Lloyd's Maritime and Commercial Law Quarterly
TORTS IN VIOLATION OF INTERNATIONAL LAW
Armerada Hess Shipping Corp. v. Argentine Republic (The Hercules)
The United States case of Filartiga v. Pena-Irala
1 (where two nationals of Paraguay were successful in bringing proceedings relying on the U.S. Alien Tort Act 1789 (28 U.S.C., s. 1350), against Paraguay’s Inspector-General of Police for death caused by torture violating customary international law) probably aroused the interest of quite a number of lawyers in the possibility of aliens suing in American courts for loss or damage arising from other violations of international law. Since such violations almost inevitably involve states or their agents, the possibility of immunity from jurisdiction is likely to be raised. The recent decision of the U.S. Court of Appeals (Second Circuit) in Amerada Hess Shipping Corp. v. Argentine Republic (The Hercules)2 sheds further light on the jurisdiction established by the Alien Tort statute and the relationship of its provisions with those on immunity in the Foreign Sovereign Immunities Act (FSIA).
The case arose from an incident in the Falklands war. A “United States interest” Liberian oil tanker, the Hercules, was attacked on the high seas outside both British and Argentine exclusion zones by Argentine aircraft, despite a warning by the U.S. Maritime Administration to both Britain and Argentina of the ship’s passage through the South Atlantic. Although the Hercules reached a safe refuge in Brazil, the presence of an unexploded bomb in one of her tanks led to her being scuttled.
Unsuccessful in attempting to bring claims against the Argentine Government in Argentina, the charterer and owners of the ship filed suits in the U.S. District Court under the Alien Tort Act. This statute, which was enacted in 1789, provides jurisdiction in any civil action by an alien for a tort “committed in violation of the law of nations or a treaty of the United States”.
The court had no difficulty in determining that the facts, if proved, would constitute a violation of international law, basing this view on a range of material which was not exclusively generated by, or in, the U.S. Thus, while the U.S. shows reluctance to commit itself whole-heartedly to adjudication of issues of international law by international tribunals, within its own legal system international law is accorded some measure of consideration.
The crux of the present case was whether the FSIA provided a complete account of the law on the immunity of foreign states and whether that legislation left untouched remedies under the Alien Tort Act. The majority view was that the focus of Congress when enacting the FSIA was not on violations of international law of the kind in issue but that the Congress was concentrating on relieving sovereign acts which had a “commercial” or “private” nature of the absolute immunity that had previously attached to them. In concluding that the FSIA did not in the present case pre-empt the jurisdiction given by the Alien Tort Act, the court said that Congress clearly expected courts to apply “the international law of sovereign immunity”.
1. 630 F.2d 876; but see also Tel-Oren v. Libyan Arab Republic, 517 F.Supp. 542 and 726 F.2d, in which the circumscribed nature of claims relying on jurisdiction under the Alien Tort Act is considered.
2. 830 F.2d 421.
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