Professional Documents
Culture Documents
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
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
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
(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.
8
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.
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.
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
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)
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
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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
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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.
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
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.
26
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:
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
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
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
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
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
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.
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
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
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
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
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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
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.
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