Shifting the Lenses on Alien Tort Statute Litigation: Narrating US Hegemony in Filártiga and Marcos

Abstract

This article revisits the seminal Alien Tort Statute (ATS) cases Filártiga v. Peña-Irala and In re Marcos Human Rights Litigation. Setting aside the dominant framework of accountability, the article explores the historical narratives produced in those cases. It exposes how Filártiga and Marcos recast as entirely foreign violence in which the U.S. executive was deeply involved, due to a combination of legal and political constraints in the exercise of a controversial form of jurisdiction. Moreover, it shows that these constraints have persisted in subsequent ATS litigation, creating a tradeoff between individual accountability and narratives about US hegemony. By offering an alternative account of ATS litigation and exposing hitherto ignored costs of familiar legal developments, this article challenges the assumption that broad assertions of jurisdiction are necessarily beneficial in human rights struggles, and urges international lawyers to pay more attention to the interplay among doctrine, political circumstances and historical narrative when considering and comparing human rights mechanisms.

Keywords: Alien Tort Statute, Law and History, Filartiga, Marcos, Kiobel