This post will attempt to portray what events happened in the Filartiga case leading up to the lawsuit in federal court. Full description of the events are beyond the scope of this blog and the judicial opinion gives a decent description. Filartiga can be found at Filartiga v Pena-Irala 577 F.Supp. 860 (D.C.N.Y. 1984), however the court only gives cursory description of the events. An in depth look at the case can be found in The Anatomy of Torture: A Documentary History of Filartiga v. Pena-Irala by William J. Aceves.
The whole case underlying Filartiga occured in Paraguay. The deceased, Joelito Filartiga was the son of Dr. Filartiga, a prominent human rights advocate in Paraguay against the Stroessner regime. Dr. Filartiga had been tortured on more than one occassion in the past. Dolly Filartiga was the deceased brother and a victim of some of the actions of the Defendant, Pena-Irala. The Defendant Pena-Irala was the Inspoector General of Police of Asuncion. He happened to live a few homes down from the victims.
Joelito was tortured and killed by the defendant. According to court records in Paraguay Joelito was killed in a jealous rage when the hsband of Pena-Irala's daughter caught the two of them in bed. However, medical examinations showed evidence of torture including electricity, broken bones and stabbing. Dolly was shown the murdered body of her brother and told by the defendant that they have what they were looking for and deserved.
The legal proceedings in Paraguay were a sham. The attorney that attempted to represent the Filartiga's was threatened and he finally had to drop the case. Over time, Dolly left Paraguay for the United States to get away from Paraguay. However, she found out that Pena-Irala was in New York with his wife but had overstayed their Visa. This quickly set forth a series of events that lead to the deportation proceedings against Pena-Irala, the filing of the civil action in federal court and the begining of a case that empowered an old law.
Tuesday, October 27, 2009
Thursday, October 15, 2009
More Early ATS cases part 3
In Aboudin v. Martin Oil Serv. Inc, 475 F.2d 142 (7th Cir. 1973) plaintiffs were four Nigerian citizens, who signed a contract with Alpha-Niger enterprises providing for training in the U.S. with Martin Oil Company and subsequent employment in Nigeria. Plaintiffs claim jurisdiction under a number of statutes including 28 USC 1350. The court held that on its face the plaintiffs' claim was for breach of contract and that even with the Fraud and deceit allege it does not rise to a claim violating international law.
In IIT v. Vencap, Ltd., 519 F.2d 1001 (2d Cir. 1975) plaintiff is a Luxemburg based trust fund bringing action against Vencap, Ltd for fraud, conversion and corporate waste. In this case there was no allegation of a treaty violation or that the statute should be read expansively to include the Eight Amendment (Thou shalt not steal) as part of the law of nations. The court determined that 28 U.S.C. 1350 did not provide grounds for jurisdiction.
In Nguyen Da Yen v. Kissinger, 528 F.2d 1194 (9th Cir. 1975) plaintiffs were a class action against the Immigration and Nationality Services claiming that as babylifted Vietnamese children, being held in detention from anyone but their parents was a violation of their human rights and the fifth amendment. The court was unwilling to determine the jurisdictional claim under 28 U.S.C. 1350 as they were not briefed on the topic. However, the court does say that illegation detention, transportation and siezure of an alien against his will may violate international law.
In Dreyfus v. Von Finck, 534 F.2d 24 (2d. Cir. 1976) the plaintiff a Swiss citizen brought suit against German nationals for the theft of property in Nazi Germany in 1938. The court held in this case there was no violation of a treaty that gave rise to the individual defendants or that a violation of international law occurred when the aggrieved parties are nationals of the acting state. The court recognized that the actions were likely tortious but did not rise to a violation of the law of nations. (This case has been disavowed by Filartiga and disagreed with by Garb - both to be discussed later.)
In Benjamins v. British European Airways, 572 F.2d 913 (2d Cir. 1978) the plaintiff a Dutch citizen residing in California brought an action against an international air carrier and manufacturer for the death of his wife and loss of baggage. The court held that the plaintiff failed to allege any cause of action that arose to a violation of the law of nations and therefore jurisdiction did not arise under 28 U.S.C. 1350.
In Huynh Thi Anh v. Levi, 586 F.2d 625 (6th Cir. 1979) plaintiffs were the grandmother and uncle of Vietnamese children claiming that the adoption agency and practices in Michigan violated the law of nations (amongst other claims). The court held that under the treaties cited no private cause of action existed and that the plaintiffs failed to state a cause of action under the Alien Tort Claims Act. The court did not find any international law that stated relatives of children had preferrential treatment over foster parents in attempting to adopt. For this reason, among others, the plaintiff did not have a cause of action.
In IIT v. Vencap, Ltd., 519 F.2d 1001 (2d Cir. 1975) plaintiff is a Luxemburg based trust fund bringing action against Vencap, Ltd for fraud, conversion and corporate waste. In this case there was no allegation of a treaty violation or that the statute should be read expansively to include the Eight Amendment (Thou shalt not steal) as part of the law of nations. The court determined that 28 U.S.C. 1350 did not provide grounds for jurisdiction.
In Nguyen Da Yen v. Kissinger, 528 F.2d 1194 (9th Cir. 1975) plaintiffs were a class action against the Immigration and Nationality Services claiming that as babylifted Vietnamese children, being held in detention from anyone but their parents was a violation of their human rights and the fifth amendment. The court was unwilling to determine the jurisdictional claim under 28 U.S.C. 1350 as they were not briefed on the topic. However, the court does say that illegation detention, transportation and siezure of an alien against his will may violate international law.
In Dreyfus v. Von Finck, 534 F.2d 24 (2d. Cir. 1976) the plaintiff a Swiss citizen brought suit against German nationals for the theft of property in Nazi Germany in 1938. The court held in this case there was no violation of a treaty that gave rise to the individual defendants or that a violation of international law occurred when the aggrieved parties are nationals of the acting state. The court recognized that the actions were likely tortious but did not rise to a violation of the law of nations. (This case has been disavowed by Filartiga and disagreed with by Garb - both to be discussed later.)
In Benjamins v. British European Airways, 572 F.2d 913 (2d Cir. 1978) the plaintiff a Dutch citizen residing in California brought an action against an international air carrier and manufacturer for the death of his wife and loss of baggage. The court held that the plaintiff failed to allege any cause of action that arose to a violation of the law of nations and therefore jurisdiction did not arise under 28 U.S.C. 1350.
In Huynh Thi Anh v. Levi, 586 F.2d 625 (6th Cir. 1979) plaintiffs were the grandmother and uncle of Vietnamese children claiming that the adoption agency and practices in Michigan violated the law of nations (amongst other claims). The court held that under the treaties cited no private cause of action existed and that the plaintiffs failed to state a cause of action under the Alien Tort Claims Act. The court did not find any international law that stated relatives of children had preferrential treatment over foster parents in attempting to adopt. For this reason, among others, the plaintiff did not have a cause of action.
Saturday, October 10, 2009
More Early ATS cases
In Upper Lakes Shipping LTD. v International Longshoremen's Association 33 F.R.D. 348 (S.D.N.Y. 1953) the Plaintiff a Canadian shipping company sued the defendant contending that the defendant was maliciously interfering with plaintiff's business and collective bargaining agreement with the Canadian Maritime Union. Plaintiff believed that defendants violated a treaty between the United States and Canada from 1909 concerning the boundary waters between the two States. Even though there was a treaty and it was potentially violated the court did not get jurisdiciton under the ATS because the sole remedy under the treaty was to pursue the case at the International Joint
In Lopes v. Reederei Richard Schroder 225 F.Supp. 292 (E.D. Pa. 1963) the plaintiff contended that unseaworthiness and negligence a tort committed in the violation of the law of nations or a treaty of the United States. The court held that the doctrine of unseaworthiness was judicially created and unique to the United States, therefore it was not part of the law of nations. Since it was unique to the United States, the United States could not be a party to a treaty holding that unseaworthiness was illegal. The court futher held that negligence does not fall under the category of violating the law of nations. Lopes v. Reederei Richard Schroder has an excellent recounting of jurist work regarding the language of the ATS. Id. at 296-297.
In Damaskinos v. Societa Navigacion Interamericana, S.A., Panama 225 F.Supp. 919 (S.D.N.Y. 1966) the court held that negligence in providing a seaman a safe place to work does not fall under the law of nations or a treaty of the United States. The Plaintif was an alien from Greece who signed a contract in Greece for employment on a Lebanon vessel. The contract contained the controlling law, and the court held that Greek law was the proper authority. The treaty relied upon by Plaintiff only gives the plaintiff the right to be heard in a U.S. court, it does not create an enforceable right. Therefore the case was dismissed.
In Valanga v. Metropolitan Life Insurance Company 259 F.Supp 324 (D.C. Pa. 1966) the court held that it was not a violation of the laws of nations for an insurance provider to not pay proceeds on a plan. Since this was a cause of action fo breach of contract the court was unwilling to accept Plaintiffs contention that it was a tort in violation of the law of nations. The case was dismissed.
In Lopes v. Reederei Richard Schroder 225 F.Supp. 292 (E.D. Pa. 1963) the plaintiff contended that unseaworthiness and negligence a tort committed in the violation of the law of nations or a treaty of the United States. The court held that the doctrine of unseaworthiness was judicially created and unique to the United States, therefore it was not part of the law of nations. Since it was unique to the United States, the United States could not be a party to a treaty holding that unseaworthiness was illegal. The court futher held that negligence does not fall under the category of violating the law of nations. Lopes v. Reederei Richard Schroder has an excellent recounting of jurist work regarding the language of the ATS. Id. at 296-297.
In Damaskinos v. Societa Navigacion Interamericana, S.A., Panama 225 F.Supp. 919 (S.D.N.Y. 1966) the court held that negligence in providing a seaman a safe place to work does not fall under the law of nations or a treaty of the United States. The Plaintif was an alien from Greece who signed a contract in Greece for employment on a Lebanon vessel. The contract contained the controlling law, and the court held that Greek law was the proper authority. The treaty relied upon by Plaintiff only gives the plaintiff the right to be heard in a U.S. court, it does not create an enforceable right. Therefore the case was dismissed.
In Valanga v. Metropolitan Life Insurance Company 259 F.Supp 324 (D.C. Pa. 1966) the court held that it was not a violation of the laws of nations for an insurance provider to not pay proceeds on a plan. Since this was a cause of action fo breach of contract the court was unwilling to accept Plaintiffs contention that it was a tort in violation of the law of nations. The case was dismissed.
Friday, October 2, 2009
Early ATS cases
As mentioned previously the early cases regarding the ATS only discussed the ATS by reference, not by a direct citation of the statute.
In O'Reilly De Camara v. Brooke, the plaintiff, a Cuban subject sued in federal court to reacquire the position of High Sheriff of Havana. One of the counts used the following language, "of all suits brought by any alien for a tort ‘only’ in violation of the law of nations, or of a treaty of the United States." The Court found that plaintiff's argument was weak and did not amount to a tort in voilation of the law of nations. "In this court the plaintiff seems to place more reliance upon the suggestion that her rights [to office of High Sheriff] were of so fundamental a nature that they could not be displaced, even if Congress and the Executive should unite in the effort. It is not necessary to say more about that contention than that it is not the ground on which the jurisdiction of the district court was invoked." 209 U.S. 45, 51 (1908) The Court determined that the plaintiff did not have a valid cause of action against the defendant.
In Khedivial Line, S. A. E. v. Seafarers' Intern. Union, the plaintiff, owners of a vessel from the United Arab Republic, sought an injunction against the dockworkers union for protesting. The plaintiffs alleged a number of causes of action including that the complaint states a claim for a tort committed in violation of the law of nations within 28 U.S.C. § 1350 278 F.2d 49, 51 (2d Cir. 1960). Plaintiff was unable to show that a treaty existed between the United States and the United Arab Republic regarding harbor access or that any law of nations allowed unrestricted access to harbors by vessels of any nation. Id. at 52. The Court further found that appellants argument that equitable relief if it cannot be granted under maritime law; it should be granted under 28 U.S.C. 1350. The Court disagreed.
In Adra v. Clift the plaintiff father (alien from Lebanon) sued his ex-wife, (alien from Iraq) now married to a U.S. citizen husband in Maryland, for custody and support payments of the child (Lebanese citizen). According to the court 28 U.S.C.A. does not require any pecuinary claims. 195 F.Supp. 857, 863 (D. Md. 1961). The court held that the actions of the defendant did constitute a tort in voilation of the laws of nations. However, after considering the best interest of the child the court held that it would not grant relief to the plaintiff. Id. at 866-867. In the end the father was not able to get his daughter back even though he had won suits in both Lebanon and the United States.
In O'Reilly De Camara v. Brooke, the plaintiff, a Cuban subject sued in federal court to reacquire the position of High Sheriff of Havana. One of the counts used the following language, "of all suits brought by any alien for a tort ‘only’ in violation of the law of nations, or of a treaty of the United States." The Court found that plaintiff's argument was weak and did not amount to a tort in voilation of the law of nations. "In this court the plaintiff seems to place more reliance upon the suggestion that her rights [to office of High Sheriff] were of so fundamental a nature that they could not be displaced, even if Congress and the Executive should unite in the effort. It is not necessary to say more about that contention than that it is not the ground on which the jurisdiction of the district court was invoked." 209 U.S. 45, 51 (1908) The Court determined that the plaintiff did not have a valid cause of action against the defendant.
In Khedivial Line, S. A. E. v. Seafarers' Intern. Union, the plaintiff, owners of a vessel from the United Arab Republic, sought an injunction against the dockworkers union for protesting. The plaintiffs alleged a number of causes of action including that the complaint states a claim for a tort committed in violation of the law of nations within 28 U.S.C. § 1350 278 F.2d 49, 51 (2d Cir. 1960). Plaintiff was unable to show that a treaty existed between the United States and the United Arab Republic regarding harbor access or that any law of nations allowed unrestricted access to harbors by vessels of any nation. Id. at 52. The Court further found that appellants argument that equitable relief if it cannot be granted under maritime law; it should be granted under 28 U.S.C. 1350. The Court disagreed.
In Adra v. Clift the plaintiff father (alien from Lebanon) sued his ex-wife, (alien from Iraq) now married to a U.S. citizen husband in Maryland, for custody and support payments of the child (Lebanese citizen). According to the court 28 U.S.C.A. does not require any pecuinary claims. 195 F.Supp. 857, 863 (D. Md. 1961). The court held that the actions of the defendant did constitute a tort in voilation of the laws of nations. However, after considering the best interest of the child the court held that it would not grant relief to the plaintiff. Id. at 866-867. In the end the father was not able to get his daughter back even though he had won suits in both Lebanon and the United States.
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