Document Type

Article

Publication Title

ILSA Journal of International & Comparative Law

Abstract

Transnational human rights litigation has succeeded at a steady pace since the Second Circuit's 1980 decision, Filartiga v. Pena-Irala. In Filartiga, the court construed an eighteenth century statute - the Alien Tort Claims Act (ATCA) - as granting both a cause of action and jurisdiction to two Paraguayan citizens. Notably, the Filartiga line of cases was temporarily disturbed by a contrary District of Columbia Circuit decision Tel-Oren v. Libyan Arab Republic. Congress effectively overturned that case by passing the Torture Victim Protection Act (TVPA). The TVPA contradicts Judge Bork's position in Tel Oren that the ATCA could not establish a cause of action for modem customary international law. The Statute enumerated two specific causes of action, torture and extrajudicial killing, leaving the remainder of the ATCA intact. Now several years after the TVPA, Section 1350 case law has continued to develop; with more circuits following the Filartiga decision and other causes of action being deemed appropriate for litigation. In this discussion, I analyze the TVPA and its legislative history to demonstrate the scope and consequence of Congress' endorsement of human rights litigation. This endeavor is undertaken primarily in response to an emergent challenge to transnational human rights litigation. That is, a handful of scholars have recently argued that the consensus view on international law includes an ill-founded maxim that customary international law is federal common law. This critique, which has been called the revisionist position, potentially disrupts ATCA litigation. Specifically, if customary international law is not federal common law, the federal judiciary arguably could not elaborate other causes of action without specific political branch authorization.

First Page

455

Volume

4

Publication Date

1998

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