11 Ga. J. Int'l & Comp. L. 317 (1981)
Filartiga v. Pena-Irala: Comments on Sources of Human Rights Law and Means of Redress for Violations of Human Rights

handle is hein.journals/gjicl11 and id is 325 raw text is: FILARTIGA v. PENA-IRALA: COMMENTS ON
Gabriel M. Wilner*
The constructive role that national courts can play in the evolu-
tion of international law, particularly with respect to individual
rights, was demonstrated once again by the decision of the U.S.
Court of Appeals for the Second Circuit in Filartiga v. Pena-Irala.'
The court was, of course, careful to establish the basis of its
jurisdiction under its national law, both statutory and decisional.
The jurisdictional issue raised was whether a tort had been
committed under the 1789 Judiciary Act, which includes torts
committed in violation of the law of nations or a treaty of the
United States.2 The essential question was whether judicial
redress for violation of the human rights of the deceased, Joelito
Filartiga, kidnapped and tortured to death in Paraguay, was
available to his father and sister against the alleged torturer,
Norberto Pena-Irala who was the Inspector General of Police in
Asuncion, Paraguay. All the persons involved were Paraguayans
at the time of the event.
The court, in an opinion by Judge Kaufman, recognized that the
act committed against Joelito Filartiga amounted to a tort under
Paraguayan law and would certainly have been a tort under the
forum law in the United States. The issue remained as to the law
applicable to the tort once it was decided that for jurisdictional
purposes the tort violated international law. The court's im-
mediate task was to decide whether torture violated international
law for purposes of taking jurisdiction.
It is well established under international law that a host state
breaches its responsibility toward the state of which an individual
is a national if the host state subjects the individual to treatment
of his or her person below generally accepted standards of state
* Professor of Law, University of Georgia; Director of the Brussels Seminar on the law
and institutions of the European Communities.
630 F.2d 876 (2nd Cir. 1980).
28 U.S.C.  1350. For an excellent review of the case and issues raised, see Blum and
Steinhardt, Federal Jurisdiction Over International Rights Claims: The Alien Tort Claims
Act after Filartiga v. Pena-Irala, 22 HARV. J. INT'L L. 53 (1981).


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