
becomes established as a general rule of international law, all states that
have not opposed it are bound by it, regardless of their role, if any, in the
law's formation. [FN66] The Court also held, however, that customary law was
inapplicable in instances where a nation consistently had opposed that
particular law's application. [FN67] As a result, the law would not apply to a
country that was a "persistent objector" to the customary law. [FN68]

   In spite of this exception, a state is not necessarily relieved of its

obligation to adhere to customary law, even after it refuses to ratify a treaty
or consistently resists as a so-called "persistent objector." The principle of
jus cogens provides that there can be no derogation from certain peremptory
norms despite non-adherence to the law or the "persistent objector" status
treated in the Anglo-Norwegian Fisheries case. [FN69]

   Although treaty law and customary law carry equal authority, [FN70] treaties
and conventions are the contemporary principle source of law. [FN71] For
purposes of the Alien Tort Statute, a conflict arises when there is a patent
contradiction between the provisions in a treaty and the practice of states. If
customary law is derived from the actual practice of states, then formal state
agreements often conflict with customary law. Hence, in certain situations,
customary law as applied to human rights has become an aspirational wish list
of state conduct towards citizens. [FN72]
    *15 The applicability of customary international law to human rights
concerns was not tested under the Alien Tort Statute until the late 1970s,
following the onset of pandemic state terror throughout Latin America,
Afghanistan, the Philippines, and Africa. [FN73] In Latin America, for example,
between 1966 and 1983, military and paramilitary armed forces abducted and
killed over 100,000 civilians. [FN74] Acting without arrest warrants, these
forces seized individuals, usually without informing them of the charges
against them. [FN75] The armed troops then held them in secret detention where
invariably they were tortured and often killed. [FN76] Unable to locate family
members, relatives of the victims were forced to resort to the futile legal
exercise of filing habeas corpus petitions in local courts. [FN77] Some family
members attempted to use the netherworld of personal leverage *16 or bribes to
influence government and military officials. [FN78] These efforts usually
failed to gain the victim's release. [FN79]

   At the same time, and in part because of the inception of systematic state
terror, [FN80] both non-governmental human rights organizations [FN81] and
governmental bodies, including the Organization of American States (OAS) and
the United Nations, began to press for accountability for human rights
violations committed by state actors or officials acting under color of state
law. [FN82]
 Filartiga set legal precedent in several respects. [FN96] First, the court
held that the law of nations also included the nascent law of human rights, and
specifically torture. [FN97] The Second Circuit's inclusion of torture as both
a violation of human rights and the law of nations legitimized the offense
under U.S. law. The ruling also gave legal authority to the principles of human
rights law set forth in post-World War II international instruments which,
until Filartiga, seldom had been tested in U.S. courts. [FN98] This conclusion
was also crucial to the survival of the Alien Tort Statute as a vehicle for
adjudicating human rights violations. Previously, plaintiffs had few, if any,
options for redress. Where plaintiffs had sought justice under domestic
judicial systems, courts almost never granted relief; following the routine
suspension of constitutional guarantees under military dictatorships, domestic
judiciaries were either eliminated by decree law or became de facto
inoperative. [FN99] Furthermore, there was little hope of *19 bringing lawsuits
under U.S. treaty law, since none of the instruments ratified at that time by
the United States provided relief for torture or disappearances; [FN100] either
these provisions did not address those violations or they were not binding on
U.S. courts without implementing legislation. [FN101] The Filartiga decision,
however, held that torture by a state actor violated customary international
law, and thus also violated the law of nations. [FN102] This analysis provided
federal subject matter jurisdiction under U.S. law. The law of nations is part
 of U.S. federal law and, because Congress explicitly provided implementing
legislation through 28 U.S.C. section 1350, jurisdiction attached. [FN103] The
decision to interpret the statute as also encompassing subject matter
jurisdiction over torts involving foreign actions and a foreign situs reflected
a confluence of: (1) the incorporation of international law into federal common
law; (2) the concept of hostis humani generis--that "enemies of all mankind"
who violated international law are individually liable; and (3) the so-called
"transitory tort doctrine." [FN104] The theory was buttressed by the U.S.
Constitution, which provides that Congress shall have the power "to define *20
and punish Piracies and Felonies committed on the high seas, and Offenses
against the Law of Nations." [FN105]

   Second, by including torture as a violation of the law of nations, the

Second Circuit held that U.S. courts should not interpret the Alien Tort
Statute according to its original meaning in 1789, but rather as a statute with
evolving and broadening legal significance. [FN106] Judge Kaufman reasoned that
Congress implicitly had recognized the concept of a malleable definitional
standard for section 1350 when it provided, in the first Judiciary Act, [FN107]
for federal jurisdiction over suits by aliens where principles of international
law were at stake. [FN108] By defining torture as a violation of the law of
nations, [FN109] the Second Circuit acknowledged that torture was a universally
recognized crime. [FN110]

   Third, however, in deciding that a United States district court had

jurisdiction over an action between two aliens for a tort committed outside *21
the United States, [FN111] the Second Circuit ignored issues of comity,
nonintervention, and sovereign immunity, and acknowledged a private right of
action under federal common law for a human rights violation. [FN112] In doing
so, Filartiga overruled previous court holdings that had not permitted the "law
of nations" definition to be applied through the use of the Alien Tort Statute
when the victim or the defendant was a foreign national. [FN113] The court
further held that a nation's renunciation of torture did not nullify an
individual's liability for an international law violation when it occurred
under color of state authority. [FN114] In other words, the court broadly
interpreted the language of existing human rights instruments to trigger
individual--and not merely state--responsibility for human rights violations.
[FN115]
 The Law of Nations Defined [FN207]

   As a preliminary matter, there is some confusion regarding definitional

terms when referring to the international law that confers on U.S. courts the
power to hear human rights cases. Although "international law" commonly has
meant "public international law," or the relationships between states, some
scholars contend that international law now also includes law concerning the
rights and liabilities of individuals. [FN208]

   The "law of nations" comprises both treaty and customary international law.
[FN209] Both international law and law of nations principles are derived from
treaty and customary law. [FN210] The inclusion of both treaty and customary
law--which are not mutually exclusive--as part of the law of nations is
contained in the Statute of the International Court of Justice (ICJ), founded
in 1945. The ICJ is the principal judicial body of the United Nations. Its
statute, to which all member states of the U.N. are ipso facto parties, defines
the ICJ's jurisdiction. It states that the following can each comprise
international law, or the law of nations: (a) international conventions; (b)
international custom as evidence of a general practice accepted as law; [FN211]
(c) general principles of law recognized by civilized nations; and (d) judicial
decisions and teachings. [FN212]

b. Jurisdiction and Cause of Action Under the Alien Tort Statute

   Contrary to the holding in Filartiga which posited that section 1350 granted
both jurisdiction and a cause of action, [FN213] some legal scholars argue that
the language of the Alien Tort Statute confers jurisdiction *38 only. [FN214]
In other words, the Alien Tort Statute grants federal courts the power to hear
cases involving torts. However, the Alien Tort Statute does not provide the
tort claim; the claim must arise through an independent statute or common law.
[FN215] A reading of section 1350 supports this argument.

   In addition, recent case law holds that although international law is part
of the laws of the United States, [FN216] it does not follow that violations of
the law of nations "arise under" U.S. law. [FN217] This was reiterated in the
recent amicus brief filed by the Justice Department in the Trajano case, which
stated that international law must be adopted by domestic law in order to be
enforceable in U.S. courts. [FN218] Furthermore, neither treaty law nor
customary international law can always be considered self-executing. [FN219]

c. The Role of Treaties

   Some scholars also argue that treaty provisions are not sources of customary
international law but merely evidence that such law exists. [FN220] However,
because section 1350 addresses treaty law separately from customary
international law, [FN221] at least for purposes of section 1350, it follows
that treaty law by statutory construction does not fall under the "law of
nations" but its violation nonetheless invokes the Alien Tort Statute. Hence,
for a treaty to be considered under the Alien Tort Statute, its legislative
history and specific provisions will determine whether it can be applied under
the Statute. [FN222]

   *39 Treaty law may also preempt other existing practices. In the event of
conflict, existing treaty law may usurp conflicting claims of customary law.
However, where no treaty or legislative, executive or judicial decision exists,
it is well-settled law that custom prevails. [FN223]

   This raises another question. May the United States, which is not a party to
most human rights treaties, find a defendant liable for torture when it is not
itself a party to any treaty prohibiting its use? In Filartiga, for example,
the court invoked various human rights treaties including the U.N. Charter, the
Universal Declaration on Human Rights, [FN224] the American Convention on Human
Rights, [FN225] the Covenant on Civil and Political Rights, [FN226] and the
European Convention for the Protection of Human Rights and Fundamental Freedoms
[FN227] as evidence of universal jurisdiction for torture; [FN228] yet, in
1980, the United States was not a party to any treaty prohibiting torture.
[FN229]

   Several treaties allow for any state party to bring an alleged perpetrator
before its own courts regardless of the defendant's nationality. [FN230] For
example, the Torture Convention states: "Each State Party shall likewise take
such measures as may be necessary to establish its jurisdiction over such
offenses in cases where the alleged offender is present in any territory under
its jurisdiction and it does not extradite him . . . ." [FN231] As a result,
treaty language regarding the Torture Convention clearly provides *40 criminal
jurisdiction over a torturer as long as he is within the territory of a state
party to the Convention at the time the torturer is captured. [FN232]

   Although treaty language generally does not provide that a nonparty state
must extradite or punish, [FN233] legal scholars contest the argument. [FN234]
Some scholars propose that non-state parties to a convention may exercise
jurisdiction over an offense even if it has no connection to it. [FN235] They
ground this argument in general principles of international law including
universal jurisdiction. [FN236] In other words, "all the world" has both a
collective and an individual interest in punishing heinous crimes. [FN237] Such
theories, however, are unsupported by the language of the Alien Tort Statute.
Because section 1350 treats conventions and agreements separately from the law
of nations, no treaty to which the United States is not a party arguably can be
the basis of a section 1350 claim.
    Second, at best, treaty law only evinces customary international law. For
example, by June 1991 only fifty-five states had ratified the Torture
Convention. [FN238] Arguably, this lack of widespread ratification may not be
evidence of a prohibition against torture in customary law. In addition,
because the Torture Convention was ratified only recently--in 1985--and did not
enter into force until 1987, it does not necessarily reflect a customary law
that has slowly "ripened" into binding customary law. [FN239]

   *41 Third, a treaty ratified by the United States will provide a basis for
enforcement of a private right in U.S. courts only if the treaty 1) is
self-executing and 2) stipulates rules by which individuals may enforce their
rights. [FN240] The determination of whether a treaty is self-executing is left
to judicial interpretation. [FN241] Thus far, courts have uniformly refused to
construe them as such. [FN242]
  Universal jurisdiction concerns the power of any court to prescribe rules of
law regardless of what or where the actor commits the wrong. *45 According to
the Restatement of Foreign Relations, jurisdiction attaches only for the
traditional crimes of piracy, slave trading, violations of safe conduct, and
kidnapping of ambassadors, as well as for war crimes, genocide and "certain
acts of terrorism." [FN262] Universal jurisdiction permits any state to
prosecute such offenses regardless of the nationalities of the actor and
victim, or location of the offense. [FN263] It does not confer jurisdiction on
municipal law that does not automatically incorporate international law, and it
is permissive--permitting adjudication--rather than mandatory.

   Since 28 U.S.C. section 1350 expressly provides jurisdiction, universal

jurisdiction is largely a red herring in Alien Tort Statute cases; still, it is
relevant to the scope of offenses under the law of nations because courts have
often used both theories of jurisdiction interchangeably, albeit mistakenly.
[FN264] Originally, law of nations offenses and universal jurisdiction
comprised some of the same offenses, including piracy and slave trading.
[FN265] In Filartiga, for example, Judge Kaufman broadly extended the meaning
of universal jurisdiction and erroneously conflated universal jurisdiction and
law of nations violations. [FN266]

   One commentator critical of the Filartiga decision also noted that none of
the instruments cited by the Filartiga court, including the U.N. Charter, the
Universal Declaration of Human Rights, the Declaration Against Torture, the
American Convention on Human Rights, the International Covenant on Civil and
Political Rights, and the European Convention for the Protection of Human
Rights and Fundamental Freedoms, provide individual liability for the use of
 torture, let alone universal jurisdiction. [FN267] States party to these
instruments intended that universal jurisdiction allow states to prosecute
individuals--not states--for crimes [FN268] committed by stateless individuals,
or individuals for acts so egregious that it was in every state's interest to
have the actors prosecuted wherever *46 the offender could be found. [FN269]
The law of nations, on the other hand, generally provides jurisdiction only
over states; advocates such as the CCR or Human Rights Watch may wish it
otherwise, but at this point in time, the scope of individual penal liability,
let alone universal jurisdiction, is tiny. [FN270] Academic discourse about
Filartiga and subsequent cases continue to put forth various theories of
jurisdiction. [FN271] While post-war law considers torture a violation of
international law, universal jurisdiction to adjudicate torture claims is
subject to considerable debate; the Restatement does not include it. [FN272]

   Still, as previously noted, universal jurisdiction is irrelevant to the

Filartiga cases: section 1350 itself provides implementing legislation and the
TVPA provides further redress for torture and extra-judicial killings. Legal
commentators wishing to expand jurisdictional opportunities invoke universal
jurisdiction to provide jurisdiction where the law of nations definition
available under section 1350 or the TVPA fails. [FN273] One commentator has
argued, for example, that universal jurisdiction was inapplicable to
Filartiga-type cases because a violation of international law is not tantamount
to either common crimes such as murder or crimes committed by stateless
persons. [FN274] The commentator then recommended, however, that if torture
failed as a violation of customary law, universal jurisdiction could be
invoked. [FN275]
 Also at issue is whether individuals acting outside the scope of their
official duties may be held individually liable for human rights violations.
The Alien Tort Statute cases brought thus far often include defenses of
sovereign immunity, act of state, head of state doctrines, and political
question issues.

   *58 Both the Foreign Sovereign Immunities Act (FSIA) [FN335] and the Act of
State doctrine [FN336] concern action taken by a foreign state. Traditionally,
sovereign immunity applied only when a foreign state or its instrumentality was
sought to be made a party to litigation or where its property was involved.
[FN337] It did not apply to individual acts. The matter has been further
complicated by a recent Ninth Circuit holding that the FSIA, in contradiction
to previous interpretations, also includes natural persons, thus including them
within the scope of FSIA immunity. [FN338] Even where a defendant does not
raise a defense of foreign sovereign immunity, courts are still obligated to
consider its availability. [FN339] Where FSIA immunity is applicable,
jurisdiction is unavailable and a lawsuit brought under the Alien Tort Statute
will fail. The act of state doctrine, on the other hand, involves the choice of
law that a court should apply to a dispute between two private parties; in
contrast to the FSIA, the act of state doctrine does not preclude subject
matter jurisdiction, but rather results in failure to state a claim upon which
relief can be granted. [FN340]

   The FSIA governs claims in U.S. courts against foreign sovereigns. With a
few limited exceptions, the FSIA provides that foreign states are immune from
jurisdiction in U.S. courts. [FN341] Under the FSIA, a state will not be immune
from U.S. jurisdiction over immovable property in the United States or when a
party seeks money damages from a foreign state for personal injury or death,
damage or loss of property occurring in the United States. [FN342] Until
recently, the FSIA could not be invoked against individuals since the FSIA
applied only to a "separate, legal person, corporate or otherwise," which is
"an organ of a foreign state or political *59 subdivision thereof . . . ."
[FN343] This interpretation, upheld in recent case law, [FN344] was recently
contradicted by the Ninth Circuit. [FN345] It held that the FSIA applied to
individuals acting in their official capacity as employees of a foreign
sovereign, and not merely to organizations acting for the sovereign. [FN346]
Until recently, the only cases to grant immunity to individuals sued under the
FSIA involved defendants who were acting under color of official authority and
within their official capacity as the agent of a foreign state. [FN347]
However, whether the FSIA applies only to states and their agents, or
individuals as well, is important only in cases where plaintiffs argue that
individual defendants could not raise FSIA immunity. [FN348] Courts have yet to
determine whether the FSIA covers individuals as well as states and their
agents. However, recent cases have held that while FSIA immunity was
unavailable to cases brought under the Alien Tort Statute, the FSIA nonetheless
would supersede the Alien Tort Statute, were it to apply. [FN349]

   *60 Although courts have liberally construed the FSIA to exclude human
rights violations from sovereign immunity, the FSIA does not provide a blanket
exception to immunity for international law violations. [FN350] Notably, the
FSIA lacks any language expressly raising human rights violations as an
exception to its provisions. Such exceptions have only been inferred by
judicial decisions relying on the FSIA implied waiver clause set forth in
sections 1605 and 1607 of the FSIA. Specifically, section 1605(a)(1) states
that a foreign state cannot assert jurisdictional immunity in any case "in
which the foreign state has waived its immunity either explicitly or by
implication." [FN351] Courts have traditionally interpreted these acts as acts
covering commercial activities [FN352] or tortious acts committed within the
United States. [FN353] However, even the most cogently argued case for an
implied waiver of sovereign immunity under the FSIA does not purport to offer a
dispositive showing that Congress intended section 1605 to cover human rights
violations. [FN354] In addition to conceding that the FSIA contains no
international law violation exception to the FSIA, [FN355] some legal
commentators infer an FSIA waiver by silence; because Congress never intended
to exclude FSIA waivers from the statute, the waivers must exist. [FN356] Thus,
the Marcos court's second basis for non-immunity under the FSIA--that human
rights violations including torture and extrajudicial killings cannot be
considered official acts regardless of Marcos-Manotoc's real official or
non-official authority--is not *61 bolstered by the language of the FSIA.
[FN357] Few human rights cases have explicitly considered the FSIA. [FN358]

   Plaintiffs' subjectivity is nowhere more transparent than in their

interpretation of the recent Ninth Circuit holding in the Marcos litigation.
[FN359] While holding that Marcos' daughter was liable for human rights
violations allegedly carried out by officials acting under her control, the
Ninth Circuit nonetheless clearly held that the "FSIA trumps the Alien Tort
Statute when a foreign state, or in this circuit, an individual acting in her
official capacity is sued." [FN360] However, the CCR, in its recent Manual on
Human Rights Litigation, bluntly dismissed the holding--specifically, the
portion that could undermine future section 1350 litigation--by concluding that
notwithstanding the Ninth Circuit's holding, "there should be little difficulty
in persuading the court not to immunize gross human rights violators." [FN361]
CCR attorneys then coach potential plaintiffs' lawyers on how to circumvent the
legal barrier by instructing them to patently "always allege" that defendants
were acting illegally. [FN362]

   In addition, the Trajano case underscores a basic contradiction between the
waiver of FSIA immunity and the availability of the Alien Tort Statute.
Defendant Marcos-Manotoc, daughter of former Philippine President Ferdinand
Marcos, was sued under the Alien Tort Statute. Ostensibly, the statute applied
because Marcos-Manotoc's action--the detention, torture and killing of a
Philippine student--came within the purview of state action or action under
color of state authority required for a law of nations violation. The Ninth
Circuit contradictorily reasoned that Marcos-Manotoc was not immune from FSIA
liability precisely because she was not acting in an official capacity. [FN363]
Yet, the court *62 acknowledged the FSIA relevance since Marcos-Manotoc's
default conceded that she "controlled the military police." [FN364] Thus,
although the court admitted that the defendant could not be sued under the
Alien Tort Statute unless she was a state actor [FN365] or acting under color
of state law, FSIA immunity was held irrelevant precisely because her acts were
unofficial ones.

   Despite these arguments, however, a recent Supreme Court case rejected the
claim that human rights cases, specifically those brought under the Alien Tort
Statute, create an exception to the FSIA. In Argentina Republic v. Amerada Hess
Shipping Corp., [FN366] the Court reversed a Second Circuit decision which held
that the Alien Tort Statute provided an independent basis of jurisdiction over
the plaintiff's claim. The Court held instead that the FSIA provided the sole
basis for obtaining jurisdiction over a foreign state in U.S. courts. No
exception created in the FSIA applied to the facts of this case, and thus the
FSIA could not be overridden by section 1350 jurisdiction. [FN367]

   Finally, even plaintiffs' lawyers inadvertently have agreed that certain

officials do fall under the immunity rubric. After filing its lawsuit against
Serbian leader Radovan Karadzic earlier this year, the CCR attorneys explained
in their own advocacy handbook that diplomats visiting the United States are
entitled to FSIA immunity. [FN368] Ironically, the CCR's adherence to the U.S.
Senate's definition of immunity may undermine its own lawsuit against Karadzic;
Karadzic entered the U.S. at the invitation of the United Nations.

   The act of state doctrine has also been raised as a defense to claims
brought under the Alien Tort Statute. [FN369] As previously stated, the
judicially-created act of state doctrine prevents U.S. courts from reviewing
the validity of public acts of a recognized foreign sovereign carried out in
its own territory, because " r edress of grievances by reason of such acts *63
must be obtained through the means open to be available of by sovereign powers
as between themselves." [FN370] The act of state doctrine, a prudential
doctrine, reflects judicial restraint on decisions which constitutionally are
the domain of the executive branch. [FN371]

   The FSIA traditionally has applied to either governments or their agents or

instrumentalities. The act of state doctrine applies to natural persons,
shielding state actors from liability for public acts where no other treaty or
"unambiguous agreement" regarding controlling legal principles governs. [FN372]
The act of state defense is inapplicable when the act: (1) contradicts a clear
international norm reflecting universal consensus; (2) constitutes a private,
criminal act under the domestic law of the state where the act took place; or
(3) is carried out by a sovereign authority no longer in power. [FN373]

   Although the Ninth Circuit reversed the district court's dismissal of the
recent Marcos cases on act of state grounds, its decision was unpublished. In
other cases, the act of state doctrine has usually been rejected on the grounds
that a human rights violation of an unequivocal norm of international law
receives no immunity, even though the act may arguably be an "official" one.
[FN374] In the Suarez-Mason cases, for example, the courts rejected the act of
state defense for Suarez-Mason's alleged acts of torture. [FN375] In Filartiga,
[FN376] for example, the Second Circuit and the district court on remand both
refused to consider defendant Pena-Irala's motion to dismiss on act of state
grounds. [FN377] Citing Banco Nacional de Cuba v. *64 Sabbatino [FN378] and
Underhill v. Hernandez, [FN379] the Filartiga court held that when a state
officially renounces a policy such as torture either through domestic
legislation or by binding international agreement, the state cannot fall within
the protection of the act of state doctrine. [FN380] In a recent Florida
district court decision, Paul v. Avril, former military leader Avril
unsuccessfully asserted the act of state doctrine in his own defense. [FN381]

   However, the exceptions are not dispositive. While most courts have agreed
that the act of state doctrine will not protect actors who commit gross human
rights violations, case law on the act of state doctrine is too inadequate to
be conclusive.

   In Sabbatino, the Supreme Court, addressing the expropriation of property,

held that "the act of state doctrine is applicable even if international law
has been violated." [FN382] Since human rights violations, including torture,
are part of the law of nations and the law of nations is part of federal common
law, the Court precluded invocation of the act of state doctrine with respect
to these grounds. Second, in Siderman de Blake v. Argentina, [FN383] the Ninth
Circuit set an example of judicial clarity in *65 explaining why a human rights
abuse so egregious and violative of a jus cogens norm is not itself sufficient
to justify overruling the FSIA's grant of immunity. [FN384] The court explained
the decision by noting that the FSIA does not specifically grant an exception
to sovereign immunity for jus cogens violations. [FN385]

   More important than either the FSIA or act of state doctrine themselves,
however, is the lack of evidentiary standards under which plaintiffs charge the
defendants. [FN386] Even if the act of state doctrine was inapplicable for
human rights violations, many of the section 1350 cases attempting to avoid
application of the doctrine offer no proof or even credible evidence that the
defendant was directly involved in the alleged acts. Although Filartiga and
Abebe-Jiri [FN387] alleged acts of torture by the defendant, other cases of
human rights violations brought under the Alien Tort Statute describe, at best,
indirect participation in such violations. In Paul, plaintiffs opposed act of
state immunity on the grounds that during former President Avril's rule, Avril
exercised direct control over Haitian armed forces, including those accused of
beating and torturing the plaintiffs. [FN388]

   *66 In Suarez-Mason, the court made two findings relevant to the act of
state doctrine. First, while holding that the Alien Tort Statute did indeed
provide subject matter jurisdiction and a valid cause of action, [FN389] the
court found that these plaintiffs had not sufficiently stated the specific acts
supporting their allegation of torture. [FN390] Therefore, unless plaintiffs
alleged a more definite claim for torture, the act of state defense would be
inapplicable--but on the other hand, it would not be needed. Second, the court
noted that "disappearances" could not be considered a violation of customary
law solely upon showing a prolonged absence following initial custody. [FN391]
The court also noted that there was no international consensus on the elements
of a claim for causing the disappearance of an individual. [FN392] Most
importantly, however, plaintiffs did not allege direct participation, nor did
they prove acquiescence by Suarez-Mason to the alleged acts. The plaintiffs
merely inferred culpability from Suarez-Mason's position as a ranking Argentine
military official during Argentina's dirty war. [FN393] Attorneys who litigate
Alien Tort Statute cases and eschew the use of any evidentiary standard in
presenting the plaintiff's claims, rely on the argument that a sufficient nexus
with the act existed because the armed forces under the defendant's personal
command committed the acts. [FN394] Attorneys may also argue that the army
committed *67 these acts as a part of a general plan of repression directed by
or condoned by the government. [FN395]

4. Evidentiary Standards for Proving Allegations Under the Alien Tort Statute

   Because most Alien Tort Statute cases are won as default judgments,
plaintiffs' lawyers have little incentive either to suggest evidentiary
standards or to put forth direct evidence linking defendants to the alleged
acts. As noted, in only one case have plaintiffs provided eyewitness testimony
regarding the allegations. [FN396] In Abebe-Jiri v. Negewo, for example, the
American Civil Liberties Union (ACLU) of Southern California represented three
plaintiffs who claimed they had personally been tortured by the defendant.
[FN397] In a subsequent unrelated case, however, the same lawyer for the ACLU
represented Mexican gynecologist Dr. Humberto Alvarez-Machain, who allegedly
participated in the torture and killing of Drug Enforcement Agency official,
Enrique Camarena Salazar. [FN398] Dr. Machain was eventually awarded a
dismissal for lack of direct evidence. [FN399] The ACLU, victorious in gaining
dismissal by the District Court, criticized government attorneys for filing
unsubstantiated charges. [FN400]
*68 a. The Gramajo and Avril Cases

   In 1991, as former Guatemalan defense minister Gramajo prepared to receive

his degree from the Kennedy School of Government, he was served with a
complaint predicated on the Alien Tort Statute filed by the CCR. [FN401] The
complaint never implicated General Gramajo with direct participation in alleged
human rights violations. The complaint did not even establish that Gramajo
supervised the acts, except in his overall capacity as Guatemalan defense
minister under civilian president Vinicio Cerezo. [FN402] The court entered a
default judgment three months later after Gramajo submitted a preliminary legal
brief, returned to Guatemala, and failed to respond to subsequent court
requests. [FN403] Knowledge and responsibility was imputed to Gramajo because
of his rank as Guatemalan defense minister from 1987 to 1990.

   At least one human rights organization, Human Rights Watch, although sharply
critical of the Cerezo government and General Gramajo in particular nonetheless
refused to join in the lawsuit. [FN404] Significantly, in Ortiz, charges were
filed against Gramajo--ostensibly for his failure to investigate, prosecute, or
punish following the abduction--even though Ortiz' alleged abductors and
torturers were never found or charged. The Gramajo case underscores the slender
and unfair reed upon which plaintiffs too often base their cases: they are
willing to allege that a particular defendant was somehow complicit in a human
rights violation although they establish no link to the direct participants
generally because a link is never discovered. In other words, plaintiffs have
presumed their entitlement to bring lawsuits through the symbolic complicity
solely derived from the accused official's title.

   Similarly, in the case against former head of state and army general Prosper
Avril, [FN405] six Haitian plaintiffs sued former President Avril for
compensatory and punitive damages on three counts of torture, cruel, inhuman
and degrading treatment, and arbitrary detention. [FN406] Plaintiffs *69
alleged that the army conducted these acts under the orders, approval,
instigation, and knowledge of defendant Avril. [FN407]

   Although these crimes should be punished, no court has ever suggested a

standard for their adjudication. [FN408] Instead, plaintiffs' briefs simply
invent new law by demanding that liability attach simply on the assertion that
defendants supervised the alleged acts. Plaintiffs' lawyers fail, however, to
provide a source of law for such claims. At most they refer back to the
Filartiga holding, which is factually distinguishable because of evidence that
Pena-Irala participated directly in Filartiga's arrest, torture and killing.
[FN409]
   Since section 1350 began to be used as a basis for bringing human rights
lawsuits in U.S. courts, little attention has been given to the content of
plaintiffs' complaints. Plaintiffs seem to derive the standard from a
respondeat superior theory applied to human rights violations. Yet plaintiffs
suggest no statutory or common law basis for supporting the proposition that
commanders can and should be held liable solely by virtue of their titles or
nominal positions. Typically, they present no evidence that the commanders
directed or were otherwise complicit in the alleged violations. In Gramajo, for
example, complainants were forced to rely on newspaper articles and third-hand
evidence, which posed problems of hearsay, double hearsay, and triple hearsay.
This reluctance by the courts to establish evidentiary standards--even a
minimal quantum of evidence or acknowledgement that such standards should
exist--is derived from a sense of loyalty to the plaintiffs and an intense
desire on the part of the legal community to leave intact standards of evolving
customary international law set forth in Filartiga, regardless of elementary
fairness.

   The Second Circuit in Filartiga held torture to constitute a violation of

the law of nations. [FN410] However, not one of some dozen cases brought under
the Alien Tort Statute articulates an evidentiary standard for its application
to human rights violations. [FN411] In addition, plaintiff's burden for proving
defendant's liability under the Alien Tort Statute has never been defined or
even suggested.

   *70 Filartiga, the seminal case, was one of only two cases where the
plaintiffs claimed that the defendant personally participated in the alleged
acts of torture. [FN412] The second case, Abebe-Jiri v. Negewo, sought redress
under federal and state law, charging the defendant with authorizing, approving
and then personally abducting and torturing the plaintiffs during Ethiopia's
state campaign of repression in the late 1970s. In their complaint, the three
plaintiffs alleged that the defendant Negewo not only controlled the prison in
which they were held, [FN413] but also participated in plaintiffs'
interrogation and torture. [FN414]

   Other cases won as default judgments have never established a direct

connection between the victim and the alleged offender. They merely accuse the
defendants of secondary participation in the human rights violation. [FN415]

Plaintiffs in Gramajo, Avril and Suarez-Mason merely alleged that the

defendants either oversaw or had indirect knowledge of human rights violations
carried out by an organization under their control. The plaintiffs did not
allege defendants' participation in the alleged acts, or *71 describe with
specificity the level of indirect participation by the defendants. [FN416]

   To question the Filartiga standard, or the still weaker standards in

subsequent plaintiffs' briefs, seems to imply a certain mean-spiritedness; to
suggest that section 1350 should require even a minimal quantum of evidence is
taken as tantamount to undermining the cause of human rights itself.

   Admittedly, the suggestion of an evidentiary standard is moot when a default

judgment is rendered, but if the case was ever decided on the merits,
evidentiary standards for civil or criminal law would be required. Ironically,
the suggestion that criminal law provides universal jurisdiction under the
Alien Tort Statute when customary or treaty law fails may serve to thwart
plaintiffs' efforts. Since criminal law requires a higher threshold of evidence
to prove a defendant's guilt, plaintiffs may find that their chances of
prevailing under it are diminished considerably. [FN417]

   Moreover, since plaintiffs bringing lawsuits under section 1350 assume that
a defendant will not appear in court and that a default judgment will be
entered, the option of bringing unsubstantiated claims is even more appealing.
Plaintiffs' attorneys, knowing with some assurance that they will never be
called upon to defend or support such allegations, have nothing to lose by
including them in the complaint.

   Perhaps the most salient issue in the cases brought is whether an officer
can be held liable for a specific action of which he may have had no
knowledge--the heart of the respondeat superior doctrine that seems to be at
the heart of so many section 1350 plaintiffs' briefs. This question was raised
poignantly in a post-war U.S. Supreme Court decision involving the liability of
a captured Japanese army general for acts ostensively under his general
command. In In re Yamashita, the Court found General Yamashita responsible for
brutalities committed by Japanese troops in the Philippine Islands during World
War II. [FN418] General Yamashita became a U.S. prisoner of war, was charged
with failure to discharge his duties as commander, and was later sentenced to
death by hanging. [FN419] However, there is a little evidence that General
Yamashita had knowledge of his troops' actions or control over their behavior.
[FN420] The Yamashita decision has been severely criticized: not only did the
U.S. suspend due process standards, but just as importantly, there was no
evidence that *72 Yamashita even knew of the occurrence of the atrocities for
which he was charged. [FN421] By contrast, in the Calley trial, [FN422] where a
surfeit of eyewitness testimony confirmed participation in actions that were
later obfuscated by army superiors, nineteen of twenty-five accusations were
dismissed and the highest ranking officers received only letters of censure and
demotions. [FN423]

   In Suarez-Mason, Avril and Gramajo, there were no allegations of direct

participation, or even accusations of liability under the standard of command
responsibility for actions of subordinates. [FN424] Indeed, the doctrine of the
Yamashita dissent [FN425]--that criminal defendants cannot be held liable for a
crime of which they have no knowledge--ought to prevail in section 1350 cases
as well. Even under the "reasonable person" objective standard, none of the
section 1350 default cases would hold up because knowledge of a general plan is
not tantamount to knowledge of a specific act. [FN426] Yamashita was
convicted--and hanged--for "having held an office, even though the duties were
in fact undoable." [FN427] Generals Avril, Gramajo and Suarez-Mason likewise
have been charged. [FN428]

   Defendants arguably can also claim that a U.S. court will not fairly
adjudicate their claims because they have no fair opportunity to present a
defense. In a foreign court they have little ability to present defense
witnesses, to require the court to examine the scene of the alleged offense, or
to collect documentation that would disprove their connection to the alleged
offense.

   *73 There is no clear standard--certainly not any dispositive legal dictum--

to which military officers, in particular, are unequivocally and universally
bound. Philospher Michael Walzer, author of Just and Unjust Wars, while arguing
that a strict standard should apply to military officers, [FN429] nonetheless
rejects a strict liability standard, and U.S. courts should do the same.
[FN430] Plaintiffs admittedly are caught in a double-bind. They presumably file
lawsuits in U.S. courts because domestic courts are unwilling to adjudicate the
claims, or because the fear of reprisals inhibits production of witnesses and
documents. But that does not justify U.S. courts throwing out U.S. standards of
evidentiary fairness.

5. The Political Question Doctrine

   As previously noted, the purpose of the Alien Tort Statute was to provide
redress for a narrow category of offenses and, if anything, to avoid
international incidents by giving aliens access to federal courts. [FN431] The
Filartiga decision was not intended to apply the law of nations to so broad a
panoply of cases. [FN432] Even Judge Kaufman has erroneously been credited as
the judicial avatar of an expansive law of nations definition. Just after
Filartiga was decided, Judge Kaufman voiced concerns regarding the possible
misuse of the Alien Tort Statute. [FN433] Human rights questions, he said, were
best left to the executive and legislative branches. [FN434] Furthermore, he
noted, courts should not permit the Alien Tort Statute to confer attorneys with
de facto authority to make foreign policy through the adjudication of human
rights cases in federal courts. [FN435]

   The least-quoted opinion in Tel-Oren is that of Judge Robb, whose brief, per
curiam concurrence dismissed Tel-Oren on political question *74 grounds.
[FN436] Although Judge Robb generally confined his discussion to the doctrine
of terrorism as a nonjusticiable human rights violation, he applied the
political question doctrine to state-sponsored human rights violations as well.
[FN437] Judge Robb justified the political question doctrine on several
grounds. First, he noted, the judiciary traditionally has deferred to the
executive branch on matters of foreign affairs, [FN438] noting that this was in
part a function of historical procedure. [FN439] Second, he emphasized that it
was clearly the intent of the executive branch to consign to itself the
decision-making process on certain international matters. [FN440] Third, Judge
Robb noted that the judiciary's intervention in foreign affairs could, far from
resolving the issue, be injurious to relations between nations--an individual
victory in a section 1350 lawsuit would not be worth the potential liability it
posed to relations among nations. [FN441] Finally, he noted that the
metamorphosis of section 1350 as a catch-all for law of nations lawsuits would
subject the courts to a plethora of cases, converting courts into judicial
pulpits for the community of international legal scholars. [FN442]

   The so-called political question doctrine stands for the principle that
courts may not interfere in matters relegated to the executive branch. The
purpose of the doctrine is to avoid conflicting pronouncements by different
branches of government, and to recognize deference to executive authority when
contradictory legislation or judicial holdings would result in embarrassing or
dangerous consequences for the United States *75 government. [FN443] In other
words, some constitutional issues are inappropriate for judicial resolution.
This principle was most recently articulated in Sanchez-Espinosa v. Reagan,
[FN444] in which the court held that claims by congressional representatives
that they were deprived of their right to participate in the decision to
declare war against Nicaragua presented a nonjusticiable political question.
[FN445] Justice Ginsburg's concurrence cited Goldwater v. Carter, [FN446] which
held that the courts "should not decide issues affecting the allocation of
power between the President and Congress until the political branches reach a
constitutional impasse." [FN447] Judge Robb's concurrence in Tel-Oren was
prescient in its concern that district courts would become political platforms
for human rights cases brought under section 1350. [FN448] In any event, the
 limitations of a state adjudicating human rights violations beyond its borders
were recognized by the ICJ in The S.S. Lotus. [FN449]

   Doe v. Karadzic, [FN450] a very recent case brought under the Alien Tort
Statute, is emblematic of the political question problems predicted in
Tel-Oren. As previously discussed, Radovan Karadzic, the leader of Bosnian-Serb
forces, was sued under the Alien Tort Statute while in New York city attending
United Nations peace talks aimed at ending the fighting in the former
Yugoslavia. Although Karadzic had not left the parameters of the *76 area
stipulated on his U.S. visa, the Center for Constitutional Rights served him
with a complaint. Following service, Karadzic left the United States
immediately and refused to return, complicating the U.N. negotiations and
certainly raising a question of court interference in foreign policy, indeed
matters of war and peace. [FN451]

   The Karadzic case is emblematic of the sense of legal entitlement with which
such cases are brought. It presents the now perennial problem of suing actors
over alleged indirect responsibility for the actions of subordinates. In
addition, however, lawyers ignore the fact that suits under section 1350 may be
precluded by the political question doctrine, in this case, diplomatic
immunity. [FN452] Although no one doubts that Karadzic shares responsibility
for war crimes in Bosnia, he was nonetheless there at the invitation of the
Secretary-General.

VIII.
(Cite as: 39 Akron L. Rev. 593 SOSA V. ALVAREZ-MACHAIN [FN1] AND THE ALIEN TORT
STATUTE: HOW WIDEHAS THE DOOR TO HUMAN RIGHTS LITIGATION BEEN LEFT OPEN?

 In 1789, two years after the ratification of the United States Constitution,
the First Congress enacted the Judiciary Act. [FN23]  Among the *596 ways in
which this Act expanded the federal judicial powers created in the
Constitution, the Act specifically provided jurisdiction for actions brought by
aliens for torts only. [FN24]  Although legislative history is sparse, [FN25]
scholars suspect that Congress included such a provision in the Judiciary Act
to serve economic motives and bolster the United States' fledgling presence on
the international scene. [FN26]  The ATS was the framers' way of "show[ing]
European powers that the new nation would not tolerate flagrant violations of
the 'law of nations,' especially when victims were foreign ambassadors or
merchants." [FN27]

   *597 The inclusion of the ATS in the Judiciary Act reflects the First
Congress' distrust of the state courts' ability and willingness to properly
adjudicate aliens' claims involving the law of nations. [FN28]  Having been
entrusted with this duty by the Continental Congress in 1781, the state courts
were left to their own common law interpretations of the law of nations and
with the freedom to punish violations as they saw fit. [FN29]  Out of concern
for the United States' tenuous international status, the First *598 Congress
enacted the ATS as a definitive statement that an alien's claim for a violation
of the law of nations could be adjudicated in the federal courts, rather than
being left to the uncertainty and hostility of the state courts. [FN30]  The
ATS, while not destroying state common law causes of action for the law of
nations, created a concurrent jurisdiction in the federal courts, [FN31]
thereby assuring aliens - and signaling to world powers - that violations of
the law of nations would be redressed in American courts. [FN32]

   The "law of nations," as the Founding Fathers understood the notion, can be
traced to the teachings of William Blackstone. [FN33]  Blackstone theorized
that "'[t]he law of nations is a system of rules, *599 deducible by natural
reason, and established by universal consent among the civilized inhabitants of
the world."' [FN34]  Blackstone suggested that "'[t]he principle offences
against the law of nations . . . are of three kinds; 1. Violation of
safe-conducts; 2. Infringement of the rights of embassadors [sic]; and 3.
Piracy."' [FN35]  An insight to the intentions behind the ATS can be found in
the language of the Continental Congress' resolution issued to the states as a
precursor to the enactment of the Judiciary Act. [FN36]

      In words that echo Blackstone, the congressional resolution called upon

   state legislatures to "provide expeditious, exemplary, and adequate
   punishment" for "the violation of safe conducts or passports, . . . of
   hostility against such as are in amity, . . . with the United States, . . .
   infractions of the immunities of ambassadors and other public ministers . .
   . [and] "infractions of treaties and conventions to which the United States
   are a party." [FN37]

   Consistent with Blackstone's influence, the First Congress likely intended

the federal courts would have jurisdiction over these types of violations by
virtue of the ATS. [FN38]

*600 B. Nearly 200 Years of Stagnancy

   Despite apparently pressing reasons for the inclusion of the Alien Tort
Statute in the Judiciary Act, the jurisdiction it extended for the tort claims
of aliens went essentially unused for nearly 200 years following its enactment.
[FN39]  Invoked just over twenty times between 1789 and 1980, [FN40]  the
 federal courts found jurisdiction under the ATS in only two of those cases.
[FN41]  During this period, the ATS had effect as "principally a jurisdictional
statute." [FN42]  It was thought that "the ATS confided the power in federal
district courts to hear tort cases brought by foreigners, but it did not (with
limited exceptions) enumerate torts that could be the basis of a lawsuit."
[FN43]
 The Alien Tort Statute's Modern Importance

   Regardless of the interpretation given to the ATS, the efforts of litigators

have already resurrected the statute, and it will play a pivotal role in the
United States approach to human rights violations, cooperation with
multinational corporations, and its own foreign policy. [FN176] Observers can
glean the potential consequences of Sosa from the range of amicus curiae briefs
filed in the case. [FN177]

   *625 1. Human Rights Activists Emboldened

   By not seizing the opportunity to forever banish international human rights
claims from federal courts, the Supreme Court sustained hope for numerous human
rights victims and their supporting organizations. [FN178]  The ATS, when given
the interpretation of the *626 Filartiga court or Justice Souter's "ajar door"
approach, is "a basic tool to apply limited - but binding - standards to
corporations in their international operations." [FN179]  The accessibility of
federal courts to human rights victims has numerous positives. [FN180]
However, in order to preserve judicial resources and prevent abuse of the
federal court system by litigious aliens, the courts must restrict this access
by recognizing only those victims of the most widely accepted customary
international law violations. [FN181]  Human rights activists will seize on to
the ATS as a means to redress the violations of the host nations where
multinational *627 corporations are often immersed in human rights
predicaments. [FN182]
 The unique history of the ATS warrants its preservation in the modern
structure of our judiciary. [FN201]  The accepted interpretation of the
Founding Fathers' impetus for creating jurisdiction over the claims of aliens
for certain international violations is not as prevalent today, but the spirit
of their concern continues to resonate in present time. [FN202] *633 However,
the long period of stagnancy has raised several issues as to the proper scope
of ATS litigation, along with issues that only became cognizable in our modern
era: the impact of ATS litigation on multinational corporations and the growing
need for adjudication of human rights violations. [FN203]  Until the ATS is
definitively contained or fully expanded, human rights victims will continue to
find novel arguments to employ the ATS, [FN204] and multinational corporations
 will endeavor to shield themselves from litigation by arguing for Justice
Scalia's strict interpretation of the statute. [FN205] So long as the door to
the ATS remains even slightly ajar, numerous attempts to establish jurisdiction
in federal courts under the ATS can be expected, as well as great opposition
seeking to firmly shut the door to modern ATS claims.

ix.
(Cite as: 14 Minn. J. Global Trade 1)

     *1 THE ECONOMIC COST OF ALIEN TORT LITIGATION: A RESPONSE TO

AWAKENING MONSTER: THE ALIEN TORT STATUTE OF 1789
 The history of the Alien Tort Statute is shrouded in mystery. [FN19]  As one
writer puts it, "[t]he ATCA has no explicit legislative history." [FN20]
Controversy has centered on the original intent of the lawmakers and what the
statute was designed to achieve. [FN21]  One contention is that the intention
of Congress in enacting the legislation was the provision of jurisdiction over
prize cases. [FN22]  Some scholars, however, favor an interpretation *6 of the
statute that is liberal enough to accommodate the expanding international legal
and moral obligations of the United States. [FN23]  Regardless of what side one
comes down on in this controversy, one incontrovertible fact is that this piece
of legislation remained in near-total obscurity until a few decades ago when it
was exhumed to assume an important role: a veritable instrument for addressing
pressing needs in the world.

   The modern history of the ATS thus dates back to 1980, when it was utilized
in holding a former Paraguayan police officer liable for torture committed
while serving in Paraguay. [FN24]  In that case, the plaintiffs, Dr. Filartiga
and his daughter, alleged human rights abuses, particularly torture by a former
inspector general of police in Paraguay, which led to the death of Dr.
Filartiga's son. [FN25]  The court exercised jurisdiction and awarded damages
of $10 million against Inspector General Pena. [FN26]  It is hard to overstate
the importance of this case. [FN27]  Indeed, the implications and ramifications
of the Filartiga decision were considered so phenomenal that Professor Harold
Koh dubbed it the Brown v. Board of Education of "transnational public
litigat[ion]." [FN28]

   For some time, use of the ATS remained limited to cases involving agents of
the state who abused the power of government to oppress their people, often
with impunity. [FN29]  The situation changed in the mid-1990s, [FN30] however,
when a lawsuit was *7 launched against the California-based oil corporation,
Unocal. [FN31]  That case enunciated the principle that a federal court can
exercise subject matter jurisdiction over improprieties and human rights abuses
 involving multinational corporations in joint ventures with foreign dictatorial
governments. [FN32]  The Unocal case opened the floodgates in this arena, so
much so that in recent times, ATS jurisprudence has been dominated by cases
alleging human rights, labor, and environmental abuses by multinational
corporations operating in the developing world. [FN33]

   The international law scholars and human rights organizations in their
amicus brief also discount the reasoning that the ATS does not grant a cause of
action, arguing that the very notion of a "cause of action" did not enter the
legal lexicon of the United States until almost sixty years after the ATS was
adopted. [FN66]  With due respect, this argument is not persuasive. *13 The
critical issue is whether statutes passed before the emergence of the term were
worded differently from the ATS, so that one could conclude from the wording
that the statute granted jurisdiction only or accompanied it with additional
authority.  Conversely, the argument could be buttressed with instances of
similarly worded enactments being construed as granting a cause of action.  As
Professor Casto has noted, the language used by the First Congress in the Alien
Tort Statute--particularly the use of the word "cognizance" which "refer[red]
to a court's power to try a case"--was quite different from the language it
used in statutes that created causes of action. [FN67]  One example is the
copyright statute, which provides that copyright infringers would be "liable to
suffer and pay to the said author or proprietor all damages occasioned by such
injury, to be recovered by a special action on the case founded upon this act,
in any court having cognizance thereof." [FN68]

   The above point is confirmed by the fact that the first recodification of
the ATS in 1873, and all subsequent recodifications have replaced "cognizance"
with the word "jurisdiction."  Prior to the recent controversies, this change
in language was never viewed as evincing an intention to alter the scope of the
ATS. [FN69]  Professor Curtis Bradley notes that "historical" support for the
cause of action construction of the Alien Tort Statute is virtually nonexistent
save for an Attorney General opinion issued in 1907. [FN70] Professor Bradley
aligns with Professor Casto's statement, which seeks to minimize the import of
the opinion by describing it as a "sloppy reference to the federal courts'
jurisdiction and not to the existence of a statutory cause of action." [FN71]
Professor Bradley is therefore unequivocal in the belief that "the First
Congress did not intend in the Alien Tort Statute to create a federal statutory
cause of action." [FN72]

   Nevertheless, proponents insist that the Statute did just *14 that.  They
contend that the 1992 Torture Victim Protection Act (TVPA), [FN73] passed
almost two hundred years after the ATS, confirmed the belief that the ATS
 created a cause of action based in customary international law. [FN74]  As the
name indicates, TVPA gave victims of torture, American citizens and noncitizens
alike, the ability to bring civil actions against the perpetrators of torture
and extra-judicial killings. [FN75]  While the TVPA could be read as providing
clarity and constraint by explicitly providing a substantive cause of action
and specifying the matters into which the courts may legitimately inquire, a
different reading is that it seeks to lay the debate to rest for those judges
who doubted whether torture and other violations of international law can be
grounds for civil liability in the United States.

X Cite as: 1 Regent J. Int'l L 65) tHE ALIEN TORT STATUTE: JUDICIAL ACTIVISM AND ITS IMPACT
ON  INTERNATIONAL LAW

       IV. APPLICATION AND DEVELOPMENT OF THE ALIEN TORT STATUTE

A. Filartiga v. Pena-Irala

   In 1980, Filartiga v. Pena-Irala propelled the ATS into a formidable legal
tool for holding defendants liable for torts committed in violation of the law
of nations. [FN21] The appellants, Dr. Joel Filartiga and his daughter, were
citizens of Paraguay and filed an action in the United States against Americo
Pena-Irala, the appellee, also a citizen of Paraguay, for wrongfully causing
the death of a family member; [FN22] the Paraguayan Government was not joined
as a defendant. [FN23] The appellants alleged that the appellee, who was then
Inspector General of the Police in Asuncion, Paraguay, tortured and killed
Joelito Filartiga in retaliation for his father's political actions and
beliefs. [FN24]

   *68 Since the appellants did not contend that their action arose directly
under a treaty of the United States, [FN25] the threshold question on the
jurisdictional issue was whether the conduct alleged violated the law of
nations. [FN26] Under the universal condemnation of torture in numerous
international agreements and the renunciation of torture as a instrument of
official policy by virtually all nations of the world (in principle if not in
practice), the Second Circuit found that an act of torture committed by a state
official against one held in detention violates established norms of
international human rights law, and hence the law of nations. [FN27]

   The Second Circuit also ruled that although all parties were Paraguayan
citizens and all relevant acts occurred in Paraguay, the United States federal
courts still had jurisdiction under the ATS. [FN28] Common law courts of
general jurisdiction regularly adjudicate transitory tort claims between
individuals over whom they exercise personal jurisdiction, regardless of where
the tort occurred. [FN29] Moreover, Congress provided in the first Judiciary
Act, S9(b), 1 Stat. 73, 77 (1789), for federal jurisdiction over suits by
aliens where principles of international law are at issue. [FN30]

   Contrary to some interpretations of Filartiga, [FN31] the Second Circuit did

not decide whether the ATS provides a private right of action. [FN32] The
Second Circuit held only that the ATS conferred subject matter jurisdiction,
and the matter could be heard because an alleged torturer was found and served
with process by an alien within the United States borders. [FN33] Nevertheless,
the holding in Filartiga opened the door to other causes of action under the
ATS and substantially increased litigation involving human rights violations.
[FN34]

B. Argentine Republic v. Amerada Hess Shipping Corp.

   The United States Supreme Court reasserted in Argentine Republic v. Amerada

Hess Shipping Corp., [FN35] that the FSIA trumped the ATS and provides the sole
basis for obtaining jurisdiction over a foreign state in the United States.
[FN36] In Argentine Republic, the Hercules oil tanker, owned by United
Carriers, Inc., a Liberian corporation, and chartered by Amerada Hess Shipping
Corp., another Liberian corporation, was transporting oil from Alaska to the
Virgin Islands. [FN37] The ship was allegedly bombed without provocation or
warning by the Argentine Republic, which *69 was at war with Great Britain over
the Falkland Islands. [FN38] After unsuccessful attempts to obtain relief in
the Argentine Republic, the owner and charter of the tanker filed complaints
against the Argentine Republic in the United States, seeking damages for the
loss of the tanker and the fuel it had been carrying. [FN39]

   Amerada Hess Shipping Corp. alleged jurisdiction under (1) the ATS, which
confers original jurisdiction on district courts over civil actions by an alien
for a tort committed in violation of the law of nations or a treaty of the
United States; (2) general admiralty and maritime jurisdiction; [FN40] and (3)
the "principle of universal jurisdiction" derived from customary international
law. [FN41] The Argentine Republic moved to dismiss these complaints for lack
of subject matter jurisdiction based on the FSIA, which rendered foreign states
immune to jurisdiction in United States courts. [FN42]

   The Second Circuit believed that the FSIA's focus on commercial concerns and
Congress' failure to repeal the ATS indicated Congress' intention that federal
courts continue to exercise jurisdiction over foreign states in suits alleging
violations of international law outside the confines of the FSIA. [FN43] The
United States Supreme Court disagreed with the Second Circuit. The Supreme
Court asserted that Congress' failure to enact a pro tanto repealer of the ATS
when it passed the FSIA may be explained by the lack of certainty as to whether
the ATS conferred jurisdiction in suits against foreign states. [FN44]
Furthermore, the Supreme Court doubted whether the "most meticulous draftsman
would have concluded that Congress also needed to amend pro tanto the (ATS)."
[FN45]

   The Supreme Court agreed with the Argentine Republic's arguments and
concluded that none of the FSIA's exceptions applied to this case, [FN46]
including the general admiralty and maritime jurisdiction declaration that the
Hercules was in United States territorial waters [FN47] and that the principle
of universal jurisdiction *70 pursuant to international agreements created an
exception to the FSIA. [FN48] The FSIA, not the ATS, provides the sole basis
for obtaining jurisdiction over a foreign state in the United States. [FN49]

C. Trajano v. Marcos

   Before Trajano v. Marcos, [FN50] Argentine Republic effectively held that

the FSIA would trump the ATS in determining jurisdiction in federal courts. In
a 1992 ATS suit, however, the Ninth Circuit in Trajano astutely maneuvered
around the FSIA. [FN51] On August 31, 1977, Archimedes Trajano was allegedly
kidnapped and tortured to death by Philippine military intelligence personnel
for his political beliefs and activities. [FN52] Imee Marcos-Manotoc controlled
the military intelligence personnel, had personal knowledge of Trajano's
torture, and was directly linked to the cause Trajano's death. [FN53]

   The Ninth Circuit ruled that the FSIA does not provide immunity to
Marcos-Manotoc despite her position as a government agent, because she was an
individual acting outside of her official capacity. [FN54] Furthermore, the ATS
confers subject matter jurisdiction if three elements are met: (1) a claim by
an alien; (2) a tort; and (3) a violation of international law. [FN55] All
three of these elements were met: (1) the plaintiff was an alien; (2) torture
and wrongful death are tort claims; and (3) torture violates international law.
[FN56]

   Marcos-Manotoc also argued that Article III of the United States

Constitution does not support jurisdiction over purely foreign disputes. [FN57]
However, the Ninth Circuit cited Verlinden B.V. v. Central Bank of Nigeria,
[FN58] which held that jurisdiction under the FSIA was constitutionally valid
under the arising under clause; [FN59] therefore, jurisdiction would be
appropriate under the ATS. [FN60] Although Marcos-Manotoc correctly argued and
the Ninth Circuit agreed that even if the ATS conferred jurisdiction, it did
not create a cause of action. The Ninth Circuit, however, determined that a
cause of action was proper when applying Philippine law. [FN61]

D. Kadic v. Karadzic

   While Filartiga recognized the liability of public officials for violating

international law, Kadic v. Karadzic [FN62] recognized the liability of private
individuals for violating international law. [FN63] In Kadic, the plaintiffs
were Croat and Muslim *71 citizens of Bosnia-Herzegovina, and they alleged that
they were victims of various atrocities carried out by Bosnian-Serb military
forces as part of a genocidal campaign. [FN64] President Radovan Karadzic
exercised actual control and possessed ultimate command over the Bosnian-Serb
military forces, which were accused of violating the plaintiffs' human rights.
[FN65]

   The Kadic court analyzed two specific issues relating to the scope of the
ATS:  (1) whether some violations of the law of nations may be remedied when
committed by those not acting under the authority of a state; and (2) if so,
whether genocide, war crimes, and crimes against humanity are among the
violations that do not require state action. [FN66] First, the Second Circuit
held that certain forms of conduct violate the law of nations whether
undertaken by those acting under the auspices of a state or only as private
individuals. [FN67] The court applied the ATS by invoking subject matter
jurisdiction through Restatement (Third) of the Foreign Relations Law of the
United States (1986), which proclaims: "Individuals may be held liable for
offenses against international law, such as piracy, war crimes, and genocide."
[FN68]

   Second, having concluded that certain law of nations violations are

attributable to non-state actors, the Second Circuit turned to an examination
of the offenses alleged by the plaintiffs in an attempt to determine if these
specific crimes could be committed by private actors. [FN69] According to the
Second Circuit, the Genocide Convention Implementation Act of 1987 "does not
imply that a private remedy is not already available under the (ATS)." [FN70]
The court, therefore, determined that the plaintiff's allegations easily fell
within the universal prohibition on genocide and that there was subject matter
jurisdiction over Karadzic, regardless of his public or private status. [FN71]

*72 E. Doe v. Unocal Corp.

   Doe v. Unocal Corp. [FN72] is meaningful as the first successful suit in
corporate accountability, holding that a United States corporation can be
liable for the human rights violations committed by a foreign government
partner. [FN73] In Doe, Burmese citizens brought an action against the Unocal
Corp., a California-based energy company, (including its President, John Imle,
and its Chairman and Chief Executive Officer, Roger C. Beach), Total S.A., the
Myanma Oil and Gas Enterprise (MOGE), and the State Law and Order Restoration
Council (SLORC). [FN74] The plaintiffs sought injunctive, declaratory, and
compensatory relief for alleged international human rights violations committed
directly by the SLORC's military and further perpetrated by the other
defendants in their joint venture, the Yadana gas pipeline project. [FN75]

   Citing both the FSIA and Argentine Republic, which held that a foreign state
is immune from commercial related suits, Unocal, seeking to avoid liability
from the Burmese government, contended that the court lacked subject matter
jurisdiction over the SLORC and the MOGE. [FN76] Despite the plaintiffs'
contention that the FSIA's commercial activity exception does not hold states
"immune from jurisdiction of foreign courts insofar as their commercial
activities," [FN77] the court ruled that the alleged abuse of power is
peculiarly sovereign in nature and does not come within the commercial activity
exception to the FSIA. [FN78]

   The court also reviewed the application of the ATS and identified four
distinct approaches used by the federal courts to establish state action in
violation of human rights: public function, state compulsion, nexus, and joint
action. [FN79] Thus, where there is a "substantial degree of cooperative
action" between the state and private actors in effecting the deprivation of
rights, state action is present. [FN80] Since the defendants were joint
venturers, working in concert with one another, and having conspired to commit
violations of international law, the court ruled that these allegations were
sufficient to support subject matter jurisdiction under the ATS. [FN81]

   In Doe, the court extended the jurisprudence that began with Filartiga and
was furthered developed in Kadic by holding that under the ATS private
corporations can be held liable for violations of international law. [FN82]
While Filartiga recognized the liability of public officials for violating
international law and Kadic recognized the liability of private individuals,
the Doe court established the possibility of liability of private corporations
for violations of international law. [FN83] This decision specifically *73
recognizes that corporations may be liable not only for their own actions but
also for the actions of their joint venturers, including foreign governments.
[FN84]
  The application and development of the ATS in landmark cases have reshaped
the contemporary scope of this statute. Although the ATS only provides that
"district courts shall have original jurisdiction of any civil action by an
alien for tort only, committed in violation of the law of nations or a treaty
of the United States," [FN85] it now means more than what it says. By reviewing
the development of ATS case law, the meaning and the jurisdiction of this
statute has been redefined.

   In Filartiga, the Second Circuit applied the ATS's original intent by
holding that the statute only conferred subject matter jurisdiction; the court
also interpreted the statute to be binding upon a public official, accused of
torture, whom was found and served with process by an alien within the United
States borders. [FN86] Argentine Republic, however, reasserted that the FSIA
(pursuant to its exceptions) and not the ATS provides the sole basis for
obtaining jurisdiction over a foreign state. [FN87]

   In a 1992 ATS case, the Ninth Circuit in Trajano astutely maneuvered around
the FSIA. [FN88] The circuit court ruled that the FSIA does not provide
immunity to an individual acting outside of his or her official capacity,
despite their position as a government agent. [FN89] Furthermore, the ATS
confers subject matter jurisdiction only if three elements are met: (1) a claim
by an alien; (2) a tort; and (3) a violation of international law. [FN90] While
Filartiga and Trajano recognize the liability of public officials for violating
international law, Kadic recognizes the liability of private individuals,
[FN91] which effectively extended liability and broadened the scope of the ATS.
[FN92]

   In Doe, the court extended the jurisprudence that began with Filartiga and
was furthered developed in Kadic by holding that private corporations can be
held liable for violations of international law under the ATS. [FN93] The
decision specifically recognizes that corporations may be liable, not only for
its own actions, but also for the actions of their joint venturers, including
foreign governments. [FN94] Instead of manipulating the bare language of the
ATS, some analysts suggest that the federal *74 courts should encourage the
United States Congress to amend the statute and provide explicit authorization
to adjudicate alien tort claims. [FN95]

                                 VI. CONCLUSION

   If Congress finds that the federal courts should be given explicit
authorization, instead of acquiescing to the court's manipulation of the bare
language of the ATS, I submit that Congress should redefine the statute as
 follows: District courts shall have original and subject matter jurisdiction of
any civil action, by an alien for tort only, committed by an individual, a
public official (pursuant to the FSIA's enumerated exceptions), a
privately-held corporation, or a publicly-held corporation, which was committed
in violation of the law of nations or a treaty of the United States. This
proposal incorporates the ATS holdings from the Second and Ninth Circuit Courts
of what currently and arguably exists as judge-made law. [FN96]

   Since the Second and Ninth Circuit Courts have effectively been indicted for
taking a judicial activist tone by using "evolving standards of international
law," [FN97] the time has come when Congress should consider defining the scope
of the ATS's coverage through legislation. Many developing countries have weak
human rights traditions, and as a result, human rights litigation instituted by
foreign plaintiffs against U.S. corporations is now proliferating. [FN98] If
members of Congress find the potential escalation of alien tort suits in this
country alarming, members may want to consider amending the ATS.

   I submit that Congress should curtail judicial activism by redefining the
ATS as follows: District courts shall have original and subject matter
jurisdiction of any civil action brought, in violation of the law of nations or
a treaty of the United States, by an alien for tort only, committed by an
individual or a public official (pursuant to the FSIA's enumerated exceptions)
but not to any privately or publicly-held corporations. By amending the current
form of the ATS, Congress can deter this country from becoming the world hub
for international litigation and more importantly, reassert itself as the
legislative branch of government.

XI. (Cite as: 20 N.Y.U. J. Int'l L. & Pol. 405) REMEDYING FOREIGN REPRESSION THROUGH U.S. COURTS:
FORTI v. SUAREZ-MASON  AND THE RECOGNITION OF TORTURE, SUMMARY EXECUTION, PROLONGED
ARBITRARYDETENTION AND CAUSING DISAPPEARANCE AS COGNIZABLE CLAIMS UNDER THE ALIEN
TORT   CLAIMS ACT

 The thorniest issue in human rights [FN1] law today concerns the enforcement
of international norms.  Although international fora for adjudicating claims
exist, [FN2] their effectiveness has been limited primarily to identifying and
publicizing violations. [FN3] Plaintiffs bringing claims in these fora have
been relatively unsuccessful in enforcing judgments against governmental *406
officials or the governments they represent. [FN4]

   One alternative to international legal adjudication of violations is the

litigation of claims under international human rights law in domestic courts.
 In the United States, the Alien Tort Claims Act [FN5] ('the Act') establishes a
cause of action and a federal forum in which to seek redress for such
violations. [FN6] The construction and use of the Act has stirred considerable
controversy. [FN7]  Nevertheless, in recent years, federal courts have
entertained a variety of claims in which aliens alleging violations of
customary international law have based *407 jurisdiction on this provision.
[FN8]
 Actionable Claims Under The Act:    Official Torture, Prolonged Arbitrary

                         Detention and Summary Execution

   After determining that it had subject matter jurisdiction over plaintiffs'

claims and concluding that individuals may bring actions under the Alien Tort
Claims Act, the district court analyzed each alleged tort.  In Forti I, it held
that official torture, prolonged arbitrary detention, and summary execution
constituted cognizable claims; [FN90] in Forti II, it recognized *425 causing
disappearance as well. [FN91]  The final three of these cognizable claims had
never been directly held by a U.S. court to violate customary international law
under the Alien Tort Claims Act. [FN92]

1.  Official Torture

   Judge Jensen held that official torture was a violation of customary

international law.  The Second Circuit had squarely addressed claims of torture
in Filartiga, and had found that because international proscription of torture
was a well-settled principle, the plaintiffs stated a valid claim under the
Act. [FN93] Since plaintiffs in Forti I also alleged torture by state
officials, the district court simply followed Filartiga and refused to grant
Suarez-Mason's motion. [FN94]  At the same time, however, the Court noted that
it was not clear that plaintiffs had made out a claim of torture based on their
conclusory *426 allegations, so Judge Jensen requested a more definite
statement of the allegations upon which the claims were based. [FN95]

2.  Prolonged Arbitrary-Detention

   The district court also held that defendant's prolonged arbitrary detention
alleged by the plaintiffs violated customary international law. [FN96] While
dicta in several federal cases supported this conclusion, [FN97] the district
court relied chiefly on the holding of the trial court in Rodriguez v.
Wilkinson. [FN98]  In that case, an excludable alien who came to the United
States on the 'freedom flotilla' from Cuba in 1980 sought habeas corpus relief
after being detained by authorities in a federal prison for more than six
months. The petitioner claimed that indeterminate detention constituted
prolonged arbitrary detention in violation of international customary law.  The
lower court agreed and ordered his release. [FN99]

   In Forti I, the duration of detention alleged by the plaintiffs far exceeded
that of the petitioner in Rodriguez. Benchoam had been imprisoned for more than
four years without being charged.  Forti's mother was arrested in 1977 *427 but
was never charged or released.  According to the court, prolonged arbitrary
detention is universally proscribed, and the consensus condemning a state's
prolonged arbitrary detention of its own citizens, as opposed to detention of
aliens, is especially clear. [FN100]  Since the norm is obligatory and readily
definable and Suarez-Mason's alleged conduct fell within its proscription, the
court refused to dismiss these claims against him. [FN101]

*428 3.  Summary Execution

   The court also held that Benchoam had alleged a cognizable claim under the
Act for the murder of her brother in 1977.  Several international legal
instruments proscribe summary execution, [FN102] and dicta in a concurring
opinion in Tel-Oren [FN103] and Guinto v. Marcos [FN104] support this
conclusion.  Furthermore, in De Sanchez v. Banco Central de Nicaragua, [FN105]
the Fifth Circuit noted, also in dictum, that the right not to be murdered by
the state was one of the 'basic rights' which 'have been generally
accepted--and hence incorporated into the law of nations.' [FN106]  The court
refused to dismiss Benchoam's claim. [FN107]

4.  Causing the Disappearance of Individuals

   In Forti I, the court rejected Alfredo Forti's claim that causing the
disappearance of his mother violated customary *429 international law. [FN108]
   Causing disappearances has become a widespread practice in some countries in
the world, and several domestic [FN109] and international [FN110] legal
instruments condemn the practice.  However, in part because Forti's attorneys
did not cite any U.S. cases in support of his position, [FN111] the court
stated that it could not find the 'requisite degree of international consensus
which demonstrates a customary international norm.' [FN112]

   The court was also troubled by perceived definitional problems. [FN113]  For
example, it was unclear to the court how the proscribed conduct differed from
that of the other torts in violation of customary international law of which it
had already approved. [FN114]
   In Forti II, the district court reversed course. After considering
plaintiffs' brief and accompanying affidavits in support of reconsideration of
the two claims it had dismissed in Forti I, Judge Jensen decided that causing
disappearance did indeed constitute a definable and universally recognized
prohibition under customary international law. [FN115]  The court subsequently
reinstated plaintiff Forti's claim for the disappearance of his mother. [FN116]

D.    Claim Not Recognized as Actionable by the Court in Forti I or II:    Cruel,

                         Inhuman or Degrading Treatment

   In Forti I, the court found that plaintiffs' allegation of cruel, inhuman or
degrading treatment did not constitute a colorable claim under the Act. [FN117]
   The court's analysis paralleled its initial discussion of causing
disappearances:  evidence of international consensus was lacking and the norm
*430 was not capable of definition. [FN118]  Given the absence of
'universality' and 'definability,' the district court dismissed the claim.
[FN119]   In Forti II, the court revisited both of these issues and reached the
same conclusion as it had in Forti I. [FN120]  Both of these decisions reached
wrong results under settled principles of international law.

E.    Flaws in the District Court's Analysis in Forti I and Partial Correction in

                                    Forti II

   Forti I presented a sound explanation of the proper method by which to

evaluate claims for relief under the Alien Tort Claims Act. In both Forti I and
II, however, the court's articulation of the limits of customary international
law was inconsistent with its own logic and incongruent with the present state
of customary international law.  In Forti I, the court correctly held that the
Act requires a plaintiff to allege a violation of a definable and universal
norm of customary international law to obtain relief. Because it misstated the
relevant law and overemphasized the importance of absence of U.S. case law on
point, however, the court reached an incorrect conclusion as to the claim it
declined to recognize.

*431 1.  Definability

   Norms against disappearance or cruel, inhuman or degrading treatment are

readily definable.  The sources of law to which the district court had
recourse--commentators on international public law, judicial decisions
enforcing international public law, and the general usage and practice of
nations--are sufficiently clear to support judicial action in the United
States.

a.  Causing Disappearances

   In Forti I, the court defined 'causing disappearance' as consisting of two

elements:  '(1) taking the individual into custody; and (2) committing a
wrongful tortious act in excess of his authority over that person.' [FN121]
Since only the first could be proven, and since such proof would never alone
sustain the cause of action, the court dismissed Forti's claim. [FN122]

   Contrary to the court's assertion, however, the tort of 'causing

disappearance' is definable.  It involves the government's taking a person into
custody followed by official refusal to acknowledge that abduction or detention
has occurred. [FN123]  The Inter-American Commission on Human *432 Rights of
the Organization of American States has offered a similar definition. [FN124]
Moreover, U.S. law recognizes causing disappearance as a definable gross
violation of human rights. [FN125]  The court in Forti I considered definition
to be the most troublesome of the two problems it identified in dismissing
disappearance as a violation of international law.  Given the international
consensus on this issue, however, it is hard to understand this position.

   After recognizing that it had misstated the law, the court in Forti II
reinstated plaintiffs' claims on this cause of action and held that there is a
settled definition of causing disappearances under customary international law.
[FN126]  Once again, the court characterized the tort as having two elements of
proscribed conduct. This time, however, it correctly construed the second
element:  '(1) abduction by state officials or their agents; followed by (2)
official refusal to acknowledge the abduction or to disclose the detainee's
fate.' [FN127]

b.  Cruel, Inhuman and Degrading Treatment

   In Forti I the district court concluded that cruel, inhuman or degrading
treatment was not a definable tort under international law. In Forti II, it
reached the same conclusion. Although it found the requisite degree of
international consensus on the definition, the court held that customary
international *433 law offered no guidance as to the conduct that would support
this claim. [FN128] First, the court questioned whether the proscribed conduct
included only physical punishment or whether it included verbal acts as well,
and, if so, what the threshhold was. [FN129]  Second, it noted that the
definitions asserted in the Greek Case, [FN130] upon which plaintiff had
relied, were not useful because they did not recognize that acts constituting
tortious conduct would vary, depending upon cultural attitudes. [FN131]

   The court's conclusions in Forti I and II are unsupported by settled

principles of international law.  Just as disappearance is definable, so, too,
is cruel, inhuman or degrading treatment. First, each of the major human rights
instruments condemning torture also condemns cruel, inhuman or degrading
treatment. [FN132]  The United Nations has defined torture, which the court
found to be a violation of customary international law in Forti I, in terms of
cruel, inhuman or degrading *434 treatment. [FN133] Although it generally does
not distinguish between the two offenses under the proscriptions of article 7
of the Covenant on Civil and Political Rights, the U.N. Human Rights Committee
has found a specific violation of 'inhuman and degrading treatment' without
finding a violation of torture. [FN134] Furthermore, the European Court of
Human Rights has developed definitions of 'inhuman or degrading treatment or
punishment' that distinguish each of them from torture. [FN135]  Finally, the
Restatement (Third) of the Foreign Relations Law of the United States
differentiates torture from cruel, inhuman and degrading treatment. [FN136]

   The court need only have determined that some of defendant's conduct
constituted cruel, inhuman or degrading treatment.  For example, Benchoam
alleged that she was denied food and clothing for a week, that she was held
incommunicado for a month and that a guard attempted to rape *435 her. [FN137]
   Given the weight of authority, it is not clear that all of these allegations
constituted torture; they certainly rise to the level of cruel, inhuman or
degrading treatment, however. [FN138]  Whether defined separately or included
in the definition torture, cruel, inhuman or degrading treatment violates
definable norms of customary international law. [FN139]

2.  Universal Consensus

   Contrary to the holding of the court in Forti I, causing disappearance and

cruel, inhuman or degrading treatment are universally condemned.  Therefore,
the court's concerns about universal condemnation were without basis in fact.

a.  Causing Disappearances

   There is consensus within both the U.S. and the international community that
causing disappearance violates international customary law in two distinct
ways.  First, causing disappearance of a person itself violates a norm of
international law.  The legislative [FN140] and executive branches [FN141] of
*436 the U.S. government have also condemned the practice of causing
disappearance, and federal law in the United States specifically recognizes it
as prohibited by customary international law. [FN142] Moreover, there is a
substantial amount of dicta in U.S. case law describing 'causing disappearance'
as a recognized violation of international law. [FN143]

   Outside the United States, international tribunals also have found that the
causing of disappearances violates international norms proscribing
infringements on liberty and security of the person.  The U.N. Human Rights
Committee, established pursuant to the International Covenant on Civil and
Political Rights, has adjudicated 'disappearance' claims. [FN144] Further, the
OAS Inter-American Commission on Human Rights has found that causing
disappearance violates article 7 of the American Convention, which protects the
right to liberty and security of the person and the right to be free from
arbitrary detention. [FN145]

   Finally, international organizations and commentators have articulated an

international norm against causing disappearances. The Working Group on
Enforced or Involuntary Disappearances of the U.N. Commission on Human Rights,
*437 has intervened on behalf of the 'disappeared.' [FN146]  The OAS has
approved two resolutions condemning causing disappearance as a 'crime against
humanity.' [FN147] Jurists in the field of international law uniformly conclude
that there is a norm against causing disappearance. [FN148] Further, the
Restatement (Third) lists among recognized violations of international
customary law the proscription against disappearances. [FN149]

   In addition to violating a specific norm, causing disappearance violates a

host of other recognized norms of customary international law.  The Working
Group on Enforced or Involuntary Disappearances has taken this view. [FN150]
Moreover, the U.N. General Assembly has denounced disappearances as violative
of the right to a fair and public trial, the right to life, liberty and
security of the person, the right to be free from torture, and the right to be
free from arbitrary arrest and detention [FN151] the last three of which were
recognized explicitly as binding international norms by the court in Forti I.
[FN152]

   One of the international customary norms violated by disappearance is that

proscribing prolonged arbitrary detention. What differentiates prolonged
arbitrary detention from *438 causing disappearances is that as to the latter
the perpetrator refuses to acknowledge the official detention. [FN153]
Ironically, of two plaintiffs, both of whom have been arbitrarily detained,
only the one whose detention was acknowledged by the government could
demonstrate a violation of international law under the interpretation of the
Act in Forti I. [FN154]  This anomaly would have created an incentive for
government officials who arbitrarily detain individuals to deny the fact of
detention, thereby avoiding the proscription of international law.

   In addition to violating the norm proscribing prolonged arbitrary detention,

causing disappearance violates other recognized norms.  It violates the right
to effective judicial remedy and the right to a fair trial before punishment is
inflicted. [FN155] Depending on the circumstances of the detention,
disappearance may also involve torture or other cruel, inhuman or degrading
treatment or punishment, [FN156] both as to the person detained and as to his
or her relatives. [FN157] It may also violate the right not to be summarily
executed. [FN158] Because international customary law proscribes 'causing
disappearance' independently and as a violation of several other norms, the
court should not have dismissed Forti's claim.

   The court's rendering of customary international law in Forti I would have

resulted in wholly undesirable incentives for repressive governments to commit
gross violations of human rights. A person who was eventually released from a
lengthy and politically motivated stay in jail would have been able to bring an
action for prolonged arbitrary detention.  If she were not released, however,
she would have had no action directly against her captors, nor would her next
of kin *439 have had recourse.  Thus, a government whose conduct constitutes
prolonged arbitrary detention would have had an incentive to cause the
disappearance of a person rather than acknowledging her detention.

   In Forti II, the court reconsidered its earlier decision and held that
causing disappearance is universally proscribed. [FN159] Judge Jensen argued
that it constituted a violation in itself and a violation of other universally
protected rights. [FN160]  As a result, the court eliminated its earlier
ruling's perverse incentive for repressive governments to be even more
repressive. [FN161]

b.  Cruel, Inhuman or Degrading Treatment

   Similarly, cruel, inhuman or degrading treatment is universally accepted as

a violation of international law.  As with the prohibition on disappearance,
two distinct theories support this conclusion.

   First, there is a customary international law norm prohibiting cruel,

inhuman or degrading treatment.  Under the European Convention on Human Rights,
the European Commission and Court of Human Rights have adjudicated *440 claims
and developed a jurisprudence on violations. [FN162]  They have found that the
prohibition on torture and ill-treatment is 'absolute.' [FN163]  In addition,
the Human Rights Committee of the United Nations has adjudicated claims of
cruel, inhuman or degrading-treatment without finding a violation of torture.
[FN164]

   Second, cruel, inhuman and degrading treatment violates customary

international law as part of a prohibition of 'torture and cruel, inhuman or
degrading treatment.'  All of the major international legal instruments
governing human rights recognize this more general proscription. [FN165]  The
U.S. courts cited by the court in Forti I have acknowledged the existence of
this customary international law prohibition. [FN166]  Moreover, policy
pronouncements [FN167] and legal briefs [FN168] from the executive branch, as
well as federal law, [FN169] condemn *441 cruel, inhuman or degrading treatment
as violative of international human rights law.  Finally, the Restatement
(Third) includes this norm among those that bind states through customary
international law. [FN170]  Given the evidence, the court's holding that there
is no universal consensus as to a proscription against cruel, inhuman or
degrading treatment was unwarranted.  As a result of the court's decision,
claims that would not otherwise rise to the level of torture will be barred,
even though customary international law proscribes the alleged conduct.

3.  Overreliance on U.S. Case Law

   The court dismissed the claims of disappearance and cruel, inhuman or

degrading treatment in Forti I in part because it overemphasized the dearth of
U.S. case law concerning these torts. It found support in U.S. case law for
each of the violations held cognizable under the Act (torture, summary
execution and prolonged arbitrary detention).  The court noted, however, that
since plaintiffs had not cited any such cases in support of prohibitions
against disappearances or cruel, inhuman and degrading treatment, these torts
must not exist as a matter of universal application. [FN171]

   *442 The court's concern about the lack of precedent was misguided.  First,
because some norms have only recently attained the binding status of customary
international law, they may not have been litigated. [FN172]  Some norms are so
well-settled that they rarely are litigated. [FN173]  In either case, U.S.
judicial precedents will be lacking.

   Second, since the court in Forti I and II was construing international law,
its interpretation was not bound by U.S. case law alone. [FN174]   Indeed, it
 need not have referred to case law at all. [FN175] Judicial decisions--domestic
and international--*443 comprise just one of several sources from which to
discern the proper scope of customary international law. [FN176] Therefore, it
is unclear why the court inferred that because U.S. courts have not found that
cruel, inhuman or degrading treatment or causing disappearances violates
international law, proscriptions against them do not exist. [FN177]  Although
in Forti II the court implicitly overcame its resistance to the absence of U.S.
precedent on point by recognizing a cause of action for causing disappearance,
it need not have been preoccupied with the issue at all.

xi. THE ALIEN TORT CLAIMS ACT: A MECHANISM FOR ALIEN PLAINTIFFS TO HOLD

                THEIR FOREIGN NATIONS LIABLE FOR TORTIOUS CONDUCT

 The Evolution Of International Law And Its Relation To The Alien Tort Claims

                                       Act

   The manner in which international law is applied today has a significant

impact on the Alien Tort Claims Act, and its interpretation has an
unquestionable effect on the applicability of the ATCA to citizens of foreign
nations who engage in acts that violate the law of nations. The first two
requirements that must be met to proceed under the ATCA, being an alien and
suing for a tort only, [FN8] are the only simple aspects of the Act. The first
problem a plaintiff will encounter is proving that the defendant has violated
"international law." This requirement is the most important jurisdictional
issue under the ATCA. [FN9] This problem exists because courts have
historically differed on what international law really is.

   Courts of the past [FN10] have limited the interpretation of international

law to the way it was in 1789, when the ATCA was enacted. Subsequent courts
have suggested a contrary view, [FN11] but an actual change did not occur until
1980 in Filartiga v. Pena-Irala , [FN12] and later in Kadic v. Karadzic ,
[FN13] both from the Second Circuit.

   In order to discern whether there has been a violation of international law,
it must first be determined what constitutes international law. This is
accomplished by turning to "treaties and other international instruments as
evidence of an emerging norm of customary international law...." [FN14] In
effect, this states that treaties and laws of the United Nations set the
precedential standard for the classification *351 of international law.
However, if there is no applicable treaty, nor any other international
instruments, "resort must be had to the customs and usages of civilized
nations; and, as evidence of these, to the works of jurists and commentators...
." [FN15] This leads to the conclusion that what is generally recognized as a
violation of international law is demonstrated by express international accords
by the nations of the world that a particular wrong is "of mutual, and not
merely several, concern." [FN16]

   In summary, when determining what constitutes international law, one must
first look to any applicable treaties or to the law of nations. If no
applicable standard is found, the next approach is to search the works of
jurists and commentators in order to extrapolate the customs and usages of a
nation. If this analysis leads to the decision that one's alleged conduct
violates such "well-established, universally recognized norms of international
law," then the ATCA comes into existence and provides federal jurisdiction to
United States courts. [FN17]

   The first case to invoke jurisdiction over a human rights case through the
ATCA was Filartiga v. Pena-Irala . [FN18] The case provided an example of the
ambiguity of "international law" by exploring the principle further and
concluding that international torture under the color of official authority is
a violation of the universally accepted norms of the international law of human
rights, which in turn violates the law of nations. [FN19] Therefore, a state's
treatment of its citizens becomes a matter of international concern. [FN20] The
decision exemplifies how the court scrutinized the law of nations, judicial
opinions, and the works of jurists, [FN21] and concluded that there was a
violation of the law of nations. The ATCA was invoked to provide the plaintiff
with a legal remedy.

   A dispute has arisen over the holding that the nations of the world must be
in general agreement that the alleged category of *352 misconduct is a
violation of international law. It is argued that this creates many violations
of the law of nations, and therefore, a wide door is opened to United States
courts through the ATCA. Although several courts have tried to reduce the
number of potential lawsuits by narrowing the definition of the law of nations,
[FN22] this approach retains the definition of international law as it was in
1789, and is an outdated view. [FN23] Furthermore, the notion conflicts with
the literal meaning of the ATCA. [FN24]

   There are more viable options that limit the granting of jurisdiction under
the ATCA, other than pre-dating its interpretation to 1789, thereby preventing
a flood of lawsuits in United States courts by aliens. These are: claims of
immunity under the FSIA, forum non conveniens, lack of venue, and an inability
to acquire personal jurisdiction. [FN25]

   Due to this intermingling between international law and the Act, it is

imperative that courts interpret international law as it exists among the
nations of the world today, as opposed to the way it was interpreted in 1789,
although the District of Columbia continues to adhere to that view. [FN26]
Failure to do so is likely to return to an antiquated legal system where
emerging violations of international law have no place. In order to transcend
this outdated barrier, it is necessary to expand the scope of the ATCA to the
modern era.

             II. The Necessity Of Intervention By The United States

   There are many strengths and weaknesses associated with both views of the
continuing debate of whether the United States should interfere in the
adjudication of claims that have arisen in foreign countries. However, public
policy dictates that the pull should be more towards the granting of
jurisdiction to United States courts in the majority of the cases falling under
the ATCA. The notion that foreign nationals should be held accountable for
their tortious actions and for those of their agents is the controlling
argument in *353 favor of the intervention. [FN27] Furthermore, United States
courts are better able to effectively provide adequate compensation for these
victims. [FN28]

   The purpose of litigation under the ATCA is (1) to compensate victims, (2)
denial of a safe haven to the defendant in the judgment-rendering forum, (3) to
deter others from engaging in similar actions, and (4) setting forth a standard
of conduct to which the defendant must adhere in order to avoid liability.
[FN29] Denial of a safe haven, deterrence, and the standard of conduct are of
great importance in the international environment "where highly mobile
defendants and the absence of full faith and credit impair the collectability
of judgments." [FN30] The purposes of the ATCA as aforementioned are necessary
to provide a remedy to victims of human rights abuses, since these individuals
may not be able to obtain remedies from their own governments. [FN31]

   Intervention is also necessary to protect against abuses of certain human

rights. [FN32] This is based on the drive for self-preservation of humanity as
a whole. [FN33] In essence, if a sincere effort to protect humanity is not
made, the human population throughout the world will begin to diminish. Such a
threat should be avoided by any necessary means. One option is intervention by
the United States into the foreign affairs of those countries for the purpose
of protecting human rights violations.
   Additionally, the National Charter has given the United Nations authority to
interfere in certain situations, in order to maintain and restore international
peace and security. [FN34] When human rights violations are occurring,
international peace and security is threatened, and therefore intervention is
justified. [FN35] Human rights, which were *354 once solely a matter of
domestic concern, [FN36] are now also a large part of international law. [FN37]

   Furthermore, the litigation of claims under the ATCA in United States courts
falls in line with the notion of transitory torts. This notion, of the
"tortfeasor's wrongful Act creating an obligation that has followed him or her
across national boundaries," [FN38] is another justification for United States
intervention in this area. This provides the state with a reasonable interest
to have disputes within its borders resolved in an orderly fashion. [FN39] The
Filartiga court based its finding of jurisdiction on this common law doctrine.
[FN40]

   Aliens must be given the opportunity to pursue their claims in our courts.
These aliens may not have this opportunity in their own country, principally
because the alleged offender may be a state official. United States courts may
be the only available fora with jurisdiction to hear the human rights claims
against foreign nationals. [FN41] Victims must have the opportunity to pursue
their claims in a forum "outside the political and cultural environment in
which the abuses... occurred." [FN42]

III. The Significance Of The Alien Tort Claims Act As A Jurisdictional Basis In

                                The United States

   The ATCA provides that the district courts shall have original jurisdiction
over any civil action by an alien for a tort only, committed in violation of
the law of nations or a treaty of the United States, [FN43] regardless of where
the tort occurred. [FN44] However, the alleged conduct must be unlawful in the
nation where it occurred. [FN45] *355 In Filartiga, the court held that the
ATCA does not grant new rights to aliens, rather it opens the federal courts
for adjudication of the rights already recognized by international law. [FN46]
That same court impounded that ruling fifteen years later in Kadic v. Karadzic
. [FN47] The Kadic court stated that a plaintiff's complaint must plead a
violation of the law of nations in order to meet the threshold required by the
ATCA. [FN48]

   In order for federal subject-matter jurisdiction to exist under the ATCA,
three conditions must be met: (1) An alien must sue, (2) for a tort only, (3)
committed in violation of the law of nations. [FN49] A court must give the
merits in such an action a stricter review, since the requirements above are
"more stringent" than if a case were to arise under federal law. [FN50]

   Prior to 1980, there had only been two successful attempts in obtaining
jurisdiction. [FN51] However, the Second Circuit, through the case of Filartiga
, [FN52] has breathed new life into the act with a handful of subsequent cases,
from several circuit courts, following its lead. [FN53]

   It has been questioned whether the granting of jurisdiction over these suits
is constitutional. [FN54] A case is said to properly arise under the laws of
the United States, for purposes of Article III, if it is based on a statute
enacted by Congress or upon the common law of the United States. [FN55] The
ATCA is authorized by Article III, and therefore it is constitutional. [FN56]
The court came to this conclusion by reasoning that the law of nations became
an integral part of the common law of the United States, when the Constitution
was *356 adopted; the ATCA is based on the law of nations. [FN57]

   A major setback is that the Supreme Court has not yet spoken in this area.
Each circuit court that has been faced with this issue has given the ATCA its
own interpretation and application, leading to much confusion regarding the
actual scope of the Act. If the Supreme Court does not Act soon, injustice is
certain to result. [FN58]

   Recently, courts have held that subject-matter jurisdiction exists under the
ATCA if an alien plaintiff can establish a violation of international law, and
that such proof will create both a federal private cause of action and a
federal forum. [FN59] The Eleventh Circuit Court has ruled in the same manner.
[FN60] However, other courts [FN61] have held that an independent cause of
action must be created before jurisdiction under the ATCA will be granted,
thereby removing any chance for a federal private cause of action. [FN62]

   These conflicting views are clearly crying out for a statement from the
Supreme Court. Each federal circuit, unsure of the actual meaning of the
statute, is attempting to reconcile the meaning it derives from the statute
with any prior cases that have spoken on the issue. The problem is that many of
these cases come from different circuits, and therefore they may not be binding
precedent on each other. Unfortunately, there can be no solution to the problem
until the Supreme Court is forced to take a stand on the actual ramifications
of the ATCA.
XII.
(Cite as: 34 J. Legis. 77) FROM BLACKBEARD TO BIN LADEN: THE RE-EMERGENCE OF THE ALIEN TORT
CLAIMS   ACT OF 1789 AND ITS POTENTIAL IMPACT ON THE GLOBAL WAR ON TERRORISM

 In 1980, the case of Filartiga v. Pena-Irala provided the big "Good Will
Hunting" moment where the Alien Tort Claims Act of 1789 was pulled from the
stacks, dusted off, and used (on appeal to the Second Circuit) to successfully
bring a Paraguayan tort case before the Eastern District of New York. [FN47]
Though the Act had actually been *82 invoked in an earlier (1961) child custody
case, [FN48] and mentioned in a few others, [FN49] Filartiga is now generally
recognized as the 'starting point' for the modern re-emergence of the Alien
Tort Claims Act. [FN50]

   Filartiga was a case in which all parties were citizens of Paraguay, and in
which all tortious events took place solely in Paraguay. [FN51] The plaintiffs
were Dr. Joel Filartiga, a Paraguayan physician, and his adult daughter Dolly
Filartiga. [FN52] Dr. Filartiga, while living in his native Paraguay, was an
outspoken critic of Paraguayan President Alfredo Stroessner's government.
[FN53] Dr. Filartiga alleged that, on March 29, 1976, his seventeen-year-old
son, Joelito Filartiga, was kidnapped and tortured to death in Asuncion,
Paraguay by the government's Inspector General of Police, Americo Norberto
Pena-Irala (Pena). [FN54] At the time, Dr. Filartiga attempted to initiate an
action in Paraguayan courts, but the Paraguayan government responded by
arresting Dr. Filartiga's attorney and "shackling him to a wall" at police
headquarters. [FN55] Shortly thereafter--and quite understandably--Dr.
Filartiga and his daughter fled to the United States and filed for political
asylum. [FN56]

   In July of 1978, pressured by political rivals and enemies, Inspector

General Pena himself left Paraguay and entered the United States under a
visitor's visa. [FN57] Pena overstayed his visa, intending to permanently
reside in Brooklyn, New York. [FN58] However, in 1979 Dolly Filartiga learned
that Pena was in the United States. [FN59] She informed the Immigration and
Naturalization Service, who arrested Pena and subsequently ordered his
deportation. [FN60] While Pena was incarcerated at the Brooklyn Navy Yard,
awaiting deportation, the Filartigas caused him to be personally served with a
summons and a civil complaint. [FN61] The civil tort action alleged that Pena
had wrongfully caused Joelito Filartiga's death by torture. [FN62]

   When the case came before the federal district court, jurisdiction proved to
be a hot threshold issue. [FN63] The court clearly had personal jurisdiction
over Pena, since he was personally served with process while physically within
the state of New York. [FN64] However, the district court doubted that it had
subject matter jurisdiction of the case. [FN65] Seemingly grasping at straws,
the Filartigas' original cause of action stated that the *83 case:

      [Arose] under "wrongful death statutes; the U.N. Charter; the Universal
   Declaration on Human Rights; the U.N. Declaration Against Torture; the
   American Declaration of the Rights and Duties of Man; and other pertinent
   declarations, documents and practices constituting the customary
   international law of human rights and the law of nations," as well as 28
   U.S.C. s 1350, Article II, sec. 2 and the Supremacy Clause of the U.S.
   Constitution, ... 28 U.S.C. s 1331 and ... under the Alien Tort Statute, 28
   U.S.C. s 1350. [FN66]

   The district court considered and summarily rejected all bases for subject
matter jurisdiction and subsequently dismissed the action because of lack of
subject matter jurisdiction. [FN67]

   The Filartigas appealed to the United States Court of Appeals, Second

Circuit.  [FN68] Re-examining the Filartigas' laundry list of proposed bases
for subject matter jurisdiction, [FN69] the court seized upon the Alien Tort
Claims Act and held that the Act provided a legitimate basis for subject matter
jurisdiction in the case. [FN70] In the opening paragraphs of his opinion,
Circuit Judge Irving R. Kaufman wrote:

      Construing this rarely-invoked provision, we hold that deliberate torture

   perpetrated under color of official authority violates universally accepted
   norms of the international law of human rights, regardless of the
   nationality of the parties. Thus, wherever an alleged torturer is found and
   served with process by an alien within our borders, [the Alien Tort Claims
   Act [FN71] provides federal jurisdiction. Accordingly, we reverse the
   judgment of the district court dismissing the complaint for want of federal
   jurisdicti. [FN72]

   The Filartigas' case was reversed and remanded to the district court for
trial on the merits. [FN73] The Alien Tort Claims Act had successfully kept
this improbable Paraguayan tort case alive in United States courts. [FN74]

   Filartiga is seen as the beginning of the Act's modern re-emergence because

of the "Wow, it actually worked!" factor. Yet, it is also a landmark case with
respect to the re-emergence of the Act because it provides the first clues as
to how modern courts are likely to interpret and apply the Act.
   One notable aspect of the decision is that the Second Circuit appeared to
limit *84 application of the Act to instances where the defendant is served
with process within the borders of the court's jurisdiction. [FN75] In
Filartiga itself, this did not present a problem since Pena was physically
present within the state of New York. [FN76] However, the opinion's use of the
phrase "is found and served with process by an alien within our borders"
appears limiting in nature, [FN77] making it unclear regarding whether the Act
somehow precludes the application of other bases for personal jurisdiction,
such as in cases where personal jurisdiction would be based upon satisfaction
of "minimum contacts." [FN78]

   A second notable aspect of the Filartiga decision was that the Second
Circuit rejected another motion that Pena made to dismiss based upon forum non
conveniens. [FN79] Pena argued that Paraguayan courts provided a more
appropriate forum, and Pena's Paraguayan counsel submitted an affidavit in
support of this motion, "averr[ing] that Paraguayan law provides a full and
adequate civil remedy for the wrong alleged." [FN80] The Second Circuit found
it irrelevant that Paraguayan courts were available to hear this action-- that
fact had no bearing on the United States federal court system's ability or
willingness to hear the Filartiga case. [FN81]

   The most notable aspect of the Filartiga decision, however, was the
exhaustive analysis that the Second Circuit performed regarding what
constituted a "law of nations." The court began by noting that the Act, by its
very terms, was limited only to torts committed "in violation of the law of
nations or a treaty of the United States." [FN82] Classifying this as "a
threshold question," [FN83] the court determined that there was no applicable
treaty between the United States and Paraguay covering the Filartigas' case, so
it began a detailed analysis of the phrase "law of nations." [FN84] In doing
so, the court examined numerous writings on international law from the United
Nations and from various legal scholars in an effort to determine whether the
torts alleged in the Filartigas' case could be classified as violations of "the
law of nations." [FN85] The court ultimately concluded:

      In light of the universal condemnation of torture in numerous

   international agreements, and the renunciation of torture as an instrument
   of official policy by virtually all of the nations of the world (in
   principle if not in practice), we find that an act of torture committed by a
   state official against one held in detention violates *85 established norms
   of the international law of human rights, and hence the law of nations.
   [FN86]
   In holding that torture by a state official was a violation of the law of
nations, the court's extensive analysis and labeling of this as a "threshold
issue" sent a clear signal that the Act would not be liberally interpreted to
apply to all torts, but only those torts falling within the smaller sub-set of
universally condemned violations of human rights. [FN87]

                       C. Expansion of the Act Since 1980

   Since Filartiga, dozens of other cases have been filed which rely upon the
Alien Tort Claims Act for jurisdiction. [FN88] To date, the majority of these
suits have been initiated with the assistance of various human rights activists
and non-profit organizations. [FN89] For example, in recent years:

      Philippine nationals sued the family of ex-dictator Ferdinand Marcos for

   acts of torture carried out during his rule. An Ethiopian victim sued his
   torturer and won a large judgment. A group of Guatemalan peasants
   successfully sued the country's former defense minister, whom they accused
   of complicity in torture and extrajudicial killings. Unable to get a hearing
   in Japan, a group of Chinese men forced into labor during the Second World
   War recently filed suit in the U.S. [FN90]

   Many of these suits are at least moderately similar in character to

Filartiga, involving victims of torture, extrajudicial killing, and other clear
human rights violations. [FN91] This broad category of suits is also similar to
Filartiga with respect to two critical items. First, even though the Alien Tort
Claims Act provides subject matter jurisdiction, it can still be quite
difficult for courts to get personal jurisdiction over the defendants. [FN92]
Second, as the Filartigas found out, it can be nearly impossible to actually
collect on any judgment rendered against the defendants in these cases. [FN93]

   However, a second broad category of suits under the Act has emerged in
recent years--one that has caused worry for some U.S. corporations and
investors. [FN94] Alien victims of foreign human rights abuses have begun to
sue U.S. corporations for *86 complicity in the alleged abuses. [FN95] Unlike
the Filartiga line of cases, personal jurisdiction and availability of funds,
which are necessary to satisfy judgments, are rarely a problem in cases where
parties bring suit against U.S. corporations. [FN96] According to the U.S.
Chamber of Commerce web page, by late 2002 there were more than twenty pending
Alien Tort Claims Act suits specifically targeting United States corporations,
"alleging that U.S. firms doing business in ... Colombia, Ecuador, Egypt,
Guatemala, India, Indonesia, Myanmar (Burma), Nigeria, Peru, Saudi Arabia,
South Africa, and the Sudan are liable for actions in those countries ...
whether or not they had any direct connection other than being present in those
countries." [FN97]

   A 2002 Ninth Circuit case, Doe I v. Unocal Corp., and the events surrounding
that case, provide a good illustration of the model used in the Alien Tort
Claims Act cases which seek to hold corporations liable for allegedly being
complicit in human rights violations. [FN98] In Unocal, Unocal Corporation was
an energy company that was constructing a gas pipeline stretching through rural
Burma. [FN99] Unocal allegedly contracted with the local government's military,
seeking soldiers to protect the pipeline while it was under construction.
[FN100] In the lawsuit under the Alien Tort Claims Act, Plaintiff "Doe" was
actually a collection of Burmese villagers who lived in a rural jungle
settlement near the site of the pipeline construction. [FN101] The villagers'
claims included allegations that military guards forced them to work as slave
laborers in furtherance of the Unocal pipeline project, as well as allegations
that they endured rapes, torture, and other abuses at the hands of the Burmese
soldiers. [FN102] The villagers did not allege that Unocal Corporation directly
participated in any of the abuses, but instead alleged that Unocal should be
held liable as an accomplice of the Burmese soldiers. [FN103]

   Though Unocal prevailed before the district court, the court of appeals
reversed the lower court's entry of summary judgment and dismissal of the case.
[FN104] Unocal subsequently settled the lawsuit for an unspecified sum (rumored
to be quite a sizeable amount). [FN105] While the Unocal case was likely first
initiated because Unocal was available (a U.S. corporation) and because Unocal
possessed deeper pockets than any Burmese soldier could have, [FN106] the case
also ended up illustrating another factor which has led to the suit of so many
corporations: the public relations factor. [FN107] Whether *87 Unocal
Corporation was truly liable or not for the actions of the Burmese soldiers
(and it might have been), it is clear that-- from a public relations
standpoint--Unocal Corporation wanted to avoid any protracted litigation in a
United States federal court involving such concepts as forced slave labor and
the rape of villagers during the construction of an oil pipeline. [FN108]
Having the media pick up on sound bites from such a protracted trial would have
caused Unocal's stock to plummet and would have seriously damaged the company's
public image. [FN109]

   There have been a slew of similar cases in the wake of Unocal, in which
victims of human rights abuses (often assisted by various human rights
agencies) have organized and brought suits under the Alien Tort Claims Act
against corporations for their complicity in foreign abuses. [FN110] For
example, DaimlerChrysler was sued in early 2004 "over its alleged role in the
disappearance and torture of workers and union leaders" based upon actions that
the Argentine military took outside of its Buenos Aires plant during the
Argentine "Dirty War" of 1976-1977. [FN111] The Coca-Cola Company was sued
under the Act by Colombian citizens claiming that the company influenced
Colombian military units which intimidated local unions. [FN112] ExxonMobil
faced a similar suit because of crimes committed by Indonesian army units
assigned to protect the company's facilities in Aceh, Indonesia. [FN113]

   Just as Filartiga set the modern standard for use of the Act with respect to
individualized wrongs, [FN114] Unocal has set the modern standard for use of
the Act to go after corporate deep pockets via various accomplice theories.
[FN115]

Xiii
21 N.C. J. Int'l L. & Com. Reg. 591

A. Pushing Filartiga Even Further

   Filartiga made its stopping point clear.  It limited the Alien Tort Act's
jurisdiction over torture claims to those against state actors. [FN164]  The
issue that ultimately crystallized in Kadic  was whether s 1350 jurisdiction
applies to non-state actors for other law of nations violations, such as war
crimes and genocide. [FN165]

   The Kadic court ruled that, unlike torture, liability for genocide and war
crimes should be binding on both state actors and non-state actors. [FN166]
While there may be no consensus as to whether non-state actor liability should
attach to every law of nations violation, [FN167] the court believed that there
was a consensus that liability should attach to both war crimes and genocide,
without regard to whether the *609 perpetrators were "state actors." [FN168]

   The court analyzed several recognized international authorities and found no

evidence that liability for war crimes or genocide should be restricted to
state actors. [FN169]  The court noted that The Convention on the Prevention
and Punishment of the Crime of Genocide [FN170] described genocide as an
"odious scourge," from which mankind must be liberated. [FN171]  It plainly
states that "[p]ersons committing genocide . . . shall be punished whether they
are Constitutionally responsible rulers, or private individuals." [FN172] This
broad sweep of liability clearly applies to all individuals, not just those
acting under constitutionally responsible rulers, as some might suggest.
[FN173]   The Genocide Convention Implementation Act of 1987, [FN174] also
cited by the court, imposes criminal liability without regard to the status of
the offender.  Furthermore, the Restatement and other commentators support
the
court's conclusion that non-state actors may be liable for genocide. [FN175]

   As noted earlier, war crimes were universally condemned by the international
community at the Geneva Conventions. [FN176]  The Kadic court noted that the
four Geneva Conventions codified the laws of war and prohibited all forms of
war crimes. [FN177]  In particular, common article 3, which is almost the same
in all four of the Geneva Conventions, binds "all parties" to a conflict from
committing various acts which constitute war crimes. [FN178]  The court read
common article 3 as authority which binds "parties to internal conflicts
regardless of whether they are recognized nations or roving hordes of
insurgents." [FN179]

   Moreover, the United Nations' recent enactment of an International Tribunal

for the Prosecution of Persons Responsible for Serious Violations of
International Law in the Former Yugosalvia [FN180] simply *610 refers to "any
person" who commits international crimes, and therefore does not require that
such person be a state actor. [FN181] One noted commentator, Professor
Howard
S. Levie, declared that "it is indisputable that . . . [the U.N. Tribunal] has
been given jurisdiction to try individuals charged with violations of the
provisions of international humanitarian law." [FN182] This most recent
pronouncement of individual liability for war crimes provides additional
support for the court's holding, and is directly on point since it is
specifically desinged to try war criminals like Karadzic for war crimes similar
to those in Kadic. [FN183]

   With regard to torture, the court found that there was sufficient authority
stating that liability may only be imposed on state actors. [FN184]  Both the
1991 Torture Victim Protection Act [FN185] and Filartiga require that the
torturer be a state actor for liability to attach. [FN186]  The court did not
try and reconcile why liability for torture required state action while
liability for war crimes and genocide did not. [FN187]  One reason may be that
the distinction between state-actor and non-state actor liability for war
crimes and genocide is rather impractical.  Since these acts often involve the
"deliberate and systematic" [FN188] extinction of entire populations, it is
hard to imagine any situation in which the international community would seek
to limit or absolve liabilities for such actions. [FN189]  Additionally,
genocide is almost always the product of mass-organizational campaigns to
exterminate a particular group or groups of people. [FN190]  The international
community probably does not foresee a group of private individuals waging an
extermination campaign without the backing of some sort of governmental,
rebel
or military organization.

   Though the Kadic court ruled that liability for acts of torture would
require state action, it provided the district court with guidelines for
determining Karadzic's status as a state actor.  In perhaps the most strategic
ruling in the opinion, the court ruled that in determining Srpska's status as a
"state," the district court should use the international definition of "state,"
rather than relying on whether or not an entity *611 such as Srpska has been
recognized by the United States. [FN191]  While United States law looks to the
Executive Branch's determination as to whether an entity has been recognized
as
a "state," [FN192] international law provides a much more lenient formulation
of statehood. [FN193]

   Under international law, a state is an entity which has "a defined territory
and a permanent population, under the control of its own government, and
that
engages in, and has the capacity to engage in formal relations with other
countries." [FN194]  Furthermore, the Restatement explains that a territory
which meets these requirements is a "state" regardless of whether it is
officially recognized by other states. [FN195] The Kadic court held that the
Bosnian-Serbian entity known as Srpska falls clearly under this definition
since it has a President and legislature, as well as its own currency and has
also entered into agreements with other governments. [FN196]  Furthermore, it
has carved out its own territory within Bosnia where it governs the populations
that reside there. [FN197]  Other courts have recognized this international
standard for statehood as defined by international law,  [FN198]  even when
they have not exclusively applied it. [FN199]

   Moreover, the court noted a potential problem which could arise if an entity
such as Srpska was defined according to official recognition or non-recognition
by the United States. [FN200]  Official recognition by the United States would
allow Karadzic to avail himself of a number of official immunities, such as the
head of state doctrine or the FSIA. [FN201] However, if Srpska is not
recognized by the United States, Karadzic would be a non-state actor and
therefore could not be liable for acts of torture under the law of nations as
 interpreted by the federal courts in both Filartiga and Tel-Oren.  Thus,
requiring official recognition to *612 hold Karadzic liable as a "state actor"
would provide a permanent shield from liability. [FN202] Judge Newman
maintained that this result would be "perverse," [FN203] and thus chose the
more flexible international definition of state to determine state action.
[FN204]  Under the international formulation, the Executive Branch can refuse
to recognize states without fearing that non-recognition would preclude federal
courts from imposing liability over international criminals from that sta

XV. 17 Suffolk Transnat'l L. Rev. 578

   The Alien Tort Claims Act grants jurisdiction in the federal courts to
aliens who allege a tort violative of the law of nations, provided the
defendant's acts do not fall within the protection of the Foreign Sovereign
Immunities Act ("FSIA"). [FN1]  In In re Estate of Ferdinand E. Marcos Human
Rights Litigation, [FN2] the United States Court of Appeals for the Ninth
Circuit considered whether the Alien Tort Claims Act provided subject matter
jurisdiction over a claim involving the torture and murder of a Philippine
citizen. [FN3]  The court held that because the defendant was not acting as an
"agency or instrumentality" of the Philippine government, her acts did not fall
within the protection of the Foreign Sovereign Immunities Act. [FN4] The court
further held the Alien Tort Claims Act provided a basis for jurisdiction. [FN5]

   On August 31, 1977, Archimedes Trajano ("Trajano"), the plaintiff's son,
attended an open discussion meeting in the Philippines where the defendant,
Imee Marcos-Manotoc ("Marcos-Manotoc"), was speaking. [FN6]  During the *579
meeting, Trajano questioned Marcos-Manotoc's appointment to a position within
the Philippine government. [FN7]  Subsequent to the meeting, members of the
Philippine's military intelligence kidnapped Trajano and later tortured him to
death. [FN8]  Marcos-Manotoc, who controlled military intelligence,
acknowledged knowing where Trajano was taken and for what purpose. [FN9]
Marcos-Manotoc fled from the Philippines to the United States after being
removed from power in February, 1986. [FN10]

   On March 20, 1986, Agapita Trajano ("Agapita"), Trajano's mother, filed suit
in the United States District Court for the District of Hawaii. [FN11]  Agapita
sought personal damages for emotional distress, and damages for false
imprisonment, kidnapping and wrongful death on behalf of her son's estate.
[FN12]   The district court entered a default judgment against Marcos-Manotoc
in May, 1986. [FN13]  In 1991, Marcos-Manotoc moved to set aside the default
judgment *580 for insufficient service of process, but the district court
denied the motion. [FN14]  After holding a damages hearing, the district court
concluded that Marcos-Manotoc's actions violated the law of nations and that
jurisdiction was appropriate under the Alien Tort Claims Act. [FN15]
Marcos-Manotoc appealed the district court's decision to the United States
Court of Appeals for the Ninth Circuit. [FN16]

   Congress enacted the Alien Tort Claims Act as part of the First Judiciary
Act of 1789. [FN17]  On its face, the Alien Tort Claims Act provides
jurisdiction in the federal courts to an alien alleging a tort that violates
the law of nations. [FN18]  Historically, few foreign plaintiffs have attempted
to utilize federal courts by invoking the Alien Tort Claims Act. [FN19]   In
addition, courts have had difficulty in determining Congress' intent in passing
the Alien Tort Claims Act because of the dearth of information accompanying its
passage. [FN20]

   *581 Courts have struggled to define what constitutes a violation of the law
of nations under the statute. [FN21]  Under the broadest definition of the law
of nations, almost any violation of international law provides jurisdiction
under the Alien Tort Claims Act. [FN22]  To define the law of nations, other
courts have looked to present day international law and its level of acceptance
in the international community. [FN23]  Under this approach, the nations of the
world must be in general agreement that the alleged category of misconduct *582
is a violation of international law. [FN24]   In contrast, and in an attempt to
limit the number of potential plaintiffs, a number of courts have applied an
extremely narrow definition of the law of nations. [FN25]  Under this narrow
approach, *583 the alleged misconduct must be a violation of international law
as it stood in 1789. [FN26]

   In 1989, the United States Supreme Court's decision in Amerada Hess
effectively added another layer to Alien Tort Claims Act analysis. [FN27]  The
Supreme Court held that courts must, as a threshold matter, analyze the
applicability of the FSIA whenever a foreign government is being sued. [FN28]
In Amerada Hess, the Supreme Court did not conclude, however, that the FSIA
repealed pro tanto the Alien Tort Claims Act. [FN29]  The Court stated that
passage of the FSIA *584 had no effect on the Alien Tort Claims Act's
applicability to defendants who were not foreign states. [FN30]

   In In re Estate of Ferdinand E. Marcos Human Rights Litigation, [FN31] the

United States Court of Appeals for the Ninth Circuit held official torture was
a violation of the law of nations, and the district court properly exercised
jurisdiction under the Alien Tort Claims Act. [FN32]  The court began its
analysis by examining whether Marcos-Manotoc was immune from prosecution under
the FSIA. [FN33]  Under the FSIA, agents of the state include individuals
acting in an official capacity. [FN34]  The court found, however, that because
Marcos-Manotoc acted on her own authority, her acts were not those of an
instrumentality or agent within the FSIA's meaning. [FN35]  In addition, the
court noted the Philippine government did not object to the district court
exercising jurisdiction, removing the possibility of interference with their
domestic affairs. [FN36]  Once the court removed the possibility *585 of
jurisdiction under the FSIA, it analyzed whether jurisdiction under the Alien
Tort Claims Act was appropriate. [FN37]

   The court noted that Agapita's Philippine citizenship and her wrongful death
claim met the statute's first two requirements of being an alien and alleging a
tort. [FN38]  The court then analyzed whether official torture was a violation
of the law of nations. [FN39]  The court characterized official torture as
violative of jus cogens norms, standards of conduct which virtually the entire
international community accept. [FN40]  The court held acts of official torture
violate the law of nations, bringing Trajano's claim within the Alien Tort
Claims Act. [FN41]  Addressing concerns that its decision would invite a flood
of international litigation, the court stated that as few wrongs are violative
of jus cogens norms, its decision would not open the gates to large numbers of
foreign litigants. [FN42]

   In In re Estate of Ferdinand E. Marcos Human Rights Litigation, [FN43] the

United States Court of Appeals for the Ninth Circuit correctly concluded that
official torture, an act that violates jus cogens norms, is a violation of the
law of nations. [FN44]  *586 The court's adoption of jus cogens norms as the
standard for determining what torts violate the law of nations serves two
important purposes. [FN45]  First, because few rights are accorded jus cogens
status, the court has effectively limited the number of plaintiffs who will be
able to employ the Alien Tort Claims Act. [FN46]  A more expansive definition
of the law of nations could turn United States district courts into the forum
of choice for any alien alleging any tort. [FN47]   Second, by their very
nature, jus cogens norms enjoy almost global acceptance by the international
community as standards of conduct. [FN48]  This global acceptance will help
courts draw manageable standards from the sometimes amorphous body of
international law. [FN49]

   The court appropriately recognized that present day international law, not
the law as it stood in 1789, should be *587 used in determining whether a law
of nations violation has occurred. [FN50]  While some courts have advocated
employing international law as it stood in 1789, to do so is at odds with the
plain language of the Alien Tort Claims Act. [FN51]  Further, the court's
decision follows Supreme Court precedent which maintains international law is
an evolving concept, and courts should look to the present, not to the past, in
finding applicable international law. [FN52]

   The court also appropriately refused to substitute jurisdiction under the

FSIA for jurisdiction under the Alien Tort Claims Act. [FN53]  Although
Marcos-Manotoc committed official torture, her admission that she acted on her
own authority brought her act outside the FSIA's reach. [FN54]  Further, the
Ninth Circuit's analysis conforms with Supreme Court reasoning that passage of
the FSIA did not repeal the Alien Tort Claims Act. [FN55]

   In In re Estate of Ferdinand Marcos Human Rights Litigation, [FN56] the

Court of Appeals for the Ninth Circuit considered whether an alien alleging the
torture and murder of her son in the Philippines could bring her tort claims in
the United States pursuant to the Alien Tort Claims Act. [FN57]  The court held
that official torture violated the law of nations under the Alien Tort Claims
Act, and thus conferred subject-matter jurisdiction on the district court.
[FN58]  The court *588 reasoned that global prohibitions against official
torture carry the status of a jus cogens norm, and torts of this magnitude
violate the law of nations. [FN59]  The court's method of analysis allows for
consideration of the FSIA without judicially repealing the Alien Tort Claims
Act. [FN60]  Further, the jus cogens standard adopted by the court is an
appropriate one because it is high enough to avoid turning the federal
judiciary into another world court, but not so high as to effectively read the
Alien Tort Claims Act out of existence. [FN61]