Customary International Law and Private Rights of Action

It has been twenty years since the US Court of Appeals for the Second Circuit issued its landmark decision in Filartiga v Pena-Irala. In upholding federal court jurisdiction over a suit between aliens concerning violations of international human rights standards in a foreign country, the court in Filartiga paved the way for modern international human rights litigation. As Professor David Bederman has observed, [i]n a sense, all current human rights litigation owes its fortune to Filartiga. Since Filartiga, US courts have been confronted with two waves of international human rights litigation. The first wave has primarily involved suits, like Filartiga itself, between aliens concerning alleged human rights abuses occurring outside the United States. This wave has been moderately successful. While enforcement of judgments is often a problem in these cases, many courts have at least been receptive to hearing the plaintiffs\u27 claims. In recent years, litigants have increasingly attempted to apply the principles developed in this first wave litigation to suits against domestic defendants. This second wave litigation has been much less successful than the first wave. More importantly, the failure of this litigation-especially in cases involving US plaintiffs-has the potential to unravel some of the successes achieved in the first wave. To understand this point, some background is necessary