may be found at Ninth International Conference of American States, Bogota, 1948, Report of the Delegation of the United States of America, pp. 260-266; Whiteman, Digest of International Law, Vol. 5 (1965), pp. 231-234; Garcia-Amador, The InterAmerican System (1966), pp. 365-369; and Organization of American States, Handbook of Existing Rules Pertaining to Human Rights in the Interamerican [sic] System, O.A.S. Doc. OEA/Ser.L/V/II.60, Doc. 28, rev. 1 (1983), pp. 19-27.

The American Convention on Human Rights (the Pact of San Jose), signed at the Inter-American Specialized Conference on Human Rights, San Jose, Costa Rica, Nov. 22, 1969, may be found at ibid., pp. 29-63; S. Ex. C, D, E, and F, 95th Cong., 2d sess. (1978), pp. 41-62.

In regard to Case No. 1684 (Torture in Brazil), referred to in the U.S. memorandum, ante, see, Annual Report of the Inter-American Commission on Human Rights, O.A.S. Doc. OEA/Ser.P; AG/doc. 305/73, rev. 1, Mar. 14, 1973 (originally, OEA/Ser.L/V/ II.29, doc. 41, rev. 2, Feb. 26, 1973), pp. 55-59; and, Annual Report of the InterAmerican Commission on Human Rights for the Year 1973, O.A.S. Doc. OEA/Ser.P; AG/doc.409/74, Mar. 5, 1974 (originally, OEA/Ser.L/V/II.32, doc. 3, rev. 2), Feb. 14, 1974, pp. 52-81.

For the U.N. Protocol Relating to the Status of Refugees, done Jan. 31, 1967, see TIAS 6577, 19 UST 6223; entered into force for the United States, Nov. 1, 1968. The Protocol broadened the coverage of the Convention Relating to the Status of Refugees, done July 28, 1951, to include persons who became refugees as a result of events occurring subsequent to Jan. 1, 1951, the qualifying date specified in the 1951 Convention. The Protocol incorporated by reference the substantive protections of the 1951 Convention, the text of which is at ibid., p. 6260.

In an appearance before the seventh regular General Assembly of the Organization of American States at St. George's, Grenada, June 14, 1977, Secretary of State Vance, endorsing the role of the Inter-American Commission on Human Rights as "an independent monitor of human rights in the Americas”, had recommended that the General Assembly move to strengthen the Commission, saying in part:

***

My government will vote to increase the Commission's budget. . . . With more funds, the Commission . . . could increase its research efforts. and increase the frequency of visits to every country of the hemisphere.

* *

If each member state were to grant the Commission free access to national territory, this body would be able to carry out on-site investigations at times and places of its choosing. My country will grant it this facility from today. We believe that for others to do so as well would reduce misunderstandings and the dissemination of false information.

Dept. of State Bulletin, Vol. LXXVII, No. 1986, July 18, 1977, p. 70. Following transmittal of the U.S. memorandum regarding Case 3228, ante, to the Inter-American Commission on Human Rights, the Commission's Chairman, Luis Demetrio Tinoco Castro, in a telegram to the Secretary of State dated Apr. 8, 1980, asked that, if the decision in the class action, Haitian Refugee Center v. Civiletti, then being tried before the U.S. District Court for the Southern District of Florida, were adverse to the plaintiff, the U.S. Government cooperate with the Commission by refraining from any action that would result in deportation of Haitian citizens seeking political asylum while the Commission studied Case 3228.

Replying for the Secretary, Ambassador Gale McGee, U.S. Permanent Representative to the Organization of American States, wrote to Chairman Tinoco Castro on Apr. 18, 1980:

My Government, as noted in our memorandum to the Commission of February 1, 1980, is of the view that the Commission may not examine the merits of case 3228 until domestic remedies, notably the Haitian Refugee Center litigation, are exhausted. Thus, my Government welcomes the Commission's focus on the domestic litigation. However, the decision of the trial court in this case will in all likelihood not be the end of the litigation process. Although the outcome of the trial cannot be predicted, the losing party-or both parties, if the decision is not uniformly favorable to one-may appeal the decision.

We understand your concern that the situation of Haitians seeking asylum not change markedly before you have had a chance to consider the case presented by the International Human Rights Law Group. However, the trial and the appeals proceedings are likely to extend for a significant period of time. During this period, we would be pleased to discuss with you ways in which we might cooperate to enable the Commission to fulfill its responsibilities to those Haitians on whose behalf complaints against the United States have been filed. I am sure the Commission will understand, though, that the U.S. Government cannot commit itself in advance to take specific actions with regard to decisions which may or may not be reached in the Haitian Refugee Center v. Civiletti litigation.

Dept. of State File No. P85 0039-2316.

Right to Life

United States Alien Tort Statute-Torture and Murder

In Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), the United States Court of Appeals for the Second Circuit reversed the district court's dismissal, for lack of federal jurisdiction, of an action for damages for the wrongful death by torture of Joelito Filartiga, which the defendant, a former Paraguayan Inspector General of Police, had allegedly caused in Paraguay.

In reliance on IIT v. Vencap, Ltd., 519 F.2d 1001 (2d Cir. 1975), and Dreyfus v. Von Finck, 634 F.2d 24 (2d Cir. 1976), the district court had held that the Alien Tort Statute, 28 U.S.C. 1350, which confers original jurisdiction in the district court upon 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, did not cover a cause of action arising from a foreign state's treatment of its own citizens.

In a decision dated June 30, 1980, and written by Circuit Judge Irving R. Kaufman, a three-judge panel of the United States Court of Appeals for the Second Circuit concluded 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."

By a letter from A. Daniel Fusaro, Clerk of Court, to the Department of State's Legal Adviser, Roberts B. Owen, dated Oct. 29, 1979, the Court requested the Department to "submit a memorandum setting forth its position concerning the proper interpretation of 28 U.S.C. §1350 in the light of the facts of this case." (See the 1979 Digest, pp. 522-525.)

The memorandum of the U.S. Government as amicus curiae, prepared by the Department of State and the Department of Justice and filed on June 6, 1980, read in part:

I

OFFICIAL TORTURE VIOLATES THE LAW OF NATIONS

The district court dismissed the complaint because it believed that the torture of a foreign citizen by an official of the same country does not violate the law of nations as that term is used in 28 U.S.C. 1350. If Section 1350 reached only those practices that historically have been viewed as violations of international law, the court's decision would very likely be correct. Before the turn of the century and even after, it was generally thought that a nation's treatment of its own citizens was beyond the purview of international law. But as we demonstrate below, Section 1350 encompasses international law as it has evolved over time. And whatever may have been true before the turn of the century, today a nation has an obligation under international law to respect the right of its citizens to be free of official torture.

A. Section 1350 encompasses the law of nations as that body of law may evolve

Section 1350 originated as Section 9 of the Judiciary Act of 1789 (1 Stat. 76 (1789)) and has not changed significantly since that time. It provides that:

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.

This is one of several provisions in the Judiciary Act "reflecting a concern for uniformity in this country's dealings with foreign nations and indicating a desire to give matters of international significance to the jurisdiction of federal institutions." Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427 n. 25 (1964).

The law of nations in Section 1350 refers to the law of nations as that body of law may evolve. There is no reason to believe that Congress intended to freeze the meaning of the law of nations in this statute as of 1789, any more than it intended the simultaneous grant of jurisdiction over maritime actions to be limited to maritime law as it then existed.3 Since the law of nations had developed in large measure by reference to evolving customary practice, the framers of the first Judiciary Act surely anticipated that international law would not be static after 1789.

The Paquete Habana, 175 U.S. 677 (1900), illustrates this evolutionary process. There, the question was whether international law protected fishing ships from capture during times of war. Although a 1798 British case had held that the protection of such ships was a rule of comity only, the Court held that (id. at 694)—

the period of a hundred years which has since elapsed is amply sufficient to have enabled what originally may have rested in custom or comity, courtesy or concession, to grow, by the general assent of civilized nations, into a settled rule of international law.

If the application of Section 1350 were limited to the subjects encompassed by the law of nations in 1789, leaving only the state courts competent to administer any rules of international law that might subsequently develop, the result would be to frustrate the statute's central concern for uniformity in this country's dealings with foreign nations. Accordingly, the district court's jurisdiction in this case turns not on whether the conduct alleged in the complaint would have been a violation of the law of nations in 1789, but on whether it is customarily treated as a violation of the law of nations today.

B. International law now embraces the obligation of a state to respect the fundamental human rights of its citizens

4

The view that a state's treatment of its own citizens is beyond the purview of international law was once widely held and is reflected in traditional works on the subject. However, as we have stated, customary international law evolves with the changing customs and standards of behavior in the international community. Early in this century, as a consequence of those changing customs, an international law of human rights began to develop. This evolutionary process has produced wide recognition that certain fundamental human rights are now guaranteed to individuals as a matter of customary international law.

As we demonstrate in Part II, . . . [see this Digest, Ch. 1, §3, ante] this does not mean that all such rights may be judicially enforced. Indeed, it is likely that only a few rights have the degree of specificity and universality to permit private enforcement and that the protection of other asserted rights must be left to the political branches of government. But this distinction between judicially enforceable rights and rights enforceable only by the political branches should not obscure the central point we make here. The district court's assumption that a nation has no obligation under international law to respect the human rights of its citizens is fundamentally incorrect.

The sources of international law are international agreements, international custom, general principles of law recognized by civilized nations, and judicial decisions and the teachings of learned commentators.5 Developments in each of these areas have had a role in establishing the twentieth century international law of human rights.

The first significant treaty development was the Covenant of the League of Nations in 1919, which declared that the members of the League would attempt to secure and maintain fair and humane conditions of labor, and secure just treatment for the inhabitants of territory under their control. Other early developments were the treaties entered into after World War I guaranteeing the religious, cultural, and political rights of national minorities.

Treaty activity accelerated after World War II. In 1945, the United Nations Charter imposed on U.N. members a general obligation to promote "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion."8 The U.N. Charter represents a clear break with the traditional view that a nation's

treatment of its citizens is beyond the concern of international law a break also evidenced by recognition in the Charter of the Organization of American States of "the fundamental rights of the individual without distinction as to race, nationality, creed, or sex."9

More recently, the obligation of states to respect fundamental human rights has been reiterated in a growing number of more specific multilateral treaties. These include the International Covenant on Civil and Political Rights, 10 the American Convention on Human Rights," and the European Convention for the Protection of Human Rights and Fundamental Freedoms. 12

International custom also indicates that nations have accepted as law an obligation to observe fundamental human rights. In 1948, the United Nations General Assembly unanimously adopted the Universal Declaration of Human Rights, 13 which goes beyond the UN Charter in specifying and defining the fundamental rights to which all individuals are entitled. The Universal Declaration has been followed by a growing number of U.N. resolutions clarifying and elaborating on these rights14 or invoking them in specific cases. 15 In a parallel development, the International Conference on Security and Cooperation in Europe, which met in Helsinki and Geneva between 1973 and 1975, adopted a Final Act declaring that the participating nations would respect the human rights of their nationals. 16 The Final Act, like the U.N. resolutions, does not have the legal effect of a treaty but provides evidence of customary international law.17

General principles of law recognized by civilized nations also establish that there are certain fundamental human rights to which all individuals are entitled, regardless of nationality. Although specific practices differ widely among nations, all nations with organized legal systems recognize constraints on the power of the state to invade their citizens' human rights. In the period 1948-1973, the constitutions or other important laws of over 75 states either expressly referred to or clearly borrowed from the Universal Declaration of Human Rights. 18 In the same period, the Declaration was referred to in at least 16 cases in domestic courts of various nations.19

The decisions of the International Court of Justice also reflect and confirm the existence of a customary international law of human rights.20 And the affidavits of four American experts in international law, filed by plaintiffs below, document the broad recognition among legal scholars that human rights obligations are now part of customary international law,21

In sum, as the Department of State said in a recent report to Congress on human rights practices:

There now exists an international consensus that recognizes basic human rights and obligations owed by all governments to their citizens. . . . There is no doubt that these rights are often violated; but virtually all governments acknowledge their validity.22

We recognize that a panel of this Court has said that "violations of international law do not occur when the aggrieved parties are