Buckland v Hessen

In Backlund v. Hessen, 904 F.Supp. 964, 971 (D. Minn 1995) the court held that "Plaintiff refers to article 2 of the Universal Declaration of Human Rights and articles 2 and 26 of the International Covenant on Civil and Political Rights as giving rise to a claim for discrimination and cites for support Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.1980). Filartiga concerned a tort claim by an alien arising under 28 U.S.C. § 1350 which gives district courts original jurisdiction over a claim brought by an alien in tort alleging violation of the law of nations or a U.S. treaty. Plaintiff's claim is not in tort and does not arise under 28 U.S.C. § 1350. Filartiga cannot be read so as to recognize jurisdiction over international law-based claims not arising under 28 U.S.C. § 1350. Plaintiff provides no legal support and this Court has found none indicating that he has a claim in federal court for a violation of either the Universal Declaration or the International Covenant. Courts have declined to recognize that federal question jurisdiction under 28 U.S.C. § 1331 gives federal courts jurisdiction over a claim for a violation of international law. Xuncax v. Gramajo, 886 F.Supp. 162,"

Linder v. Calero Portocarrero

After Filartiga v Pena-Irala was heard in the federal district court of New York a number of other cases cropped up in Federal Courts claiming the ATS as a means of getting jurisdiction over the defendant.

In Linder v. Calero Portocarrero 747 F.Supp.1452 (1990) the plaintiffs sued on behalf of the deceased, Benjamin Linder. Mr. Linder was killed by Contra rebels in Nicaragua in April of 1987. He was wounded by gun fire while at an unfinished Hydroelectric dam. He was taken and then tortured by the rebels and have between 30 to 40 wounds on his face with a sharp pointed object.

In the original complaint there were a number of defendants, including Nicaraguan Democratic Force, the United Nicaraguan Opposition, the Nicaraguan Resistance, and four individuals, Adolfo Calero Portocarrero, Enrique Bermudez Varela, Aristides Sanchez Herdocia, and Indaleco Rodriguez Alaniz. The named individuals were sued in their individual capacity for actions that took place in Florida. The organizations were largely organized and operated in Nicaragua.

The Defendants raised several arguments: 1) Court lacks subject matter jurisdiction over the action because the claims represent non-justiciable political questions, 2) dismissed under the State Doctrine, and 3) plaintiffs have failed to state a claim under customary international law and 4) the Geneva Conventions do not provide a private right of action for the defendants.

The Court held held that the political question doctrine prevented the court from hearing the case. (Id at1457) The court further held that there were no judicially discoverable critieria to resolve the serious issues raised by the claim. (Id at 1459) The court was unwilling to determine if the actors were state actors and protected by the State Action doctrine (Id. at 1457-1458.)

Linder v. Calero then goes on to distinguish the facts of this case from Filartiga v. Pena-Irala which was cited by the Plaintiff. The Court held that Linder involved a U.S. citizen and that the ATS allowed for aliens to bring an action, not U.S. Citizens. The court stated that the plaintiff must show that international law unambiguously provides a cause of action for their claim. The court noted that in Filartiga the Court found official torture to be a clear and unambiguous violation of the law of nations...however, the case at bar differs from Filartiga in respect to the status of the parties allegedly inflicting torture. The contras are private individuals whose actions simply do not represent state action. (Id at 1462) The court further held that domestic tort actions are not appropriate remedies for injuries occurring outside the United States during conflicts between belligerents. (Id at 1463)

The plaintiffs appealed the decision of the court and was heard by the United States Court of Appeals and can be found at 963 F.2d 332. The Court of Appeals held in part the defendants motion to dismiss and remanded in part. The court held that there is no foreign civil war exception to the right to sue for tortious conduct that violates the fundamental norms of the customary laws of war (Id at 336). Regarding the political question doctrine the court stated, " In our view, this presents no difficulty in going forward with the case. Under the allegations of tort liability that we have explicated, the complaint challenges neither the legitimacy of the United States foreign policy toward the contras, nor does it require the court to pronounce who was right and who was wrong in the Nicaraguan civil war. On the contrary, the complaint is narrowly focused on the lawfulness of the defendants' conduct in a single incident." (Id at 337)

Filartiga part 3

In 1980, the United States Court of Appeals for the Second Circuit heard Filartiga v Pena-Irala 630 F.2d 879 (C.A.N.Y. 1980) and determined that torture violated universally held norms and was a violation of the law of nations. The original lawsuit claimed the following causes of action: “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. sec. 1350, Article II, sec. 2 and the Supremacy Clause of the U. S. Constitution. Jurisdiction is claimed under the general federal question provision,28 U.S.C. sec. 1331 and, principally on this appeal, under the Alien Tort Statute, 28 U.S.C. sec. 1350 (id at. 879)

On May 14, 1979 the suit was dismissed on jurisdictional grounds. The plaintiffs were given 48 hours to apply for other forms of stay, but were denied on these grounds as well. Shortly thereafter Pena left the country. The court put heavy emphasis on The Paquete Habana 175 U.S. 677 (1900) in stating that courts must interpret international law not as it was in 1789 but as it has evolved. The court then quotes the U.N. Charter stating that a states treatment of its OWN citizens is now a concern of all nations. (Filartiga at 881) The Court quotes further U.N. language holding that the torture of one's citizens is not to be had and that all persons shall be free from torture. (id. at 882-883) The court concludes that it is the proper venue in that federal courts have always had the ability to hear cases concerning international law.

Filartiga continued

When the federal appellate court heard the Filartiga case they were not looking at the illegality of the underlying action of Pena-Irala. Instead they were dealing with the question of damages. Originally the court ordered $200,000.00 in damages for Dr. Filartiga and $175,000.00 in damages for Dolly Filartiga. The federal appellate court had earlier determined 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,” and that 28 U.S.C. § 1350 gave jurisdiction over an action asserting such a tort committed in violation of the law of nations. 630 F.2d 876 (2d. Cir. 1980).

The court held that the State Action Doctrine did not apply because the Paraguayan government did not ratify the actions of Pena-Irala and therefore the State Action Doctrine would not apply. The court then determined what law should be applied, whether it was in the violation of the law of nations or of the sovereign state in which the action occurred. The court determined that the international application of a tort would be applied in order to avoid states making state actors immune from prosecution. The court further held, "where the nations of the world have adopted a norm in terms so formal and unambiguous as to make it international “law,” the interests of the global community transcend those of any one state. That does not mean that traditional choice-of-law principles are irrelevant. Clearly the court should consider the interests of Paraguay to the extent they do not inhibit the appropriate enforcement of the applicable international law or conflict with the public policy of the United States. 577 F.Supp. 860, 863-864.

The court further held that punitive damages were not allowed in Paraguayan courts, but the court held that there is precedent for holding punitive damages in international law. The court did recognize that punitive damages are not applied against governments but can be applied against individuals. In this particular case it is "essential and roper to grant the remedy of punitive damages in order to give effect to the manifest objectives of the international prohibition against torture." Id. at 865.