International Human Rights Law (Fall 2012)

Professor Schnably

Exam Period Questions


(Q) On one of your practice exams, you have the question about how would an international court deal with a conflict between U.S. law and international law? Do you have any advice on where to look for thinking about this? I would assume an international court really wouldn’t care if there were a conflict between U.S. law and international law; a Commission or Court would make a decision, and it it would just tell the United States to change its domestic law, but its recommendations would not have any binding effect on the United States.

(A) I would look to the Vienna Convention, especially, Art. 27 (TS 264). On the binding effect of an international body -- it depends. The UN Human Rights Committee gives its “views” for example. But where a state has consented to the jurisdiction of the Int-Am. Court of Hum. Rts, its judgments are binding. See art. 62 (TS 399).

(Q) On a practice exam you have a response question about how it would be better to consolidate the many treaty-based Committees into one Committee. I think this is a good idea. A woman, who was also a racial minority, was tortured, could bring her claims in front of the CEDAW Committee, the CERD Committee, or the CAT Committee. This could lead to possibly forum shopping--she can just bring her claim to the Commission that she thinks would give her the best recommendation for the best outcome. Consolidating the Committees could maybe help prevent this problem (or maybe it is not a problem, and I am just reading into it too much). Do you have any information or article that I could look at that talks about a consolidated-Committee Human Rights system? I just am having trouble seeing how procedurally it could work.

(A) I would add that it might lead to a more unified body of human rights law, plus it’s more realistic, since a range of human rights can be violated by a single action or set of actions. Procedurally it would be the case that the unified committee would hear petitions re: violations of X treaty only if the state were a party to X treaty and had accepted the committee’s competence to hear individual petitions re: X treaty. One problem is that the committee members are selected by the treaty parties. Since not all states are party to all treaties, there could be a question of who gets to vote for the members. But there might be ways to resolve that - e.g., so long as a state is party to one of the treaties it gets to vote. The biggest hurdle is that all this would require amendments to the treaties. I don’t know if there’s any one reading I could suggest -- it’s just something that relates to a number of matters we covered.

(Q) Does the TVPA preempt the ATS? Let’s say a foreign-born plaintiff’s claim could have been filed under the TVPA, but instead she wanted to use the ATS. I guess I am wondering if we are doing an ATS analysis, and the plaintiff could file under both statutes, would we have to do an analysis of both, or just the TVPA because it preempts the ATS?

(A) Most courts if not all (I can’t remember if there are some outliers) have said that the TVPA did not repeal the ATS or implicitly modify it. The main issue where that might come up is exhaustion of local remedies -- most courts have said it’s not required under the ATS. A few have said that exhaustion has become a requirement of international law in general, and since the ATS refers to internaitonal law, it must require exhaustion. I can’t recall off the top of my head, but I think some may have read the TVPA to modify the ATS in this regard. But those are all distinctly a minority.

So the two statutes are there and both would need to be discussed if applicable, unless the question asked only about one or the other. If it’s a torture claim, for example, then both are possibilities. You could obviously do a lot of cross-referencing there. Remember, though, that the TVPA is narrower than the ATS (torture and extrajudicial killing), and that the requirements aren’t identical.

(Q) My understanding is that the ATS will apply only in matters that are of jus cogens character and I don’t consider forced labor such a norm because unlike slavery, which has a universal, absolute prohibition, there are exceptional circumstances in which it can be allowed. Is this correct?

(A) I would look to Sosa for guidance on this. Remember that the court said that the norm has to be specific, universal, and obligatory. It didn’t say absolute, and while there are some rights that could be so characterized, not all rights are absolute. If a norm is jus cogens, that’s not because it’s absolute, but because it’s binding without regard to consent. If a court were truly convinced that a norm is jus cogens, in practice, one strong piece of evidence would be that it was universlly regarded as obligatory.

Still, in practice, it’s true that some of the norms that are commonly called jus cogens are those that are absolute -- e.g., torture. But still, remember that respect for the right to life would probably rank as jus cogens in many people’s views, yet as the law on justifiable use of force indicates, it’s not absolute.

(Q). Could you explain the Act of State and Sovereign Immunity and other defenses? I am clear on forum non conveniens, it was mainly sovereign and head of state immunity and act of state doctrine that I had questions about. In regard to the latter, I understand that the issue would be whether it was an unlawful and wholly unratified action taken by an official. What if it was lawful action under the country’s laws and a violation of an international treaty or jus cogens norm? Would the defense fail? I think it would but I just want to be sure.

(A) Sovereign immunity -- if you mean foreign sovereign immunity, that’s covered by the FSIA. Foreign states are immune from suit in U.S. courts unless there’s an exception under the statute. Most other states have something similar, though we only went over the U.S. statute.

If you mean head of state immunity, it’s something that applies in domestic courts, and certainly to sitting heads of state and other high officials (e.g., foreign minister). It may not apply to former heads of state -- that’s not quite as clear. It’s for the government, not the individual, to decide whether to waive it.

Act of state: where there’s an official action undertaken in a state’s own territory, that may qualify as an “act of state” under the doctrine, meaning (out of comity) the US court will not question the legality of it. But remember that the government has to actually affirm that it committed the action, and it’s not likely to be successful if the action is in violation of the state’s own law. As for what would be the case if it were a violation of international law but OK under the state’s domestic law -- that would depend. If it’s an international norm that is binding on that state, then I think it’d be hard to claim that it was an act of state. Such norms would include treaties the state had ratified; customary international law to the extent that the state isn’t a “persistent dissenter” to the norm; and jus cogens norms.

(Q) Is Rodrigo’s claim justiciable under the political question doctrine?

(A) With political question it’s best to think of a tension between two goals: wanting to let people have vindication in court for violations of their rights, and not wanting to have the courts inadvertently undercut the government’s pursuit of foreign policy goals. Obviously just about any human rights lawsuit could have foreign policy implications, so the latter can’t be weighed too heavily. The strongest case for it is when it would require courts to adjudicate something for which there’s no justiciable standard. That doesn’t happen too often.

(Q) To what extent is the executive branch’s statement of interest binding on the court?

(A) Where there are statements of interest they’re not binding, but they are given a lot of weight.

(Q) Can the court exercise personal jurisdiction over the defendants?

(A) As I said in class, that’s always needed for any lawsuit, including an ATS suit, but we’re not covering that -- we’ll just assume there’s been proper service of process.

(Q) I don’t think exhaustion of local remedies is a requirement of the ATS as in the case of the TVPA. Is this correct? If there is a question about ATS should we discuss possible defenses or focus on procedural and substantive elements of such a claim?

(A) Most courts have said it’s not required under the ATS. A few have said that exhaustion has become a requirement of international law in general, and since the ATS refers to internaitonal law, it must require exhaustion. I can’t recall off the top of my head, but I think some may have read the TVPA to modify the ATS in this regard. But those are all distinctly a minority. As I said, most courts have said it’s not required under the ATS.

What you’d need to discuss on an exam question depends on exactly what the question asks, but if it was to discuss the issues that would arise in an ATS lawsuit, for example, you would need to discuss the defenses as well.

(Q) Unless the Protocol/Convention states otherwise, are the exceptions to exhaustion of remedies requirement found under the provision where is says exhaustion of remedies is required, unless the remedies are “unreasonably prolonged?” For example, when remedies would be ineffective.

(A) You’re referring to the language of Art.5 of the ICCPR Optional Protocol (TS 62)-- I should just mention that the exact language can vary -- compare the Am. Conv. Art. 46 (TS 395). Anyway, in the ICCPR optional protocol I’d focus on the “unreasonably prolonged” language but also especially on the reference to “available” remedies (5(2)(b) (TS 62), which is read to imply the sorts of things that are more expressly spelled out in Art. 46(2) of the Am. Conv.

(Q) When you are looking to see if a corporation can be found liable under the ATS, you have to see if it has a close enough relationship with the state that it could be found to be a state actor. The three ways we discussed in class are aiding and abetting, joint enterprise, and the state as an agent of the corporation. Therefore, in order for a corporation to be liable, you would have to determine if one of the aforementioned ways are a customary international norm as part of the law of nations, right? In Khuumani the first concurring opinion cites a lot of different sources that you could use to argue that aiding and abetting it is part of the law of nations, but where should we look for international sources that recognize joint enterprise and the state as an agent of the corporation for the law of nations analysis.

(A) The Khulumani case is really basically all we read on the subject, so I wouldn’t worry about detailed arguments for the non-aiding and abetting bases -- just be aware of them. I would expect that a general familiarity with customary interational law would enable you to talk about what sorts of things you’d need to look at to show that they’re part of customary international law.

(Q) Do you think a strong argument to rebut (besides the fact the treaty is silent about who can be sued, individual does not always mean person, etc.) the Dissenting Judge’s argument in Khulumani (treaties only refer to individuals, so corporations cannot be liable) is that human rights treaties prescribe the norm that is applied to the entity, but they do not prescribe how the means that is enforced. So the judge is confusing whether the law of nations norm applies with someone/something with how it should be enforced. This is consistent with the international tribunals or treaties we have looked at: they tell the states what to do, but do not tell them how to do it. This is also related to the principle of state sovereignty.

(A) I think this is one of the bigger arguments against the notion that corporations aren’t liable under the ATS.

(Q) When you are arguing a private individual is state actor, I understand there needs to be a close relationship between the individual and the state, but what international law sources should we look to for determining the law of nations standard where a private individual is working so closely with the State, they become a state-actor? Under the TVPA it uses § 1983 to determine color of law, should we argue that this should be used for ATS?

(A) There could be theoretical arguments about whether U.S. law, international law, or even conceivably the foreign state’s law (Paraguay in Filartiga) should govern the determination of state action in ATS lawsuits. (Even the TVPA (CB 984) is not totally clear on that you refer to the Kadic v. Karadzic case, which used § 1983, but as with many other issues there’s no definitive Supreme Court ruling.) In practice, though, the standards aren’t going to be very different, so it’s not something I’d wory about if you’re talking about an employee, military officer, etc. If it’s a question, on the other hand, of the state being responsible for failure to protect against “private” actors committing violations (militias; men committing domestic violence) then it’s a matter of just what is the content of the state’s duty not just to “respect” human rights but also to “ensure” their protection (in the language of Art. 2(1) of the ICCPR (TS 44)).