The Alien Tort Law -- Chinese legal blank of the

The setting sun (blood:"The Alien Tort Law", is an American law, China not right now, I think we should pay close attention to the development in recent years, from the folk claims have lost perspective, the legal basis China need similar to support.

Great spiritual and material damage during the Japanese occupation of China to Chinese people, although Chinese government after the war gave up war reparations, but it refers only to give up the "state compensation", did not give up the civil compensation, but we did not have the corresponding legal support. People pay close attention to the development of "foreigners invasion suggested Chinese rights litigation law", must clear a, similar to the case of the Japanese War of aggression against China, explicitly stipulated in the Chinese trial, the trial period, you can freeze the defendant in China corresponding assets as the preservation of the proceedings.)

The Alien Tort Law (Alien Tort Law, updated)

* the Alien Tort Claims Act *

USA has a law called the "Alien Tort Claims Act", also called "the Alien Tort Law", this law is America first congress through over two hundred years ago. The law: for foreigners proposed only relates to any infringement of civil litigation where, in violation of international law and the tort or USA treaty, USA Federal District Court has the trial jurisdiction, in other words, foreigners can cause a violation of international law and American about infringement to USA court civil action, and demanding compensation.

American state for democracy, human rights and labor affairs of the former assistant secretary of state, now a professor at the Yale University international law Ha Luodeguohongzhu explained, that international law refers to customary international law, American treaty refers to America and other countries concluded treaty. He said: "America treaties signed by USA refers to the president and other leaders protocol, this protocol should be between the State Council approval, in American, to get 2/3 member Senate approval. Customary international law is the law that taken by countries based on the legal obligations of developed gradually. For example, customary international law does not allow the use of torture, and therefore produced the international treaty banning torture."

* "the Alien Tort Claims Act". *

"The Alien Tort Claims Act" is produced in the historical background of what kind of? Professor William Dodge of University of California at Davis School of law said: "in the 'Alien Tort Claims Act' through five years before, American once had a French diplomat was attacked in the streets of Philadelphia. Most scholars believe that, USA Congress 'in the Alien Tort Claims Act', it is possible because the case into account, that is given by foreigners tort damage appeal and claim opportunity, in this case refers to the French diplomat."

Professor Ralph Steinhat of George Washington University School of law, said: "the 'Alien Tort Claims Act' to ensure that non American citizens or foreigners in violation of international law and become victims, to USA court litigation litigation. At first, by the pirates looting and attacks in the American foreign diplomats, according to this Law to court and demanding compensation."

* * the Alien Tort Claims Act

"The Alien Tort Claims Act" passed in 1789, almost never used. Until recent decades, along with the international for violations of human rights concerns are increasing, people more and more use of this law, to the USA court against government leaders and the American overseas company violations. Professor William Dodge said, the outer Chinese tort claims litigation has gone through three stages. He said: "the first phase of the lawsuit involving torture, cool punishment is a clear violation of international law. America federal district court verdict allowed to present this kind of litigation. Second order segment of the litigation began around 1995, during this period, foreign prosecution violations of human rights in foreign Usa Inc. The third stage is the USA government officials or are they instigated the people of."

* the Alien Tort Claims

The following paper occur together in twentieth Century 70's case. This case is based on the "Alien Tort Claims Act" prosecute foreign government officials violate the rights of the case. In this case, that is, 1978, dolly and father Feilaerdi seeking political asylum from Paraguay. America, to their shock, Paraguay ascension area police chief Pena Ilala also entered the USA. Ilala allegedly in retaliation for Faye Lal Siti engaged against Bara GUI government's political activities, the use of torture killed when he was only seventeen years old son. Dolly and father Faye Lal Siti had by trying to get back to justice, the court in the Paraguay but, after lawyers were arrested by the state, and they fled to USA. Feilaerdi father and two people first notice USA immigration, and then right at the center "constitution" lawyer help , according to "the Alien Tort Claims Act" method, to torture violates international grounds, to a federal district court in New York on v. the Ilala, relatives were demanding compensatory damages and punitive damages and for the. But, by the in litigation by foreign citizens to the citizens of the country put forward, and the plaintiff in America away committed crimes claim, plus the past to USA court did not have jurisdiction to the case hearing grounds, so whether can successfully sued a difficult to predict. One of the disputes over the case in question is: " Alien Tort Claims Act" whether to grant the plaintiff litigation. The cause of action is the plaintiff said, to provide all the necessary evidence, the court not only agreed to take over the case, but also to make judgments and compensation.

Professor Diane Aman of University of California at Davis School of law, said: "Faye Lal Siti of the opposing view, 'of the Alien Tort Claims Act' to provide case is not for this kind of case, and only gives the federal court jurisdiction jurisdiction. They think, Congress needs to pass a law to clarify the reason of litigation. To make a long story short, the litigation through two steps, 'Alien Tort Claims Act' just do the first step, but did not achieve second step, and the lack of which one cannot sue. The source pointed out, unless Congress to pass a law authorizing court to exercise jurisdiction, the court otherwise what all can't do. However, Faye Lal Siti said, 'the foreign people Tort Claims Act' has given the court judgment in the case of power."

America Federal District Court finally dismissed the case, that international law does not apply to another country if the government how to treat their citizens to such problems, therefore "mentioned the Alien Tort Claims Act" jurisdiction, does not apply in this cases. However, the case to appeal to the federal court of Appeals for the second circuit, the court overturned the lower court's decision . Ruled that torture, in violation of international law, the general assembly of the United Nations in 1975 by prohibiting the cool punishment declaration. The court also awarded the plaintiff $ten million three hundred thousand in damages. Decision of the Faye Lal Siti case, the UN conference in 1984 again by the Convention against torture, America Congress through the "victim protection law" prohibited torture in 1992 ", the Alien Tort Claims Act" gives further complement. Subsequently, many involving genocide crimes, crimes against humanity, war crimes and torture are considered a violation of international law, people can through the "foreigners Tort Claims Act" for the crimes of the proceedings.

* "the Alien Tort Claims Act" to meet new challenge

The other case occurred in twentieth Century 90's.. At that time, an agent USA Narcotics Control Bureau's kidnapping gangs of Mexico and murder. After investigation, American Narcotics Control Bureau identified Mexico doctor Alvarez Ma Shan because of involvement in the murder case. USA tried to persuade the government of Mexico to be extradited to the American horse for trial, but without success, the court held USA Federal District issued arrest warrant, hired a few Mexicans kidnapping and arrested for Ma Shan, and in the prison he about twenty-four hours later, he was escorted to USA texas. on Ma Shan for criminal trials, Ma Shan because lawyers asked the court to dismiss the case, because the horse , kidnapping arrested for violation of signed between Mexico and the America extradition. The Federal District Court and the court of appeal has been made to make the decision for horse, but the 1992 case, appeal to the USA Federal Supreme Court, court said, Mexico due to American and extradition agreement between not expressly prohibit kidnapping, so America government to arrest and trial - Ma Shan is allowed. However, the Federal Supreme Court the case back to the lower federal courts. The retrial, due to insufficient evidence, Ma Shan was acquitted, he then returned.

In 1993, Ma Shan due to the American federal district court to USA government, arrested his American Drug Enforcement Administration agents, including Sosa, a Mexican brought a civil action. In the USA government and its officials litigation, legal basis for Ma Shan is "USA Federal Tort Claims Act", the law allows for the government employees tort lawsuit against the American. In Sosa, Mexican action, his legal basis is " Alien Tort Claims act". In 2003, the Ninth Circuit Court of Appeals ruled that USA, Ma Shan because can play v. American government, because American Narcotics Control Bureau had no powers of arrest in foreign territories, judgment also said, Ma Shan because can also be prosecuted for his arrest Mexicans arrested Sosa, in violation of international because of his strong line.

America Washington lawyer Carter Phillips in this case, is representative of Sosa's lawyer. He said: " law according to the America system, everyone will agree, slavery, torture and genocide in violation of international law, and the suit can be put forward as . In this case, the problem is, after a person arrested detained twenty-four hours, to America government agents seized, and he and other Americans enjoy the same legal procedure rights, this kind of practice is a violation of international human rights law? We think, do not what is wrong."

Phillips lawyers said, although "the Alien Tort Claims Act" to give the federal courts jurisdiction, but Congress also need to pass a law to clarify the reason of litigation. However, Ma Shan for lawyers, representatives of George Washington High Science School of law professor Ralph Steinhat said, "the Alien Tort Claims Act" itself has been given jurisdiction court at this kind of case, because the scope of tort belongs to the common law. The common law is a legal principle that made by judges. Professor Stein Hart said: "in the USA, if someone attacks, he does not need to check to see whether this behavior is a violation of the law, and then puts forward a lawsuit and claim for compensation, because this kind of case only involving violations of common law behavior. The first Congress USA use this word in tort 'Alien Tort Claims Act' means people don't need to have relevant laws, to sue."

In June 29, 2004, America Federal Supreme Court overturned the federal courts to Ma Shan because of a decision, this is Federal Supreme Court for the first time on the "Alien Tort Claims Act" to make judgments. The Supreme Court unanimously ruled that the law does not give the foreigners, forward like a horse, such as the right of action, the court held that implication, Ma Shan government for USA's allegations are not. The court said, "the Alien Tort Claims Act", only allow foreigners in some cases, such as serious violations of human rights situation, to USA court. the ruling, although not completely ruled out the possibility of foreigners because of USA government violations of international law court for to behavior to USA compensation, however, foreigners have put forward this kind of litigation will become more and more.

In recent years, some foreigners to America court USA overseas companies operating in violation of human rights or invasion right, and successfully obtained the civil compensation. In this sense, "the Alien Tort Claims Act" in addition to play a symbolic role of defending human rights, but also can produce substantial.