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INTERNATIONAL HUMAN RIGHTS ROHT-ARIAZZA SPRING 2009

inherent rights (pre-1945)


Slavery
Protection of Labor
o ILO = gov, labor unions, employers (inc. childrens rights; indigenous peoples rights)
Foreigners
post-WWII SHIFT Constitutional Moment (Germany treatment of their own citizens)
ack that there must be some exterior way of limiting stemming from ideas of human dignity and human rights
creates IHR Movement of development of standards
global treaties under UN auspices open to any state to become a party to
Treaty Rules
like contracts they are voluntary
how do we enforce these rights?
regional systems to award damages
development of intl criminal law
preventative mechanisms e.g. IHR commissions, admin law applications for IHR
national/domestic legislation take idea of treaty and put them into the different pieces of domestic legislation
cultural/internalized compliance
international machinery
most of this is done judicial enforcement on the NATIONAL level b/c not as developed on Intl level (usually injunctions;
monetary relief usually not available)
somehow make a right of action for relief
UNIVERSAL DECLARATION OF HUMAN RIGHTS (START HERE re: rights that apply to all states)
is a DECLARATION, not a treaty not just addressed to states; addressed to all institutions / individuals
economic, social, and political rights
can be binding via
o elaboration on fundamental rights ideals enshrined in UN Charter
o customary international law if states act for a long period of time that seems to indicate that they think
that it is law becomes law / so fundamental that states have to comply with it
ICCPR / ICESCR
treaties / binding
reciprocity
solemn legal commitment to treat your own citizens in a certain way relationship b/c the states and territory the
states control
have 2 sets of treaties b/c one set of rights makes the other possible
ICCPR
o can take immediate effect after coming into force via appropriate legislative or other measures and by
making available an effective remedy to any person whose rights have been violated. No excuses for nonfulfillment.
o Implementation
Domestic
International (only arises when all domestic remedies have been exhausted and redress has not
been obtained): produce periodic reports, HRC Jx (states have to accept competence)

Art. 2: immediate obligation, commit to legislating so that the primary way that this is going to be
enforced is through its domestication will put them into their national law and make them enforceable
there; will do whatever you need to do to put them into effect in national law
Remedies provided if there is a violation
all citizens w/in the territory of its stateand subject to its jx even people who are passing
through are covered
w/o distinction of any kind such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.
open-ended list: includes sexual orientation, health status (HIV)
o Art. 4
In time of public emergency which threatens the life of the nation and the existence of which is
officially proclaimed, the States Parties to the present Covenant may take measures derogating
from their obligations under the present Covenant to the extent strictly required by the exigencies
of the situation, provided that such measures are not inconsistent with their other obligations
under international law and do not involve discrimination solely on the ground of race, color, sex,
language, religion or social origin.
Non-derogable: right to life, right to be free from torture, right to be free from slavery,
debtors prison, basic ex-post-factor, right to recognition as a person beyond the law
NOTE: basic due process provisions are NOT included here
ICESCR
o certain things that you have to do immediately anti-discrimination clause
o you have to TAKE STEPS to the maximum of the states available resources, toward a progressive
realization of rights.
o

COLLECTIVE RIGHTS
Right of Self-Determination: right of a people to establish its own political institutions, to develop economic
resources, and direct its own social and cultural evolution.
right to a standard of living adequate for the health and well-being of himself and of his family, including food,
clothing, and housing.
ENFORCEMENT
incarceration / payment of damages
internalization: public/private actors conforming their behavior to intl standards (e.g. incorporation into
disciplinary regimes)
national human rights institutions
internationalization: ICCPR/ICESCR Committees
judicial domestication: use of domestic courts to enforce international human rights law locally when the culture
of compliance fails
o civil / criminal
o military / civilian
o common law / civil law
NGOs: mobilizing shame, commenting on periodic reports of governments under the human rights treaties,
advocating legislative and cultural strategies for bringing intl standards home.
Critiques of Human Rights Project
American exceptionalism or unilaterism (US advocacy of the death penalty, police brutality, gender/race
discrimination, violations of laws of war and human rights in Afghanistan, Iraq, and GITMO)
Cultural Relativism: HRP rests on western values = cultural imperialism.
Expression of some rights might be to the exclusion of others

I. USE OF U.S. COURTS TO DEAL WITH HUMAN RIGHTS VIOLATIONS OCCURING OUTSIDE OF THE
U.S.
A. Issues that Arise when Litigating the ALIEN TORT STATUTE (ATS)
Actionable Claims
o violation of law of nations w/in meaning of ATS? was the norm asserted specific, universal, and
obligatory?
at a minimum, Ps must rely on a norm of customary law defined with specificity comparable to
the 18th Century paradigms violations of safe conducts, infringement of rights of ambassadors,
and piracy. Sousa.
sketchiness re: cruel, inhuman, and degrading treatment (see pg. 70)
one court said actionable BUT only to the extent that it would have been prohibited by
the Fifth, Eighth, and Fourteenth Amendments (based on U.S. reservation on treaties that
it has ratified.
o Sousa Two-Part Test:
(1) P must show that the norm she relies on is supported by the same evidence of uniformity and
definiteness as the 18th Century paradigms.
(2) court must evaluate whether the practical consequences set forth in Sosa warrant the
creation of a cause of action.
o courts divided on cruel, inhuman, and degrading treatment or punishment
Choice of Law
o sometimes an issue of what nations law to apply re: damages
Statute of Limitations
o ATS provides no SOL
o Post-TVPA in 1992, courts begin to adopt SOL
But can still ask for tolling provisions
o [No SOL for criminal prosecution of crimes against humanity]
Doctrines of Abstention and Immunity
o if D claims as grounds for dismissal of ATS actions, very intensely fact-dependent assessment
Act of State Doctrine
o judicially created means of maintaining the separation of power by preventing the courts from sitting in
judgment of the sovereign acts of foreign governments within their own territory.
Political Question Doctrine
o mandates that district courts must decline jx over a case involving issues constitutionally assigned to the
political branches. Baker v. Carr Factors.
o historically, PQD not a substantial barrier to ATS cases. But recently, several cases have been dismissed
on this ground e.g. involving private corporations when US foreign policy interest is at issue, when
Executive branch submits Statement of Interest in case to which it is not a party.
Immunities
o bar to ATS claims
o state immunity, diplomatic immunity
o courts have not recognized immunity for former heads of state
Forum Non Conveniens
o even when district court determines that it has jx over a claim, court may decline to exercise that jx if a
more convenient forum is available.
o Court Must:
(1) determine whether there is an adequate alternative forum to try the matter in another jx and
3

o
o

considered adequate if Ds are amenable to suit there


potential exception if P is highly unlikely to obtain justice b/c of conditions of the country
(2) if so, which forum will best serve public and private interests
ATS cases involving foreign Ps sing foreign Ds for harms occurring in a foreign country face the highest
risk of FNC dismissal.
Ds raise frequently in corporate cases

Different Types of ATS Cases that have Arisen:


(1) cases against indiv found in the U.S.
o about 18 successful cases; earlier judgments successful b/c of default judgments
(2) cases against U.S. officials
(3) cases against corporations
B. FOREIGN SOVEREIGN IMMUNITY - Threshold Consideration
it taken under the auspices of the state, why not go after the state?
CIL codified in Foreign Sovereign Immunity Act in U.S.
applies to state or state agency or instrumentality
implied waiver (Siderman de Blake v. Republic of Argentina torture)
o foreign sovereigns implicitly waive their immunity when they engage in violations of jus cogens norms,
such as torture.
o narrowly interpreted
non-commercial tort
o also narrowly interpreted; cannot claim that extraterritorial HR violations caused emotional distress in
U.S.
commercial activities: a foreign sovereign does not have immunity for activities that are commercial in nature if
there is a significant nexus between those activities, the injury, and the United States.
o 3 ways:
(1) action based on commercial activity carried out in U.S. by foreign state OR
(2) act performed in U.S. performed in connection with foreign state elsewhere OR
(3)???
o Saudi Arabia v. Nelson (1993)
hospital administrator, recruited/trained in U.S., goes to Saudi Arabia, finds that they are
skimming for funds, blows the whistle, captured by Saudi authorities for having tortured him.
claimed but-for companys advertising in U.S., would not have been tortured.
SCOTUS: Tortious act itself has to be a commercial activity. NO in this case b/c whole context =
commercial activity, BUT the act that forms the core of the complaint (police action) is NOT a
commercial activity. Insufficient Nexus in order to use this exception, have to show the context
and that the act of which you are complaining is a commercial activity.
potential exceptions: trafficking, use of forced labor
terrorism exception: no sovereign immunity for personal injury or death caused by an act of torture, extra-judicial
killing, aircraft sabotage, hostage taking, or the provision of material resources to a person who commits such acts
IF that person was an official, employee, or agent of the foreign state and was acting within the scope of his or her
employment at the time.
(1) country has to be on U.S. terrorist state list of countries designated as state sponsors of
terrorism at the time the tort was committed.
(2) victim has to be a U.S. National when the act upon which the claim is based occurred.
(3) if happened abroad, have to give state a chance to arbitrate it
(4) ???
o DC Cir (Cicippio) : this exception does not impose liability or create private right of action against
foreign states, but merely confers SMJx on federal couts.
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Ninth Cir (Chuidian): FSIA protects individual defendants in addition to states, their agencies, and
instrumentalities.
however, officials are NOT protected for:
acts beyond the scope of their authority (if D doesnt defend himself against default,
court may comclude that he was acting outside of scope / not protected by FSIA) or
acts that violate their countrys own laws

C. DETERMINING ATS JURISDICTION AND INTERPRETATION (Flartiga)


Alien Tort Act (1789)
o Mandate from Congress to the court to enforce law of nations
o Confers Federal Subject Matter Jurisdiction: the district courts shall have original jx of any (1) civil
action by (2) any alien for a (3) tort only, committed in (4) violation of the law of nations*1 or a treaty
of the United States
o nothing here that says that it has to be an alien in the U.S.
o tort = wrongful death
o comports w/ basic due process is b/c has limits: have to catch/serve the person in the U.S. have to have
personal jx.
Pena (D) argues that the law that has to apply is Paraguay law forum non convieniens issue (usually not a
problem in cases against indivs; sometimes in corp cases)
o not the case here b/c courts in Paraguay would be biased b/c she already brought the case, and Fs
attorney was arrested and disbarred as a result
HELD: TORTURE is the violation in this case an act of torture committed by a state official against one
held in detention violates established norms of the intl law of human rights, and hence the law of nations.
o torture definition: rely on Declaration of the Protection of All Persons from Being Subjected to Torture
act of which severe pain/suffering intentionally inflicted by or at the instigation of a public official for
some purpose.including intimidating others; at the time was not a convention on Torture now there
is a treaty that defines it.
o ascertaining whether is violation of law of nations look to:
treaties: UN Charter, UDHR (to interpret the Charter), ICCPR
Soft Customary Law - usage and practice of nations
EC HRFF shows (1) widespread evidence of what the states think the law is and (2)
opinio juris
dont necessarily have to show that it is unanimous
even though there exists violations, the fact that no states accept it shows international
condemnation of torture
judicial decisions
scholars
footnote 4 a bunch of Professors / affidavits
state reports
[ITT/Lopes Rule: a violation of the law of nations arises only when there has been a violation by
one or more individuals of those standard, rules, or customs (a) affecting the relationship between
states or between an individual and a foreign state and (b) used by those state for their common
good and/or in dealings inter se.
Incorporationalism and interpretivisum (pg. 47)
o U.S. repeated approval of language of Paquete Habana generated the orthodoxy that CIL is incorporated
into federal law, enforceable in domestic courts (even in the absence of direct legislative authorization),
and, like forms of Federal Law, constrains the actions of the states of the Union.

at issue in this case

Charming Betsy Principle re: Statutory Construction / Interpretivism: Congress ought never to be
construed to violate the law of nations if any other possible construction remains.

Ethiopia Case (11th Cir. 1996) illustration of first generation ATS Litigation
state official directly implicated in the torture (extra-judicial execution) torture is pretty well established as a
crime against humanity in the case law
Trial Court: insufficient evidence of torture and cruel, inhuman, and degrading reatment.
reveals evidentiary difficulties in ATS litigation
also: to prove disappearance must show that victim was in state custody even if state later refuses to acknowledge
the detention or whereabouts. P in this case only had hearsay statements.
After 1994, US can bring criminal prosecutions for extraterritorial torture (limited to crimes committed after Nov.
1994) advantages and disadvantages of ATS pg. 98
--compare
a. Suing Non-State Actors; Illustration of Tag Jx (serving D w/ process while he is traveling in the U.S.; ATS for
laws of war) (Kadic v. Karadzic (2nd Cir 1995))
accused of rape, forced prostitution, torture (*does require state action*), summary execution (*does require state
action*), genocide/war crimes as President of [this state that people dont recognize]
was only in UN briefly as a UN invitee
D claims no subject matter jx b/c he was a non-state actor (even as he asserted that he was the President of the
self-proclaimed Republic of Srpska)
law of nations does not confine its reach to state action; private indiv can be implicated
go to intl law norm to see whether state action is required for e.g. torture, have to look at the definition under intl
law
Act of State Doctrine
o can you kill an opponent on your own territory? NO, it is not legal / an official act of the government, so
the ASD does not apply. Compare Fa Long Gong (Doe v. Kang) = official act of the state so the
doctrine applies.
o rationale: U.S. courts should not be second-guessing what other governments do on their own territory
o exceptions: if want to show that torture and summary execution w/o state action, have to show that it falls
w/in the context (in the pursuit of) of one of the customary intl law norms below AND
under color of law if you act like official even though you are not. Here, D acting in concert
with former Yugoslavia.
1983 police brutality test for what color of law means
o one of the elements is joint action working together with state official, share
the same intent
parts of customary international law that apply to individuals (no state action necessary)
[are of universal concern Restatement Third of Foreign Relations Law 404, civil remedies can be applied]
o piracy
o slavery
o genocide2
o war crimes3
o crimes against humanity4
what to do about the fact that D is not directly involved in the violation?
o (1) if can show that there is an actual direction, order, or conspiracy that results in the violation +
knowledge of crimes (Marcos approach)
2

GA Res, Genocide Convention, language of subsequent declarations = intl law norm


Plain language of the Geneva Convention all parties to a conflict not limited to states
4
Rome Treaty
3

(2) idea of command responsibility (superior/subordinate / effective control test/ joint criminal
enterprise ICTY/ICTR cases; kind of a conspiracy theory) (Chavez approach)
Superior-subordinate relationship
show that they knew or must have known, in light of the circumstances, at the time his
subordinates had committed, were commiting, or were about to commit torture, extrajudicial
killing and/or crimes against humanity
failed to take all necessary and reasonable measures to prevent the abuses if knew that it was
going to happen or punish it

b. Torture Victims Protection Act (TVPA) Congress passes in 1992, applies to U.S. citizens and non-citizens alike
creates cause of action for claims of torture and extra-judicial killings committed under the actual or apparent
authority, or color of law, of any foreign nation.
TVPA does not oust/replace ATS can bring a suit under one or both (note: ATS, dont have to show
exhaustion of local remedies)
Unlike ATS, U.S and non-citizens to make such claims need to show:
o (1) torture and extra-judicial / summary execution
o (2) act under the color of foreign law
o (3) exhaustion of remedies have to show that you cant bring your claims under any other jx (where the
violations occurred)
o (4) SOL: 10 years
BUT if SOL expires, can ask for an equitable tolling under extraordinary circumstances did P
have the opportunity to bring earlier? OR did they have a good reason not to bring it earlier?
e.g. P not in U.S., gov in charge of violations still in power so it was really dangerous to bring a
case, Ds in the U.S. could not have come to the attention of the Ps.
c. Supreme Court Interpretation of ATS (Sosa v. Alverez-Machain (2004) Ps seek to hold U.S. officials accountable
under international human rights law))
history: bunch more legislative history than initially thought, worried about this b/c concern with holding states
accountable for not upholding law of nation obligations
Alverez tried as an accessory to torture doctor who kept the Drug Enforcement Agency guy alive so that they
could get the info from him about a cartel.
judge dismisses the case, Alverez brings claim for arbitrary detention for DEA officials hiring MX nationals to
capture him and bring him to the U.S.
Alvarez filed a group of civil suits in federal court against the United States and the Mexican nationals who had
captured him under
o Federal Tort Claims Act (FTCA): allows the federal government to be sued on tort claims, and
o Alien Tort Statute (ATS): which permits suits against foreign citizens in American courts.
Govs argument:
o FTCA only applies to claims arising from actions that took place in the United States and therefore did
not cover Alvarez-Machain's case because the arrest took place in Mexico.
o ATS gave federal courts jurisdiction to hear tort claims against foreign citizens, but did not allow private
individuals to bring those suits.
SCOTUS:
o ATS does not create a separate ground / cause of action for damages suit for violations of the law of
nations. Instead, it was intended only to give courts jurisdiction over traditional law of nations cases those involving ambassadors, for example, or piracy. Because Alvarez-Machain's claim did not fall into
one of these traditional categories, it was not permitted by the ATS.
o FTCA: the arrest had taken place outside the United States and therefore was exempted from the Act. It
rejected Alvarez-Machain's argument that the exemption should not apply because the arrest had been
planned in the United States.
ISSUE 1: is this a jx issue? Or does it provide a cause of action?
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Both; cause of action comes from customary international law can come into the U.S. Court via
common law
o only thing Federal Judiciary Act / statute does is give courts jx (Sosa argues) then need separate statute
to give rise to cause of action.
o but Court says: it doesnt make any sense for Congress to be upset and then pass a statute that has no
meaning must have thought that meaning of law of nations would get filled in by the common law.
Thus, cause of action comes from federal common law.
also point to transitory tort doctrine: tort follows the tort-feasor; part of background that everyone
understood in 1789
o BUT Erie has done away with Federal Common Law!! Here, MAJ avoids that result by saying that there
is still some limited pockets of law that federal common law still applies (e.g. admiralty) this is one of
them.
o standard for deciding whether law of nation falls within federal common law: things that fall under
international character = present day violations that are comparable to those of the 18th Century
3 (original) primary offenses: violations of safe conducts, infringement of rights of ambassadors,
and piracy
(1) international norm with definite content
(2) widespread acceptance comparable to historical
o J. Souter enumerate all of the ways why they shouldnt look at it (list of cautions): want to narrow so not
to open floodgates (e.g. if claim does not have a whole lot of history before now) - A cause of action can
be nonjusticiable even though it meets the criteria discussed above IF prudential factors weigh in favor of
nonjustificability... factors such as: public policy, separation of powers, political questions, reticence of
domestic courts to command foreign relations, and judicial restraint in legislating new common law.
o 2-Part Test?: have to fulfill (1) and (2) and walk through all of the cautions (not clear)
HELD: Alverez loses under this standard b/c question whether it was an arbitrary detention b/c it was temporary.
Say that these specific facts do not encompass specificity required.
AFFIRMS 9th Cir: ATS is not an exception to the Westfall Act, which requires that tort claims against
federal officials be brought exclusively under the FTCA (Alverez-Machain v. United States)
o

d. Corporate Activity Cases - does indirect liability exists under the ATS via aiding and abetting military/police
force actions / violations of human rights
corporate complicity for human rights violations (e.g. resource extraction companies, oil companies, mining
companies) question of whether corporations can be liable at all (no ICC, ICTY statute etc on this issue).
Holocaust Litigation: class actions brought against Swiss Banks and other corps for their complicity in the
Holocaust. Most have ended in settlement.
Doe v. UnoCal (9th Cir 2005)
o villagers claim Burmese soldiers subjected them to forced labor, forced relocation, torture, rape, and
extra-judicial execution in connection with build oil pipeline to bring natural gas from Andaman Sea to
market in Thailand. French-Burmese-CA JV. Villagers claimed only Unocal (CA) knew what military was
doing and provided encouragement/assistance to military to commit human rights violations.
Khulumani v. Barclay Natl Bank (2nd Cir 2007)
o claim that dozens of corporations collaborated with (aided and abetted) S.Af gov maintaining system of
apartheid.
o merely doing business in such a state is not sufficient to find a&a need to be specific allegations of
what the corporation has been doing is aiding and abetting (e.g. IBM providing computers when they
knew that they would be used for tracking political activists).
o Standard for aiding & abetting
(1) THRESHOLD: underlying tort by direct perpetrator which meets the Sosa guidelines.
(2) is aiding and abetting actionable? yes.
(3) if there IS aiding and abetting, what law defines what a & a means?
International: J. Katzmann ties it back to law of nations rationale: ancillary rule
should come from the same place as we are getting the main rule.
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Domestic: J. Hall gets this from the statute; under ATS said that this was Federal
Common Law easier b/c have all of these tort standards / Restatement already.
(4) what does a & a mean / how do we determine it?
International Law Standard (mens rea): J. Katzmann walks through international tribunals
and lands on the standard in the Rome Statute of ICC: (page 107) articulates the mens
rea required for a & a and also have to show that assistance is rendered to the
commission of a crime by a group of persons acting with a common purpose, and a D is
guilty of a & a only if he does so for the purpose of facilitating the commission of such
a crime. (very hard to find a purpose requirement)
o disagreement on whether standard should be intentional purpose or intentional
knowledge
Alternative Domestic Standard (Federal Common Law: Restatement of Torts, theories of
agency): J. Hall proposes using Restatement of the Torts no purpose necessary,
knowledge that you are providing substantial assistance is sufficient.

e. Ethical Issues in Human Rights Litigation Under the ATS


security and protection of plaintiffs and witnesses
human rights plaintiffs lawyers subpoenaing records of human rights organizations for evidence
II. BASIC PRINCIPLES OF INTERNATIONAL LAW IN U.S. COURTS
what international rules are binding on nations? and how are they enforced?
despite the fact that the Supreme Court recognized customary intl law as part of our law, U.S. courts have often
subjected claims based on CIL to limitations similar to the non-self-executing treaty doctrine.
sometimes Congress incorporates CIL into domestic legislation, making enforcement of intl law part of domestic
law.
a. TREATY ENFORCEMENT
Bilateral treaties: 2 foreign ministries work out problem and signed by president
Multilateral treaties: signed by a lot of states
o There's usually a convening authority (often UN or regional authority)
o Series of prelim meetings
o Drafting conferences text (takes usually 2-3 years)
o Final text made official through signing ceremony
Head of states sign on dotted line for state
o Ratification
Different states ratify treaties differently
Some countries: signing becomes national law (e.g. Netherlands just have to present the
treaty) monist state domestic and international law are on the same track
UK -- other extreme: active parliament has to take treaty language and enact it as domestic law.
Or else it's not domestic law and not enforceable by the courts) dualist state (domestic and
international law on 2 different tracks and they never meet)
US somewhere in the middle. Ratification process: President present the treaty and have the
Senate ratify it by 2/3 of the senate.
Vienna Convention of the Law of Treaties (VCLT): US not a party, but US State Department
has basically abided by it for the last 20 years, (treat it as binding law, just not technically, i.e. not
presented in front of the senate)
if nation has SIGNED but NOT RATIFIED, nation can't take actions that
undermines the object or purpose of the treaties.
o Entered into force
Issue with mostly recent treaties
Most treaties say 'this treaty won't enter into force until 60 nations have ratified" etc.
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Dont want the first movers to be losers


self-executing or non-self-executing treaty question: what does law of the US" mean for US
federal district courts?
Human Rights Treaties Ratified by the US: (very few of them)
o CERD (Convention On The Elimination of All Forms of Racial Discrimination)
o ICCPR (International Covenant on Civil and Political Rights)
o CAT (Covenant against Torture)
o Genocide Convention
Reasons for Treaty Enforcement Difficulties in the US:
o US exceptional-ism
deep suspicion of anything that would override/interfere/curtail the legislative supremacy of the
US in the branches of the government.
o Non-Self-Executing Treaty Doctrine: courts cannot enforce certain treaties unless Congress has enacted
separate implementing legislation. Barrier to treaties use in US law.
alternative strategies / other means to enforcement:
habeas corpus statutes
federal anti-discrimination statutes
Administrative Procedures Act

Self-Execution Doctrine:
o questions often arise in criminal settings and extradition proceedings courts held that they cannot
enforce certain treaties or their provisions unless Congress has enacted separate implementing
legislations
o SCOTUS has a fairly narrow view on self-execution; majority courts dont want to find most treaties to
be self-executing due to concern with foreign affairs process, federalism issues
o Non-discrimination provisions and Bi-lateral Extradition Treaties are routinely held to be selfexecuting (Asakura v. City of Seattle (1924) challenging city ordinance preventing Japanese pawnshop
owner from owning business)
o Executive Agreements / Treaties trump ordinances. Supremacy Clause, Constitution Article 6.
Treaty is equivalent to federal law therefore trump state law
Treaty cannot trump Constitution
If treaty conflicts with federal law/statute, apply the last in time rule (last in time trumps)
o Determining whether a treaty is self-executing, depends on:
subject matter whether treaty is directed towards executive or judiciary (e.g. peace treaty)
intent of the drafters intent of U.S. ratifying the treaty OR everybody involved
Gracey (D.D.C. 1985) Art. 33 of the Refugee Convention = self-executing? Court relied on
textual interpretation to resolve the case but did not address the issue of self-execution
did Reagan's order authorize interdiction of certain vessels (mandate return of refugees,
federal directives) violate Protocol 1967 protocol where US agreed to Status of Refugee
(can't return refugees without their consent, provision of refugee code)?
HELD: nothing in Art. 33 of Refugee Convention limited the discretion of the President
to interdict Haitians on high seas and return them to Haiti, "the protocol's provisions
were not themselves a source of rights.
self-execution is not found in the language of the treaty. It will be the court
interpreting the language of the treaty that determines the self-execution of the
treaty.
o Cases Regarding U.S. Ratification of the Vienna Convention on Consular Relations
in order to revise consular relations, need to have a clear statement of the treaty that it is
enforceable through federal law

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VCCR Art. 36(1) (Communication and Contact with Nationals): a foreign national detained by a
government must be informed of his or her right to request assistance from the counsul of his
own state.
does ICJs decision in Avena (holding U.S. must review all sentences when there is a failure of
consular notification) and Presidents Memorandum (states should give effect to Avena decision)
constitute directly enforceable federal law that pre-empts state procedural rules? (Medellin
(2008))
MX national arrested for serious crime abroad, tried, convicted, not informed of Vienna
Convention on Consular Relations.
procedural default rules: if dont raise the rule at the time of the state court proceeding,
cant claim it later
HELD: just jx, doesnt say anything about enforcement, only redress is through the SC,
nothing about indiv rights there, U.S. undertakes to comply with the UN Charter Art 94
and that provision is NOT self-executing. dont even look at the Optional Protocol or
VCCR Art. 36
o Other ways to Enforce Non-Self-Executing Treaties
raise treaty-based claims under habeus corpus statues
federal anti-discrimination statutes
administrative procedures
Reservations, Understandings, Declarations (pg 164)
o Even though U.S. has ratified several important multilateral human rights treaties, it has done so subject
to extensive qualifications aka RUDS. These packages limit U.S. treaty obligations to the content of
existing U/S/ domestic law or establish that a treaty will be non-self-executing.
o result: difficult for litigators to use treaty norms in domestic cases
o under international law: cannot defeat the object and the purpose of the treaty
o reservations: purports to change the obligation
U.S. reserved the right to impose capital punishments
relevant question: is reservation against the object and purpose of the treaty?
o consequences when there is a clash:
severs OR not a party
have to OBJECT to it
o juvenile death penalty: discrepancy b/t intl treaty obligation and U.S. domestic law (Domingues upholds
based on U.S. Reservations)
murder committed at the age of 16, want to argue that cant execute b/c under ICCPR Art 6(5) b/c
non-derogable versus practice of 120 states that execute people over 18.
statutory interpretation: is ICCPR self-executing? have to look at specific provisions to see
whether they are self-executing
[HR Council, treaty body charged with ICCPR interpretation says U.S. reservation is
incompatible]
claim prohibition against death penalty is customary international law
Charming Betsy Doctrine: as a matter of statutory instruction, should apply in a
way interpret a domestic statute in a way that it does not violate international law
o Mao v. Reno: detention case can read the detention statute so that it has a limit
on immigration detentions.

b. ENFORCEMENT OF CUSTOMARY INTERNATIONAL LAW


unsettled question: whether CIL trumps federal statutes
controlling acts of Executive trump CIL
Fernandez v Wilkinson (one of few cases where claimant has prevailed against official action based on CIL):
indeterminate detention of an unadmitted alien in a max security prison pending unforeseeable deportation
constitutes arbitrary detention.
11

rationale: failure of machinery of domestic laws due to unique legal status of excluded aliens in U.S., no
protection from this evil from Constitution and statutory laws.
o cite for custom indication that arbitrary detention is a violation: U.S. party to UN Charter, UDHR,
American Convention on Human Rights, European Convention for the Protection of Human Rights and
Fundamental Freedoms, ICCPR
Hawkins v. Comparet-Cassani (injunction against use of stun-gun technology based on CIL re: torture and other
forms of cruel, inhuman, or degrading treatment or punishment)
o U.S. officials liable for violation of jus cogens norm
jus cogen /pre-emptory norm: so fundamental to the international legal system that they may
not be superseded by subsequent state practice or treaties (from which no derogation is
permitted and which can be modified only by a subsequent norm of general intl law having the
same character VCTL, Art. 53)
still not clear what qualifies, but genocide, piracy, slavery, torture, wars of aggression,
and territorial aggrandizement generally recognized/accepted
o Court accepts that there is a jus cogens norm re: prohibition against torture (from which there can be no
derogation, not consent based)
o ISSUE: notion of implied-right-of-action (aka private right of action)
o if Congress has not supplied a remedy, what do you do? in majority of cases, Court says NO, will not
imply a right of action.
Persistent Objector Rule: a state that indicates its dissent from a practice while the law is still in the process
of development is not bound by that rule even after it matures. Restatement Third of Foreign Relations Law
of the United States.
o

c. INCORPORATING INTERNATIONAL NORMS INTO CONSTITUTIONAL INTERPRETATION


using intl law to inform the reading of the Constitution or statute; rule of decision remains domestic law
Roper (2005) juvenile death penalty case
o Eighth Amendment (and Fourteenth, maybe Fifth) well-suited for this kind of interpretation evolving
standards, cruel & unusual, origin (from British) so affirm finding that forbidding imposition of death
penalty on offenders under age of 18.
o Court looks to: a survey of 60 major nations regarding prohibition on capital punishment for crimes
committed by juveniles under 18, Convention on the Rights of a Child (not ratified by the U.S., Art. 37),
ICCPR, American Convention on Human Rights, African Charter on Rights and Welfare of the Child.
o [pg 553 Inter-Am Committee finds that it violates jus cogens]
d. ROLE OF THE COURTS IN THE WAR ON TERROR
role of international law in U.S. courts to restrain gov conduct in a time of crisis
post-Rasul: additional detainees file lawsuits in federal district court challenging their custody as violations of the
Geneva Conventions.
o question of whether Geneva conventions just give claimants jx to file petitions (Khalid) in federal courts
for writs of habeas corpus OR does each have enforceable rights under Geneva (In Re Guantanamo
Detainee cases)?
o Boumediene (2008): STA and Military Commissions Act violated Guantanamo detainees constitutional
right under the Suspension Clause to file habeas petitions in the U.S. federal courts challenging the
lawfulness of their detention, and that DTA review process was not an adequate substitute for habeas.
Geneva Conventions
o self-executing
o treatment of detainees, need hearing to determine whether they are POWs
o Common Art. III says that have to give basic due process rights
BUT military tribunals are weird b/c set up in response to and after the crime has taken place
State Secrets Privilege: court will dismiss a claim or suppress evidence where the government asserts that there
is reasonable danger that litigation will expose military matters which, in the interest of national security,
should not be divulged.
12

U.S. has successfully invoked this privilege in ATS litigations (allegations of detainee against CIA guy,
who claim info regarding CIAs extraordinary rendition program would be exposed)

III. INTERNATIONAL HUMAN RIGHTS LAW IN DOMESTIC CRIMINAL PROSECUTIONS


5 Jurisdictional Principles
o Territorial Jx: where act took place where D is located (most common)
Subjective territorial jurisdiction: exists when the perpetrators conduct occurs in the states
territory
Objective territorial jurisdiction/Effect jurisdiction: exists when the effect of the criminal
action is located in the states territory
o Active Personality: have jx over their own nationals committing crimes
o Passive Personality: victim is a national
weakest / most controversial: because it does not require any connection between the state and the
criminal act
o Protective: jurisdiction over crimes committed against a states vital interests
note that the point of the protective principle is that the crime affects the states core interests.
Thus, the interest is in crimes such as espionage, counterfeiting, drug trades, etc.
o Universal Jx: jurisdiction that states take regardless of where the crime was committed, or what the
nationality of the perpetrator or victim might be if (1) the conduct does not have any of the other four
preceding connections to the state and (2) the conduct is so universally condemned that every state is
authorized to vindicate the community interest in repressing it.
based on the nature of the offense - heinous and hard to prosecute in a domestic forum
war crimes, crimes against humanity, genocide, torture, extrajudicial executions, and
disappearances.
note: the fact that a state is allowed to criminalize an action does not mean that it is free to
prosecute every case
Immunity. b/c most intl crimes are committed under the color of official authority, immunity is
often an issue in universal jx cases.
Obligation to Extradite or Prosecute (aut dedere aut judicare).
States have treaty-based obligations to exercise UnJx in some cases. Provided for in each
of the four Geneva Conventions.
States can also exercise UnJx under CIL
Obligation Erga Omnes: obligation that every state bears to the community of states.
Head of State Immunity (Pinochet)
o double criminality rule in extradition: requires that the offense for which a person is being extradited be a
recognizable criminal offense in the laws of both sending and receiving state.
here, was not until 1998, when UK ratified Torture Convention, that extra-territorial torture was a
criminal in both Spain and the UK (even though torture was a recognized criminal offense in both
countries before then).
o Torture Convention eliminates immunity for torture; UK bound by Torture Convention to prosecute or
extradite.
o Lord Brown-Wilkinson: Current Head of Sate complete/absolute personal immunity would attach,
and would not be able to prosecute him.
distinguish from Former Head Of State: only functional immunity for official acts
are these official acts? no b/c something that contravenes international law cannot be
official acts.
o Lord Goth: his argument goes toward the drafting of the Torture Convention if state wants to get rid of
immunity under intl law, need to say it.
o Lord Miller: grounds what he is doing in jus cogen norms all Torture Convention did was codify
something that already existed in customary intl law.
Universal Jurisdiction in United States Courts (Youseff terrorism)
13

U.S. has enacted a number of statutes that authorize courts to exercise universal criminal jx (see pg. 233
for enumeration)
o Jx limitation on Genocide prosecutions limited to:
offenses committed w/in the U.S. or
alleged offender is a national of the U.S.
o universal jx arises under CIL only where crimes:
(1) are universally condemned by the community of nations and
(2) by their nature occur either outside of a State or where there is no State capable of punishing,
or competent to punish, the crime (as in a time of war)
o No Safe Haven Proposals. proposals to prohibit human rights violators from seeking safe haven through
the immigrations system. Concern that these might also target legitimate immigrants.
o comparative approaches to universal jx statutes
express provisions
analogous crimes
crimes defined in treaties
CIL
direct incorporation
International Limits on Exercise of Universal Jurisdiction (Arrest Warrant Case)
o Immunity for functionally similar positions. The ICJ held that while a head of state is still incumbent
(in office), he/she cannot be tried for any violations of the law i.e. former foreign ministers should
be afforded immunity for their official acts. Full immunity extends through the duration of that
persons time in office, but when that person is no longer in office, he or she may be tried for acts
committed in a private capacity (or perhaps before an ad hoc tribunal), or by his own State.
o rationae personae: certain categories of state officials (e.g. heads of state or diplomats) are protected from
prosecution while they are in office. Grounded in notions of sovereignty and recognition of the states
need to protect officials when they perform their duties on behalf of the state.
o ratione materiae: acts undertaken by state officials in their official capacity are understood to be acts
which are attributed to the state indiv liability never arises.
o implications of ICJs decision: former foreign ministers potentially enjoy immunity for their participation
in crimes against humanity and war cimes crimes which nations agree have attained the status of jus
cogens so long as those crimes were committed in a public capacity.
Legislative Proposals
o Princeton Project on Universal Jx
o Amnesty Intls Fourteen Principles of Universal Jx
o

14

INTERNATIONAL SYSTEM
I. STATE-REPORTING MECHANISMS IN THE UNITED NATIONS
a. Treaty-Based Mechanisms: The Individual-State Petition and Reporting
Treaty-Based Mechanisms: systems of endorsement that are tied to and come out of human rights treaties for
parties to those treaties.
o Review Petitions from Individual Petitions / Communications
(1) are they are party/accepted jx?
Committee on Human Rights (ICCPR), CAT, CERD
(2) optional protocol (separate agreement that allows its parties to recognize competence of the
Committee and consider complaints from individuals) or special declaration?
(3) have to tie in whatever you are complaining about to specific articles about the treaty
(4) Admissibility Requirement
(a) duplication
(b) w/in time limits
(c) exhaustion of remedies
o TREATIES:
Convention on the Elimination of Racial Discrimination (CERD)
Covenant on Economic, Social, and Cultural Rights (IESCR)
requires progressive realization of economic, social, and cultural rights absence of
immediate obligations, like ICCPR
can now consider individual-state petitions BUT questionable as to how this will be
implemented regarding allegations of violations of a right to adequate food against
countries in different stages of development. should there be different standards> and
how would they be measured?
Convention on the Elimination of Discrimination Against Women (CEDAW)
US NOT A PARTY; PARTY TO ICCPR
Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment
of Punishment (CAT)
U.S. narrow understanding of the scope of CAT not accepted jx and has implemented
its obligation under Art. 3 through regulations that prohibit the return of an individual to a
state where it is more likely than not he or she will be tortured.
o ratification: U.S. submitted a general understanding whereby it does not
consider this Convention to restrict or prohibit the U.S. from applying the death
penalty consistent with the Fifth, Eighth, and/or Fourteenth Amendments
Convention on the Rights of a Child (CRC)
Convention on the Protection of Rights of All Migrant Workers and Members of Their
Families (CMW)
Convention on Rights of Persons with Disabilities (CRPD)
o committees for each
review each partys compliance with its terms.
Procedure
(1) submission of a report to the relevant Committee
(2) under some of the treaties (or pursuant to an Optional Protocol), govs may subject
themselves to further scrutiny and authorize a Committee to receive petitions filed by
indivs who claim that their treaty rights were violated by the gov.
Committee acts as a kind of supra-national court that sits in judgment of the highest national
courts. (A.S. v. Sweden Iran woman, stoning, whether there was sufficient evidence to meet her
15

burden of showing there were substantial grounds for believing should would be subjected to
torture upon being returned to Iran)
concerns:
o made up of independent experts appointed by states, but not entirely
independent creates a kind of political agenda within the Committees work.
(see page 275-76).
o cultural and social relativism local traditions in conflict with perceptions of
human rights in western democracies
o Committee on Human Rights
treaty-based committee established under the ICCPR
o State Reporting Mechanisms
have one year to file a report about their compliance with the treaty and follow-up reports every
2-5 years (or whenever the Committee so requests)
Reports submitted to the UN SG.
having to fill this out creates internal process by which data is collected with a view towards these
reports and where agencies can figure out what they might not be doing right.
Committee can make recommendations in light of reports from NGOs, Human Rights Watch, etc
note: U.S. re: Committees comment that overcrowding of prison results in violation of
Art. 10 of the ICCPR NB: reservations, understandings, and declarations in submitting
its ratifications. also re: sexual abuse in prison.
can issue some kind of general comment re: what provisions of treaty actually mean, laying out
reporting guidelines, addressing matters of procedure.
General Comment 24 (Reservations to ICCPR):
o Initially: Committees (not states) determination and interpretation. BUT states
object and International Law Commission says interpretation of objection to
reservations by states under VCTL is appropriate.
o Persistent Objector Doctrine. e.g. U.S. has repeatedly asserted that it cannot be
bound by the CIL principle that prohibits the execution of juvi offenders based on
its status of persistent objector. Reservation to Art. 6(5) of the ICCPR (juvi).
Roper v. Simmons BUT Executive Branch continues to stand by its policy
despite CIL prohibition. Non-self executing. Reservations under CAT and CERD.
(pg 301)
short-comings of treaty body review of state reports (pg 301):
separate treaty bodies review reports under different treaties that in many ways overlap in
subject matter people have suggested consolidating to promote universality
treaty bodies are under-staffed, under-funded and yet their workload increases every
year.
b. Charter-Based Mechanisms
Charter-Based Mechanisms: based on the UN Charter / fact that the state is a member of the UN.
o Three Bodies That Address Human Rights Regularly
These are available, independently of whether a state is a party to a treaty.
They are based on general principles of international law.
Security Council: subject to veto of its five Permanent Members can respond to HR-based threats
to intl peace and security under
(1) UN SC under Chap VII or VI
o VI: non-military action to maintain peace/security- diplomatic/economic
sanctions
o VII: right and responsibility to take action, including mil action in cases of
breach of the peace, threat to the peace, or act of aggression
o can issue resolutions that have the force of law
o also has veto / defer action to cases already referred to Court
(2) General Assembly
16

2005: created a Human Rights Council smaller, more transparent, more


disciplined body to remedy Commission of HRs failures. Approved a process of
universal periodic review (UPR), a peer-review mechanism under which keeps a
record/reviews human rights situation of every UN member. (rationales pg. 306)
U.S. decided not to participate in the Council
NOTE: pg 306 problem addressing Darfu/Sudan situation
(3) Economic and Social Council (ECOSOC)
o 1946: established the Commission on HR pursuant to Art. 68 of the Charter
(eventually went to shit b/c proceedings were very political, resolutions were
non-binding and routinely ignored)
appoint rapporteurs, establish working groups, focus on particular issues
or countries during its regular session.
deliberations culminate in adoption of resolutions, statements, and
decisions to express the views of the international community on a
variety of human rights issues.
o Country-specific procedures (Res. 1235) (8 of them)
Requirements:
You need to show that there is a pattern of gross violations. Nowhere is there a definition
of gross violations, but they tend to look to physical security or right to life. They dont
look to expressive rights.
o one can look to situations in the country. You only look to general patterns and
situations in the country, but not individual cases.
Type of procedure:
This was a highly public, but also highly political, mechanism. This is where there is
debate in the HumR Council about whether there will be sanctions against a certain
country, for example.
Independent Expert / Special Rappeteur. Council appoints somebody for a period of
time to see what is going on in this country and report back.
Country Specific Resolutions:
o non-binding, but their adoption sends a strong political message to those states
singled out for condemnation.
o also: governments sometimes try to meet the specific benchmarks incorporated
into these resolutions in order to convince members to forego adopting a
resolution, or moderating its language, that addresses its domestic human rights
situations.
Advisory Services: states save face through this process, negotiations where if they agree
to do x, y, z, agree to not assign expert, will issue advisory service
Universal Periodic Review: under this mechanism, all member States will have their HR
records regularly considered by the Council through interactive dialogue, including
recommendations. (pg. 315)
Exhaustion of remedies?
No. Were only raising the situation in the country; it is not a specific case.
Time frame:
Three times a year.
The HumR Council has the ability to go into an emergency, or special, session.
It doesnt take that long to get something on the agenda, but politically, you have to be
able to put together a coalition that will put forth a resolution.
have looked at 64 countries: country submits a report, NGOs file their
comments/complaints to office of the High Commissioners, make available to states who
are members of the HRC, they question reps of the state, 3 state reps write up the report
Resolution 1503 Procedure
o

17

Requirements:
There has to be a pattern of gross and reliably attested violations of human rights and
fundamental freedoms. It is basically the same idea as aforementioned.
However, the difference is that instead of having a general situation, one can raise an individual
case as part of a pattern.
o Type of procedure:
There is a private procedure. It goes through a whole process of sifting, but the idea is that the
best you can get out of this procedure, is that the representatives of the state answer questions in
front of representatives from other countries.
Human Rights Council Complaint Procedure. NGOs file a communication w/ UN High
Commissioner for Human Rights transmit the communication to the gov concerned to permit
it to respond.
Working Group on Situations. Examines communications, the replies of states, and
recommendations made by the Working Group on Communications present Council with a
report on any consistent patters/gross violations of human rights make recommendation to
Council re: action to take Council chooses any number of ways to address a situation (keeping
the matter under consideration, appointing special rapporteur to investigate the situation,
requesting that the situation be made public. All of this is confidential.
Is this procedure useful? It might be helpful for those types of cases where the violations arent so
grave, or the country is such that no matter what you do, youre not going to be able to put
together a coalition to pass a resolution.
Hasnt been used for social/economic; have been used for arbitrary detention cases and
widespread/systematic crimes against humanity
o Exhaustion of remedies?
If youre bringing an individual case, you have to exhaust remedies. Go through the domestic
court channels first, if possible.
o Time frame:
It typically takes one year to go through the process. This is not a quick way to go.
Out of this mechanism, you can get an option to keep the issue on the table. This may be the best
option. Once there is a determination of a case, there is no leverage for future discussions.
Oftentimes, if one is able to get the 1503 process through the system, and is talking with the state,
what that person wants is for the HumR Council to keep checks on that state.
One of the other options that can happen if it goes to the HumR Council, if the state doesnt
respond with positive steps to cooperate, is that the HumR Council can make the issue public, or
it can kick the whole set of communications over to the country-specific mechanism and try to
pass a resolution through the public arena.
Thematic Mechanisms (30 of them, created by Commission on HR and new Council)
o Introduction
They dont look at individual cases, but look at themes: housing, disappearances, etc.
Some are permanent, like the Working Group on Arbitrary Detention. Some groups are about
studying legal issues without set norms. Some groups are about creating norms and looking to
whether more specific instruments to implement norms. Some groups are concerned with
adjudication.
There is the possibility of country visits or individual communications with governments.
Usually, governments will say that they are dealing with the issue in some manner. There is a
dialogue process, which can be quite useful since it shows that the UN knows what is going on,
so the government is on notice that there is external scrutiny. Also, special rapporteurs can be
invited to visit countries to see what is going on. What are visits good for? You can see how
countries are faring, as far as the objective standards go. You can compare countries to other
countries.
Reports created by the rapporteurs are useful in a number of ways. They show what standards
should be followed; they provide examples of states that follow norms; etc. Sometimes, NGOs
o

18

o
o
o

will take it upon themselves to collect information and pass it along to the rapporteurs. These
reports can be so broad. What do governments have to do about the problem? Perhaps there can
be legislative changes, education initiatives. However, there also has to be enforcement
mechanisms and changes within society to accept changes.
Ways that Human Rights Advocates can use these mechanisms:
investigate and report on conditions in particular countries publicize an indiv case or
HR situation in a particular country. Two primary mechanisms available to Special
Rapporteurs:
o (1) Communications to Governments
Mechanism for HR advocates who choose to publicize a particular HR
case or exert pressure on gov to investigate the case
SR does not have independent enforcement power but communications
process allows her to exert diplomatic pressure on a country where HR
violations are taking place.
Creates useful record
o (2) Country Visit
insight into the HR situation in a country
meets with gov officials, victims, NGOs, HR defenders.
collecting and archiving global evidence comprehensive source of info about patterned
HR abuses.
developing legal norms.
Requirements:
Is a pattern necessary? something does have to fit into the theme, but a single violation may be
enough. As long as an issue fits into the theme of the rapporteur, it works. You dont necessarily
have to show that there is a pattern, as long as the case fits.
Type of procedure:
There are both public and private types of procedures. Letters are sent to governments, which are
not really public; however, reports are made public.
Exhaustion of remedies?
Not necessary. Since the mechanism is thematic, inquiries are examining overall phenomena, and
not specific cases.
Time frame:
There is no time frame. Depending on what youre looking at, a lot of these mechanisms have
urgent action components. Bu then again, it depends. The Rapporteur on Development doesnt
have urgency, unless with forced disappearances and torture and arbitrary detention.
Usually, the mandates are 2-3 years long, with the possibility of renewing them.
Almost always, the rapporteur will try to issue some kind of report yearly.
In some sense, the thematic mechanism is more informal that country-specific procedures. Yet,
there can be urgent actions that can be examined quickly. This is better than the 1503.
This is a low-budget operation, with not much support. The staff consists of the OHCHR.
Example of prisons systems
There are standard minimum rules that should be followed; they are based on soft law. Having
this knowledge, especially at the international level, little people in states like Iowa could bring
lawsuits regarding fair minimum standards, buttressing their international support at the domestic
level. this is useful as humR lawyers in the US using international standards for domestic cases.
Example of violence against women
What about Female Genital Mutilation and honor killings? How does culture fit into the role of
alleviating humR abuses? Is it imperialist to impose western beliefs onto other societies? How do
you acknowledge the functionality of certain practices without accepting them?
How should practices change? Not from the top-down. We should start looking at a collaborative
effort.
19

Who is doing this? What if women are supportive of it? Where do we draw the line? Are there
other ways to go about with the practices without a downside?
How do you get from private practice to state responsibility?
Many practices are committed privately, not by the state. When we first started talking
about humR abuses, we talked about how states commit them. If that is the case, how do
we get at responsibility for violence against women, which is committed at a private
level?
If states dont do anything, you may presume that they are tolerating it. To the extent that
the state does not protect individuals or take action to try and stop violence against
women, the state may be violating its obligation to protect. This idea that there are
positive obligations in international humR law, not just to state actions, but to private
parties, it goes to show that where the state is failing to take appropriate action, it gives
rise to state responsibility.
However, where is the line? Due diligence. Its not that every time something bad
happens the state is responsible. It is that the state has to use due diligence in preventing
and in punishing. If it doesnt, the state is on the hook.
In the case of violence against women, what can you do? You can penalize violence. You
can have education programs. You can have protection programs to prevent revictimization.
The move to positive obligations expands the purview of international humR law. A lot of
things that have not been thought about as falling under international humR law are now
in the hands of state responsibility.

II. REGIONAL SYSTEMS


Introduction
o Given that we have this fairly complex apparatus of UN mechanisms and treaty mechanisms, why would
we want regional mechanisms in addition to that? What do you get out of these systems that you dont get
out of the UN? There is economic integration and trade potential with fellow neighboring countries.
Sometimes, it is easier on a regional scale because there are fewer differences in terms of language,
culture, etc. Also, it might be easier to get consensus with fewer countries.
o Why is it that certain regions have systems and other regions dont? Resources, traditional relationships.
Some areas may not have uniformity you get with regional systems. For instance, Asia might not have
much homogeneity culture, religion, language, etc.
o pros: forum for advancing the claims of victims, for publicizing abuses, and for pressuring governments
to act.
o shortcomings: colonialism, racism and racial discrimination can block full social integration and equality
of all peoples. HR organs of the OAS lack sufficient resources to fulfill their mandates efficiently,
compliance with the Commission recommendations and Court judgements is inconsistent, few OAS
conventions have been widely ratified.
a. The Inter-American Human Rights System
There are three different organs of the Inter-American System:
o Organization of American States
political organ, like the GA (General Assembly). It does exactly the same thing as the GA does
it passes resolutions, has yearly meetings, has a whole set of agencies that have nothing to do
with humR.
This is the body that could authorize sending in troops.
It has developed a conflict resolution capability. It is like a mediator. When parties ask, the OAS
may send in OAS mediation to try and solve disputes.
OAS Human Rights Instruments
American Declaration on the Rights and Duties of Man
o sets forth a range of human rights covering civil, political, economic, social, and
cultural rights.
20

applies to all member states of the OAS


4 key Contributions:
concept that human rights inhere to the individual
concept of the integral nature of all human rights (civil, political,
economic, social, and cultural)
normative basis for protection for states no party to the Convention
correlation b/t rights and duties
American Convention on Human Rights
o transformed Declarations statements into obligations to be implemented into
domestic legal systems of states parties
o created the Inter-Am Court
o only applies to parties to the Convention
o NB: neither US nor Canada is party to the Convention
If you interpret a case involving the US or Canada, you cant apply the
Convention, since they are not parties to it. You must look to the
Declaration, instead. For any other state, you can use either.
o Two Additional Protocols
Additional Protocol to the American Convention on Human Rights
in the Area of Economic, Social, and Cultural Rights
Additional Protocol to the American Convention on Human Rights
to Abolish the Death Penalty
Inter-Am Convention Against the Illicit Manufacturing of and Trafficking in Firearms,
Ammunition, Explosives, and Other Related Material
Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes
Against Persons and Related Extortion that Are of International Significance
Inter-Am Convention to Prevent and Punish Torture
Inter-Am Convention on Forced Disappearance of Persons
Inter-Am Convention on Prevention, Punishment, and Eradication of Violence Against
Women
Inter-Am Convention on the Elimination of All Forms of Discrimination against Persons
with Disabilities
Inter-American Human Rights Court
Jurisdiction. Cases concerning states that are parties to the Inter-Am Conv and who have accepted
its jx (although this has never been invoked).
cant bind states to stuff to things that they agreed to before they accepted In-Am
obligations, BUT you can look at period between case and acceptance, AND if nothing
has been done (failure to investigate/prosecute) after the period of acceptance, can bring
the case as a denial of justice case
also has advisory jx
Effect of Decision. Decisions are legally binding on a state which has been found to violate its
obligations under the Convention.
Case can be submitted to the Court by either a state or Commission after full consideration before
the Commission.
Individual petitioners have standing to participate in Court proceedings, but they do not have the
right to submit a case to the Court directly.
Court provided with explicitly authority to order a gov to take provisional measures, and it can
order states to pay compensation to indiv whose rights have been violation as well as attorneys
fees and costs.
No specific enforcement mechanism, but OAS GA exerts considerable political pressure against
recalcitrant states, which can be effective.
Inter-American Human Rights Commission
o
o

21

principle human rights mechanism. This is made up of 7 individual, elected by states parties.
They are independent experts. They are elected to 4 year terms. They can come from any OAS
member state; almost always, a member is from the US.
What do they do? They do a lot of the same work that special rapporteurs do. They do fact
finding (country reports and thematic reports). They do visits (they must be invited). The fact
finding that theyve done has actually been useful (more so than much of what the UN has done).
individual petition mechanisms.
Pretty much anyone can ask the Commission to bring a petition. The Commissions
individual-petition mechanism is open to any person, groups of person, or NGOs. Third
parties are also allowed to file petitions. Why would you allow this process to be broad?
It comes out of the historical context. In the Americas in the 1970s, there was worry of
personal security, especially in South America. By having broad requirements, people
outside the country could bring communications on behalf of others who may not have
had the security or protection necessary to feel safe bringing a communication.
Problems arise when someone wants to bring a claim against a state not a party to the
Convention, but the claim arises from it. Another problem arises when someone tries to
use the Declaration; it is not a treaty. So, how can it be used as applicable law? The
Commission says that the Declaration is binding law because the Commission has
authority to look to humR, using as a basis the Declaration (based on OAS 1979 Res). As
you can imagine, the US governments reaction is, nuh uh it is not binding law.
Investigator, adjudicator, advocate.
It does fact-finding, including state visits.
It issues general reports, both on countries and themes.
It drafts treaties. There are about half a dozen humR treaties in the Inter-American
System.
It brings individual petitions, which all originate at the Commission.
Effect of Commission Recommendation
Commission is empowered to make recommendations to states, not to issue legally
binding judgments.
o just advisory, but some states have passed legislation that gives these
recommendations the force of law and allows enforcement in domestic courts.
o no enforcement mechanisms, but Commission presents an analysis in its annual
report of compliance by states with its recommendations
o States party to OAS Charter have to comply w/ recommendations of the
Commission.
o U.S./Canadian govs say recommendations are just recommendations there is
nothing that gives any binding force; not OAS Declaration or Convention has
binding force.
o HR lawyers have used the mechanisms provided by IACHR to pursue claims
related to the use of the death penalty in the United States.
Provisional/Precautionary Measures
o Equivalent of Temporary Restraining Order or injunction. Irreparable harm during the course of the
proceeding usually means that somebody is in danger OR witnesses/lawyers have been threatened and
want to step up pressure on the state to protect. Tell state to tell you w/in 30 days what measures that are
taking to prevent against this measure.
o Guantanamo case under this jx
o lets state know there is intl concern
Friendly Settlement
o settle the case instead of taking it to court; states increasingly use more and more as In-Am system has
become overburdened
o has to be initiated by one of the Parties
o can be money, non-monetary reparations

22

state might agree to do this b/c it might be considerably cheaper, looks good to be cooperating w/ the
Commission, discourage other states from bringing cases to the court
Reparations
o 3 stages
(1) Admissibility (whether you can bring case; explored exhaustion of remedies? etc)
(2) Merits (substance of the case)
(3) Reparations
o money damages for: property loss, personal injury (moral damages e.g. pain and suffering /
emotional harm and material damages e.g. medical bills, loss time at work and category of loss
of lifes project fact that you are not the same person now, lifes path has been involuntarily shifted to
some other course)
o injunction (order the state to do a bunch of things): tell state to change the law, disband the institution,
institute programs and services (e.g. tell the state to set up a health clinic build a school), symbolic
reparations (e.g. public apology, naming a street/school/day of remembrance, find the bodies, investigate
and prosecute those responsible biggest problem)
o

Case study: Velasquez-Rodriguez


o Facts: He was active against the government. He was picked up by armed men in a car with polarized,
dark windows with no license plates, and he disappeared. The family went through a process and
eventually ended up in the Commission. The Honduran government initially ignores the petition. The
commission sends a stronger letter, but there is nothing. There is a rule that if a state does not answer
within a reasonable period of time after something has been forwarded to them by the Commission, the
Commission may presume that the allegations are true. At this point, youll hear from the country. This is
a very useful rule.
o Before a case is admissible:
(1) You have to exhaust domestic remedies.
At least initially, the burden of proof is on the petitioner to show that he/she has
exhausted domestic remedies. In the case of a disappearance, how would you show that
you exhausted remedies? You could show that you filed criminal or civil actions.
However, the problem is that you dont really know who disappeared the person. Here,
the family does not know who to bring a complaint against the military? You could also
file habeas corpus. The family filed three habeas claims. But, this can be dangerous for
the family and lawyers. In this case, most of the family had to leave the country.
The government says that the family did not meet the legal requirements; the family
could come back with the information necessary to file claims. Also, the family could file
appeals, etc. there are so many things the family could do in the Honduran system. But
then, if the state says that remedies have not been exhausted, then the state must show
what remedies are left and how they would be effective. The remedies have to be
adequate and effective.
How does the evidence about other peoples disappearances fit into exhaustion of
remedies? You can use pattern and practice evidence to infer that remedies would be
ineffective. Going through the domestic legal system would be futile if the state does not
take action in other situations. This makes it easier to get over the hump of exhaustion of
remedies. Even if you didnt go through the process, it might be possible to show that the
legal system would not provide adequate remedies.
In the Inter-American system, there are specific reasons you dont have to exhaust:
o domestic law does not allow for due process
o there has been unwarranted delay in rendering a final judgment;
an unwarranted delay is when the state does not provide you with
answers, even though you consistently ask for answers. There is no cutoff determination of when an unwarranted delay kicks in. Basically, the
state will have to show that the case is moving along.
23

States failure to undertake effective investigations / adopt necessary measures to


protect against threats.
(2) Show a violation of the Convention or Declaration.
Interpretation. Commission can interpret and apply international humanitarian law (aka
law of war) in interpreting the American Declaration and In-Am Convention. Art 29(b)
of the American Convention.
(3) There cannot be duplicate claims.
(4) You have to file within 6 months (?)
Even when a case is admissible, the Commission has to decide that there is a violation. Then, the
Commission can decide to:
1) present the results of its findings to the state, and the state can fix the problem;
2) publish in its annual report, but decide not the go to the Court with the results of its findings; or
3) bring a case to the Court.
There are three conditions under which a case can go to the Inter-American Court:
(1) Only a state or Commission can bring a case. A person cannot directly go to the Court. Once
you get to Court, you can separately represent the petition.
(2) It is only state parties to the American Convention that can go to the Court. The US and
Canada, since they are not parties to the Convention, cannot go to the Court. You can only go to
the Commission.
(3) The state must specially accept jurisdiction.
Evidence for disappearances:
The legal requirements: There has to be an abduction; the fact that the abduction is
unacknowledged; and you dont know what happened o the victim he is never found.
This is not a new phenomenon, but there was a surge in the 1970s. States decided that it was
easier not to acknowledge detention or political prisoners, and simply make people disappear.
Then, states would not have to deal with groups like Amnesty International. Since there is no
official date of disappearances, they can be continuing crimes. Thus, there is no SOL since you
dont know when the crime ended, so you dont know when the cut-off date is. This is sort of
ironic because states decided to start doing this because they wanted to avoid political
inconveniences, but now, they can be on trial.
How is disappearance a violation of the American Convention?
One theory is that it harms the family. The effect is so awful that it constitutes a form of
torture, by itself.
Some violations include: arbitrary detention; right to life; right to humane treatment. The
Commission alleges numerous rights violations. You can put relevant provisions together
to make up a violation, even if one right, alone, does not constitute the entire law.
Evidence Assessment. youre not likely to get a lot of straight-up evidence; most of it will be
based on circumstantial evidence and examples of patterns. It is hard to get straight evidence on
disappearances since states try to get rid of the evidence. Given the nature of the violation, there
is a broad set of evidence rules that allows the petitioner to show: 1) a pattern, and 2) that the case
fits within the pattern. If you do that, that is enough to show the existence of a violation.
Court says: preponderance standard, up to Petitioner to prove it.
o Court emphasizes the fact that it is not a criminal court significant b/c dont
have to satisfy a higher standard (beyond a reasonable doubt standard relates
to quantum of evidence that you need).
o Court here looks at the silence of the state of Honduras never denied that this
was going on = admissible presumption of evidence.
Note: neither the Inter-Am Court nor the Commission has the authority to compel the
production of documents or witnesses.
States Obligations / Responsibilities
here, Honduras claims that there is nothing linking this whole bunch of evidence to the state.
Cant attribute it to the state.
o

24

Court looks at Convention Art. 1.1 (pg. 525) which sets forth obligation to protect /respect
(dont obligation) seems to imply obligation that your agents dont do bad things. Also
responsible for ensuring (positive obligation) rights. (other regional systems: Euro, Af, UN
Human Rights Committee Conventions contain the same ensure language to talk about positive
obligations)
re: ensure: have to organize state apparatus to prevent violations, and IF violations happen
despite best efforts, have to investigate and DO SOMETHING about it (e.g. prevent, investigate,
prosecute). Very broad obligation but do still have to show that there was a lack of due
diligence.
also includes taking precautionary measures to prevent crimes that it should know are
likely to occur.

b. The European System


Council of Europe:
o comes out of post-WWII, has 47 states in it (v. EU which only has 27 states has a lot of states that are
not a part of the EU)
o European Convention for the Protection of Human Rights and Fundamental Freedoms establishes
European Court of Human Rights.
European Court of Human Rights: applies European Convention on Human Rights and Fundamental Freedoms
+ 14 Protocols
o Jurisdiction. not necessary for member states to accept the jx of the court and the right of indiv petition
o court can receive applications from any person, non-governmental organization or group of individuals
claiming to be the victim of a violation of the rights set forth in the Convention or the protocols thereto
o Who can bring a case to the system
Victim Right of Individual Petition (Protocol 11)
compare In-Am: No Commission, go directly to the Court (has different chambers: Admissibility,
Merits, Grand/Appellate Chamber)
o Culture of Compliance. Members of Council of Europe are obliged to comply with ECHR decisions
under Art. 53 of the Convention.
o Reparations
damages less developed than In-Am; less likely to provide damages (with the exceptions of
takings cases), usually just money, says a lot of times judgment is just satisfaction / remedy in
and of itself
o Other Remedies. Modification of criminal record, acceleration of administrative and judicial
proceedings, repeal or revision of existing national legislation.
European Union
o 27 members, originally designed to facilitate economic and commercial integration in Western Europe by
creating a customs union and common market
o European Court of Justice
Established by the Treaty of Rome as a court of limited international jx charged with interpreting
and applying the treaty in disputes b/t member states of the EC or between the Commission of the
Community and one or more member states
Eventually evolved into transforming Treaty of Rome and secondary Community legislation into
law directly enforceable in cases brought by private parties in domestic courts.
EU law is supreme over domestic law
applies a bunch of treaties (e.g. Rome, Maastrum, Lisbon)
European System Protocol 14
try to streamline proceedings before the European Court. Admissibility decisions by
single judge, rather than panel. Criteria of disadvantage: victim has to show that they
have been significantly disadvantaged in order to proceed. Focused cases.
o Modalities of Protecting Human Rights Within the EU
Preventative Diplomacy and the Protection of Minorities (via bi-lateral treaties)
25

Regulation/Harmonization and the Rights of Disabled People (via adopted resolutions)


Protecting Human Rights Through Information-Gathering and Dissemination (via e.g. the
European Monitoring Centre on Racism and Xenophobia)
Organization for Security and Cooperation in Europe (OSCE)
o 56 states (includes U.S., Canada)
o Offers a forum for the diplomatic resolution of security issues, which are broadly conceived to include
human rights, democracy, and the rule of law.
o Originated in a general statement on human rights embodied in Principle VII of the Helsinki Final Ac (see
page 493)
o No judicial institutions and mandatory reporting mechanisms; more a diplomatic dynamic that operates
on the basis of a broad conception of security 3 dimensions:
politico-military
economic and environmental
human
High Commissioner for National Minorities (pg. 496)
Electing-observing and democracy
Human trafficking
o Human Dimension Mechanism
system of bilateral, multilateral, and conference-wide negotiations, supplemented by third-party
mediation and fact-finding processes (see pg. 495)
o Human Rights Monitoring Mechanisms
Vienna Mechanism: permits a participating State to raise questions relating to human rights
concerns in other OSCE States
Moscow Mechanism: provides for the creation of an ad hoc mission of indep experts to
investigate and assist in the resolution of the concerns identified
OSCE Rapporteur
Case Study: Jersild v. Denmark Free Speech under the Euro Convention
o Facts: Danish journalist decides to broadcast on radio, trying to present problem of xenophobia in
Denmark, goes after group of guys that make tons of inappropriate comments
o alleged to have violated Art 10 provision of the penal law re: aiding and abetting hate speech.
o ISSUE: how to reconcile/balance free speech and aiding and abetting hate speech/rights of others (i.e.
balancing of the RIGHT and the LIMITATION)?
consider: journalists intent, small fine, program intended for sophisticated and well-informed
television audience. That three levels of Danish courts had all agreed on the effects of the
program and balanced the interests involved (margin of appreciation).
o Art. 10(1): on surface, looks like violation of this provision re: oppression of freedom of speech
o BUT state invokes Art. 10(2) limitation/fallback clause: can be subject to limitations as proscribed by
law
o Analysis: pg 465 for analysis
(1) Is there a violation? YES.
(2) Proscribed by law? YES. (here, hate speech clause in the penal code)
State party of CERD treaty, and Art 4 of CERD says can prohibit hate speech
(3) Legitimate Aim? e.g. protection of public safety, rights of others, national security?
hardly ever the problem in these cases
(4) Necessary to Democratic Society for certain purposes?
this is where most of the problems take place
how do we know what is necessary in a democratic society?
o look at what state itself says states documents, stated policies, etc
margin of appreciation
rationale: want to give authorities first crack of what option best suits
national culture, national development etc

26

not necessarily outcome-determinative


Subsidiarity. Convention offers a machinery of last resort that is
subsidiary to national protection. Structural deference to national
authorities interpretations of their domestic law under the intl standard.
limited deference to regulations or policies that impinge on
intimate aspects of private life (e.g. sexual orientation and
identity)
greater discretion in matters affecting national security
Common reason that complaint under the Convention goes nowhere: no
grounds for invoking international remedies given the protections
assured under domestic law.
o regarding balancing / determining what is necessary: might look at how
other states balance, proportionality b/t ends and means (is it nec to go this far, is
there a less drastic way to remedy, etc), are the reasons given sufficient?, less
drastic alternatives?
this is not rational basis review; approaching strict scrutiny review
Court says: put a lot of weight on radio guy not identifying the speech, broadcast to an educated public,
radio guy did not mean to be broadcasting racist speech per se.

c. The African System and Economic, Social, and Cultural Rights--look at CESCR v. Nigeria
originated under the auspices of the Organization of African Unity (OAU). Created to address the abolition of
colonialism and apartheid. But no explicit reference to HR in its Charter until later.
o OAU African Union (AU)
Constitutive Act: places HR prominently on the regional agenda
New Partnership for Africas Development (NEP-AD): economic development program which
also places strong emphasis on HR / regional security.
African Peer Review Mechanism: empowered to address the HR practices of member
states. Goal: helping to adopt best practices, improve its policy making process, comply
with established standards and principles.
African Charter on Human and Peoples Rights: foundational document of Af regional HR system.
o articulates a greater range of economic, social, and cultural rights than is found in the basic European and
American Conventions including the right to work, right to heath, and right to health.
o member states obliged to recognize all rights in the Charter, and they undertake to adopt legislative or
other measures to give effect to them.
o wide endorsement of peoples rights
o imposes DUTIES and
claw back provisions: permit the breach of Charter obligations for reasons of public utility or
national security. criticism: allows gov to determine the scope of HR protections themselves,
opens the door for discretionary abuse, compare most intl HR conventions which contain specific
derogation clauses.
o Enforcement. African Commission on Human and Peoples Rights (ACHPR) reports to Assembly
of Heads of State and Government of the AU.
ACHPR receives communications alleging violations of the Af Charter (inter-state, individual,
organizational).
Private, but work increasingly becoming public/published and incorporated into Af HR
jurisprudence.
Can establish Working Groups, Focal Points, Special Mechanisms, or Special Rapporteurs.
Empowered to initiate proceedings in the Africa Court on Human and Peoples Rights
African Court of Human Rights
o empowered to hear cases brought directly by individuals and NGOs (unlike In-Am Court), BUT only
individuals or NGOs that have been granted observer status and have this power (unlike Euro).
27

unless the African states recognize the competence of the African Court to hear individual or
NGO petitions, cases that originate with the Commission will dominate the Courts docket.
o Far Substantive Reach. Empowered to apply any HR instrument that is ratified by the states concerned,
including universal treaties like CAT or regional instruments dealing with rights of refugees, children, or
women.
compare: Inter-Am and Euro which are limited by their governing conventions and protocols
minimum core obligation (Goorting, right to housing)
o ICESCR: essential levels of each right
o Af Constitution: access to adequate housing
26(2): positive obligation imposed upon the state. Requires state to devise a comprehensive and
workable plan to meet its obligations. Considerations: Obligation to
(1) Take reasonable legislative and other measures
(2) To achieve the progressive realization of the right
(3) Within available resources
Nigeria Case
o right to environment - what are the obligations on the state?
(1) respect: state cant do these things (polluting, dumping oil in the drinking water) = negative
right
(2) protect/ensure: state dont let others do (regulate, do environ impact assessments)
artificial hording, land-grabs
(3) promote: take positive action / allow others to do so = more positive
food stamps/subsidies, long-term support for agricultural production by poor people
(4) fulfill: long-term programmatic
S. Africa, India: how do you make these social/cultural rights justiciable? well-developed.
o right to housing/shelter:

III. THE INTERNATIONAL CRIMINAL TRIBUNALS


about INDIVIDUAL criminal responsibility; NOT state responsibility
o usually the remedy is a criminal law remedy; NOT a civil damages remedy
o rationale for international courts: heinous nature of crimes, courts destroyed, and these are crimes that
take place in a number of countries and the best way to deal with this is via a international military
tribunal
first line of defense when these crimes are committed are the national courts, but there have been instances when
national courts have been found wanting (e.g. if courts are not impartial or are destroyed)
other ways at getting at accountability for violations of HR in addition to criminal law
o overlapping areas of law: IHL, Intl Humanitarian Law (law of war), Intl Criminal Law
Nuremburg Charter:
o Individuals are criminally responsible
o Command Responsibility (need effective control over subordinates and know or have reason to know that
they are about to commit a crime or have committed a crime)
o Superior orders is no defense (but can serve as mitigation at sentencing)
o Crimes against peace = aggression (starting an aggressive war or war against treaties)
o War Crimes
o Crimes Against Humanity
objection that was raised: that they didnt exist, so prosecuting people for crimes that were not
defined as crimes at the time they were committed
Convention on the Prevention and Punishment of the Crime of Genocide
o GA adopted in 1948
28

definition: acts committed with the intent to destroy in whole or in part, a national, ethnical, or racial, or
religious group. Notably genocide, whether committed in time of peace or in time of war, is a crime
under international law which [the parties to the Convention] undertake to prevent and punish.
Geneva Conventions (1949)
o updated and codified changes in the law of war in the aftermath of WWII.
o

a. AD HOC INTERNATIONAL CRIMINAL TRIBUNALS


ICTY AND ICTR were created to try the perpetrators of the genocides, to resolve conflicts, and to promote
reconciliation.
o seek justice by demonstrating that the crime of genocide requires investigation, documentation, and
prosecution.
o deter future conflict and war crimes by demonstrating that no one is above the rule of law, and that such
heinous violations of international law will be tried and punished.
o provide an alternative to war for redressing serious human rights abuses by one group against another
o create and elucidate a rule of law under humanitarian and international criminal law.
o preserve lasting factual record of the crimes that occurred, thereby chronicling history for future
generations to safeguard against revisionist history and denial.
Courts were created under SC Chapter VII authority of the UN Charter
o SC can only exercise its power under certain circumstances e.g. acting in context of threat to
international peace and security
Advantages to a Chap VII Court:
stronger cooperation regime legal basis for saying that every state has to cooperate with
the court b/c arises under SC power
primacy: tribunal primacy over domestic and municipal judicial systems the courts get
to decide which cases they want
if do by treaty, might not be able to get the right countries to sign on in a timely matter
Chap VII action is automatically binding upon all UN member states
Complementarity
o Remote
o Effect on domestic system
o Cost
o Selectivity
ICTY
o Jurisdiction
the most serious human rights abuses, including grave breaches of the Geneva Conventions
violations of the laws and customs of war
crimes against humanity
genocide
o cynical view is that created b/c NATO did not want to put troops at risk. less cynical: by taking leaders of
this conflict off the political stage and bringing them to trial, can create basis of better dispensation.
ICTR
o April 1994: genocide in Rwanda; UN peace-keeping missions reduced
b. HYBRID INTERNATIONAL TRIBUNALS
Established through UN agreement with host state, not Chap VII.
cons: money comes from voluntary funds; continual struggle for adequate funding
Special Court for Sierra Leone
o UN created to prosecute these that bore the most responsibility for the mass amputations, killings, and
rapes that occurred during Sierra Leones decade-long civil war in the 1990s.
o jurisdiction:
29

international: mandate to prosecute persons who bear the greatest responsibility for serious
violations of international humanitarian law and Sierra Leonean law e.g. international offenses
of crimes against humanity, war crimes, other serious international humanitarian law violations
concerning civilians and child soldiers
domestic criminal offenses under Sierra Leonean law: e.g. sexual offenses against girls, wanton
destruction of property.
o hybrid court:
reflects both national and international influences in its subject matter jx, its judges, and its
location
mix of international (appointed by the UN SG) and national judges
o rationale: keep process close to people most affected by the conflict, can engage in outreach activities,
incorporation of intl norms into domestic systems
o supplemental to ICC work
o transition: Lome Peace Accords and South African Truth and Reconciliation Commission
Cambodia
o UN reached tentative agreement with Cambodian gov to create a hybrid criminal tribunal to try former
Khmer Rouge leaders, who were responsible for the deaths of over one million Cambodians in the 1970s.
o Jurisdiction: genocide, crimes against humanity, grave breaches of the 1949 Geneva Conventions.
East Timor
o human rights abuses surrounding its movement toward independence
Kosovo

c. INTERNATIONAL CRIMINAL COURT


unlike ICTY and ICTR (set up w/in framework of the UN), ICC is an independent court established by a treaty
consisting of an Assembly of States Parties that signed and ratified the Rome Statute
Civil Redress: available to victims once the perpetrator of a crime has been convicted.
Other Reparations: restitution, indemnification, rehabilitation
Jurisdiction
o Cut-Off Date: July 2002 (no jx over anything before)
o mandated to prosecute only those bearing the greatest responsibility for enumerated crimes (genocide,
crimes against humanity, war crimes, crimes of aggression)
o State Party to the Rome Statute + lodge a declaration of acceptance of ICCs jx
U.S. signed Rome Statute, but George W. withdrew U.S.s signature on May 6, 2002.
o Art. 13. ICC may only exercise jx when
(1) one or more such crimes is referred to the Prosecutor by a State Party
(2) one or more such crimes is referred to the Prosecutor by the Security Council acting under
Chapter VII of the UN Charter (can refer w/ no pre-conditions)
(3) Prosecutor has initiated an investigation in respect of such crime
Complementarity
o ICC is a back-up (court of last resort) only kicks in when national courts are unable or unwilling
to investigate and prosecute international crimes committed in their territories or by their nationals
can be any state that has jx can be based on if have jx over nationality of D OR Universal Jx
unwilling (Art 17)
sham trial, no indep judiciary, no prosecution
if claim not enough evidence to go forward, Pros has BoP of showing that review of
evidence was corrupted.
o want to give national courts the first crack
o safeguard against rouge prosecution
crime of aggression (in addition to genocide, crimes against humanity, war crimes)
o once crime of aggression is defined, it will be w/in jx of the court
o here, agreement that SC has to play a central role b/c of language of Chap VII
30

o working group on aggression


Pre-Conditions
o if state indep prosecutor:
(1) territorial OR
(2) nationality of accused
o Security Council can refer w/ no pre-conditions
Independent Prosecutor
o pre-trial chamber (Art 13)
o SC reverse veto on prosecutors (Art 16)
Criminal Procedure Provisions
o heavily influenced by U.S. Criminal Procedure (basic due process protections except jury trial
provisions).
o Some other influences from criminal procedures from civil law countries right of appeal by either party,
much greater role for victims than in U.S., possibility of awarding reparations for criminal conviction)
o No immunities (head of state)
o No SOL
o Amnesty not addressed; statute is silent on this matter nobody could come up with wording that people
could agree on, so decided to let the court figure it out on a case-by-case basis
How Prosecutor Decides Which Cases to Take
o state, SC, Office of the Prosecutor refers + meet preconditions
o crime w/in jx
o complementarity requirements show that the national courts are not already adequately investigating
and prosecuting and found person guilty/innocentexcept if proceedings were or the purpose of
shielding the person
o temporal jx crimes have to have occurred after July 1, 2002
no deferral by SC
Iraq Referral Example
o crime w/in jx of the court? could have systematic torture, commission of a war crime, tax on mil target
that is disproportionate to the goal
o complementarity? Yes
o temporal? Yes
o no deferral? Yes
o preconditions / admissibility? Iraq, US, UK NO b/c dont have requisite level of gravity
Art 53 (gravity): gravity of crime, interests of victims (safety if they step forward and tell the
story, etc), age/infirmity of alleged perpetrator (why bother if they are going to die on you)
reason to believe that investigation would not serve the purposes of justice taking does not
seem to be a positive requirement to take a case; seems to be more of a negative requirement for
considerations for not taking a case. number of victims is a key consideration in this analysis.
HERE, seemed to turn gravity into another pre-requisite.
rationale: OTP found itself trying to figure out how to justify why going into one place
and not another when there were so many problems out there that fit all of these
requirement question of how we dont make this look arbitrary.
dont have the resources to exam every case e.g. Columbia, Ivory Coast (torture),
Central African Republic (rapes, etc)
only way that they came up with was to do a head count as part of the methodology to
determining gravity.
o interests of justice considerations?
ICC Statute give Prosecutor the power not to investigate or prosecute when doing so would not
serve the interests of justice e.g. undermine ests interests of victims, communities, and
governments, or place them at risk of more violence
31

Separate Investigations in Africa (all same area / contiguous, resentment b/c African gov wants to know why not
going after other countries, by definition of GRAVITY set forth above this is where most of the problems are)
o Sudan
o Uganda
o DRC
o Central African Republic (rape, crimes of sexual violence)
Structure of the ICC (see pg. 422 425)
o Presidency
o Appeals Division
o Trial Division and Pre-Trial Division
o Registry
Checks, Balances, and Limitations (see pg. 428 429)

32

MISCELLANEOUS
A. TRANSITIONAL JUSTICE / TRUTH COMMISSIONS
[natl prosecutions, universal jx prosecutions, ICC, ad hoc intl tribunals, hybrid tribunals, civil law suits (ATS/intl
civil court) focus on criminal prosecution of offenders]
other options (in addition to prosecutions)
o reparations
o release prisoners
o property restitution/compensation
o archives / documentation
o educational reform
o (general) reform aka guarantees of non-repetition so that the structure will provide that this will not
happen again
o memorialization
o amnesty v. prosecution (criminal) / civil suits
S. Af Truth Commission was the only one that did this kind of amnesty
o vetting / cleansing security
definition: scrutiny of a persons past conduct for the purposes of removing individuals
responsible for crimes and serious misconduct from public sector posts or preventing them from
being appointed to these posts.
one part of larger process of institutional reform usually accompanied by reform of selection,
appointment, promotion, disciplinary and dismissal procedures
challenges: easily manipulated, affects access to and distribution of power so system adopted
must be transparent, coherent, and protected from manipulation
Iraqs De-baathification System
o Truth Commissions
definition: authoritative record of events; common goal of investigating, documenting, and
publicizing the past.
Argentina (1980s) since then 20-30 of these alternative b/c often not enough courtrooms,
lawyers, witnesses, or time to prosecute all those who deserve it.
Mandates when drafting, need to consider:
how far into the past will the commission look
scope of commissions investigations
law to be applied / how it will be constituted
whether findings can be used for prosecution
issues in putting together a Truth Commission
naming perpetrators
lots of cases, pick a few emblematic cases, look for patterns
private v. public issue
w/ exception of Peru, Latin American Commissions have been private b/c people would
be scared to come forward b/c of retaliation
African truth commissions usually public
El Salvador Truth Commission:
substantial international participation, sometimes from the United Nations
focused exclusively on IHR and humanitarian law as sources of law
Commission applied same international human rights standards to the activities of the
FLMN as it did to the Salvadorian gov
o what level of control by insurgents over a territory is necessary?
o what HR obligations are binding on the insurgent group
33

what are the consequences of this conclusion for the development of international
human rights law
controversy re: naming
South Africa Truth Commission:
wholly domestic
if talked, get amnesty, if dont prosecution problem b/c there was no penalty for not
coming forward (challenges of immunity / amnesty)
Azapo: SA amnesty covers civil suit in addition to criminal prosecution
o gov will be providing reparations BUT problem: kind of reparations that gov
gave were $3500, 5 years late, gov grumbling/b*tching about having to do it.
o

B. HUMANITARIAN INTERVENTION / USE OF FORCE


what happens if other non-violent mechanisms for addressing humanitarian situations fail?
o send in marines/Blue Helmets in what situation should you do that?
humanitarian intervention implicates two powerful principles:
o obligation to protect human rights under CIL and conventional intl law
o concept of exclusive domestic jx / peaceful resolution of disputes
UN Charter
o allows the use of force in very limited circumstances
o Art. 2(4) (prohibition on the use of force): all members shall refrain in their international relations from
the threat or use of force against the territorial integrity or political independence in any state or in any
other manner inconsistent with the principles of the UN.
exception: self-defense (Art. 51)
o Art. 2(7): nothing in the Charter provides for intervention in the affairs/internal matters of another state
unless you get authorization under Chapter VII.
can argue that Chap VII allows for this in event of threat to peace and security, act of aggression,
etc.
Kosovo
o massive violations of human rights, SC considers situations deadlocked
o can get around Art. 2(7) by arguing that humanitarian violations are not an internal matter
o can get around Art. 2(4) by arguing that it is not applicable b/c not intervening to change the territorial
integrity of the state; intervening for humanitarian purposes.
alternatively: sovereignty is not violated / state should not be give poriatives of sovereignty b/c
state leaders are committing human rights violations
o collective self-defense: authorized until the SC acts
imminent threat?
resolved proportionately?
anticipatory self-defense? (not much weight)
o regional organization (Chap VIII)
ECOWAS, NATO, OAS
BUT need SC authorization to use this
If can get Chap VII Authorization for HI concerns:
o one of five permanent members vetoes OR they might get together and authorize for wrong / nonhumanitarian reasons
o is this imperialism in another form?
HI justified under Customary International Law (instead of Charter)?
o state practice
o ICJ in Nicaragua case seems to come to the conclusion HI not CIL
What if cant get SC Authorization and go in anyway?
o implicit authorization: if after the fact, SC approves (ex post facto) ok. e.g. Kosovo illegal but
legitimate
34

argument that after Kosovo, the norm set forth in Charter changed more flexibility in
interpretation now new norm?
Responsibility to Protect
o background: authorized, but have been a number of circumstances since the Millennium Summit where
this has not been applied (e.g. Burma cyclone, Darfur)
o Factors
just cause large scale loss of life, large scale ethnic cleansing
right intention mixed motives ok
last resort
proportionate means
reasonable prospect for success is it going to do more harm than good, e.g. triggering a larger
scale war?
right authority
SC if possible
Regional organization + subsequent SC authorization
General Assembly Uniting for Peace Procedure
o heads of State and Government endorse it in the 2005 World Summit Outcome Document, but since 2005,
numerous humanitarian crisis have erupted, and no forcible military intervention by other states in these
crisis has occurred.

C. CORPORATE ACCOUNTABILITY
most IHR law has to do with states and their relationships with inhabitants in their territory; state obligation, state
responsibility, individual rights vis a vis the state, but war crimes also can be committed by non-state actors w/o
having to show any state action.
ATS cases: certain kinds of violations of intl criminal law which dont nec need to implicate states
Universal Human Rights (talks about stuff beyond states it in the preamble) non-binding
o ICCPR/ICER (binding) dont talk about this
ISSUE: should corporate actors have any responsibility for human rights protection?
o argument for: globalization, local supply chains start having actors that are active in a bunch of different
national forum that have various abilities to regulate
o question of: how far do you cast the web? (include subsidiaries, banks, suppliers)
2 models
resource extraction model (JV of a bunch of different subsidiaries tied to home country)
manufacturing model (e.g. sweatshops - network model; home office and manufacturing
done by contractors and subcontractors all over the world. Subcontractors work for a
number of different corporations)
Litigation: (see presentation notes)
Alternatives to Litigation
o consumer pressure
positive market differentiation
negative boycotting
only some goods
price differentials = luxury good
o investors
socially responsible industries (SRI) pension funds/codes of conduct in place (pos), can get
divested from (neg)
o employee morale

35

CASE LAW ATS JX


Abdullahi v. Pfizer
Facts: Nigerian children and their guardians sued drug company under the Alien Tort
Statute, alleging that drug company violated a customary international law norm
prohibiting involuntary medical experimentation on humans when it tested an
experimental antibiotic on children in Nigeria, including themselves, without their
consent or knowledge.
HOLDING:
o (1) prohibition on nonconsensual medical experimentation on human beings
constituted a universally accepted norm of customary international law, and
consequently an alleged violation thereof fell within jurisdiction of Alien Tort
Statute, and
o (2) state action element of claim against drug company under Alien Tort Statute
was adequately alleged.
FOR / DISTINGUISH
o In Concert with Gov. here, Pfizer working in concert with Nigerian government officials
o Known Harmful Side Effects. animal tests showed that Trovan had life-threatening side
o

effects, including joint disease, abnormal cartilage growth, liver damage, and a
degenerative bone condition.
Informed Consent and Disclosure. failed to secure the informed consent of either the
children or their guardians and specifically failed to disclose or explain the experimental
nature of the study or the serious risks involved. Although the treatment protocol required
the researchers to offer or read the subjects documents requesting and facilitating their
informed consent, this was allegedly not done in either English or the subjects' native
language of Hausa.
Administrative Approval in Host Country. Pfizer claimed that it obtained requisite
approval, but IDH had no ethics committee.

AGAINST: children in this case were actually sick / in the hospital, not some random
orphanage
To Show CUSTOM, Ps depended on
o Nuremberg Charter
o Brandt, 2 Nuremberg Trials fifteen doctors who were found guilty of war crimes and crimes
against humanity for conducting medical experiments without the subjects' consent.
Among the nonconsensual experiments that the tribunal cited as a basis for their
convictions were the testing of drugs for immunization against malaria, epidemic jaundice,
typhus, smallpox and cholera. The judgment concluded that [m]anifestly human
experiments under such conditions are contrary to the principles of the law of nations as
they result from usages established among civilized peoples, from the laws of humanity,
and from the dictates of public conscience. The Code created as part of the tribunal's
judgment therefore emphasized as its first principle that [t]he voluntary consent of the
human subject is absolutely essential.

o
o
o

Helzinski

Council for International Organizations of Medical Services Guidelines (CIOMS)

ICCPR

District Court found these did not rise to the requisite CIL level b/c:
o with the exception of the Nuremberg Code, these sources contain only aspirational or
vague language lacking the specificity required for jurisdiction.
o because the United States did not ratify or adopt any of these authorities except the
ICCPR, and because even the ICCPR is not self-executing, none of them create binding
international legal obligations that are enforceable in federal court.
o plaintiffs failed to provide a proper predicate for ATS jurisdiction because none of the
sources independently authorizes a private cause of action and the inference of such a
cause of action is a matter best left to Congress.

Second Cir says this analysis is misapplied b/c Sosa


36

requires a more fulsome and nuanced inquiry. Courts are obligated to examine how the
specificity of the norm compares with 18th-century paradigms, whether the norm is
accepted in the world community, and whether States universally abide by the norm out of
a sense of mutual concern. By eschewing this inquiry, the district court did not engage the
fact that norms of customary international law are discerned from myriad decisions made
in numerous and varied international and domestic arenas and [do] not stem from any
single, definitive, readily-identifiable source.
o In addition to instruments cited by P, also point to:
incorporation of this norm into the laws of this country and this host of others is a
powerful indication of the international acceptance of this norm as a binding legal
obligation, where, as here, states have shown that the norm is of mutual concern by
including it in a variety of international accords.
United States law requires that, as a predicate to FDA approval of any new drug,
both American and foreign sponsors of drug research involving clinical trials,
whether conducted here or abroad, procure informed consent from human subjects.
21 C.F.R. 312.20, 312.120 (2008);
Dep't of Health & Human Servs., Office of Inspector Gen., The Globalization
of Clinical Trials
European Union embraced the norm prohibiting nonconsensual medical
experimentation through a 2001 Directive passed by the European Parliament and
the Council of the European Union
Since 1997, thirty-four member States of the Council of Europe have also signed the
Convention on Human Rights and Biomedicine, a binding convention and a
source of customary international law.
o In 2005, the General Conference of the United Nations Educational,
Scientific and Cultural Organization (UNESCO) adopted the
Universal Declaration on Bioethics and Human Rights
Consideration of Custom involves matters of mutual concern to states - those involving States'
actions performed ... towards or with regard to the other / or that of which States are separately
and independently interested. Filartiga, Flores.
o An important, but not exclusive, component of this test is a showing that the conduct in
question is capable of impairing international peace and security. Flores
o 2nd Cir says satisfies via States throughout the world have entered into two express and
binding international agreements prohibiting nonconsensual medical experimentation: the
ICCPR and the Convention on Human Rights and Biomedicine.

o
o

threat to intl peace and security:

The administration of drug trials without informed consent on the scale alleged in the
complaints directly threatens these efforts because such conduct fosters distrust and
resistance to international drug trials, cutting edge medical innovation, and critical
international public health initiatives in which pharmaceutical companies play a key role.
o impairing our relations with other countries. failure to secure consent for human
experimentation has the potential to generate substantial anti-American animus and
hostility.
STATE ACTION
o A private individual will be held liable under the ATS if he acted in concert with the state,
i.e., under color of law. Kadic.
o the Nigerian government:
provided a letter of request to the FDA to authorize the export of Trovan
arranged for Pfizer's accommodations in Kano
facilitated the nonconsensual testing in Nigeria's IDH in Kano.
o Despite overcrowding due to concurrent epidemics, the Nigerian government extended the
exclusive use of two hospital wards to Pfizer, providing Pfizer with control over scarce
public resources and the use of the hospital's staff and facilities to conduct the Kano test,
to the exclusion of MSF.
o Nigerian doctors as part of Pfizer's research team. The American and Nigerian members of
Pfizer's team allegedly jointly administered the Kano test.

37

policy for corp


o Pharmaceutical companies recognize the potential benefits of drug trials to poor nations
o

In addition to assisting with the Kano test, Nigerian officials are alleged to have conspired
to cover up the violations by silencing Nigerian physicians critical of the test and by backdating an approval letter that the FDA and international protocol required to be provided
prior to conducting the medical experiment.

and have sought to promote access to medicines and health care in underserved
populations through philanthropy and partnership with governments and NGOs.
initiative by worldwide pharmaceutical industry to further access to medicines; build
capacity of health workers in developing nations; advocate for global action to address
health challenges; and continue R & D to develop new tools to fight diseases that plague
the developing world
this trend offers the possibility of enormous health benefits for the world community. Lifesaving drugs can potentially be developed more quickly and cheaply, and developing
countries may be given access to cutting edge medicines and treatments to assist
underresourced and understaffed public health systems, which grapple with lifethreatening diseases afflicting their populations.
The success of these efforts promises to play a major role in reducing the cross-border
spread of contagious diseases, which is a significant threat to international peace and
stability.

DISSENT:
o Custom: says that the instruments cited by the MAJ to demonstrate CIL are not firm but

instead are express the sensibilities and the asserted aspirations and demands of some
countries or organizations, NOT statements of universally recognized legal obligations
as required for a finding of ATS Jx. Falls short no worldwide, multi-continental,
universally applicable Convention Against Medical Experimentation.
ICCPR is not appropriate evidence of customary international law for at least two
reasons. First, the Supreme Court in Sosa explicitly described the ICCPR as a wellknown international agreement[ ] that, despite [its] moral authority, ha[s] little
utility under the standard set out in this opinion, because the United States
ratified [it] on the express understanding that it was not self-executing and so did
not itself create obligations enforceable in the federal courts. does nothing to show
that a norm prohibiting involuntary medical experimentation applies to non-state
entities.
Convention on Human Rights and Biomedicine. Regional agreement, lacks
universality, not ratified by most influential states in the EU, promulgated after the
conduct at issue.
Multinational Declarations of Principle (World Medical Association's Declaration of
Helsinki and the International Ethical Guidelines for Research Involving Human
Subjects promulgated by the Council for International Organizations of Medical
Sciences). Flores held was insufficient to show binding custom.
Nuremberg Code. The Code surely has evidentiary value in our inquiry, but there is
nothing to indicate that the Code establishes a norm of international law prohibiting
non-consensual medical experimentation or treatment by private actors, or
compensates for the virtually non-existent evidentiary value of the other sources
cited by the majority.
Matter of mutual concern: not enough, however, that tortious conduct could create some
sort of international consequence. In order for conduct to be a matter of mutual concern, it
must threaten serious consequences in international affairs. Sosa.
Matters are of mutual concern when they affect the relationship between states or
between an individual and a foreign state, and [are] used by those states for their
common good and/or dealings inter se. IIT, 519 F.2d at 1015.
compares it to assault of an ambassador, which could satisfy this concern because
the assault impinge [s] upon the sovereignty of the foreign nation and if not
adequately redressed could rise to an issue of war.

NO UNIVERSAL JX
38

Universal Jx permits a State to prosecute an offender of any nationality for an


offense committed outside of that State and without contacts to that State.
Restatement (Third) of Foreign Relations Law of the United States 404 authorizes
universal criminal jurisdiction over non-state entities for certain offenses
recognized by the community of nations as of universal concern, such as piracy,
slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps
certain acts of terrorism, even where [no other basis of jurisdiction] is present.
Non-consensual medical experimentation is not sufficiently similar to these
crimes to warrant its incorporation into section 404 by analogy.
404 lists only five specific acts for which universal criminal jurisdiction over
private actors exists: piracy, genocide, slave trade, war crimes, and attacks
on aircrafts.
federal courts could not try an alleged airline bomber under customary
international law principles of universal jurisdiction. Yousef.
admits that slavery and/or torture could be a viable analogy to medical
experimentation, but for these torts, only state actors are implicated.
compare with Nazi Doctor case, administered by state actors war crimes
and crimes against humanity.
STATE ACTION

usual analysis
state action must be premised upon the fact that the State is responsible for that
specific conduct. Horvath v. Westport Library Ass'n, 362 F.3d 147, 154 (2d Cir.2004)
Determining state action in these cases requires tracing the activity to its source to
see if that source fairly can be said to be the state. Leshko v. Servis, 423 F.3d 337,
340 (3d Cir.2005); see also Hadges v. Yonkers Racing Corp., 918 F.2d 1079, 1082-83
(2d Cir.1990).
The Supreme Court has described the typical case raising a state-action issue as
one in which a private party has taken the decisive step that caused the harm to
the plaintiff, and the question is whether the State was sufficiently involved to treat
that decisive conduct as state action. NCAA v. Tarkanian, 488 U.S. 179, 192, 109
S.Ct. 454, 102 L.Ed.2d 469 (1988).

Forum Non
o District court specifically rejected the plaintiffs' claim that Nigeria was an inadequate
forum on the basis of its widespread corruption and bias. Although noting that "Nigeria is a
nation experiencing difficulties in its transition from a dictatorship to a democracy," the
court characterized the plaintiffs' claims as "most general" and "conclusory." --Absent
substantiation of these allegations through the production of significant evidence of
corruption and bias associated with the adjudication of similar claims so severe as to call
the adequacy of the forum into doubt, the court refused to assess the sufficiency or
supervise the integrity of Nigeria's courts.

Presbyterian Church
Facts: Southern Sudan Ps claim that Talisman, a large Canadian energy company,
collaborated with Sudan in ethnically cleansing civilian populations surrounding oil
concessions located in southern Sudan in order to facilitate oil exploration and extraction
activities.
o Sudan classified by the United States as a state sponsor of terrorism pursuant to
the Intl Emergency Economic Powers Act on its record of terrorism and on the
prevalence of human rights violations including slavery and restrictions on
religious freedom
Distinguish
o Govs oil development policy and its violent campaign against ethnic and religious
minorities were inextricably linked from the beginning. (use $ from oil to pay for
weapons to intensify its jihad against the sourthern population).
Questionable / potentially similar
39

State conditions. Sudan classified by the United States as a state sponsor of


terrorism pursuant to the Intl Emergency Economic Powers Act on its record of
terrorism and on the prevalence of human rights violations including slavery and
restrictions on religious freedom
o Companys Relationship with the Government. Ps contend that Talisman worked
with the Government to devise a plan of security for the oil fields and related
facilities.
distinguish:
Talisman hired its own military advisors to coordinate military
strategy with the Government, had regular meetings with Sudans
army intelligence unit during which parties would discuss how to
dispose of civilians / ethnically cleanse areas in which Talisman
intended to operate. T aware/had knowledge of that govs
protection of oil operations entailed ethnic cleansing or genocide.
T build network of all-weather road for gov to use to launch military
offenses against civilian targets
ATCA ANALYSIS
o Confers Federal Subject Matter Jurisdiction: the district courts shall have original
jx of any (1) civil action by (2) any alien for a (3) tort only, committed in (4)
violation of the law of nations* or a treaty of the United States5
o in order to be actionable under the ATS, a Ds conduct must violate wellestablished, universally recognized norms of international law. 6 Filartiga.
Courts must interpret international law not as it was in 1789, but as it has
evolved and exists among nations of the world today. Sosa.
These 18th-century paradigms consist of offenses against ambassadors,
o

violations of the right to safe passage, and individual actions arising out of
piracy. The common theme among these offenses is that they contravened
the law of nations, admitted of a judicial remedy, and simultaneously
threatened serious consequences in international affairs.

corporations can be held liable for jus cogens violations of international law if
had the requisite specific intent to commit criminal action.
Subject Matter Jx. Bigio v. Coca-cola Co
o Ps (Canadian citizens and Egyptian corporation) claim that Egyptian gov
unlawfully seized their property in Egypt b/c they were Jewish. Coke allegedly
purchased or leased Ps property with full knowledge of the unlawful manner in
which it was seized.
o 2nd Cir HELD: no subject matter jx b/c unclear that Cokes acts actually violated
intl law discriminatory appropriation (and Cokes knowledge thereof) was
reprehensible, but was not an act of universal concern or a jus cogens
violation.
Indirect Liability (via aiding and abetting) United Kingdom v. Tesch, Unocal,
o British military court condemned supplier of Zyklon B for violations of the laws
and usages of war for supplying poison used for mass execution in many
German concentration camps.
o ICTY and ICTR also have established liability for those who have planned,
instigated, ordered, committed, or otherwise aided and abetted in the planning,
preparation, or execution of a crime.
o In Khulumani v. Barclay National Bank, Ltd., 504 F.3d 254 (2d Cir.2007) (per curiam), we
held that the ATS conferred jurisdiction over multinational corporations that purportedly

Alien Tort Claims Act, 28 U.S.C. 1350


Kadic v. Karadzic, 30 F.3d 232, 239 (2nd Cir. 1995)(quoting Filartiga v. Pena-Irala, 630 F.2d 876, 888 (2nd
Cir. 1980)
6

40

collaborated with the government of South Africa in maintaining apartheid because they
aided and abetted violations of customary international law.
In Vietnam Ass'n for Victims of Agent Orange v. Dow Chemical Co., 517 F.3d 104 (2d
Cir.2008), we concluded that the ATS did not support a claim that the defendants violated
international law by manufacturing and supplying Agent Orange and other herbicides used
by the United States military during the Vietnam War.
We reasoned that the sources of law on which the appellants relied did not define a
norm prohibiting the wartime use of Agent Orange that was both universal and
sufficiently specific to satisfy the requirements of Sosa.
in Mora v. People of the State of New York, 524 F.3d 183 (2d Cir.2008), we held that the
norm at issue-one that prohibits the detention of a foreign national without informing him
of the requirement of consular notification and access under Article 36(1)(b)(3) of the
Vienna Convention on Consular Relations-was insufficiently universal to support a claim
under the ATS.

Joint Liability Acting Under Color of Law. Wiwa v. Royal Dutch Petroleum Co.
o human rights violations of a foreign state could be imputed to a corporation
operating in the country.
o to determine, court analogize 1983 jurisprudence. Pfizer.
Nexus between the State and the challenged action may exist for purposes of Alien
Tort Statute or 1983 where a private actor has operated as a willful participant in
joint activity with the State or its agents, or acts together with state officials or with
significant state aid. 28 U.S.C.A. 1350; 42U.S.C.A. 1983.

Join Action Test: private actors are considered state actors if they are willful
participants in joint action with the State or its agents. where there is a
substantial degree of cooperative action between the state and private actors in
effecting deprivation of rights, state action is present.
substantial degree of cooperative action in this case: payments to Nigerian
gov, corporate contracts for purchase of arms, coordination with Nigerian
gov with respect to certain military attacks on civilians.

Flores v. S. Peru Copper Corp


Facts: Ps (relatives of deceased Ilo residents) bring personal injury claims under ATS
against Southern Peru Copper Corporation, a United States company alleging that
population from SPCCs copper mining, refining, and smelting operations in and around
Ilo caused Ps or their decedents severe lung disease. Assert that it is a violation under
CIL to right to life, right to health, and right to sustainable development.
No Subject Matter Jx (just cogens or CIL)
o right to life and right to health are insufficiently definite to constitute rules of
CIL
o rule of CIL asserted: must be clear and unambiguous / specific, universal, and
obligatory cannot be established by reference to abstract rights and liberties
devoid of articulable or discernable standards and regulations. 7
Cannot be vague and aspirational states need to take significant uniform
steps to put it into practice.
o court says Ps references to right to health in UDHR, ICESCR, and Rio
Declaration on Environmental and Development = boundless / indeterminate / does
not rise to the level necessary to ripen into CIL required.
o forum non conveniens? anywhere else that provides an adequate alternative forum
for Ps claims [prob will lose on this one b/c Babaio courts are corrupt]
Dismissal on forum non conveniens grounds is not appropriate if an
adequate and presently available alternative forum does not exist; a forum in
which defendants are amendable to service of process and which permits
litigation of the dispute is generally adequate, but such a forum may
7

Hilao v. Estate of Marcos, 25 F.3d 1467, 1475 (9th Cir. 1994)

41

nevertheless be inadequate if it does not permit the reasonably prompt


adjudication of a dispute, if the forum is not presently available, or if the
forum provides a remedy so clearly unsatisfactory or inadequate that it is
tantamount to no remedy at all. Pfizer.
Burdens
Plaintiff bears the initial burden of producing evidence of corruption, delay

or lack of due process in the foreign forum;


The defendant bears the ultimate burden of establishing that a presently
available and adequate alternative forum exists, and that the balance of
private and public interest factors tilts heavily in favor of the alternative
forum. PT United Can Co. v. Crown Cork & Seal Co., Inc., 138 F.3d 65, 74
(2d Cir.1998).

42