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Alien Tort Statute: An instrument to engage international responsibility in front of the American civil jurisdictions

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The Alien Tort Statute, also known as the Alien Tort Claim Act and Alien Tort Act, was adopted by the First Congress on September 24, 1789 as part of the Federal Judiciary Act. It is currently implemented in Section 1350 of Article 28 of the United States Code. "The district courts shall have an original jurisdiction of any civil action by an alien for wrongs committed in violation of the Law of Nations Gold treaty of the United States." Insofar as the legislative work of the Judiciary Act is concerned, it does not provide details on the subject and it is difficult to determine the specific purpose of this article.

Some see it as a desire to create a fairer world where violations of human rights would be sanctioned, while others see it as an instrument of foreign policy to allay the fears of Europeans. This would be a foreign policy instrument used to settle disputes between strangers, far from their homeland. They had suffered damage and previously could not obtain redress in the courts of ?an all young state'.

The doctrinal position of dominance regarded as the Alien Tort Statute (ATS) was adopted to give strangers a judicial remedy. It allowed them to obtain a limited remedy for the civil consequences of acts committed against them by a national U.S. territory. Another current doctrinal view was that the ATS was intended to provide legal recourse to foreign victims of violations of international law wherever they were committed. What can be said with certainty is that its drafters never imagined conferring extraterritorial effect.

The reference to the law of nations concerned only a limited number of cases: disputes relating to treaties were concluded by the United States, and were related to diplomatic and consular protections. The ATS is a unique instrument which has no equivalent worldwide.
If in 1993, Belgium passed a law giving its courts universal jurisdiction in criminal matters for crimes against humanity and genocide; the Belgian Parliament, faced with political pressure significantly reduced the scope of this law in 2003, until its contents were completely emptied. The United States are the only country ever since whose courts have given such a range of skills in civil matters.

It took a long time for the making of the decision Filartiga v. Peña Irala, which marks the real beginning of civil actions for damages initiated in U.S. courts for violations of human rights. The case concerns two Paraguayan citizens who pursued Mr. Peña-Irala, a Paraguayan citizen residing in the U.S. for the torture and murder of their son while Mr. Peña-Irala was Inspector General of Police. Initially the Federal Court in New York dismissed the application on the basis of a jurisprudence that there is no violation of international law where the injured party is a national of the State concerned.

The Court of Appeal considered, however, that the practice of torture by a foreign official against one of its citizens violated customary international law, and could thus lead to an action for damages in the U.S. Federal court on the basis of the ATS. The procedure led to the conviction of the employee by the court.

Tags: Filartiga v. Peña Irala, Alien Tort Claim Act, Federal Judiciary Act

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