Dead to Rights: Alien Torts.

[ILJ Digest]

In Mamani, et al. v. Sánchez de Lozada / Mamani, et al. v. Sánchez Berzain[1] the survivors of the murderous suppression of a riot by the Bolivian government bring suit in the U.S. under the Alien Torts Statute (ATS).[2] The cases represent a conflict between Westphalian and post-Westphalian international law. Under the Westphalian system, the general principle of non-intervention,[3] as well as the principle of sovereign equality, [4] prohibited any state from interfering in the internal affairs of any other state: Mamani would have no legal remedy before a U.S. court. In contrast, in the post-Westphalian system, states are subject to universal non-derogable duties - jus cogens. [5] Human rights protected as jus cogens and the expansion of universal jurisdiction to enforce them mark post-Westphalian international law.[6]


This normative conflict is resolved by seeing it in terms of substance versus procedure: Procedurally, Westphalian system’s rules condition the substantive post-Westphalian claims. So, issues such as comity (a discretionary doctrine),<a href="" title="Sabbatino, 376 U.S. at 408-409 (stating that "principles of comity governing this country's relations with other nations, sovereign states and [sic] allowed to sue in the courts of the United States."). See also Hilton, 159 U.S. at 163 (calling comity "neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other.")" target="new">[7] the act of state doctrine, [8] sovereign immunity,