^• The late Judge Smith was a member of the original panel in this cose. After his unfortunate death, Judge Koursc was designated to fill his place pursuant to Local Rule § 0.14(h).

¹ Duurte is the son of Peno's companion, Juana Uaulisln Fernandez Villalba, who later accompanied Pena to the United States.

² Several officials of the Immigration nnd Naturalization Service were mimed as defendants in connection with this portion of the action. I Icon use Pena has now lwcn deported, the federal defendants are no longer parlies to (his suit, and the claims against them are not before us on this appeal.

³ Jurisdiction was also invoked pursuant to 28 U.S.C. §S 1(551. 2201 & 2202, presumably in connection with appellants' attempt to delay Pena's return to Paraguay.

⁴ Richard Folk, the Albert G. Milbnnk Professor of International Law and Practice at Princeton University, nnd a former Vice President” of the American Society of International Law, avers that, in his judgment, “it is now beyond reasonable doubt that torture of a person held in detention that results in severe harm or death is a violation of the law of nations.” Thomas Franck, professor of international law at New York University and Director of the New York University Center for International Studies offers his opinion that torture has now been rejected by virtually all nations, although it was once commonly used to extract confessions. Richard Lillich, the Howard W. Smith Professor of Law at the University of Virginia School of Law, concludes, after a lengthy review of the authorities, that officially perpetrated torture is “a violation of international law (formerly called the law of nations).” Finally, Myres MacDougal, a former Sterling Professor of Law at the Yale Law School, and a past President of the American Society of International Law, stales that torture is an offense against the law of nations, and that “it has long been recognized that such offenses virtually affect relations between states.”

⁵ The Gorostiaga affidavit states that

⁶ The court Iwlow accordingly did not consider the motion to discuss on forum lion conveniens grounds, which is not before us on this appeal.

⁷ Appellants “associate themselves with” the argument of some of the amici curiae that their claim arises directly under a treaty of the United States, Brief for Appellants at 23 n.but nonetheless primarily rely upon treaties and other international instruments as evidence of an emerging norm of customary international law, rather than independent sources of law.

⁸ The Statute of the InlernaLioniil Court of Justice, Art. 38 & 59. June 26. l!M5, 59 SUil. 1055, 1060 (1915) provides:

Art. 38

1. The Court, whose function is to decide in accordance with intenational law such disputes us are submitted to it, shall apply:

(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting stales;

(b) international custom, as evidence of a general practice accepted as law;

(c) the general principles of law recognized by civilized nations;

(d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of the rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parlies agree thereto.

Art. 5.9

The decision of llie Court has no binding force except between the.

⁹ We observe thai this Courl bus previously utilized the U.N. Charter and the Charier of Iho Organization of American Stales, another non-sdf-execuling agreement, as evidence of binding principles of international law. United States v. Toscanino, 500 F.2d 2G7 (2d Cir. 1974). In that case, our government's duly under international law to refrain from kidnapping a criminal defendant from within the borders of another nation, where formal extradition procedures existed, infringed the personal rights of the defendant, whose international law claims were thereupon remanded for a hearing in the district court.

¹⁰ Eighteen nations have incorporated the Universal Declaration into their own constitutions. 48 Revue Internationale de Droit Fatal Nos. 3 & 4, at 211 (1077).

¹¹ Article 1

1. For the purpose of this Declaration, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. It docs not include pain or suffering arising only from, inherent or incidental to lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners.

2. Torture constitutes on aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.

Article 2

Any act of torture or other cruel, inhuman or degrading treatment or punishment is an offense to human dignity and shall be condemned as a denial of the purposes of the Charter of the United Nations and as a violation of human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights.

Article 3

No slate may permit or tolerate torture or other cruel, inhuman or degrading treatment or punishment. Exceptional circumstances such as a stale of war or a threat of war, internal political instability or any other public emergency may not Ite invoked as a justification of torture or other cruel, inhuman or degrading treatment or punishment.

Article 4

Each state shall, in accordance with the provisions of this Declaration, take effective measures to prevent torture and other cruel, inhuman or degrading treatment or punishment from being practiced within its jurisdiction.

Article 5

The training of law enforcement personnel and of other public officials who may be responsible for persons deprived of their liberty shall ensure that full account is taken of the prohibition against torture and other cruel, inhuman or degrading treatment or punishment. This prohibition shall also, where appropriate, lie included in such general rules or instructions as are issued in regard to the duties and functions of anyone who may be involved in the custody or treatmentof such persons.

Article 6

Knelt state .shall keep under systematic review interrogation methods mid practices as well as arrangements for the custody and treatment of persons deprived of their liberty in its territory, with a view to preventing any cases of torture or other cruel, inhuman or degrading treatment or punishment.

Article 7

Each stale shall ensure that all acts of torture as defined in Article I are offenses under its criminal law. The same shall apply in regard to acts which constitute participation in. complicity in, incitement to or an attempt to commit torture.

Article 8

Any person who alleges he has been subjected to torture or other cruel, inhuman or degrading treatment or punishment by or at the instigation of a public official shall have the right to complain to, and to have his case impartially examined by, the competent authorities of Ihe stale concerned.

Article 9

Wherever there is reasonable ground to believe that an act of torture as defined in Article I has been committed, the competent authorities of the state concerned shall promptly proceed to an impartial investigation even if there has been no formal complaint.

Article 10

If an investigation under Article 8 or Article 9 establishes that an act of torture as defined in Article I appears to have been committed, criminal proceedings shall be instituted against the alleged offender or offenders in accordance with national law. If an allegation of other forms of cruel, inhuman or degrading treatment or punishment is considered to be well founded, the alleged offender or offenders shall be subject to criminal, disciplinary or other appropriate proceedings.

Article 11

Where it is proved that an act of torture or other cruel, inhuman or degrading trealmcnl or punishment has been committed by or at the instigation of a public official, the victim shall be afforded redress and compensation, in accordance with national law.

Article 12

Any statement which is established to have been made as a result of torture or other cruel, inhuman or degrading treatment or punishment may not be invoked as evidence against the person concerned or against any other person in any proceeding.

¹² 48 Revue Internationale de Droit Penal Nos. 3 & 4 at 208 (1977).

¹³ U.S. Const., VIII (“cruel and unusual punishments” prohibited); id. amend. XIV.

¹⁴ Constitution of Paraguay, Art. 15 (prohibiting torture and other cruel treatment).

¹⁵ The fact that the prohibition of torture is often honored in the breach does not diminish its binding effect as a norm of international law. As one commentator has put it, ‘The best evidence for the existence of international law is that every actual Slate recognizes that it does exist and that it is itself under an obligation to observe it. States often violate international law, just as individuals often violate municipal law; but no more than individuals do Stales defend their violations by claiming that They arc above the law.” Brierly, J. The Outlook for International Law 4-5 (Oxford 1944)Google Scholar.

¹⁶ See note 4, supra: sec also Ireland v. United Kingdom, Judgment of Jan. 18, 1978 (European Court of Human Rights), summarized in [1978] Yearbook, European Convention on Human Rights 002 (Council of Europe) (holding that Britain's subjection of prisoners to sleep deprivation, hooding, exposure to hissing noise, reduced diet and standing against a wall for hours was “inhuman and degrading,” but not “torture” within meaning of European Convention on Human Rights).

¹⁷ E.g., 22 U.S.C. § 2304(2) (“Except under circumstances specified in this section, no security assistance may he provided to any country the government of which engages in n consistent pattern of gross violations of internationally recognized human rights.”); 22 U.S.C. § 2151(a) (“The Congress finds that fundamental political, economic, and technological changes have resulted in the interdependence of nations. The Congress declares that the individual liberties, economic prosperity, and security of the people of the United States are best Mistained mid enhanced in a community of nations which respect individual civil and economic rights and freedoms”).

¹⁸ Conduct of the type alleged here would be actionable under 42 U.S.C. § 1983 or, undoubtedly, the Constitution, if performed by n government official.

¹⁹ As lord Stowell said in The Maria, 1(55 Kntf. Rep. 9.r)5. 958 (Adm. 1807): “In I ho first place it to be recollected, Dial this is a Court of the law of Nations, through here under the authority of the king of great Britain. It belongs to other Millions :is well as to our own; and what foreigners have a right to demand from it, is the administration of the law of nations, simply, and exclusively of the introduction of principles borrowed from our own municipal jurisprudence, to which il is well known, they have at all limes expressed no inconsiderable repugnance.”

²⁰ The plainest evidence that intcrnatiopp.1 law has an existence in the federal courts independent of acts of Congress is the long-standing rule of construction first enunciated by Chief Justice Marshall: “an act of congress ought never to be construed to violate the law of nations, if any other possible construction remains… .” The Charming Betsy, 6 U.S. (2 Cranch) 132, 14.3 (1801). quoted in Lauritez v. Larsen, 345 U.S. 571, 578 (1953).

²¹ Section 1350 afforded the basis for jurisdiction over a child custody suit between aliens in Adra v. Chfi. 195 F. Supp. 857 (I). Mil. 1901), with a falsified passport supplying the requisite international law violation. In Hole/ins v. fhrrell, 3 Fed. Cas. 810 (D.S.C. 175)5). the Alien Tort Statute provided an alternative basis of jurisdiction over a suit to determine title to slaves on board an enemy vessel taken on the high seas.

²² We recognize that our reasoning might also sustain jurisdiction under the general federal question provision, 28 U.S.C. § 1331. We prefer, however. In rest, our decision upon the Alien Tort Statute, in light of that provision's close coincidence with the jurisdictional facts presented on this case. Sic Ramcro v. International Terminal operating Co.. 358 U.S. 354 (1959).

²³ Dreyfus v. von Finck, 534 F.2d 24 (2d Cir,), cert, denied, -129 U.S. 835 (1976), concerned a forced sale of properly, and thus sought to invoke international law in an area in which no consensus view existed. See Sabbatino. supra, 376 U.S. at 428. Similarly, Benjamins denied, 439 U.S. 1114 (1979), held only that an air disaster, even if caused by “wilful” negligence, does not constitute a law of nations violation. Id. at 916. In Khedivial Line. S.A.E. v. Seafarers' International Union, 278 F.2d 49 (2d Cir. I960), we found that the “right” to free access to the ports of a foreign nation was at best a rule of comity, and not a binding rule of international law.

The cases from other circuits are distinguishable in like manner. The court in Huynh Thi Anh v. Levi, 586 F.2d 625 (6th Cir. 1978), was unable to discern from the traditional sources of the law of nations “a universal or generally accepted substantive rule or principle” governing child custody, id. at 629, and therefore held jurisdiction to be lacking. Cf. Nguyen Da Yen v. Kissinger, 52H F.2d 1194, 1201 n.13 (9th Cir. 1975)(“the illegal seizure, removal and detention of an alien against his will in a foreign country would appear to be tort … and it may well lx” a tort in violation of the ‘law of nations’“) (§ 1350 question not reached due to inadequate briefing). Finally, the district court in Lopes v. Reederei Richard Schroder, 225 V. Supp. 292 (Fd. L’a. 1963) simply found that the doctrine of seaworthiness, upon which tin; plaintiff relied, was a uniquely American concept, and therefore not u part of the law of

²⁴ As President Carter stated in his address to the United Nations on March 17, 1977:

Reprinted in 78 Department of State Bull. 322 (1977); see note 17. supra.

²⁵ In taking that broad range of factors into account, the district court may well decide that fairness requires il to apply Paraguayan law to the instant case. See Slater v. Mexican National Railway Co., 191 U.S. 120 (190-1). Such a decision would not retroactively oust the federal court of subject matter jurisdiction, even though plaintiffs cause of action would no longer properly be “created” by a law of the United States. See American Well Works Co. v. Lane & Bowler Co., 2411 U.S. 257, 260(1916)(Holmes, .J.). Once federal jurisdiction is established by a colorable claim under federal law at a preliminary stage of the proceeding, subsequent dismissal of that claim (here, the claim under the general international proscription of torture) does not deprive the court of jurisdiction previously established. See Hagans v. hivme. 115 U.S. 528 (197-1); Romero v. International Terminal operating Co.. 1158 U.S. :I5-I (1959); Bell v. Hood, ;{27 U.S. 678 (ID-lb). Cf. Iluynh Thi Mm, supra. 586 F.2d at 633 (choice of municipal law ousts § 1950 jurisdiction when no international norms exist).