A report by Llamas, Miguel Angel II G.

28 U.S.C. 1350 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.

 Enacted

as part of the Judiciary Act of1789 creating the United States Code which is the official compilation and codification of the general and permanent federal laws of the United States. The objective of the US in making the provision was to cement the obligation of every state to uphold the law of nations as a concomitant of Nationhood. Compliance with international duty would result in stability of commercial relations and greater sense of national security.

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Alien Tort Statute justifies exercise of jurisdiction of a US court over completely foreign torts because of the universal evil exemplified by human rights violations. In order for the ATS to apply, there is a need to establish that the tortious conduct violated an internationally protected human right.

Facts: After Marcos arrived in the US in 1986, he was served with complaints by multiple parties seeking damages for human-rights abuses committed against them and their decedents under his regime. The District courts of Hawaii and California, where the complaints were filed, dismissed them on the grounds that the human-rights abuses were acts of state. This was reversed on appeal and all the cases were consolidated in the court of Hawaii as a class action with nearly 10K class plaintiffs. District court of Hawaii awarded nearly 2 billion dollars in damages.

Jurisdiction: The Estate of Marcos argued that the federal courts have no jurisdiction as this case did not arise under federal law. The court, however, relying on its previous acquisition of jurisdiction over injunction and contempt proceedings, declined to consider the Estates arguments and followed their prior decisions as the law of the circuit and of the case. The Estate also argued that the Alien Torts Claims Act does not apply to conduct that occurred abroad. The court ruled that it had subject-matter jurisdiction even though the actions complained of occurred outside the US precisely because of the extra-territorial jurisdiction granted by the ATCA.

Statute of Limitations: The Estate argued that Hilaos claims were barred by a 2-year statute of limitations. The court found that the Alien Tort Claims Act does not contain a statute of limitations. Hawaii courts have allowed equitable tolling of the statute of limitations in situations similar to the present case. Because of this, any action against Marcos was tolled during the time he was President. He left office in February 1986 and the claims were filed on March 1986. Such is well within any suggested applicable statute of limitations.

 Filartiga

brought action against Pena in the US for the kidnap, torture and death of his son. Both are citizens of Paraguay. Prior to the filing of the suit in the US, Filartiga had already filed a criminal complaint against Pena in Paraguay, but his attorney was arrested and threatened with death. Cause of action arose from customary international law of human rights and the law of nations.

 The

case was dismissed in that the court was constrained to construe narrowly the law of nations as excluding that law which governs a states treatment of its own citizens. Jursidiction for the case was claimed under the general question provision and under the Alien Tort Statue only on the appeal. The issue of the case lies in whether the conduct claimed against Pena violated the law of nations. And if they do, whether the requirements for jurisdiction are met.

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court ruled that, upon examining sources from which customary international law is derived, official torture is now prohibited by the law of nations. The prohibition admits of no distinction between treatment of aliens and citizens. International law confers fundamental right upon all people vis--vis their own governmentsthe right to be free from torture being among these rights.

As to the jurisdiction of the US courts, it was held that common law courts of general jurisdiction regularly adjudicate transitory tort claims between individuals over whom they exercise personal jurisdiction, wherever the tort occurred. Also, Congress enacted the Alien Tort Statute to comply with its constitutional obligation to uphold the law of nations which has always been a part of federal law. Where in personam jurisdiction has been obtained over the defendant, the parties agree that the acts alleged would violate Paraguayan law, and the policies of the forum are consistent with the foreign law, state court jurisdiction would be proper.

 In

finding that the federal court has jurisdiction, the action must be remanded for further proceedings. Pena argued that the customary law of nations, being non self-executing, should not be applied as rules for the decision in this case. Two distinct issues are involved here. It is the question of jurisdiction under the ATS which requires consideration of the law of nations. The issue of choice of law to be applied will be addressed at a later stage in the proceedings.

 Guinto

and Suarez, while residing in California, filed a complaint for damages against Marcos, then in Hawaii, for restraining distribution of their film 100 Days in September and arranging for their arrest on conspiracy charges, making them flee to the US. They initially only asserted one basis for jurisdiction, federal question jurisdiction, but later argued for jurisdiction under the Alien Torts Claims Act.

As to Federal Question Jurisdiction This applies when there is a violation under the Constitution, laws or treaties of the United States. The rights provided in the United States Constitution does not apply to foreign officials acting within their own country. Also, Guinto was unable to allege any treaties of the US under which the claim is said to arise.

As to Jurisdiction under the ATCA In order for there to be jurisdiction under the ATCA, there must be a tort committed against a person which is in violation of a treaty of the US or a law of nations. The term law of nations is yet to have a universally accepted definition. It is said to deal primarily with the relationship among nations rather than among individuals.

As to Jurisdiction under the ATCA A test to determine whether there has been a violation of the law of nations has occurred is:

a violation of the law of nations arises only when there has been a violation by one or more individuals of those standards , rules or customs (a) affecting the relationship between states or between an individual and a foreign state, and (b) used by those states for their common good and/or in dealings inter se.

The

case of Filartiga has evolved this concept, to the extent that the extent of international law today limits a states power to torture.

As to Jurisdiction under the ATCA The court provided a list of violations of international law that are state-practiced, encouraged or condoned;

Genocide Slavery or slave trade Murder or causing of murder Torture or other inhuman/degrading treatment Prolonged arbitrary detention Systematic racial discrimination Gross violations of internationally recognized human rights

violation of the right of free speech does not rise to the level of aforementioned rights.