In association with the International Commission of Jurists

International Human Rights Law

03 Feb

[Karen J. Alter is Professor of Political Science and Law at Northwestern University, Laurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law at Duke University, and Jacqueline McAllister is Assistant Professor of Political Science at Kenyon College (as of July 2014).] The ECOWAS Community Court of Justice is an increasingly active and surprisingly bold adjudicator of human rights cases.  Since acquiring a human rights jurisdiction in 2005, the ECOWAS Court has issued more than 50 decisions relating to alleged rights violations by 15 West African states. The Court’s path-breaking cases include judgments against Niger for condoning modern forms of slavery, against Nigeria for impeding the right to free basic education for children, and against the Gambia for the torture of dissident journalists. A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice, recently published in AJIL, explains how a sub-regional tribunal first established to help build a common market was later redeployed as a human rights court.  We investigate why West African governments—which set up the Court in a way that has allowed persistent flouting of ECOWAS economic rules—later delegated to ECOWAS judges a remarkably expansive human rights jurisdiction over suits filed by individuals and NGOs. Our theoretical contribution explains how international institutions, including courts, evolve over time in response to political contestation and societal pressures.  We show how humanitarian interventions in West Africa in the 1990s created a demand to expand ECOWAS’s security and human rights mandates.  These events, in turn, triggered a cascade of smaller reforms in the Community that, in the mid-2000s, created an opening for an alliance of civil society groups and supranational actors to mobilize in favor of court reform. The creation of a human rights court in West Africa may surprise many readers of this blog. Readers mostly familiar with global bodies like the ICJ, the WTO and the ICC, or regional bodies in Europe and the Americas, may be unaware that Africa also has active international courts that litigate important cases.  Given that ECOWAS’ primary mandate is to promote economic integration, we wanted to understand why its court exercises such far-reaching human rights jurisdiction.  Given that several ECOWAS member states have yet to accept the jurisdiction of the African Court of Human and Peoples’ Rights, the ECOWAS Court’s ability to entertain private litigant complaints—without first requiring the exhaustion of domestic remedies—is especially surprising.  We also expected that even if ECOWAS member states decided to create such a tribunal, they would have included robust political checks to control the judges and their rulings. What we found—based on a review of ECOWAS Court decisions and more than two dozen interviews with judges, Community officers, government officials, attorneys, and NGOs—was quite different.  The member states not only gave Court a capacious human rights jurisdiction, they also rejected opportunities to narrow the Court’s authority. Our AJIL article emphasizes several interesting dimensions of the ECOWAS Court’s repurposing and subsequent survival as an international human rights tribunal.
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03 Feb

President Obama has issued the following memorandum concerning US participation in the UN's Mali stabilisation mission: By the authority vested in me as President by the Constitution and the laws of the United States of America, and consistent with section 2005 of the American Servicemembers' Protection Act of 2002 (22 U.S.C. 7424), concerning the participation of members of the Armed Forces...

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28 Jan

[Anthony Colangelo is Associate Professor of Law at SMU Dedman School of Law.] As my comment to Roger’s initial post noted and my forthcoming piece in the Cornell Law Review explains, like Bill Dodge I view the presumption against extraterritoriality’s operation in Kiobel as going principally to the cause of action allowed by the ATS as opposed to the ATS proper. Though as Roger points out, the Supreme Court did find itself construing the ATS in order to discern whether the presumption applied to the cause of action, making an already messy area of law incoherent in light of the Court’s own most recent precedent, as I noted in an OJ Insta-Symposium contribution last spring. What I’d like to explore now is another question raised by this terrific series of posts: the extent to which state law incorporating international law may authorize suits for causes of action arising abroad after Kiobel. This question is both especially urgent because it involves a potential alternative avenue for litigating human rights abuses abroad in U.S. courts, and especially vexing because it juxtaposes different doctrinal and jurisprudential conceptualizations of the ability of forum law to reach inside foreign territory. On the one hand, the question can be framed as whether forum law applies extraterritorially; on the other, it can be framed as a choice of law among multiple laws, of which forum law is one. These different ways of framing the question are not necessarily mutually exclusive, yet they can lead to radically different results. Namely, Supreme Court jurisprudence stringently applying a presumption against extraterritoriality to knock out claims with foreign elements stands in stark contrast to a flexible cadre of state choice-of-law methodologies that liberally apply state law whenever the forum has any interest in the dispute. The result is a counterintuitive disparity: state law enjoys potentially greater extraterritorial reach than federal law. The disparity is counterintuitive because the federal government, not the states, is generally considered the primary actor in foreign affairs. Indeed, the presumption against extraterritoriality springs directly from foreign affairs concerns: its main purpose is to avoid unintended discord with other nations that might result from extraterritorial applications of U.S. law. If the federal government is the primary actor in foreign affairs, and if the presumption operates to limit the reach of federal law on a foreign affairs rationale, it follows that state law should have no more extraterritorial reach than federal law. Yet at the same time there is a long and robust history stretching back to the founding of state law providing relief in suits with foreign elements through choice-of-law analysis. Hence, not only does the disparity between the reach of federal and state law bring into conflict federal versus state capacities to apply law abroad (or entertain suits arising abroad), it also brings into conflict the broader fields that delineate those respective capacities: foreign affairs and federal supremacy on the one hand, which argue in favor of narrowing the reach of state law to U.S. territory, and private international law and conflict of laws on the other hand, which argue in favor of allowing suits with foreign elements to proceed in state court under state law.
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28 Jan

[William S. Dodge is The Honorable Roger J. Traynor Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus briefs of the United States in Kiobel v. Royal Dutch Petroleum Co. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.] The Supreme Court held in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013), that the presumption against extraterritoriality applies to suits brought under the Alien Tort Statute (ATS). In a recent post, Roger Alford asks whether a federal court sitting in diversity or a state court of general jurisdiction may still hear the federal common law claims for torts in violation of the law of nations that the Court recognized in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). The answer depends on whether Kiobel applied the presumption against extraterritoriality to the ATS itself or to Sosa’s federal common law cause of action. As a general matter, the presumption against extraterritoriality does not apply to jurisdictional statutes. Putting Kiobel to one side for the moment, I know of only two cases in which the Supreme Court has used the presumption to interpret statutes that might be characterized as jurisdictional. In Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 440-41 (1989), the Court applied the presumption to the Foreign Sovereign Immunities Act, and in Smith v. United States, 507 U.S. 197, 203-04 (1993), it applied the presumption to the Federal Tort Claims Act. But both the FSIA and the FTCA codify rules of immunity, which the Court has characterized as substantive, and so neither statute is purely jurisdictional. No one suggests that the presumption against extraterritoriality limits 28 U.S.C. § 1331 (the federal question statute), or 28 U.S.C. § 1332 (the diversity and alienage jurisdiction statute), or 18 U.S.C. § 3231 (the subject matter jurisdiction statute for federal criminal offenses). Yet none of these jurisdictional provisions contain the clear indication of extraterritoriality that would be necessary to rebut the presumption. To take one example, if the presumption against extraterritoriality were applied to 18 U.S.C. § 3231, a federal court would have to dismiss for lack of subject matter jurisdiction a federal prosecution for bombing U.S. government facilities abroad despite the fact that the substantive criminal statute (18 U.S.C. § 2332f) expressly applies when “the offense takes place outside the United States.” That makes no sense, and is not a result that any sensible court would reach. The Supreme Court’s decision in Morrison v. National Australia Bank, 130 S. Ct. 2869 (2010), confirms the distinction between substantive statutes to which the presumption against extraterritoriality applies and jurisdictional statutes to which it does not. In Morrison, the Court used the presumption to limit a substantive provision of the Securities Exchange Act, finding “no affirmative indication in the Exchange Act that § 10(b) applies extraterritorially.” Id. at 2883. But notably, the Court did not apply the presumption against extraterritoriality to the Exchange Act’s jurisdictional provision. To the contrary, the Court specifically held in Part II of its opinion that “[t]he District Court here had jurisdiction under 15 U.S.C. § 78aa to adjudicate the question whether § 10(b) applies to National’s conduct,” id. at 2877, despite the fact that § 78aa contains no clear indication of extraterritoriality, which would be needed to rebut the presumption if it applied. Kiobel is consistent with the distinction that courts applying the presumption against extraterritoriality have long drawn between jurisdictional and substantive statutes. “We typically apply the presumption to discern whether an Act of Congress regulating conduct applies abroad,” the Court noted. 133 S. Ct. at 1664 (emphasis added). The ATS was not such a statute; the Sosa Court had held that it was “strictly jurisdictional.” But Sosa also held that the ATS authorized courts to recognize federal common law causes of action for torts in violation of the law of nations, and it was to those causes of action that the Supreme Court applied the presumption in Kiobel. “[W]e think the principles underlying the canon of interpretation similarly constrain courts considering causes of action that may be brought under the ATS.” Id. (emphasis added). Thus, after reviewing the text and history of the ATS, the Court concluded “that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption.” Id. at 1669 (emphasis added). To be clear,
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26 Jan

The New York Times reports that  Ilham Tohti, a Uighur economics professor, has been arrested by Chinese authorities for separatism and inciting ethnic hatred.  A number of his students are also seemingly being detained. Tohti is just one person and, perhaps unfortunately for him, his case is emblematic of larger regional tensions in China and Central Asia. The Uighurs are a Turkic-speaking ethnic group, about...

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24 Jan

I just completed a draft essay on Kiobel for the Notre Dame Law Review (the symposium will include luminaries such as A.J. Bellia, Doug Cassel, William Castro, Bradford Clark, Bill Dodge, Eugene Kontorovich, Thomas Lee, Michael Ramsey, Ralph Steinhardt, Beth Stephens, and Carlos M. Vázquez). To my surprise after careful reflection there remains an important question that I have not...

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19 Jan

[Dr. Chantal Meloni teaches international criminal law at the University of Milan is an Alexander von Humboldt Scholar at Humboldt University of Berlin.]

1. A new complaint (technically a Communication under art. 15 of the Rome Statute) has been lodged on the 10th of January to the Intentional Criminal Court, requesting the Prosecutor to open an investigation into the denounced abuses committed by UK military forces against Iraqi detainees from 2003 to 2008. The complaint has been presented by the British Public Interest Lawyers (PIL), representing more than 400 Iraqi victims, jointly with the Berlin-based European Centre for Constitutional and Human Rights (ECCHR). The lawyers’ allegation is that grave mistreatments, including torture and other degrading abuse techniques, were commonly used during the six years in which the UK and Multinational Forces operated in Iraq. According to the victims’ account the mistreatment was so serious, widespread and spanned across all stages of detention as to amount to “systemic torture”. Out of hundreds of allegations, the lawyers focused in particular and in depth on eighty-five cases to represent the mistreatment and abuses inflicted, which would clearly amount to war crimes. 2. This is not the first time that the behaviour of the UK military forces in Iraq is challenged before the ICC. In fact, hundreds of complaints have been brought on various grounds both to domestic courts and to the ICC since the beginning of the war. As for the ICC, after the initial opening of a preliminary examination, following to over 404 communications by Iraqi victims, in 2006 the ICC Prosecutor issued a first decision determining not to open an investigation in the UK responsibilities in Iraq. According to that decision, although there was a reasonable basis to believe that crimes within the jurisdiction of the Court had been committed, namely wilful killing and inhumane treatment, the gravity threshold was not met. Indeed the number of victims that had been taken into account at that time was very limited, totalling in all less than 20 persons, so that the Prosecutor found that the ‘quantitative criteria’, a key consideration of the ICC prosecutorial strategy when assessing the gravity threshold, was not fulfilled. Therefore, what is there new that in the view of the lawyers warranted the re-proposition of such a request? In the first place it shall be noted in this regard that during the eight years that passed since then many more abuse allegations have emerged (see the Complaint, p. 110 ff.). Most notably, hundreds of torture and mistreatment allegations show a pattern - spanning across time, technique and location - which would indicate the existence of a (criminal) policy adopted by the UK military forces when dealing with the interrogation of Iraqi detainees under their custody. In the words of the lawyers, “it was not the result of personal misconduct on the part of a few individual soldiers, but rather, constituted widespread and systematic mistreatment perpetrated by the UK forces as a whole”.
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17 Jan

The decision was given orally, and no written decision is available yet. But here is what The Standard's online platform is reporting: The International Criminal Court has conditionally excused Deputy President William Ruto from continuos presence at trial but with some conditions. The judges outlined nine conditions during the Wednesday ruling. ICC Presiding Judge Eboe-Osuji in the oral ruling said: “The Chamber hereby...

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16 Jan

The American Journal of International Law has posted electronic excerpts from its "Agora: Reflections on Kiobel", which will be published in its next issue.  As a contributor to the AJIL Agora myself, I was fascinated to see the different takes that everyone had on the decision.  For the most part, contributors seem to read Kiobel the same way: as sharply cutting...

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16 Jan

[Chimène Keitner is Harry & Lillian Hastings Research Chair and Professor of Law at the University of California Hastings College of the Law, and an Adviser on Sovereign Immunity for the American Law Institute’s Fourth Restatement of the Foreign Relations Law of the United States.] The judgment issued by the Fourth Section of the European Court of Human Rights represents the latest installment in an ongoing conversation about the immunity ratione materiae of individuals accused of abusing their authority to commit serious violations of international law. As Philippa Webb has noted over at EJIL Talk!, the Chamber found the U.K. House of Lords’s analysis of the relationship between State immunity and foreign official immunity sufficiently persuasive to conclude that, despite patchy precedents and evolving trends, “[t]he findings of the House of Lords [in Jones v. Saudi Arabia] were neither manifestly erroneous nor arbitrary” (para. 214). My colleague William Dodge has blogged here about flaws in the Chamber’s reading of national case law, which repeats errors made by the House of Lords that I have discussed here and here. These critiques amplify those enumerated by Judge Kalaydjieva in her dissenting opinion. Although Philippa’s point about the Chamber’s “re-integration” of State and official immunity certainly holds true in the context of civil proceedings (based on the Chamber’s acceptance of the argument that any civil suit against an individual for acts committed with state authority indirectly—and impermissibly—“implead” the State), the Chamber seems to have accepted Lord Bingham’s assertion (cited in Jones para. 32) that because “[a] State is not criminally responsible in international or English law, [it] therefore cannot be directly impleaded in criminal proceedings.” This excessively formalistic (and in some legal systems untenable) distinction led the Chamber to accept the proposition that, absent civil immunity for foreign officials, “State immunity could always be circumvented by suing named officials” (para. 202). Yet domestic legal systems have long found ways of dealing with this problem, for example by identifying whether the relief would run against the individual personally or against the state as the “real party in interest” (as the U.S. Supreme Court noted in Samantar). As Lord Phillips of Worth Matravers, who participated in the House of Lords’s decision in Pinochet (No. 3) and in the Court of Appeal’s decision in Jones v. Saudi Arabia, wrote in his concurrence in the Court of Appeal (at para. 128): “the argument [that the state is indirectly impleaded by criminal proceedings, which was rejected in Pinochet] does not run in relation to civil proceedings either. If civil proceedings are brought against individuals for acts of torture in circumstances where the state is immune from suit ratione personae, there can be no suggestion that the state is vicariously liable.
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