ACLU INTERNATIONAL CIVIL LIBERTIES REPORT

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					ACLU
INTERNATIONAL
CIVIL LIBERTIES
REPORT




MAY 1999 EDITION                 1616 BEVERLY BOULEVARD
                                     LOS ANGELES, CA 90026
                                           TEL. 310-260-9585
                                          FAX. 310-395-2132
                          EMAIL.HOFFPAUL@IX.NETCOM.COM
ACLU
INTERNATIONAL
HUMAN RIGHTS TASK FORCE
                                       INTERNATIONAL CIVIL LIBERTIES REPORT
                                                    MAY 1999

                                                             Table of Contents

1.    The International Criminal Court: An Important Step Toward Effective International Justice
      (Norman Dorsen, Jerry Fowler) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

2.    The Pinochet Litigation (William J. Aceves) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

3.    The Global Internet Liberty Campaign (Barry Steinhardt) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

4.    Using International Standards to Protect the Rights of U.S. Prisoners
      (Joanne Mariner) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

5.    Using International Law to Defend the Accused
      (Diane Marie Amann, Cynthia R.L. Fairweather & Vivian Rhoe) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

6.    How the European Convention on Human Rights and the Caselaw of the European Court
      of Human Rights Are Important to U.S. Law Governing Civil Liberties
      (Francisco Forrest Martin) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

7.    Guide to Human Rights Research on the Web (Marci Hoffman) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

8.    Litigation Update (Jennifer Green and Paul L. Hoffman) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

9.    The Vienna Convention on Consular Relations: Recent Developments
      (William J. Aceves) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

10.   Summary of Developments at the 50th Session of the U.N. Sub-commission on
      The Prevention of Discrimination And the Protection of Minorities
      (David Weissbrodt, Mayra Gomez & Bret Thiele) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

11.   A Proposal for an Enforceable Social Clause to Implement Labor
      Rights in the Global Economy (Terry Collingsworth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

12.   The Hague Convention on International Jurisdiction and the Effects of
      Foreign Judgments and the Threat of Extinction of Human Rights
      Litigation in Domestic Courts (Beth van Schaack) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

13.   The Supreme Court of the United States Has Been Called upon to Determine the
      Legality of the Juvenile Death Penalty in Michael Domingues v. State of Nevada
      (Jennifer Fiore & Connie de la Vega) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

14.   Celebrating Human Rights Year in North Carolina (Slater E. Newman) . . . . . . . . . . . . . . . . . . . . . . . 86

15.   Protecting the Human Right to Freedom of Expression
      on the Global Internet (James X. Dempsey) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

16.   International Federation of Human Rights Leagues (FIDH) (Michael Elllman) . . . . . . . . . . . . . . . . . . 93

17.   CRLAF and ACLU file Petition charging that Deadly U.S. Border Enforcement
      Strategy Violates International Human Rights Law
      (Jordan Budd and Claudia Smith) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

18.   The Text of Executive Order 13107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                               1



1.       THE INTERNATIONAL CRIMINAL                                   The Rome Statute caps a century of
         COURT: AN IMPORTANT STEP                           international humanitarian law development that
         TOWARD EFFECTIVE                                   began in 1899 with the Peace Conference in the
         INTERNATIONAL JUSTICE                              Hague. Even as humanitarian standards developed,
                                                            however, the 20th Century’s appalling carnage
        By Norman Dorsen and Jerry Fowler*                  highlighted the need for effective enforcement of those
                                                            standards. Impunity for the worst atrocities was too
           A remarkable development in the ten years        often the rule.
since the fall of the Berlin Wall is the growing                      The idea of an international tribunal to hold
consensus in support of international mechanisms for        individuals responsible for international crimes was
enforcing international humanitarian law. The United        widely discussed after World War I. The victorious
Nations Security Council established ad hoc tribunals       Allies established a Commission of Responsibilities of
to try individuals guilty of atrocities in the Former       the Authors of the War and the Enforcement of
Yugoslavia and Rwanda. A UN commission of experts           Penalties to consider how to deal with accused war
has recommended creation of a similar panel to try          criminals. The Commission divided sharply on the
senior leaders of the Khmer Rouge regime responsible        issue of an international tribunal, with the majority
for the deaths of nearly 2 million Cambodians from          recommending the creation of an international “High
1975 to 1979.1 And a Spanish judge has requested the        Tribunal” to try individuals accused of “violations of
extradition from the United Kingdom of former               the laws and customs of war and of the laws of
Chilean dictator Augusto Pinochet for mass murder           humanity.” The American delegation, headed by
and torture committed by his regime. (See Page 9,           Secretary of State Robert Lansing, dissented. The
infra)                                                      Americans objected, among other things, to the
           Perhaps the most compelling evidence of this     undefined concept of “laws of humanity”4 and to the
consensus is the overwhelming approval last summer          idea of an international criminal tribunal, “for which
by a Rome diplomatic conference of a treaty to create       there is no precedent, precept, practice, or procedure.”5
a permanent international criminal court.2 The                        The Versailles Treaty was signed the month
enthusiasm evident in Rome has not abated. In the           after the Commission’s report. Article 227 provided
months since, 76 countries have indicated an intent to      for the creation of an international tribunal to try the
ratify by signing the treaty, and Senegal has become        Kaiser “for a supreme offence against international
the first nation to ratify. The court will be set up once   morality and the sanctity of treaties.” As for other
60 nations have ratified the Rome Statute.3 Once            accused war criminals, the Treaty opted for trial by
established, it will have jurisdiction over genocide,       military tribunals of the individual Allied countries
crimes against humanity and serious war crimes in           and required German cooperation with those efforts.
situations where there is not a national judicial system    In the end, the tribunal for the Kaiser was never
available.                                                  established, and Allied trials of other officials never
           The actual creation of the Court will not be     occurred.6
the end of the challenge to enforce international                     The issue of dealing with war criminals was
humanitarian law effectively. As explained below,           even more salient at the end of World War II, given
jurisdictional limitations and other aspects of the         the scope of Nazi atrocities. The Nazi campaign of
Statute will hamper the Court’s effectiveness. But the      extermination waged against Germany’s Jewish
Statute does establish the basic framework for a            population, as well as other outrages that did not fall
legitimate judicial institution capable of combating        within the scope of war crimes, starkly presents the
impunity for crimes of mass violence. The ultimate          issue of whether there are internationally prohibited
success of the Court will depend upon the political will    “crimes against humanity.”
of the international community to enforce compliance                  In contrast to the American opposition to
with the Court’s judgments and orders.                      international justice in 1919, the idea of putting top
                                                            Nazi leaders on trial at the end of World War II
                                                            originated in the United States. Other allies initially
         Historical Background                              favored summary execution of German leaders. But
                                                            there was a strong feeling among US leaders that a
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                              2



larger and more valuable point could be made by             responsible therefor and liable to punishment.” More
formally charging those men with criminal violations        recently, countries ratifying the Convention Against
of international law. An international trial would help     Torture obligated themselves to extraditing or
strengthen the rule of law over the rule of force. As       prosecuting any public official or person acting in an
U.S. Supreme Court Justice Robert Jackson, the chief        official capacity found in their jurisdiction who is
prosecutor at the trial of major war criminals,             accused of committing torture, no matter where the
explained in his opening statement, “that four great        torture occurred.
nations, flushed with victory and stung with injury,                  Although the principle of individual
stay the hand of vengeance and voluntarily submit           accountability became well established, there was no
their captive enemies to the judgment of the law is one     progress in creating a mechanism to enforce that
of the most significant tributes that Power has ever        principle. Hopes for a permanent international court
paid to Reason.”7                                           were dashed by Cold War rivalries, and proposals for
          Even more importantly, the Nuremberg trial        such a court were shelved, left to gather dust for four
established that the international community can hold       decades. The “tragic irony”12 was that international
individuals personally accountable for committing           humanitarian law gained wide acceptance, but was
heinous crimes. Presciently noting that the Nazi            seldom enforced.
leaders embodied “sinister influences that will lurk in               The end of the Cold War made the creation of
the world long after their bodies have returned to          a permanent court politically possible. As more and
dust,” Justice Jackson went to the heart of the matter:     more countries replaced authoritarian and totalitarian
“The [Nuremberg] Charter recognizes that one who            regimes with democratically accountable governments,
has committed a criminal act may not take refuge in         sentiment in favor of international mechanisms of
superior orders nor in the doctrine that his crimes were    accountability grew. Among the countries active in the
acts of state.”8 The Nuremberg defendants were              so-called “like-minded group” pushing hardest for the
charged with three types of substantive crime: war          creation of the Court were nations such as South
crimes, crimes against humanity and crimes against          Africa, Argentina and South Korea. The horror of
the peace (or aggression).                                  ethnic cleansing in the former Yugoslavia and of
          The vital principle of individual                 genocide in Rwanda added urgency to efforts to create
accountability for these international crimes was           a permanent court.
reiterated in the judgment handed down by the                         The ad hoc tribunals set up to deal with the
Nuremberg Tribunal. Rejecting the defendants’               former Yugoslavia and Rwanda demonstrated the
argument that international law deals only with the         possibilities of international enforcement, but also
actions of sovereign states, the judges held that “crimes   made clear that an ad hoc approach was no substitute
against international law are committed by men, not by      for a permanent court. The ad hoc tribunals had to
abstract entities, and only by punishing individuals        start from scratch in hiring judges and prosecutors,
who commit such crimes can the provisions of                drafting procedural rules, even building courtrooms.
international law be enforced.”9                            Moreover, their ad hoc nature left them open to
          In the years after Nuremberg, the principle of    charges of political motivation and selective justice.
individual accountability took root. In 1948, the                     Intensive international negotiations to create
Genocide Convention defined genocide and made it an         a permanent court proceeded through the 1990s. The
international crime for which individuals could be held     five-week conference that ended with overwhelming
responsible, either before national courts or a             international support for the Rome Statute represented
contemplated international tribunal.10 The four             the culmination of those efforts. On the cusp of a new
Geneva Conventions of 1949 codified many of the laws        century, the world stands poised to create an important
of war and established individual responsibility for        international institution for upholding the rule of law.
grave breaches of those laws.11 In 1950, the
International Law Commission (ILC), a body of legal
experts acting at the direction of the UN, distilled the                    An Incremental Step
“Principles of the Nuremberg Tribunal.” The first
principle was that “[a]ny person who commits an act                 Although the Rome Statute represents an
which constitutes a crime under international law is        important step toward establishing accountability for
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                               3



crimes of mass violence, it is nevertheless incremental.    customary international law,14 reflecting the drafters’
Several aspects of the Statute demonstrate the              intent that the Court be limited to the most serious
measured nature of what was agreed to: the Court’s          crimes of international concern.
narrow subject matter jurisdiction; the primacy of                    A major development in the Rome Statute is
national judicial systems; strict, sovereignty-related      the explicit inclusion of crimes of sexual assault as
preconditions to the exercise of any jurisdiction; and a    crimes against humanity and war crimes. Among the
very conservative regime for state cooperation.             acts that can constitute crimes against humanity and
                                                            war crimes are “[r]ape, sexual slavery, enforced
     The Court’s Subject Matter Jurisdiction                prostitution, forced pregnancy, enforced sterilization,
                                                            or any other form of sexual violence of comparable
          The Court will have very narrow subject           gravity.” (Articles 7(1)(g) (crime against humanity);
matter jurisdiction, limited to “the most serious crimes    8(2)(b)(xxii) (war crime in international armed
of international concern”: genocide, crimes against         conflict); see also 8(2)(e)(vi) (war crime in internal
humanity and serious war crimes, the so-called “core        armed conflict)) The explicit enumeration of these
crimes.”13 High thresholds and definitions that in          acts as crimes within the Court’s jurisdiction is a
some cases are narrower than existing international         critical affirmation that rape and other crimes of sexual
law will further limit the Court.                           assault are, under appropriate circumstances, among
          Genocide. The definition of genocide was          “the most serious crimes of concern to the
not controversial and was taken from the 1948               international community as a whole.”
Genocide Convention. The essence of this most                         Serious War Crimes. The Rome Statute
horrific of crimes is the “intent to destroy, in whole or   gives the Court jurisdiction over serious war crimes
in part, a national, ethnical, racial or religious group,   committed in both international and internal armed
as such.” (Article 6)                                       conflicts. (Article 8(2)) The war crimes article of the
          Crimes Against Humanity.              A major     Rome Statute draws from sources such as the four
achievement of the Rome Conference was the                  1949 Geneva Conventions and other conventional and
codification in a multilateral treaty, for the first time   customary laws of war. Although in some cases the
since the Nuremberg Charter, of crimes against              treaty provides narrower definitions than existing
humanity. (Article 7) For purposes of the Court’s           international law, the scope of the war crimes article
jurisdiction, a crime against humanity is an inhumane       will allow the Court to address the most serious
act, such as murder, torture or rape, when committed        atrocities committed in armed conflict. In particular,
against a civilian population pursuant to a state or        the inclusion of war crimes committed in civil wars
organizational policy. It must be part of “a course of      was vital, because most conflicts in the modern world
conduct involving the multiple commission” of               take place within the borders of a single nation.15
inhumane acts, and the defendant must have                            As with crimes against humanity,
knowledge of the overall plan. The Court will have          jurisdictional limits were attached to war crimes.
jurisdiction without regard to whether the perpetrators     First, the Court will have war crimes jurisdiction “in
are government officials and without regard to the          particular” when those crimes are “part of a plan or
existence of armed conflict.                                policy or [] part of a large-scale commission of such
          The Rome Statute sets a high bar to the           crimes.” (Article 8(1)) This language presumptively
Court’s jurisdiction over crimes against humanity by        restricts the Court to cases in which war crimes are
the way that it defines “attack directed against any        either systematic or widespread, though it gives the
civilian population.” That term only covers conduct         Court the leeway to act, if circumstances dictate, even
that is “pursuant to or in furtherance of a State or        in the absence of evidence of a plan or of large-scale
organizational policy.” (Article 7(2)(a)) Thus, no          commission of war crimes. Second, the Court will
matter how widespread acts such as murder might be,         have jurisdiction over many crimes committed in
they will not fall within the ICC’s scope unless there is   internal armed conflict only when “there is protracted
a showing that they were committed in the execution         armed conflict between governmental authorities and
of a State or organizational policy. Because of this        organized armed groups or between such groups.”
requirement, the Court’s jurisdiction over crimes           (Article 8(2)(f))
against humanity will not reach as broadly as                         Superior Orders. Unlike the defendants at
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                                  4



Nuremberg and before the Yugoslavia and Rwanda               have been accused of crimes to block Court action.
tribunals, those tried by the ICC for war crimes will be     (Article 18; Article 19)
able to offer superior orders as a defense. Under the                  The exceptions to the basic presumption of
Rome Statute, a defendant will be able to avoid              deferral to national systems are quite narrow. By the
criminal responsibility by showing that he was under         treaty’s terms, “unwillingness” in effect requires that
a legal obligation to obey the order, that he did not        national proceedings be undertaken in bad faith before
know that the order was unlawful and that the order          the ICC can step in. (Article 17(2)) Thus, the use of
was not manifestly unlawful. (Article 33) The                established, transparent judicial procedures – the norm
defense, however, is not available to those accused of       in the military and civilian courts of established
genocide or crimes against humanity. (Article 33(2))         democracies governed by the rule of law – precludes a
          Command Responsibility. The Rome Statute           finding of “unwillingness.” Unwillingness is not
also departs from the Tribunal statutes by making it         established just because an investigation does not result
more difficult to establish the criminal responsibility of   in prosecution. When a State carries out its obligation
the civilian superiors of those who commit war crimes        to investigate, even if it decides not to prosecute, the
or other crimes within the Court’s jurisdiction.             Court will be barred from acting.
(Article 28) For example, Article 7(3) of the Statute of               “Inability” means “a total or substantial
the Yugoslavia Tribunal provides that any superior,          collapse or unavailability” of the national courts.
military or civilian, can be held criminally responsible     (Article 17(3)) This exception would apply to
for the acts of a subordinate if the superior “knew or       countries in which the judiciary has ceased in whole or
had reason to know” of the subordinate’s actions and         substantial part to function. It would not apply to a
the superior “failed to take the necessary and               state with a functioning judicial system, even if the
reasonable measures” to prevent or punish the acts.          system had structural flaws.
Under the Rome Statute, this standard applies only to                  Article 18, which was proposed and strongly
military commanders. (Article 28(1))                         pushed by the United States, allows a state to assert the
          Civilian leaders, by contrast, can be held         primacy of its national system with regard to
responsible only if (i) the subordinate was under the        individuals within its jurisdiction at the very outset of
superior’s “effective authority and control;” (ii) the       an investigation, even before individual suspects have
subordinate’s criminal acts were “a result” of the           been identified. The Prosecutor must defer to the state
superior’s “failure to exercise control properly;” (iii)     unless she can bear the burden of convincing two
the superior “knew, or consciously disregarded,              panels of judges that the state is not willing and able
information that clearly indicated” a crime was being        genuinely to investigate and prosecute. On the one
or would be committed; (iv) the criminal activities          hand, this provides a safeguard against an overzealous
“were within the effective responsibility and control”       prosecutor interfering with a functioning and
of the superior; and, finally, (v) the superior did not      independent judicial system (such as the United
take all reasonable and necessary measures to prevent        States). But it also offers authorities in less responsible
or punish the crimes. (Article 28(2) (emphasis added))       states an opportunity to delay and obstruct an
This provision obviously raises a high bar to the            investigation.
successful prosecution of civilian leaders.                            The complementarity provisions were strongly
                                                             supported by countries that wanted to limit the ICC’s
     The Primacy of National Judicial Systems                reach. Their immediate concern was to ensure that the
         The Court is not intended to replace                Court would not oust a functioning national system
functioning judicial systems. Rather, the goal is to         that is available to deal with allegations of wrongdoing
provide an alternative to impunity where independent         against a country’s own nationals. The extradition
and effective judicial systems are not available. Thus,      proceedings in the United Kingdom against former
a fundamental principle of the Rome Statute is that the      Chilean dictator Augusto Pinochet cast
Court must defer to national courts, except in those         complementarity in a different light. Ironically, those
cases where they are “unwilling or unable genuinely”         that fretted about an ICC with too much reach now see
to investigate or prosecute. (Article 17) This               that it might be a desirable alternative to national
principle, known as “complementarity,”16 can be              courts exercising universal jurisdiction. Nevertheless,
invoked by interested states and by individuals who          the Statute’s complementarity provisions, as well as
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                                    5



jurisdictional limitations described below, will sharply      be committed or whose nationals are likely to be
curb the Court’s scope.                                       responsible for such crimes will not be among the early
                                                              parties to the Rome Statute. Iraq, for example, voted
          Preconditions To The Exercise Of                    against the treaty and will not be likely to join, at least
Jurisdiction                                                  as long as Saddam Hussein is in power. The
          Court proceedings will be “triggered” in three      preconditions of territory and nationality therefore
ways: by the Security Council acting under Chapter            mean that for many years the ICC will be primarily a
VII of the UN Charter,17 by a State Party to the statute      Security Council court. And whenever the Security
and by the Prosecutor acting on her own initiative            Council is unable to act, whether because of a
(“propio motu”). (Article 13)                                 permanent member’s veto or because of a simple lack
          When the Security Council refers a                  of political will, the Court also will be unable to act.
“situation,”18 the Court will be able to exercise its                   Some have argued that the limitations of
jurisdiction without regard to whether interested             Article 12 will leave the Court a permanent invalid. It
countries, such as the country of a suspect’s                 is certainly true that for this generation and perhaps
nationality, have accepted the Court’s jurisdiction.          the next, Article 12 will seriously hamper the Court.
The authority for the Court’s jurisdiction in such            But the hope among human rights groups and other
circumstances, like the authority of the ad hoc               supporters of the Court is that it eventually will obtain
tribunals created by the Security Council, stems from         universal acceptance, allowing it to serve future
the Security Council’s plenary authority to maintain          generations as an independent and effective judicial
international peace and security. Thus, the Court’s           institution. Over time, many of today’s rogues will be
reach is greatest when it is given a Security Council         replaced, even if temporarily, by governments that will
mandate. As with any Security Council action,                 seek full membership in the community of nations by,
referrals to the Court will require the support of all five   among other things, ratifying the Rome Statute. And
permanent members, as well as an overall majority of          once a nation is a party, future autocrats will find their
the Security Council. This form of triggering the             options limited. Denunciation of the Statute will incur
Court’s jurisdiction represents an institutionalization       serious public relations costs and not become effective
of the precedent of the ad hoc tribunals.19                   for a year, leaving substantial exposure to prosecution.
          The Court’s reach is much more limited if                     As restrictive as it is, Article 12 is the central
proceedings are triggered by a State Party referral or        reason that the United States has given for opposing
initiated on the Prosecutor’s own motion.20 In those          the Statute.21 The U.S. objects to the territorial basis
circumstances, the Court can exercise its jurisdiction        for the Court’s jurisdiction, insisting that the Court
only if either (a) the state on whose territory conduct in    only be able to exercise jurisdiction if the state of the
question occurred or (b) the state of nationality of the      suspect’s nationality has acquiesced. United States
accused has accepted the Court’s jurisdiction. (Article       officials have labeled the territorial basis “a form of
12(2)) States accept the Court’s jurisdiction by              jurisdiction over non-party states” and denounced it as
ratifying the treaty or filing an ad hoc declaration.         “contrary to the most fundamental principles of treaty
(Article 12(1), (3))                                          law.”
          The jurisdiction of the Court is thus firmly                  These harsh words notwithstanding, there is
tied to the sovereign power of the states that create it.     nothing remarkable about a state’s deciding how to
Any state has undoubted authority to adjudicate crimes        adjudicate crimes that occur on its territory, especially
committed on its territory or the conduct of its              when those crimes are among the most serious
nationals. In non-Security Council cases, the Court’s         imaginable.        Indeed, the territorial basis for
authority thus stems directly from this underlying            jurisdiction is probably stronger even than
sovereign authority.                                          nationality.22
          This sovereignty-based limitation on the                      The reference to “jurisdiction over non-party
Court’s jurisdiction will sharply restrict its ability to     states” is misplaced. The Rome Statute does not
deal with many situations that might otherwise involve        accord the Court jurisdiction over any “state.” Rather,
“the most serious crimes of international concern.”           the Court will have jurisdiction over individuals – in
Many, if not most, of the nations on whose territory the      particular, individuals who have committed crimes on
crimes subject to the Court’s jurisdiction are likely to      the territory of an accepting state or who are nationals
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                                6



of an accepting state. The treaty does not bind states       concern for the relationship of the Court to soldiers on
that are not parties. Such states have no obligation, for    international peacekeeping missions.
example, to surrender suspects, cooperate with
investigations or do anything else.                                    Enforcement and Compliance
          Article 12’s final text is much narrower than                Effecting compliance with the Court’s orders
proposals that enjoyed widespread support at Rome.           and decisions will be one of the great challenges facing
For example, there was strong sentiment in favor of          those countries that ratify the Statute and comprise the
including the state that has custody over a suspect and      Assembly of States Parties. Article 86 imposes on
the state of the victim’s nationality on the list of         States Parties an obligation to “cooperate fully with the
countries whose acceptance could provide a basis for         Court.” But the Court itself will have no practical
the Court’s jurisdiction. Pressure from the United           means to enforce its orders and decisions. In cases
States and other major powers forced the eventual            initiated by the Prosecutor or pursuant to a State Party
compromise.                                                  referral, the Court can refer cases of non-compliance
          Including the custodial state as a basis for the   to the Assembly of States Parties. It will then be up to
Court’s exercise of jurisdiction would have                  the Assembly to bring pressure to bear on recalcitrant
significantly extended the Court’s reach. It would at        states. (Article 87(7)) In cases where the Court is
least have caused the perpetrators of these crimes to        acting pursuant to a Security Council referral, the
remain within the borders of their own countries or          Court can turn to the Council for assistance. (Article
face the possibility of apprehension. The Pinochet case      87(7)) Under those circumstances, the Council would
has illustrated the usefulness of such a jurisdictional      be able to use its plenary authority under Chapter VII.
basis. As the treaty stands now, however, the Court                    The practical challenges of obtaining
will be powerless to prosecute an individual who is          compliance will be exacerbated by the fact that the
accused of genocide and who is in the custody of a           Statute does not give the Prosecutor the authority to
signatory state, absent some other basis for                 conduct investigations independently of national
jurisdiction.                                                authorities. Under the ICTY Statute, the Prosecutor is
          Depriving the Court of this basis of               accorded unqualified power to question individuals,
jurisdiction illustrates the incremental nature of the       collect evidence and conduct on-site investigations.
Rome Statute. It is widely accepted, including by the        She “may, as appropriate, seek the assistance of the
United States government, that a custodial state has the     State authorities concerned.” (Statute of the ICTY,
authority to try an individual for genocide. And the         Article 18(2)) Recent events in Kosovo have
1949 Geneva Conventions impose on states an explicit         demonstrated the difficulty of actually exercising that
obligation to prosecute or extradite individuals in their    authority.
custody who are accused of grave breaches of those                     The ICC Prosecutor can investigate only by
treaties – all crimes that are included in the Court’s       means of requesting the assistance of a State Party in
jurisdiction. Yet under the terms of the Rome Statute,       accordance with the Statute and “under procedures of
the Court created by a group of states has less              national law.” (Article 93(1)) Although States Parties
jurisdictional reach than any one of them has                are required to “ensure that there are procedures
individually.                                                available under their national law for all forms of
          Including the state of the victim’s nationality    cooperation” (Article 88), the requirement of working
also would have extended the Court’s reach in a              through national procedures offers tremendous
meaningful way. In particular, it would have provided        opportunity for mischief by recalcitrant governments.
increased protection to soldiers sent on peacekeeping        One can imagine how much more problematic Justice
missions in the territory of non-ratifying countries.        Arbour’s efforts in Kosovo would be if she were
The Court would have been able to exercise its               required to obtain assistance from the Yugoslav
jurisdiction over war crimes committed against such          authorities under Yugoslavian national procedures.
peacekeepers, even if neither the territorial state nor      The Statute also gives States scope to refuse
the state of the perpetrator’s nationality accepted          information on national security grounds (Article 72)
jurisdiction. The irony is that those nations most           and resist cooperation “on the basis of an existing
intent on restricting the scope of the Court’s               fundamental legal principle of general application”
jurisdiction are among those who profess greatest            (Article 93(3)).
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                                7



          The Next Steps                                     will be global. On balance, the Statute offers a viable
          Even as signature and ratification proceed,        framework of international justice for future
many details remain to be worked out before the Court        generations and represents a step, however measured,
can become operational. A Preparatory Commission             toward ending impunity for crimes of mass violence.
met in February and will continue with periodic
meetings through the year 2000 in order to draft the         Endnotes:
Court’s Rules of Procedure and Evidence and other
documents. Among those other documents is one that           *         Norman Dorsen is Stokes Professor of Law at
specifies “Elements of Crimes.” Pushed by the U.S. at        NYU School of Law and Chairman of the Board of
Rome, the Elements are intended to assist the Court          Directors of the Lawyers Committee for Human
and Prosecutor in the interpretation and application of      Rights. He was President of the American Civil
the definitions of crimes found in Articles 6, 7 and 8 of    Liberties Union from 1976 to 1991. Jerry Fowler is
the Statute.                                                 Legislative Counsel for the Lawyers Committee for
          A big question mark is the attitude of the         Human Rights.
United States. So far, the U.S. has expressed an
interest in continuing to discuss its concerns with other    1.       Elizabeth Becker, U.N. Panel Wants
countries, and a U.S. delegation participated                International Trial for Khmer Rouge, N.Y. Times, at
constructively in the February meeting of the                A1 (Mar. 2, 1999).
Preparatory Commission. But some voices inside the
Administration and on Capitol Hill are urging a more         2.        The treaty’s official title is Rome Statute of
antagonistic approach to the Court. It is difficult to see   the International Criminal Court, A/CONF.183/9 (July
how a hostile approach would serve any U.S. interest.        17, 1998). It was adopted by the United Nations
United States opposition – no matter how active -- is        Diplomatic Conference of Plenipotentiaries on the
unlikely to stop the Court from coming into existence,       Establishment of an International Criminal Court by a
given the breadth and depth of international support         vote of 120 in favor to 7 against, with 21 abstentions.
for the Statute. But it would deprive the U.S. of any        The text can be found at:
influence over the details of the Court’s procedures and     www.un.org/law/icc/statute/romefra.htm.
undermine U.S. efforts to promote its interest in the        Briefing papers prepared before and after the Rome
enforcement of international law in other areas, such        Conference by the Lawyers Committee for Human
as the work of the ad hoc tribunals and Security             Rights can be found at _ HYPERLINK
Council resolutions on Iraq.                                 http://www.lchr.org __www.lchr.org_. The Lawyers
                                                             Committee site includes answers to frequently asked
         Conclusion                                          questions.

         The creation of a permanent international           3.       In the meantime, a Preparatory Commission
criminal court was unimaginable a decade ago. But            will be meeting to draft Rules of Procedure and
the remarkable nature of the growing consensus on            Evidence and “Elements of Crimes” intended to assist
international justice should not obscure the                 the Court in the interpretation and application of the
fundamentally incremental character of the Rome              definitions found in Articles 6, 7 and 8.
Statute. Many aspects of the Statute will limit the
Court’s effectiveness: the restrictions of Article 12,       4.       The term “laws of humanity” appears in the
departures from international law on superior orders         so-called Martens clause of the 1907 Hague
and command responsibility, the restrictive nature of        Convention (IV) Respecting the Laws and Customs of
the definition of crimes against humanity, the               War on Land. The Martens clause is a type of savings
threshold for war crimes, the conservative regime for        clause that, in contrast to the reciprocal protections of
state cooperation – to name some of the most                 the Convention, provides that all inhabitants and
problematic. It will under any circumstances depend          belligerents enjoy the protection of “the principles of
upon the political will of the international community       the law of nations, as established by and prevailing
to enforce its judgments and orders. As ratification of      among civilized nations, by the laws of humanity, and
the Court approaches universal, its jurisdictional reach     the demands of the public conscience.” See Roger S.
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                              8



Clark, “Crimes Against Humanity,” in George                14.      Customary international law provides that
Ginsburgs & V.N. Kudriavtsev, The Nuremberg Trial          either widespread or systematic acts can constitute a
and International Law 177-212 (1990).                      crime against humanity, without regard to the
                                                           existence of a policy to commit the acts. See
5.      See Michael R. Marrus, The Nuremberg War           Prosecutor v. Tadic, No. IT-94-1-T, para. 646 (May 7,
Crimes Trial 1945-46: A Documentary History 3-10           1997).
(1997).
                                                           15.      See K.J. Holsti, The State, War, and The State
6.       As an alternative to Allied trials, the Germans   of War 25 (1996). Surveying the past 480 years,
agreed to prosecute 45 individuals (out of almost 900      Professor Holsti finds that “classical interstate wars
accused). Only twelve actually faced trial, of whom 6      have declined dramatically compared to previous
were convicted, receiving little or no punishment.         historical periods, and constitute only about 18 percent
Marrus, supra, at 12.                                      of all wars since 1945.”

7.     Quoted in Robert E. Conot, Justice at               16.       The treaty’s Preamble “emphasiz[es] that the
Nuremberg 105 (1983).                                      International Criminal Court established under this
                                                           Statute shall be complementary to national criminal
8.       Id.                                               jurisdictions.” (Emphasis in original.) Article 1 also
                                                           specifies that the Court “shall be complementary to
9.       Judgment of the International Military            national criminal jurisdictions.”
Tribunal for the Trial of German Major War Criminals
(“Nuremberg Judgment”) at 41 (Nuremberg, Sept. 30-         17.       Chapter VII of the UN Charter gives the
Oct. 1, 1946).                                             Security Council plenary authority to maintain or
                                                           restore international peace and security.
10.       Over 125 countries, including the US, are
parties to the Genocide Convention.                        18.      The Statute provides that the Security Council
                                                           or a State Party can refer a “situation in which on or
11.       Acceptance of the 1949 Geneva Conventions        more of [the] crimes [within the Court’s jurisdiction]
is virtually universal – 188 countries, including the      appears to have been committed.” (Article 13(a),(b))
US, have ratified. The Conventions deal with the
treatment during war of wounded, sick and                  19.       The Security Council also will have the power
shipwrecked military personnel, prisoners of war and       when acting under Chapter VII to defer investigations
civilians.                                                 or prosecutions for renewable twelve-month periods.
                                                           (Article 16) In light of these powers to trigger and
12.     Aryeh Neier, War Crimes: Brutality,                defer investigations, it is surprising that some
Genocide, Terror, and the Struggle for Justice xiii        opponents of the ICC in the US Congress, such as
(1998).                                                    Senator Jesse Helms (R-NC) and Senator Rod Grams
                                                           (R-MN), criticize the Rome Statute as an attempt to do
13.       The treaty also provides that the Court will     an “end run” around the Security Council. Senator
have jurisdiction over aggression, if the treaty is        Grams has asserted that the treaty is “a great victory
amended to define the crime and to provide for the         for the critics of the Security Council.” In fact, the
conditions under which the Court will exercise that        most vociferous critics of the Security Council – such
jurisdiction. (Article 5) Given deep international         as India, Iraq and Libya – refused to support the treaty,
divisions over definitional issues and over the Security   while three of the five permanent members of the
Council’s role in determining whether aggression has       Security Council voted for it.
occurred, as well as the treaty’s onerous amendment
requirements, the Court is not likely to be able to        20.      In order to alleviate concerns of prosecutorial
exercise jurisdiction over the crime of aggression for     abuse of power, the Rome Statute tightly circumscribes
many years to come.                                        the Prosecutor’s authority. Before she can proceed on
                                                           her own initiative, she must convince a panel of judges
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                             9



that the investigation has “a reasonable basis” and that   litigation merits careful scrutiny.
the case is within the Court’s jurisdiction. (Article                This essay reviews the Pinochet litigation
15(4))                                                     from its inception in the Divisional Court of the
                                                           Queen’s Bench Division through the most recent
21.      For a more complete discussion of U.S.            decision of the House of Lords. After examining the
objections to the Court, see Lawyers Committee for         legal issues raised in these various proceedings, this
Human Rights, The International Criminal Court: The        essay considers the normative arguments which
Case for U.S. Support (December 1998) and Jerry            permeate the litigation.
Fowler, World Leadership and International Justice:
The United States and the International Criminal                    Background
Court, Translex (Transnational Law Exchange), at 3
(Feb. 1999)                                                          On September 11, 1973, General Augusto
                                                           Pinochet Ugarte led a military coup against the
22.       See Restatement (Third) of the Foreign           socialist government of Salvador Allende. Pinochet
Relations Law of the United States, § 402, comment         was subsequently appointed president of the governing
(1987) (“Territoriality is considered the normal, and      junta and was later named President of the Republic.
nationality the exceptional, basis for the exercise of     In order to consolidate political power, the Pinochet
jurisdiction.”).                                           government engaged in a brutal crackdown of
                                                           opposition groups. Thousands were arrested and
                                                           detained; many were tortured and killed. While the
                                                           majority of victims were Chilean citizens, foreign
                                                           nationals were also subject to human rights violations.
                                                           In addition, Chilean efforts to suppress opposition
2.      THE PINOCHET LITIGATION                            groups abroad led to the creation of Operation Condor,
                                                           a series of coordinated actions by the intelligence
               By: William J. Aceves*                      organizations of several South American countries to
                                                           monitor socialist opposition groups throughout the
         Introduction                                      region.24 After seventeen years, Pinochet stepped
                                                           down as head of state on March 11, 1990 although he
          The Pinochet litigation represents an            continued to command the military until March 10,
important moment in the development of human rights        1998.25
law. Indeed, it will undoubtedly serve as a guide for                Atrocities committed by the Pinochet regime
human rights litigation throughout the world. Is           are well documented. The U.N. General Assembly, the
universal jurisdiction permissible for such crimes as      U.N. Ad Hoc Working Group on Chile, and the Inter-
torture and hostage-taking? Can a former head of state     American Commission of Human Rights corroborated
be held liable for human rights violations committed       widespread human rights violations. The Chilean
during his prior tenure in power? Each question raises     government came to a similar conclusion following
a fundamental query of its own: where does one draw        several investigations conducted after the transition of
the line?                                                  power in 1990. The Rettig Commission Report, issued
          While the Pinochet litigation is taking place    by the Chilean National Commission on Truth and
in English courts, it will undoubtedly have an impact      Reconciliation, documented widespread human rights
well beyond the shores of the British Isles.23 England,    violations and concluded that Chilean security forces
Chile and Spain are not the only countries interested in   under Pinochet had implemented a brutal and
the outcome of the litigation. Other countries             systematic policy of political repression against
including France, Germany and Switzerland are              opposition groups.26 The report attributed 3,197 deaths
conducting their own investigations of Pinochet. More      and disappearances to the Chilean security forces
broadly, the litigation may affect the manner in which     between 1973 and 1978 alone.
other courts, including courts in the United States,                 Despite these findings, efforts to prosecute
consider such issues as universal jurisdiction and         Pinochet and other military and political leaders
sovereign immunity. Accordingly, the Pinochet              implicated in human rights violations have met with
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                                10



little success in Chilean courts. The inability to punish   unanimous 3-0 ruling, the Divisional Court found both
human rights violations can be attributed to several        provisional arrest warrants invalid.
factors. First, a general amnesty was declared by the                 As to the First Provisional Arrest Warrant,
Pinochet regime which provides immunity for human           Lord Bingham of Cornhill found that the murder of
rights violations committed in Chile between                Spanish citizens in Chile was not an extraditable
September 11, 1973 and March 10, 1978. While such           offense under the terms of England’s Extradition Act
amnesty laws have been deemed incompatible with             of 1989. The Extradition Act authorizes extradition in
international obligations by the Inter-American             two situations. First, extradition is authorized if the
Commission on Human Rights and the U.N. Human               alleged acts were committed in the territory of the
Rights Committee, they were declared constitutional by      requesting state. Second, extradition is authorized for
the Chilean Supreme Court in 1990. Second,                  extraterritorial offenses in only limited circumstances.
Pinochet’s influence in the military has deterred most      Extradition for extraterritorial offenses is authorized if,
efforts to punish human rights violations. On several       inter alia, the equivalent conduct would constitute an
occasions, Pinochet threatened military uprisings in        extraterritorial offence against the law of the United
response to efforts to prosecute human rights violations    Kingdom.        U.K. courts do not have criminal
committed during his regime.                                jurisdiction in a case involving the murder of a British
          Due to the inability of the Chilean justice       citizen by a non-British citizen outside the United
system to prosecute human rights violations committed       Kingdom. Since Spain was seeking to extradite
during the Pinochet regime, several countries initiated     Pinochet for crimes against Spanish citizens,
investigations into the atrocities. In 1996, judicial       extradition was unavailable under this provision.
proceedings were initiated in Spain to investigate the      Extradition for extraterritorial offenses is also
disappearance and murder of Spanish citizens in Chile.      authorized if, inter alia, the requesting state bases its
The subsequent investigation focused on Pinochet and        jurisdiction on the nationality of the offender. Since
other Chilean military leaders. When the Spanish            Spain was not basing its claim to jurisdiction on
court in charge of the investigation was notified that      Pinochet’s nationality, extradition was also unavailable
Pinochet was in England, it filed an international          under this provision. Accordingly, Lord Bingham
arrest warrant seeking Pinochet’s detention.                found that the allegations raised in the First
          On Oct. 16, 1998, Pinochet was served with        Provisional Arrest Warrant did not give rise to an
a provisional arrest warrant while recuperating from        extraditable offense.
surgery in a London medical clinic. The warrant                       As to the Second Provisional Arrest Warrant,
alleged that Pinochet had participated in the murder of      Lord Bingham examined whether English courts
Spanish citizens living in Chile between September 11,      could exert jurisdiction over a former head of state in
1973 and December 31, 1983. A second provisional            relation to any act done by him in the exercise of
arrest warrant was issued on October 23, 1998. The          sovereign power. To determine the scope of head of
warrant alleged Pinochet’s participation in five            state immunity, Lord Bingham examined the State
offenses: (1) the infliction of severe pain and suffering   Immunity Act and the Diplomatic Privileges Act.
on another; (2) conspiracy to inflict severe pain or        When read together, Lord Bingham found that a
suffering on another; (3) detention of hostages; (4)        former head of state continues to enjoy immunity in
conspiracy to detain hostages; and (5) conspiracy to        respect to public acts performed while he was head of
commit murder.           Pinochet subsequently filed        state. This position was supported by customary
applications for judicial review and habeas corpus.27       international law as set forth by several noted scholars.
Hearings were held before the Divisional Court of the       According to Satow’s Guide to Diplomatic Practice, a
Queen’s Bench Division on October 26th and 27th. At         former head of state is “entitled to continuing
these proceedings, the Crown Prosecution Service            immunity in regard to acts which he performed while
appeared on behalf of the Spanish government.               head of state, provided that the acts were performed in
                                                            his official capacity . . . .” Lord Bingham refused to
R. v. Evans and Others                                      accept the arguments raised by the Crown Prosecution
                                                            Service that some crimes could not be considered
        On October 28, 1998, the Divisional Court of        official acts of state.
the Queen’s Bench Division issued its decision.28 In a                Lord Bingham also refused to accept that any
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                               11



international agreements compelled a contrary result.       committed while he was head of state.
He noted that the U.K. legislation incorporating the                 On appeal to the House of Lords, Amnesty
provisions of the Torture Convention and the Hostage-       International and several other human rights groups
Taking Convention did not contain any explicit              were allowed to intervene in the proceedings. In
provisions waiving the immunity of former heads of          addition, Human Rights Watch provided written
state. Similarly, the Statutes of the International         submissions to the Law Lords. Oral argument before
Criminal Tribunals for the Former Yugoslavia and for        the House of Lords took place from November 4th
Rwanda were inapplicable because they only waived           through 12th.
immunity for purposes of international prosecution.
U.S. case law regarding immunity principles was also        R. v. Bow Street Stipendiary Magistrate and Others
inapposite. In contrast, the decision of the English
Court of Appeal in Al-Adsani v. Government of                          On November 25, 1998, the House of Lords
Kuwait supported the assertion that immunity applied        issued its first landmark ruling in the case.29 In a 3-2
even for alleged acts of torture.                           decision, the Law Lords held that Pinochet could not
          For these reasons, Lord Bingham held that         claim immunity from prosecution for alleged acts of
Pinochet was entitled to immunity from criminal and         torture and hostage-taking.
civil prosecution in English courts. Both Lord Collins                 In his opinion, Lord Nicholls of Birkenhead
and Lord Richards concurred with the opinion of Lord        examined four distinct principles of sovereign
Bingham. Recognizing the sensitive nature of the            immunity. The first principle of immunity, codified in
case, Lord Collins noted:                                   Part I of the State Immunity Act of 1978, provides that
[Mr. Jones, arguing on behalf of the Crown                  a foreign state is immune from the jurisdiction of U.K.
Prosecution Service] then argues that the protection        courts. However, Lord Nicholls found this provision
afforded to a foreign sovereign avails him only in          inapplicable because Part I of the State Immunity Act
relation to the discharge of his functions as head of       does not apply to criminal proceedings. The second
state, and such functions, Mr. Jones contends, cannot       principle of immunity is found in the act of state
include conduct such as that charged against the            doctrine which is a doctrine of judicial abstention.
applicant. But a former head of state is clearly entitled   Under this common law doctrine, English courts are
to immunity in relation to criminal acts performed in       precluded from examining the legality of sovereign
the course of exercising public functions. One cannot       acts performed by a foreign government within its own
therefore hold that any deviation from good democratic      territory. Lord Nicholls found the act of state doctrine
practice is outside the pale of immunity. If the former     inapplicable because Parliament had incorporated the
sovereign is immune from process in respect of some         provisions of the Torture Convention and the Hostage-
crimes, where does one draw the line? There is, in a        Taking Convention into U.K. law. “Where Parliament
case such as this, a great temptation to say, having        has shown that a particular issue is to be justiciable in
regard to the seriousness of the matters: if he is          the English courts, there can be no place for the courts
responsible he deserves to pay for the terrible crimes      to apply this self-denying principle.” The third
that have been committed; if the Spanish courts have        principle of immunity, codified in Section 20 of the
jurisdiction, why not send him there to be tried? But       State Immunity Act of 1978, provides head of state
one cannot twist the law to meet the apparent merits of     immunity for official acts of state. For this principle to
any individual case. Accordingly, the Divisional Court      apply, the alleged acts must be considered official
ordered that both provisional arrest warrants be            functions of a head of state. The test for making such
quashed.                                                    determinations relies upon principles of international
          Given the importance of the issues raised in      law: immunity is conferred only on those functions
the Pinochet case, the Divisional Court immediately         which international law recognizes as the legitimate
certified the following question to the House of Lords:     functions of a head of state. Lord Nicholls found that
          A point of law of general public importance is    neither torture nor hostage-taking can be considered
involved in the court’s decision, namely the proper         the function of a head of state under international law.
interpretation and scope of the immunity enjoyed by a                  International law recognizes, of course, that
former head of state from arrest and extradition            the functions of a head of state may include activities
proceedings in the United Kingdom in respect of acts        which are wrongful, even illegal, by the law of his own
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                             12



state or by the laws of other states. But international      obliquity is more or less great.” Moreover, a review of
law has made plain that certain types of conduct,            customary international law reveals no general
including torture and hostage-taking, are not                consensus that crimes against international law should
acceptable conduct on the part of anyone. This applies       be justiciable in national courts on the basis of
as much to heads of state, or even more so, as it does       universal jurisdiction. Indeed, no international
to everyone else; the contrary conclusion would make         agreement authorizes removal of head of state
a mockery of international law.                              immunity for acts of torture or hostage-taking. In
          Finally, Lord Nicholls refused to recognize        addition, Lord Slynn found that once it has been
that residual immunity exists under customary                determined that a former head of state is entitled to
international law to protect former state officials from     immunity from criminal prosecution, the act of state
prosecution when they are acting under color of              doctrine precludes U.K. courts from further
domestic authority. “Acts of torture and hostage-            adjudicating the matter. For similar reasons, Lord
taking, outlawed as they are by international law,           Lloyd of Berwick argued that Pinochet was entitled to
cannot be attributed to the state to the exclusion of        immunity as a former head of state.
personal liability.”                                                  Following the ruling by the House of Lords,
          Indeed, it would be inconsistent with the          British Home Secretary Jack Straw announced on
existence of these international crimes if former            December 9th that extradition could proceed.
government officials were immune from prosecution
outside their own jurisdiction. For these reasons, Lord      R v. Bow Street Metropolitan Stipendiary
Nicholls would allow the appeal and authorize                Magistrate and Others
extradition.30
          Lord Steyn also focused on head of state                     In a surprise development, Pinochet’s lawyers
immunity and the act of state doctrine. And like Lord        subsequently petitioned the Law Lords to set aside
Nicholls, Lord Steyn recognized that international law       their earlier ruling based upon the recently discovered
provides that certain acts can never be considered           links between Lord Hoffman and Amnesty
official functions of a head of state.                       International. It had been discovered that Lord
          My Lords, the concept of an individual acting      Hoffman was Director and Chairperson of Amnesty
in his capacity as head of state involves a rule of law      International Charity Limited.31 Based upon these
which must be applied to the facts of a particular case.     links, Pinochet’s lawyers argued that there was a real
It invites classification of the circumstances of a case     danger that Lord Hoffman was biased or that such
as falling on a particular side of the line. It              links gave rise to the appearance of bias.
contemplates at the very least that some acts of a head                On December 17, 1998, the House of Lords
of state may fall beyond even the most enlarged              announced its decision although it did not issue its
meaning of official acts performed in the exercise of        written ruling until January 15, 1999.32 In a
the functions of a head of state.                            unanimous 5-0 ruling, the Law Lords set aside their
          Given the status of international law, it can no   earlier order. In his decision, Lord Brown-Wilkinson
longer be argued that such acts as torture and hostage-      emphasized there was no allegation that Lord Hoffman
taking can be considered official functions of a head of     was actually biased in the matter. Rather, there was an
state. Accordingly, head of state immunity is                appearance of bias in the case because of Lord
unavailable for these crimes. For similar reasons, the       Hoffman’s relationship with Amnesty International.
act of state doctrine is also inapplicable. In his brief     While Lord Hoffman did not have a financial interest
statement, Lord Hoffman concurred in the decisions of        in the case, Lord Brown-Wilkinson determined that he
Lord Nicholls and Lord Steyn.                                did have a non-pecuniary interest in the outcome of the
          In dissent, Lord Slynn of Hadley found that        case. “Once it is shown that the judge is himself a
customary international law recognizes that a former         party to the cause, or has a relevant interest in its
head of state is entitled to immunity from prosecution       subject matter, he is disqualified without any
with respect to official acts committed in the exercise      investigation into whether there was a likelihood or
of his functions as head of state. When a head of state      suspicion of bias. The mere fact of his interest is
is carrying out official functions, it is inappropriate to   sufficient to disqualify him unless he has made
distinguish “between acts whose criminality and moral        sufficient disclosure.” These sentiments were echoed
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                               13



by the other Law Lords.                                     jus cogens is an act done in an official capacity on
          Accordingly, the Law Lords set aside their        behalf of the state? I believe there to be strong grounds
earlier order in the Pinochet case. This was the first      for saying that the implementation of torture as defined
time that the Law Lords had set aside a prior ruling.       by the Torture Convention cannot be a state function.
A new panel was established for the rehearing which                    Indeed, Lord Brown-Wilkinson suggested it
did not contain any of the Law Lords that participated      would be inconsistent if international law prohibited
in the original ruling. At the rehearing, both the          and criminalized certain acts and yet recognized that
Chilean government and Amnesty International, were          such acts could be designated official functions subject
allowed to intervene. These new hearings lasted for         to immunity. If the Torture Convention did not waive
over two weeks and were concluded on February 6,            immunity of all government officials, including heads
1999.                                                       of state, it would render useless the entire structure of
                                                            universal jurisdiction over torture. All these factors
R. v. Bartle and the Commissioner of Police for the         demonstrate that immunity for former heads of state is
Metropolis and Others                                       inconsistent with the provisions of the Torture
                                                            Convention. Accordingly, Pinochet could not claim
          On March 24, 1999, the House of Lords             immunity for acts of torture committed after December
issued its third landmark ruling in the Pinochet case.33    8, 1998, the date when the United Kingdom ratified
In their 6-1 decision, the Law Lords addressed two          the Torture Convention.
distinct but related issues: universal jurisdiction and                For these reasons, Lord Brown-Wilkinson
sovereign immunity.                                         would permit extradition proceedings with respect to
          In his opinion, Lord Brown-Wilkinson found        those limited charges which alleged acts of torture and
that the dual criminality rule requires that an             conspiracy to commit torture after the ratification of
extradition crime must constitute a crime under the         the Torture Convention into U.K. law. Given the
laws of Spain and the United Kingdom at the time of         substantial reduction in the number of extraditable
the alleged crime. Accordingly, Pinochet could only         offenses, Lord Brown-Wilkinson suggested that the
be extradited for conduct that was criminal under the       Secretary of State should reconsider his earlier
laws of the United Kingdom when it was committed.           decision to extradite. Lord Brown-Wilkinson’s
While international law prohibited acts of torture for      reasoning was further elaborated and generally agreed
many years, it did not authorize universal jurisdiction     upon by Lord Hope of Craighead, Lord Hutton, Lord
and national prosecution until the adoption of the          Saville of Newdigate, and Lord Phillips of Worth
Torture Convention. Indeed, acts of torture committed       Matravers.
abroad were not punishable in the United Kingdom                       In contrast, Lord Millet argued that all states
until September 29, 1988, the date on which the             are authorized to exercise extraterritorial jurisdiction
United Kingdom incorporated the provisions of the           in respect to large-scale violations of international
Torture Convention into the Criminal Justice Act.           norms that have attained jus cogens status.
Thus, Pinochet could only be extradited for acts of         Accordingly, “the courts of this country already
torture committed after September 29, 1988. With            possessed extra-territorial jurisdiction in respect of
respect to acts of hostage-taking, Lord Brown-              torture and conspiracy to torture on the scale of the
Wilkinson found that the Request for Extradition did        charges in the present case and did not require the
not allege crimes of hostage-taking as set forth in the     authority of statute to exercise it.” With respect to
Taking of Hostages Act. Accordingly, the hostage-           head of state immunity, Lord Millet found that the
taking charges did not constitute extradition crimes.       definition of torture as set forth in the Torture
          With respect to head of state immunity, Lord      Convention and in the Criminal Justice Act effectively
Brown-Wilkinson found that not all acts by a head of        precluded any claim of immunity. “The international
state constitute official acts of state which would merit   community had created an offence for which immunity
immunity from prosecution. Accordingly, the critical        ratione materiae could not possibly be available.
issue is to determine which acts constituted official       International law cannot be supposed to have
functions of a head of state.                               established a crime having the character of a jus
          Can it be said that the commission of a crime     cogens and at the same time to have provided an
which is an international crime against humanity and        immunity which is co-extensive with the obligation it
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                              14



seeks to impose.” For these reasons, Lord Millet             certain violations of international law and removing
would allow the appeal and permit extradition with           head of state immunity for such acts, the Law Lords
respect to torture and conspiracy to commit torture          have affirmed a fundamental principle -- individual
regardless of where or when such acts occurred.              accountability for human rights violations. The notion
          In dissent, Lord Goff of Chieveley found that      that all states have an obligation to prosecute certain
the double criminality rule excluded the majority of         violations of international law is an important legacy
charges alleging acts of torture. In addition, the           of the Pinochet litigation. However, it is a legacy that
charges of hostage-taking did not disclose an offense        must be imposed responsibly and consistently by all
under the Taking of Hostages Act. In contrast to Lord        states.
Brown-Wilkinson, however, Lord Goff found that the                     As we approach the dawn of a new
principle of sovereign immunity had not been                 millennium, we can only hope that ex ante respect for
restricted by the ratification of the Torture Convention.    human rights will replace the need for ex post
To waive such a fundamental principle of international       accountability for human rights violations. Perhaps
law, waiver of immunity must be explicit. “Indeed, if        this is the most important legacy of the Pinochet
this was not so, there could well be international chaos     litigation.
as the courts of different state parties to a treaty reach
different conclusions on the question whether a waiver       Endnotes:
of immunity was to be implied.” Finally, Lord Goff
found that public officials are entitled to immunity for     *        William Aceves is a Professor of Law at
any acts, including murder or torture, performed in the      California Western School of Law in San Diego,
course of exercising public functions. “The functions        California.
of, for example, a head of state are governmental
functions, as opposed to private acts; and the fact that     1.       The Pinochet litigation has already
the head of state performs an act, other than a private      engendered significant debate. See George Black,
act, which is criminal does not deprive it of its            Perspective on Pinochet, LOS ANGELES TIMES,
governmental character.” For these reasons, Lord             Dec. 8, 1998, at B7; Richard Cohen, Cuffs for
Goff would dismiss the appeal.                               Pinochet, WASHINGTON POST, Dec. 3, 1998, at
          In sum, the majority of Law Lords found that       A23; Carroll Bogert, The Pinochet Precedent, NEW
the dual criminality rule prohibited extradition for any     YORK TIMES, Dec. 2, 1998, at A27; Kenneth Roth,
alleged acts of torture committed before the United          Justice for Tyrants, WASHINGTON POST, Nov. 26,
Kingdom incorporated the provisions of the Torture           1998, at A31; Martha Minow, Justice Beyond
Convention into the Criminal Justice Act. In addition,       Punishment, WASHINGTON POST, Nov. 1, 1998, at
the majority found that head of state immunity only          C1; Mary McGrory, Justice and a Noble Cause,
applied to prevent extradition for alleged acts of torture   WASHINGTON POST, Oct. 25, 1998, at C1; Diane
committed before December 8, 1988, when the United           Orentlicher, Putting Limits on Lawlessness,
Kingdom formally ratified the Torture Convention.            WASHINGTON POST, Oct. 25, 1998, at C1; Flora
          Despite the Law Lords’ ruling, the Pinochet        Lewis, Is Punishment Pinochet the Way to Deal With
litigation is far from over. Continued appeals by both       Ex-Despots?, SEATTLE POST-INTELLIGENCER,
sides could protract the litigation for several months,      Oct. 23, 1998, at A17.
if not years, before extradition to Spain is, if ever,
accomplished.                                                2.        The 1976 assassination of Orlando Letelier in
                                                             Washington, D.C. was attributed to the Chilean
Conclusion                                                   intelligence. The assassination gave rise to a
                                                             subsequent Alien Tort Claims Act lawsuit. See
          Issues of a legal and normative nature are         Letelier v. Republic of Chile, 748 F.2d 790 (2nd Cir.
critically and perhaps inevitably intertwined in the         1984).
Pinochet litigation. One cannot address the legal
questions raised in the litigation without considering       3.       On March 11, 1998, Pinochet was named
the broader implications of the case.                        Senator-for-Life under the terms of the Chilean
          By recognizing universal jurisdiction for          Constitution.
INTERNATIONAL CIVIL LIBERTIES REPORT                     15



4.      The National Corporation for Reparation and
Reconciliation was subsequently established to
implement the recommendations of the Rettig
Commission.

5.       On November 4, 1998, the Spanish
government submitted a formal Request for
Extradition which expanded the list of crimes alleged
in the second provisional arrest warrant. Thirty
charges alleging acts from 1972 to 1989 were raised in
the Request for Extradition.

6.       R. v. Evans and Others, Queen’s Bench
Division (28 October 1998) reprinted in 38 I.L.M. 68
(1999).

7.       R. v. Bow Street Stipendiary Magistrate and
Others, [1998] 4 All ER 897 reprinted in 37 I.L.M.
1302 (1998).

8.       Lord Nicholls indicated that any political
matters that may arise with respect to the litigation
should be addressed by the Secretary of State in the
exercise of his discretion under the Extradition Act.

9.       Lord Hoffman was not a member of Amnesty
International nor did he receive compensation for his
work.

10.     R. v. Bow Street Metropolitan Stipendiary
Magistrate and Others, [1999] 1 All ER 577.

11.      R. v. Bartle and the Commissioner of Police
for the Metropolis and Others, [1999].
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                   16



                                                                     Global -- The Internet provides
3.       THE GLOBAL INTERNET                               immediate access to information from around
         LIBERTY CAMPAIGN                                  the world. With simple e-mail, it is as easy to
                                                           send a message to another continent as it is to
         by Barry Steinhardt*                              the building next door. Through the World
                                                           Wide Web, thousands of newspapers and tens
          Fifty years ago, the nations of the world        of thousands of other information sources are
affirmed their commitment to protect and promote           available from around the world. While
human rights in the Universal Declaration of Human         access is still not available to most of the
Rights. Understanding that "recognition of the             world's population, the fastest rates of growth
inherent dignity and of the equal and inalienable rights   are in less developed countries.
of all members of the human family is the foundation
of freedom, justice and peace in the world," the nations            Decentralized -- The Internet was
of the world committed themselves to protect the rights    designed to be decentralized, to work without
of privacy, equality, human dignity and freedom of         gatekeepers, and to accommodate multiple,
speech. This fiftieth anniversary of the Universal         competitive access points. The absence of
Declaration of Human Rights coincides with a world         gatekeepers of the kind that exist in
wide communications revolution, symbolized by the          broadcasting, cable television, or satellite
explosive growth of the Internet and characterized by      transmission, the availability of numerous
a global system of communications that leapfrogs over      hosting sites, and the irrelevance of
borders.                                                   geographic location mean that material can
          For the hundreds of millions of people around    almost always be published outside the
the world who use the Internet, it is already evident      control of governments, monopolies or
that its numerous applications for interactive             oligopolies.
communication make it unlike any other medium.
And, as the Internet expands, it provides increasing                 Open -- The Internet has low
opportunities for expression, education, and               barriers to access. Service can be priced very
empowerment. The great strength of the Internet is its     inexpensively. The costs of creating and
open architecture and multiple points of access. This      disseminating content are extremely low.
openness both enhances freedom of expression and
limits governments’ ability to censor speech.                       Abundant -- The digitization of
Paradoxically, the open network of the Internet poses      information and the ability to transmit it over
new dangers to individual privacy, while other digital     the telephone network, combined with the
technologies like encryption afford new protections for    decentralized nature of the Internet, mean
the privacy of communications and personal data.           that the Internet has essentially unlimited
          Article 19 of the UDHR provides that             capacity to hold information. In economic
"Everyone has the right to freedom of opinion and          terms, the marginal cost of adding another
expression...through any media and regardless of           web site, sending another email message, or
frontiers”. The unique qualities of the Internet justify   posting to a newsgroup is essentially zero.
according the strongest protection to free expression
on-line and should prompt a new vision of the right to               Interactive -- The Internet is
receive and impart information "regardless of              designed for bi-directional communication:
frontiers."                                                All Internet users can be both speakers and
          Indeed, applying international human rights      listeners. The Internet allows responsive
principles to the Internet requires an appreciation of     communication from one-to-one, from one-to-
the fundamental characteristics of the Net. A recent       many, and from many-to-one.
report from the Global Internet Liberty Campaign (see
below for more on GILC ) noted,34 the Internet is a                 User-Controlled -- The Internet
whole, is uniquely:                                        allows users to exercise far more choice than
                                                           even cable television or short wave radio. The
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                              17



         user can skip from site to site in ways that are   providers here.
         not dictated by the content providers or by the              Beyond these “border disputes”, influential
         access provider. Users can control what            international groups, too, are considering policies that
         content reaches their computers.                   restrict communications in cyberspace. At a meeting
                                                            of G-7 countries plus Russia, government officials
                    Infrastructure independent -- The       announced intentions to regulate strictly the Internet in
          Internet is not linked to any infrastructure      an effort to combat terrorism. Proposed measures
          other than the telephone system. Dial-up          include investigations of charities and "radical"
          access is available from any telephone that       political organizations, and using the Internet to
          can make an international call. Access to the     "monitor" terrorist communications.
          Internet can also be wireless and satellite                 Privacy is another major concern. Although
          based and therefore further removed from          Article 12 of the UDHR states that "No one shall be
          effective control of governments.                 subjected to arbitrary interference with his privacy..."
          In this new world, it is essential that the       governments around the world seek to monitor and
international community reassert its commitment to          intercept communications on the Internet and
respect and promote human rights regardless of              elsewhere. Recently, under pressure from the United
physical frontiers.                                         States, 33 countries in Europe, North America, Asia,
          However , governments have been moving            and South America, who subscribe to the Wassenaar
rapidly to restrict expression on the Internet. In China,   Arrangement agreed to limit the exportation of mass-
software dealer Lin Hai was imprisoned for releasing        market encryption software that would protect the
30,000 email addresses to a dissident group in the          privacy of Internet users. This software, which
United States. In Saudi Arabia, Internet use has been       scrambles data so that it can only be read by its
largely been limited to university, business, or medical    intended recipient, is widely used by human rights
settings, thus denying access to large segments of the      groups to ensure the safety and integrity of sensitive
population. Also, in Saudi Arabia, the government           information. In Singapore, all Internet service
controls the only gateway for Internet service.             providers (ISPs) are controlled directly or indirectly by
          In the United Kingdom, the government             the government.
threatened to prosecute Internet service providers that               New Zealand, which classifies computer disks
did not block a list of more than 100 "hard-porn" news      as publications has seized and restricted them in
groups. However, many of the banned newsgroups had          contravention of basic principles of free expression and
nothing to do with pornography.       In Reno v. ACLU,      in Russia, a proposal is being debated to connect all
Civil Liberties groups fought a successful battle in the    ISPs via a black box to the Federal Security Service to
Supreme Court against the Communications Decency            monitor all Internet communications – a large
Act, which would have restricted access by adults to        percentage of which international communications..
online content. We are now litigating the only                        The Internet holds the promise of being the
slightly less threatening Child Online Protection Act       greatest tool for communication and freedom of
( “CDA II”).        Censorship, however, is no longer a     expression. But, in all corners of the world,
solely domestic preoccupation. For example, in              governments and politically powerful multi-national
Germany government officials have been seeking to           organizations like the Organization for Economic
prosecute the operators of a Dutch Internet Services        Cooperation and Development (OECD), the European
company XS4ALL for hosting the web site of German           Union and the UN are contemplating control of on-line
magazine Radikal, whose content is illegal in               communications. Whether the stated reasons are to
Germany, but fully protected in the Netherlands. This       protect children from indecency, stifle political
phenomena of border less communication presents new         opposition, or restrict access to economic data, these
challenges for domestic civil liberties organizations,      proposals violate international standards for privacy
such as the ACLU. Canadian officials, for example           and free speech recognized in international law and
have sought to enforce their much more restrictive          many national constitutions. And because the Internet
laws on racist political speech and the discussion of       is a worldwide network, any one government's
ongoing criminal trials against speakers on the             restrictions could have the effect of chilling expression
Internet who were either in the US or using service         around the globe.
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                           18



         In order to encourage the governments of the       a resource center for NGO activists and the GILC
world to recognize and promote this potential in            newsletter (“GILC Alert”), which is edited by the
accordance with the principles of liberty more than 50      ACLU contains up to the minute information on
Non-Governmental Organizations from around the              international Internet liberty issues. The GILC
world have joined together to form the Global Internet      newsletter can be subscribed to at:
Liberty Campaign (GILC). The ACLU was one of the            http://www.gilc.org/list/.
co-founders of GILC.                                           GILC has also published several comprehensive
         GILC member organizations subscribe to a           reports on Internet liberty issues, including: the
few key principles:                                         “Regardless of Frontiers” report on encryption and
                                                            Cryptography and Liberty an International Survey of
Prohibiting prior censorship of on-line communication       Encryption Policy
         and requiring that laws restricting the content     http://www.gilc.org/crypto/crypto-survey.html.
         of on-line speech distinguish between the
         liability of content providers and the liability   Endnotes:
         of data carriers.
Insisting that on-line free expression not be restricted    *        Barry Steinhardt is the Associate Director of
         by indirect means such as excessively              the ACLU. He is also active in the Global Internet
         restrictive governmental or private controls       Liberty Campaign.
         over computer hardware or software,
         telecommunications infrastructure, or other        1.       Regardless of Frontiers—Protecting the
         essential components of the Internet.              Human Right to Freedom of Expression on the Global
Promoting equal access to the Global Information            Internet http://www.gilc.org/speech/report/ (1998).
         Infrastructure (GII) development process
         from countries that are currently unstable
         economically, have insufficient infrastructure,
         or lack sophisticated technology.
Prohibiting discrimination on the basis of race, color,
         sex, language, religion, political or other
         opinion, national or social origin, property,
         birth or other status. Ensuring that personal
         information generated on the GII for one
         purpose is not used for an unrelated purpose
         or disclosed without the person's informed
         consent and enabling individuals to review
         personal information on the Internet and to
         correct inaccurate information.
Making technologies that promote privacy freely
         available, including allowing on line users to
         encrypt their communications and
         information without restrictions.

          GILC was the first International NGO
representing the interest of a free Interne toappear
before commissions of the OECD and the United
Nations. GILC member organizations have been
spearheading an international effort to end the
restrictions of the use of robust encryption to protect
privacy and anonymity and we created an international
information exchange on Internet freedom issues.
          The GILC web site http://www.gilc.org is
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                               19




4.       USING INTERNATIONAL STANDARDS                          Relevant International Treaty Standards
         TO PROTECT THE RIGHTS OF U.S.
         PRISONERS                                         The chief international human rights treaties binding on
                                                           the United States clearly affirm the human rights of
                 by Joanne Mariner*                        people in confinement. Indeed, the International
                                                           Covenant on Civil and Political Rights (ICCPR), the
           Severe overcrowding, chronic violence,          most comprehensive international human rights treaty
rampant sexual abuse and inhuman conditions are, as        that this country has ratified, includes provisions
numerous reports from Human Rights Watch and               explicitly intended to protect prisoners from abuse. The
Amnesty International attest, among the most frequent      Convention against Torture and Other Cruel, Inhuman
human rights abuses suffered by prisoners in the           or Degrading Treatment or Punishment ("CAT"),
United States.35 With over 1.7 million inmates             another treaty to which the United States is a party,
incarcerated in this country’s thousands of prisons and    contains additional protections.
jails, the scope of the problem is staggering.                       Both the ICCPR and the CAT bar torture and
           The rapid growth of the inmate population in    “other cruel, inhuman or degrading treatment or
recent years has not, however, sparked a corresponding     punishment.” See ICCPR, art. 7; CAT, arts. 2 and 16.
increase in public or even judicial concern for the        As the wording of these provisions suggest, they cover
rights of prisoners. Indeed, advocates for prisoners’      much of the same abusive conduct as is prohibited
rights face an increasingly hostile climate. Ironically,   under the Eighth Amendment’s bar on “cruel and
just as the inmate population has swelled to its largest   unusual” punishment. Under the current judicial
size ever — giving the U.S. the largest known inmate       reading of the Eighth Amendment, however, U.S. courts
population in the world and putting it second only to      hearing prison suits must focus in part on the state of
Russia and Rwanda in the proportion of its citizenry       mind of the relevant state officials. In cases involving
held behind bars — basic protections for inmates’          prison conditions or policies, officials are only liable if
rights have been rapidly eroded. In a series of            they were deliberately indifferent to the risk of causing
disappointing rulings, the courts have retreated from      harm to prisoners. See Wilson v. Seiter, 111 S. Ct.
their earlier efforts to uphold minimum standards in       2321 (1991). In practice, this intent requirement poses
the country’s prisons. See, e.g., Lewis v. Fletcher, 518   an important obstacle in many prison suits, as courts
U.S. 343 (1996); Sandin v. Conner, 115 S. Ct. 2293         and juries are extremely reluctant to personally blame
(1995). But the most serious blow was the 1996             corrections officials for even egregiously bad conditions.
passage of the Prison Litigation Reform Act (PLRA),        Given this, it is important to note that the ban on cruel,
which erected imposing legal barriers to prison            inhuman or degrading treatment or punishment
litigation.                                                articulated in international human rights law applies
           In this post-PLRA era, litigators and           regardless of official knowledge or intent. The concern
advocates have been forced to seek new means by            for prisoners’ “treatment” under international standards
which to protect prisoners’ rights. One potential tool     — not only punishment — reflects the recognition that
is offered by the plethora of international standards      the state has an affirmative responsibility to provide
relating to the treatment of prisoners. Although the       minimum humane conditions, and that individual
ambiguous domestic legal force of such standards           official intent is not a primary issue. Accordingly, in
undermines their effectiveness, creative lawyers and       reviewing cases involving prison abuses, the United
other prisoners’ rights advocates should nonetheless       Nations Human Rights Committee looks to the objective
consider relying on them for additional support in         facts of the conditions at issue, brushing aside excuses
efforts to safeguard the rights of incarcerated persons.   as to why such conditions exist. See, e.g., Mukong v.
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                                20



Cameroon (No. 458/1991), U.N. Doc.                          Paulsen, 997 F. Supp. 1380 (E.D. Wa. 1998).
CCPR/C/51/D/458/1991 (1994).                                          The overall effect of such restrictions is to
          Another area in which international treaty        greatly diminish the practical usefulness of human
provisions clearly exceed U.S. constitutional standards     rights treaties in prison litigation. Yet despite their
is that of the confinement of juveniles with adults, an     reduced effectiveness, these treaties should not be
increasingly salient issue in this country. Article 10(3)   ignored by the resourceful advocate. First, U.S.
of the ICCPR, in particular, provides that juvenile         violations of international standards can be reported to
inmates “shall be segregated from adults and be             the press, to state legislatures and in international fora.
accorded treatment appropriate to their age and legal       Second — and importantly — international standards
status.” See also ICCPR, art. 10(2)(b) (declaring that      may inform the judicial construction of constitutional
accused juveniles “shall be separated from adults”). A      provisions such as the Eighth and Fourteenth
similar provision is Article 10(2)(a) of the ICCPR,         Amendments.37 Indeed, the use of international
which mandates that pretrial detainees be held              provisions to fill in the details of broad constitutional
separately from convicted prisoners. Finally, it should     principles is of particularly relevance with regard to the
be noted that international standards are not only          more detailed international standards discussed below.
aimed at preventing abuses; they also reflect the                     Finally, under the rule established in Murray
consensus of the international community that the           v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64,
period of imprisonment should be utilized to help           118 (1804), courts should interpret statutes so as not to
inmates lead law-abiding and self-supporting lives          contradict international law, unless there is clear
upon release. The ICCPR, for example, requires that         legislative or executive intent to the contrary.
“the reform and social readaptation of prisoners” be an
“essential aim” of imprisonment. ICCPR, art. 10(3).                   Non-Treaty Standards
          Unfortunately, when the United States ratified              In addition to treaties, a number of other
the ICCPR and the Convention against Torture, it            international documents delineate the human rights of
attempted to lessen its treaty obligations by attaching     persons deprived of liberty. The most detailed
limiting reservations, declarations and understandings      guidelines are contained in the United Nations Standard
to both instruments. Such limiting provisions work          Minimum Rules for the Treatment of Prisoners
both substantively, by restricting the scope of the         (Standard Minimum Rules or "SMR"), first adopted by
treaties, and procedurally, by restricting their            the United Nations Economic and Social Council in
usefulness in court proceedings.                            1957, and readopted, in slightly expanded form, in
          The primary substantive restrictions on           1977. Other relevant documents include the Body of
prisoners’ rights are the U.S. reservation to Article 7     Principles for the Protection of All Persons Under Any
of the ICCPR, by which it declared that the treaty’s        Form of Detention or Imprisonment (Body of
prohibition on torture and cruel, inhuman or degrading      Principles), adopted by the General Assembly in 1988,
treatment would apply only to the extent that the           and the Basic Principles for the Treatment of Prisoners
provision covers acts already barred under the U.S.         (Basic Principles), adopted by the General Assembly in
Constitution, and its similar reservation to Article 16     1990. All of these documents are easily accessible via
of the Convention against Torture.36 It should be           the internet.38
noted that such reservations are extremely                            Before describing some of the most important
controversial. In fact, several foreign governments         protections contained in these documents, it may be best
have argued that these reservations are incompatible        to address the question of their legal value. As
with the object and purpose of the treaty and therefore     mentioned above, their primary use in U.S. courts has
void. Procedurally, the U.S. government has attempted       been as an aid to the proper interpretation of broad
to limit the effectiveness of both the ICCPR and the        constitutional provisions. In particular, the Standard
Convention against Torture by declaring that their          Minimum Rules have been cited as evidence of
provisions are “non-self-executing”: that they cannot       “contemporary standards of decency” relevant in
be directly relied upon in U.S. courts, but require         interpreting the scope of the Eighth Amendment, as
enabling legislation to become legally effective.           well as the Due Process Clause. See Estelle v. Gamble,
Indeed, no court to have considered the issue has found     429 U.S. 97, 103-04 & n. 8 (1976); Detainees of
either treaty to be self-executing. See, e.g., White v.     Brooklyn House of Detention for Men v. Malcolm, 520
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                                21



F. 2d 392, 396 (2d Cir. 1975); Williams v. Coughlin,        clear protections regarding safety and health, sufficient
875 F. Supp. 1004, 1013 (W.D.N.Y. 1995); Lareau v.          rest, and appropriate types of work. They also declare
Manson, 507 F. Supp. 1177, 1187-89 & n. 9 (1980)            that prisoners should be equitably remunerated. SMR,
(describing the Standard Minimum Rules as “an               art. 76(1).
authoritative international statement of basic norms of               A final area in which the Standard Minimum
human dignity and of certain practices which are            Rules may provide useful guidance to U.S. courts is that
repugnant to the conscience of mankind”).                   of education, vocational training, and recreation.
          Consisting of ninety-five provisions, the         Consistent with their rehabilitative emphasis, the rules
Standard Minimum Rules set out to describe “what is         strongly advocate giving inmates access to education
generally accepted as being good principle and practice     and training. They declare, among other things, that
in the treatment of prisoners and the management of         the period of imprisonment should be used to ensure
institutions.” SMR, art. 1. They cover a broad              that “upon his return to society the offender is not only
spectrum of issues relevant to prisons, including such      willing but able to lead a law-abiding and self-
topics as “Separation of Categories,”                       supporting life.” To this end, they require that prisons
“Accommodation,” “Clothing and Bedding,” “Exercise          have adequately stocked libraries, that young prisoners
and Sport,” “Medical Services,” “Discipline and             and illiterates receive compulsory education, and that
Punishment,” “Instruments of Restraint,” “Retention         cultural activities be provided. Also, with valuable
of Prisoners’ Property,” “Classification and                specificity, they mandate that prisoners “have at least
Individualization,” and “Contacts with the Outside.”        one hour of suitable exercise in the open air daily if the
Some of their requirements are categorical—such as          weather permits.” SMR, art. 21(1).
the rule that drinking water should be available to all               The Basic Principles and the Body of
prisoners whenever they need it—while others—such           Principles, at eleven and thirty-nine provisions,
as the rule that, “so far as possible,” prisoners should    respectively, are less detailed than the Standard
be separated according to their classification—are          Minimum Rules but nonetheless cover certain areas that
more flexible.                                              are only lightly addressed by the latter set of guidelines.
          The provisions of the Standard Minimum            Notably, Article 7 of the Basic Principles cautions
Rules relating to discipline and the use of force may be    against the use of solitary confinement. It states:
of interest in U.S. prison litigation, given correctional   “Efforts addressed to the abolition of solitary
authorities’ increasing recourse to what are often          confinement as a punishment, or to the restriction of its
excessively harsh forms of confinement. Article 27, in      use, should be undertaken and encouraged.”
particular, provides: “Discipline and order shall be
maintained with firmness, but with no more restriction      Endnotes:
than is necessary for safe custody and well-ordered
community life.” Article 33, in addition, states            *        Joanne Mariner is a lawyer with the Prisoner's
categorically that “[i]nstruments of restraint, such as     Rights Project at Human Rights Watch. She previously
handcuffs, chains, irons and straitjackets, shall never     worked at the ACLU Foundation of Southern
be applied as a punishment.” The rules also declare         California.
that staff whose duties bring them into direct contact
with prisoners “should not be armed.” SMR, art.             1.       See, e.g., Amnesty International, United States
54(3).                                                      of America: Rights for All (1998) (chapter 4 on human
          Another issue that is becoming increasingly       rights violations in prisons and jails); Human Rights
salient in U.S. prison litigation is that of custodial      Watch, Locked Away: Immigration Detention in Jails in
sexual abuse of women prisoners. On that point, the         the United States (1998); Human Rights Watch,
Standard Minimum Rules express a clear preference           Nowhere to Hide: Retaliation against Women in
for same-sex guarding, stating unequivocally that           Michigan State Prisons (1998); Human Rights Watch,
“[w]omen prisoners shall be attended and supervised         Cold Storage: Super-Maximum Security Confinement in
only by women officers.” SMR,art. 53(3).                    Indiana (1997); Human Rights Watch, All Too
          The Standard Minimum Rules do not advise          Familiar: Sexual Abuse of Women in U.S. State Prisons
against prison labor; indeed, they state that prisoners     (1996).
should be required to work. They do, however, contain
INTERNATIONAL CIVIL LIBERTIES REPORT                     22



2.      Other U.S. reservations and understanding to
the ICCPR include the following:

        That the policy and practice of the
        United States are generally in
        compliance with and supportive of
        the Covenant's provisions regarding
        treatment of juveniles in the
        criminal justice system.
        Nevertheless, the United States
        reserves the right, in exceptional
        circumstances, to treat juveniles as
        adults, notwithstanding paragraphs
        2 (b) and 3 of article 10 . . . . That
        the United States understands the
        reference to ‘exceptional
        circumstances’ in paragraph 2 (a) of
        article 10 to permit the
        imprisonment of an accused person
        with convicted persons where
        appropriate in light of an
        individual's overall dangerousness,
        and to permit accused persons to
        waive their right to segregation from
        convicted persons. The United
        States further understands that
        paragraph 3 of article 10 does not
        diminish the goals of punishment,
        deterrence, and incapacitation as
        additional legitimate purposes for a
        penitentiary system.

3.       For a discussion of the incorporation of
international human rights standards into
constitutional law, see, for example, Gordon A.
Christenson, “Using Human Rights Law to Inform Due
Process and Equal Protection Analyses,” University of
Cinncinnati Law Review, vol. 52 (1983); International
Law Association, Committee on Human Rights,
“Report on Human Rights Law, the U.S. Constitution
and Methods of Judicial Incorporation,” Proceedings,
1984, pp. 56-65.

4.        These standards are available on a number of
different sites, including the comprehensive human
rights site established by the University of Minnesota
at:
<http://www1.umn.edu/humanrts/instree/auogs.htm>.
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                           23




5.       USING INTERNATIONAL LAW TO                               rights. I signed their confession,
         DEFEND THE ACCUSED                                       too.

 by Diane Marie Amann, Cynthia R.L. Fairweather,                   Your outrage at this treatment turns to
                and Vivian Rhoe*                         frustration as you discover that U.S. law allows the use
                                                         of confessions to private persons. United States v.
You represent a U.S. permanent resident, a bank teller   Rose, 731 F.2d 1337, 1345 (8th Cir.) The FBI
charged with embezzling $50,000. She admits that         interrogation, moreover, appears to have been by the
she dipped into the till to pay her mortgage, but took   books. Have you exhausted challenges to the
no more than $15,000. In response to your question       confessions? Not quite.
about her confessions to the contrary, she tells you:              Treaties to which the United States belongs
                                                         offer at least two avenues of defense. First, the
                   One day the boss and an               International Covenant on Civil and Political Rights
         armed security guard put me in a                (ICCPR) forbids anyone -- not just government
         small room and kept me there all                officials -- from subjecting a person to “cruel,
         day. They wouldn’t let me call                  inhuman, or degrading treatment.”1 Second, the
         anyone, have a glass of water, or use           Vienna Convention on Consular Relations requires
         the restroom. They ordered me to                that a foreign national be told of her right to talk with
         sign papers that said I’d stolen                officials of her home country before U.S. agents may
         $50,000. I told them it was only                question her.2 Arguably, violations of these treaties
         $15,000. I said I was sorry and                 justify excluding the confessions from evidence.
         started crying and they laughed at                        International human rights law has
         me. They called in coworkers and                mushroomed in recent decades, thanks to a new
         told them that I was a thief. The               recognition that even in the global arena, an individual
         boss promised that if I confessed to            is guaranteed certain rights against governmental
         the full amount they’d keep the law             abuse.3 Thus international law -- found in treaties and
         out of it. So I signed. But right               in customary international law, a kind of global
         away they turned me over to federal             common law -- contains a trove of potential defenses.
         agents, who told me my Miranda                  Yet U.S. criminal defense attorneys seldom invoke
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                               24



such defenses. Perhaps this stems from a lack of            declarations are the ifs, ands, or buts of treaty
understanding of international law, perhaps from a          ratification. RUDs, as they are often called, are
sense that judges will reject the defenses out of hand.     statements that a country attaches to a treaty upon
These are valid concerns. As this article will show,        ratification, with the intent to limit the effect of the
persuading a court to apply international law in a          treaty within its borders. When the United States
criminal case is indeed a formidable task, but one          ratified the ICCPR, for example, it reserved its “right”
worth pursuing.                                             to impose capital punishment, constrained only by U.S.
                                                            constitutional provisions. Therefore, U.S. courts are
        Hurdles to Using            International-Law       unlikely to sustain defenses that turn on the fact that
Defenses in U.S. Courts                                     much of the world community has rejected the death
                                                            penalty. The degree to which the United States
         The Supremacy Clause of the U.S.                   attached RUDs to some human rights treaties, in fact,
Constitution provides that treaties, no less than acts of   has prompted questions whether the United States
Congress or the Constitution itself, are “the Supreme       really has joined at all. See William A. Schabas,
Law of the Land.” The United States has lagged              Invalid Reservations to the ICCPR: Is the United
behind other Western countries in ratifying human           States Still a Party?, 21 BROOKLYN J. INT’L L. 227
rights treaties. Several of those it has ratified           (1995).
guarantee an accused significant rights. These include
not only the ICCPR, but also the Convention Against                  Standing
the Prevention of Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment4 and the                           At times a court may refuse to consider
Convention for the Elimination of Racial                    whether government officials have breached
Discrimination.5                                            international law on the ground that the defendant has
         Regarding customary international law, the         no standing to challenge such a violation. For
U.S. Supreme Court proclaimed nearly a century ago:         example, a statute targeting international drug
“International law is part of our law.”6 You might thus     smuggling authorizes the U.S. government to stop
assume that courts in the United States will enforce        ships on the high seas, search for and seize drugs, and
international law; to the contrary, courts have             prosecute the crew. Maritime Drug Law Enforcement
established a number of doctrines that severely limit       Act, 46 U.S.C. § 1901 et seq. [“MDLEA”]. Defense
the use of both treaty law and customary international      arguments that if the ship flies the flag of another
law. These hurdles to enforcement include:                  country, the United States must obtain that country’s
                                                            consent before boarding, were rejected. Ignoring the
         Self-executing treaties                            modern view that the individual plays a role in
                                                            international law, courts effectively ruled that the party
          Even though a U.S. treaty is U.S. law, a court    aggrieved by the international-law violation was not
will not give the treaty full and automatic effect unless   the defendant, but the other country, which could
it is deemed to be “self-executing.”7 This means that       address the breach through diplomatic channels.9
the court must be persuaded that the treaty was ratified
with the intent that it would operate immediately,                   Deference
without Congress having to pass additional,
implementing legislation. Although there may be                      Criminal defense attorneys often complain
some exceptions, most human rights treaties are             that courts place the government’s interest in fighting
considered not to be self-executing, and in most cases      crime above society’s interest in preserving individual
implementing laws have not been enacted. For this           rights. This problem is amplified in the international
reason alone a court may refuse to apply a treaty           arena, where courts explicitly avoid results that might
provision.8                                                 interfere with stated government needs touching on
                                                            foreign affairs. Such extreme deference was a prime
         RUDs                                               reason that, just last Term, the U.S. Supreme Court in
                                                            United States v. Balsys refused to extend the Fifth
         Reservations,       understandings,        and     Amendment privilege against self-incrimination to a
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                                 25



witness who feared foreign prosecution.10                    appropriate case? Let’s look at how the international-
                                                             law defenses suggested above might fare in litigation:
       An Open Lane: Using International Law to
Inform Constitutional Principles                                         Denial of Right to Talk with Consular
                                                             Official.
          Although these hurdles largely preclude direct
enforcement of international human rights norms in                      This is an avenue deserving your attention. A
the United States, courts sometimes are willing to give      number of cases have raised this issue in vain, but
the norms indirect effect.11 The methods by which            most defendants were unable to surmount procedural
officials investigate, prosecute, and punish offenders       defaults in order to have their claims heard on the
often are subject to review under broadly worded             merits.17
clauses in the Bill of Rights. The people, for instance,                Article 36(1)(b) of the Vienna Convention on
have a Fourth Amendment right “to be secure in their         Consular Relations states that officials who arrest a
persons, houses, papers, and effects, against                foreign national “shall inform the person concerned
unreasonable searches and seizures.” Under the Fourth        without delay” of her right to communicate with
Amendment, the government may not subject someone            consular representatives of her home country. Your
to “cruel and unusual punishments,” nor deprive a            client, like most foreign nationals since the convention
person of “life, liberty, or property, without due process   took effect in 1969, was not so informed.18 You should
of law.” Defendants at times have succeeded in               file a motion to suppress your client’s statements. Be
persuading courts to consult international law to            sure to include the text of the treaty and any
determine how to apply one of these constitutional           appropriate drafting history or case law from other
provisions.                                                  nations.19 Argue that had she talked with consular
          A few decades ago, it was not uncommon for         officers, they could have helped her contact family
the U.S. Supreme Court to rely on international human        members, explained her options to her, and helped her
rights law, as well as laws in other countries, to inform    to obtain counsel before she spoke to authorities.
the meaning of constitutional principles. In Miranda         Failure to give her this opportunity, you would argue,
v. Arizona, the Court derived from English rules the         resulted in the unfair extraction of a false confession.
warnings police were instructed to give interrogees.12       An adequate showing of such prejudice might entitle
The Court used international law on a number of              her to relief.
occasions to help it determine whether a practice
constituted cruel and unusual punishment in violation                    Mistreatment by Private Actors.
of the Eighth Amendment.13
          In recent years this practice has waned. In                  Article 7 of the ICCPR condemns “cruel,
1988 the Court, relying in part on international             inhuman, or degrading treatment,” without limitation
principles, condemned the execution of children 16           to acts by government officials. It thus offers broader
and under.14 A year later, however, execution of 17          protection than U.S. constitutional doctrine, which
year olds was deemed constitutional, in an opinion by        provides remedies only for mistreatment suffered at the
Justice Scalia, who, dissenting in the earlier case, had     hands of government actors. Yet direct enforcement of
declared international law to be irrelevant.15 Still, at     Article 7 is unlikely, because of U.S. RUDs asserting
least four Justices are sometimes receptive to               that the article is not self-executing and applies only
international law arguments.16 Lower courts also may         insofar as it coincides with U.S. constitutional law.
be willing to consult international law as an aid to                   You could contend that the ICCPR’s broader
constitutional interpretation.         Thus it remains       international protection justifies overruling existing
worthwhile to press international-law defenses in            constitutional doctrine; that is, that it justifies holding
appropriate cases.                                           that, by admitting a confession obtained as your
                                                             client’s was, the court would abdicate its duty to ensure
        Laying the Groundwork: Some Potential                fundamental fairness. This argument is unlikely to
International-Law Defenses                                   win immediate acceptance. But articulation of the
                                                             international norm might help persuade the court that
         Does your embezzlement client have an               the treatment of your client was outrageous enough to
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                               26



call into question the reliability of her confession to the   punishment aimed at retribution.28 The ICCPR reflects
full $50,000. Judicial acceptance of $15,000 as the           this distinction. Article 10(2)(b) requires that accused
amount taken might compel a sentencing reduction              juveniles be detained separately from adults. If found
that means the difference between probation and jail.20       responsible, child offenders “shall be segregated from
          Other potential defenses, for other cases,          adults and be accorded treatment appropriate to their
come to mind:                                                 age and legal status.” Article 10(3). The United
                                                              States, while “generally . . . supportive of” these
        Extradition       That     Might     Result     in    provisions, has reserved “the right, in exceptional
Mistreatment.                                                 circumstances, to treat juveniles as adults.” U.S.
                                                              ICCPR RUDs, §§ I(5). Taken together, these
          As part of their hands-off policy in foreign-       statements may help persuade a court that an accused
relations areas, courts routinely refuse to consider          child should be treated as a child, and that transfer to
whether a fugitive would suffer mistreatment if               adult court rarely should occur.
extradited.21 This rule of non-inquiry conflicts with
international principles. In an often-cited opinion, the               Conditions of Confinement.
European Court of Human Rights carefully examined
what lay in store for a German national whom Virginia                  Courts have proved willing to consult
sought to try for capital murder. The court held that,        international standards in deciding challenges to the
because of the likelihood of a protracted, anguishing         conditions under which a defendant is detained or
wait on death row, extradition would violate a ban on         incarcerated. For example, the U.S. Supreme Court
“torture or . . . inhuman or degrading treatment or           cited U.N. Standard Minimum Rules for the Treatment
punishment.”22 Moreover, the Torture Convention               of Prisoners to determine the proper medical care due
forbids extraditing a fugitive “where there are               inmates. (See, Mainer article, supra) The Second
substantial grounds for believing that he would be in         Circuit, meanwhile, consulted the U.N. standards
danger of being subjected to torture.”23 Based on these       regarding the proper number of people in a cell to
sources of law, you might argue that to extradite your        support its holding that double celling violated due
client would violate contemporary understandings of           process and equal protection rights of pretrial
due process.24 Again, even if your argument does not          detainees. See Detainees of Brooklyn House of
fully succeed, it might work some modification for            Detention for Men v. Malcolm, 420 F.2d 392, 396 (2d
your client, and might pave the way to curtailment of         Cir. 1975).
the rule of noninquiry.                                                Perhaps the most novel such use of
                                                              international law occurred in the case of Gen. Manuel
         Death Row Phenomenon.                                Noriega, the former leader of Panama who
                                                              surrendered, after the United States had invaded his
         The European Court of Human Rights                   country, and was brought to Florida for prosecution on
holding above has given rise to litigation contending         charges of drug trafficking. Noriega persuaded the
that prolonged stays on death row constitute cruel and        court that he was a prisoner of war, entitled to the
unusual punishment. Defendants in courts of some              protections of the Third Geneva Convention during the
other countries have, in fact, won relief based on this       course of his confinement.29 Though this precedent
claim.25 In 1995, the U.S. Supreme Court declined to          would not apply in the ordinary case, it exemplifies
grant certiorari in a case raising the issue.26               how creative use of international law can benefit a
Nonetheless, two Justices invited lower courts to             defendant.
continue exploring it.27                                               It is apparent that invoking international law
                                                              in defense of your client is a challenge. But it is one
         Treatment of Juveniles.                              worth pursuing, in order to assure that your client
                                                              receives the fullest representation, and in hopes that
         Unlike in the United States, in many countries       you might, over the long term, change the law.
child offenders are still considered to be less morally
culpable than adult criminals, and thus to require            Endnotes:
treatment aimed at rehabilitation, rather than
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                           27



*         Professor Amann is Acting Professor of Law,     7.      See, e.g., Foster v. Neilson, 27 U.S. (2 Pet.)
University of California, Davis; B.S., 1979, University   253 (1829); Sei Fujii v. California, 38 Cal. 2d 718,
of Illinois; M.A., 1981, University of California, Los    242 P.2d 617 (1952); RESTATEMENT, supra note 8, §
Angeles; J.D, 1986, Northwestern Universityy. Ms.         111(4) & cmt. h.
Fairweather and Ms. Rhoe are students at the Law
School.                                                   8.       Recently, the U.S. Supreme Court declined to
                                                          consider, on the ground that counsel had not raised the
1.        International Covenant on Civil and Political   issue, whether the ICCPR required extension of the
Rights, art. 7, G.A. Res. 2200, U.N. GAOR, 21st Sess.,    privilege against self-incrimination to foreign
Supp. No. 16, at 49, U.N. Doc. A/6316 (1967),             prosecutions. United States v. Balsys, 118 S. Ct. 2218,
reprinted in 999 U.N.T.S. 171 (entered into force Mar.    2234 n.16 (1998). Had the issue been raised, the fact
23, 1976). The ICCPR and other human rights treaties      that the United States has declared that the key
are widely published; one website where they may be       provisions of the ICCPR “are not self-executing”
found is:                                                 surely would impair direct enforceability. See U.S.
<http://www1.umn.edu/humanrts/instree/ainstls1.htm>       reservations, declarations, and understandings,
(visited Jan. 29, 1999).                                  International Covenant on Civil and Political Rights,
                                                          138 CONG. REC. S4781-01, § III(1) (daily ed., Apr. 2,
2.        Vienna Convention on Consular Relations,        1992) [“U.S. ICCPR RUDs”].
art. 36, April 24, 1963, 21 U.S.T. 77.
                                                          9.        See, e.g., United States v. Rojas, 801 F.
3.       See Diane Marie Amann, A Whipsaw Cuts            Supp. 644, 651 (S.D. Fla. 1992), aff’d, 53 F.3d 1212
Both Ways: The Privilege Against Self-Incrimination       (11th Cir.), cert. denied, 516 U.S. 976 (1995). In so
in an International Context, 45 UCLA L. REV. 1201,        doing, courts followed an MDLEA provision that bars
1245-51 (1998) (describing growing importance of the      international-law challenges to the statute. See 46
individual in international law).                         U.S.C. § 1903(d), discussed in, e.g., United States v.
                                                          Mena, 863 F.2d 1522, 1530-31 (11th Cir.), cert.
4.       Convention Against the Prevention of Torture     denied, 493 U.S. 834 (1989).
and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, 1465 U.N.T.S. 113,             10.       Balsys, 118 S. Ct. at 2234-35. For an analysis
reprinted in 23 I.L.M. 1027 (1984) and 24 I.L.M. 535      of this decision, see Diane Marie Amann, International
(1985) (entered into force June 26, 1987) [“Torture       Decisions: United States v. Balsys, 118 S. Ct. 2218
Convention”].                                             (1998), 92 AM. J. INT’L L. 759 (1998).

5.       Convention for the Elimination of Racial         11.      For fuller discussion of this indirect use of
Discrimination, Mar. 7, 1966, 660 U.N.T.S. 195,           international norms, see, e.g., Mark Andrew Sherman,
reprinted in 5 I.L.M. 352 (1966) (entered into force      Indirect Incorporation of Human Rights Treaty
Jan. 4, 1969).                                            Provisions in Criminal Cases in United States Courts,
                                                          3 ILSA J. INT’L & COMP. L. 719 (1997); Hans A.
6.       The Paquete Habana, 175 U.S. 677, 700            Linde, Comments, 18 INT’L LAW. 77 (1984); Gordon
(1900). For how courts decide whether a principle has     A. Christenson, The Uses of Human Rights Norms to
become part of customary international law, see, e.g.,    Inform Constitutional Interpretation, 4 HOUS. J. INT’L
RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS              L. 39 (1981).
LAW OF THE UNITED STATES § 102(2), 103(2) (1987)
[“RESTATEMENT”]; Cynthia R.L. Fairweather,                12.      384 U.S. 436, 486-88 (1966); see also New
Obstacles to Enforcing International Human Rights in      York v. Quarles, 467 U.S. 649, 672-73 (1984)
Domestic Courts, 4 U.C. DAVIS J. INT’L L. & POL’Y         (O’Connor, J., concurring in part and dissenting in
120, 123-27 (1998). For a list of norms considered to     part) (supporting consultation of other countries’
be customary international law, see RESTATEMENT,          interrogation practices to determine U.S. standards).
supra, § 702.
                                                          13.      See, e.g., Enmund v. Florida, 458 U.S. 782,
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                             28



796-97 n. 22 (1982); Coker v. Georgia, 433 U.S. 584,       in International Extradition Proceedings, 76 CORNELL
596 n.10 (1977); Trop v. Dulles, 356 U.S. 86, 102 &        L. REV. 1198 (1991) (discussing with favor doctrine
n.35 (1958).                                               first set out in Neely v. Henkel, 180 U.S. 109 (1901));
                                                           but see, e.g., John B. Quigley, The Rule of Non-Inquiry
14.     Thompson v. Oklahoma, 487 U.S. 815, 830-           and the Impact of Human Rights in Extradition Law,
31 & n.31 (1988).                                          15 N.C. J. INT ’L L. & COM. REG. 401 (1990)
                                                           (criticizing rule).
15.      Stanford v. Kentucky, 492 U.S. 361 (1989);
see Thompson, 487 U.S. at 869 n.4 (Scalia, J.,             22.      Soering v. United Kingdom, 11 Eur. Ct. H.R.
dissenting). Cf. Stanford, 492 U.S. at 389-90, 405         (ser. A) at 439 (1989) (interpreting Article 3 of the
(Brennan, J., dissenting) (arguing that international      European Convention for the Protection of Human
principles forbade execution of 17 year olds).             Rights and Fundamental Freedoms, arts. 5-8, Nov. 4,
                                                           1950, 213 U.N.T.S. 221 (entered into force Sept. 3,
16.       The four who have indicated such willingness     1953)).
are Justices Stevens and Breyer and, to a lesser extent,
O’Connor and Kennedy. See Amann, supra note 3, at          23.        Torture Convention, supra note 5, art. 3. The
1259-60 n.356. Chief Justice Rehnquist and Justices        ban against torture has been termed a jus cogens norm;
Scalia and Thomas reject such analysis. See id.            that is, the highest type of customary international law,
                                                           a norm that all nations are bound to obey. See
17.       The most notorious case was Breard v.            Siderman de Blake v. Argentina, 965 F.2d 699, 714-18
Greene, 118 S. Ct. 1352 (1998) (per curiam), in which      (9th Cir. 1992) (also holding, however, that lawsuit for
the Court refused to stay the execution of a Paraguayan    violation of this norm barred by federal sovereign
national who had been denied access to consular            immunity statute). Even so, because the U.S. has
assistance, because he had failed to raise the argument    declared Article 3 of the Torture Convention not to be
in state proceedings.                                      self-executing, it is unlikely that a U.S. court would
                                                           enforce the article directly. See U.S. reservations,
18.     See John Cary Sims & Linda E. Carter,              declarations, and understandings, Convention Against
Representing Foreign Nationals: Emerging                   Torture and Other Cruel, Inhuman or Degrading
Importance of the Vienna Convention on Consular            Treatment or Punishment, § III(1), CONG. REC.
Relations as a Defense Tool, CHAMPION 28, 29               S17486-01 (daily ed., Oct. 27, 1990).
(Sept./Oct. 1998).
                                                           24.       Some U.S. courts have, in fact, stated that
19.      See John Quigley, Human Rights Defenses in        there might be a “humanitarian exception” in
US Courts, 20 HUM. RTS. Q. 555, 591 (1998). For            “‘situations where the relator, upon extradition, would
assistance in drafting arguments, see the model brief      be subject to procedures or punishment so antipathetic
bank at Rights International website, (visited Jan. 31,    to a federal court’s sense of decency.’” Mainero v.
1999) <http://www.rightsinternational.org>.                Gregg, Nos. 98-55067, 98-55069, 1999 WL 3470, at
                                                           *10-*11 (9th Cir. Jan. 7, 1999) (quoting Gallina v.
20.       Under the Federal Sentencing Guidelines, a       Fraser, 278 F.2d 77, 79 (2d Cir.), cert. denied 364
first-time embezzler of $15,000 who accepts                U.S. 851 (1960)); see United States v. Kin-Hong, 110
responsibility may be eligible for probation, while a      F.3d 103, 112 (1st Cir. 1997). No court, however, has
first-time embezzler of $50,000 who refuses to admit       found such a situation and thus enforced the exception.
the amount of the theft is likely to get some type of      See Mainero, 1999 WL 3470, at *10.
custodial sentence. See USSG §§ 2B1.1, 3E1.1,
5C1.1. Of course, the amount of restitution your client    25.      See, e.g., Pratt v. Attorney General of
will have to pay also will depend on the court’s           Jamaica, [1994] 2 A.C. 1 (P.C. 1993) (en banc)
resolution of this dispute.                                (concluding that extended time on death row could
                                                           violate Jamaican Constitution’s ban on inhuman
21.      See, e.g., Jacques Semmelman, Federal             punishment); Catholic Commission for Justice &
Courts, the Constitution, and the Rule of Non-Inquiry      Peace in Zimbabwe v. Attorney General, [1993] 2
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                           29



Z.L.R. 279 (Zimb. 1993) (similar holding based on
Constitution of Zimbabwe); but see Kindler v. Canada
(Minister of Justice), 84 D.L.R. 4th 438 (Can. 1991)
(finding no violation of Canada’s constitutional ban on
cruel and unusual punishment).

26.      Lackey v. Texas, 514 U.S. 1045 (1995).

27.      Id. at 1046 (Stevens, J., joined by Breyer, J.,
mem. respecting denial of cert.). In Chambers v.
Bowersox, 157 F.3d 560, 568 (8th Cir. 1998), the
Eighth Circuit held a claim based on this issue to be
procedurally barred. Nonetheless, it considered the
foreign precedents and remarked that, because the long
                                                           6.       HOW THE EUROPEAN
stay was due to exhaustion of judicial remedies, it
                                                                    CONVENTION ON HUMAN
likely was constitutional. Id. at 568-70.
                                                                    RIGHTS AND THE CASELAW
                                                                    OF THE EUROPEAN COURT
28.      Illustrative are the different treatments of
                                                                    OF HUMAN RIGHTS ARE
juvenile offenders in Germany and in Virginia, as
                                                                    IMPORTANT TO U.S. LAW
described in Soering, supra note 22, ¶¶ 44-45, 73.
                                                                    GOVERNING       CIVIL
Indeed, the defendant’s age -- 18 -- was one reason
                                                                    LIBERTIES
that the European Court of Human Rights blocked
extradition. See id. ¶ 111.
                                                                        Francisco Forrest Martin*
29.      United States v. Noriega, 808 F. Supp. 791,
                                                                     The European Convention for the Protection
798 (S.D. Fla. 1992) (holding detainee entitled to full
                                                           of Human Rights and Fundamental Freedoms
benefits of Geneva Convention Relative to the
                                                           (“ ECHR”) established the European Commission and
Treatment of Prisoners of War, Aug. 12, 1949, 6
                                                           Court of Human Rights in the 1950s. The European
U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135).
                                                           system has been the most active and successful of all
                                                           the regional international human rights tribunal
                                                           systems.30 As of this past November, the Commission
                                                           was eliminated pursuant to Protocol 11 to the ECHR in
                                                           order to streamline and further expedite the processing
                                                           of cases.31
                                                                     The European Court of Human Rights has
                                                           jurisdiction (or what is called “competence”) to decide
                                                           cases between legal persons and contracting state-
                                                           parties to the ECHR. These cases are called
                                                           “applications.” The Court also has competence to
                                                           decide inter-state complaints. The Court awards
                                                           monetary damages as well as legal fees and costs. It
                                                           does not order injunctive relief because the Court
                                                           considers that the exact measures undertaken by the
                                                           contracting state-party in order to fulfill its ECHR
                                                           obligations are within the state’s “margin of
                                                           appreciation.” In other words, the Court gives
                                                           complete deference to the state-party. However, as of
                                                           this date no state-party has ever refused to bring its
                                                           practices into conformity with the Court’s declaratory
                                                           rulings.
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Why is the ECHR and its caselaw important to U.S.           caselaw – reflect as well as create customary
law?                                                        international law that is binding on the U.S. As our
          The rights guaranteed by the ECHR are             readers know, customary international law is U.S.
extremely relevant to U.S. law for a number of reasons.     federal law under the Supremacy Clause of the U.S.
First, the language of these ECHR rights are modeled        Constitution. The Paquete Habana, 175 U.S. 677
on the Universal Declaration of Human Rights, which         (1900). Accordingly, it trumps state law. Kansas v.
in turn had been modeled in part on the U.S. Bill of        Colorado, 206 U.S. 46 (1906); People v. Liebowitz,
Rights.       Accordingly, the European Court’s             140 Misc. 2d 820 (N.Y. Co. Ct. 1988); Peters v.
interpretation of these ECHR rights can inform the          McKay, 238 P.2d 225 (Or. 1951) (en banc). It is less
interpretation of similar rights contained in our Bill of   clear that customary international law can trump U.S.
Rights.                                                     federal legislation and executive orders.32 The U.S.
          Secondly, the language of the rights              Supreme Court has yet to rule on whether customary
guaranteed by the ECHR almost perfectly reflect those       international law can do this. However, customary
rights guaranteed by the International Covenant on          international law is certainly controlling where there
Civil and Political Rights (hereinafter ICCPR). The         is gap in U.S. domestic law.
U.S. has ratified the ICCPR, although it has not                      As more and more U.S. cases are litigated
ratified the Optional Protocol which allows the UN          using customary international law, the U.S. law
Human Rights Committee to consider complaints               governing international law will become clearer.
(called “communications”) against U.S. practices and        However, a couple of obstacles pose difficulties for
issue findings (called “views”) and recommendations.        ensuring that the U.S. law governing international law
Decisions by the European Court of Human Rights             develops in a manner that both enhances human rights
interpreting ECHR provisions have been used by the          and maintains coherence. First, few lawyers and
UN Human Rights Committee in interpreting the               judges are trained in international law. They
ICCPR in its communications. Accordingly, the               incorrectly tend to see it as foreign law that can be
European Court’s caselaw provides even greater              used only as secondary sources of support in
authority for interpreting the ICCPR, and because the       interpreting federal or state constitutions, statutes, or
U.S. is bound by the ICCPR, the Court’s decisions are       common law. Moreover, many times lawyers and
extremely good evidence of how the U.S. should view         judges will not even entertain such law because they
its obligations under the ICCPR.                            perceive this law as coming from legal traditions that
          Thirdly, the language of the rights guaranteed    are less progressive and democratic than the U.S.’
by the American Declaration on the Rights and Duties        Secondly, even international law experts are strikingly
of Man (hereinafter American Declaration) and – even        unfamiliar with international human rights caselaw.
more so – the American Convention on Human Rights           They are only familiar with human rights treaties.
(hereinafter ACHR) reflect the language of those rights     This is especially troubling because it is the caselaw
in the U.S. Bill of Rights. Although the U.S. does not      that clarifies often the abstract language of rights
recognize the legally binding character of the              guarantees in treaties. It is caselaw that can both
American Declaration nor is it a party to the ACHR,         enhance or retract rights protections through judicial
the decisions of the European Court of Human Rights         interpretations.
have been used by the Inter-American Commission                       Accordingly, the most promising areas for
and Court of Human Rights in interpreting rights            using the ECHR and its caselaw are in customary
contained in the American Declaration and the ACHR.         international law challenges to state laws and
In turn, the decisions of the Inter-American                practices, and ambiguous federal laws.33 What are the
Commission and Court of Human Rights serve to               specific areas in which ECHR law may be helpful – or
further define customary international law obligations.     problematic – in challenging domestic civil
          This brings us to the fourth and most             liberties/rights violations? Here are a few areas.
important reason for why lawyers practicing U.S. law
should use the ECHR and its caselaw. The ECHR with          In which areas can the ECHR and its caselaw
the European Court’s interpretive caselaw – in              enhance U.S. civil liberties?
conjunction with the ICCPR, ACHR, American
Declaration, African Charter and their interpretive                  A promising area is death row phenomenon.
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                           31



In Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser.                 The Court held that the youth of a
A) (1989), the European Court held that subjecting the                person . . . is a circumstance which
applicant to death row phenomenon at Mecklenburg                      is liable, with others, to put in
Correctional Center in Virginia would be contrary to                  question the compatibility with [the
the right to humane treatment as guaranteed by Article                right to humane treatment under]
3, ECHR. In Soering, the applicant challenged his                     Article 3 of measures connected
extradition from the United Kingdom to Virginia to                    with the death sentence.
stand trial for a double murder. The Court held that        Id. at § 108. In conclusion, the European Court found
the all the circumstances of the case must be examined,     that these factors created death row phenomenon in
including (i) the nature and context of the treatment or    violation of the right to humane treatment as
punishment, (ii) the manner and method of its               guaranteed by Article 3, ECHR. Id. at § 111.
execution,” (iii) the duration of the treatment, (iv) the             Although a U.S. Court of Appeals in
physical or mental effects of the treatment, and (v) sex,   McKenzie v. Day, 57 F.3d 1461 (9th Cir. 1995) held
age, and state of health of the victim. Id. at § 100.       that death row phenomenon did not violate the Eighth
          In Soering’s particular case, the Court           Amendment’s prohibition of cruel and unusual
considered the “delays in the appeal and review             punishment, that court did not address a customary
procedures following a death sentence, during which         international law claim. Death row phenomenon
time he would be subject to increasing tension and          continues to be a serious violation of customary
psychological trauma.” Id. at § 105. The Court found        international law. There are over 3000 death row
that Soering could expect to spend six to eight years on    inmates in the U.S. in prisons that could meet the
death row. The Court noted:                                 conditions set out in Soering. Death Penalty
                                                            Information Center,
         However well-intentioned and even                  http://www.essential.org/dpic/dpic5.html
         potentially beneficial is the                       (visited 15 January 1999). If any of our readers need
         provision of the complex of post-                  a model brief using customary international law that
         sentence procedures in Virginia, the               includes other international and comparative law
         consequence is that the condemned                  sources to challenge death row phenomenon in the
         prisoner has to endure for many                    U.S., please contact Rights International at the email
         years the conditions on death row                  address and telephone number below.
         and the anguish and mounting                                 Another very promising area is anti-sodomy
         tension of living in the ever-present              related state laws. The European Court of Human
         shadow of death.                                   Rights repeatedly had held that the right to private
                                                            consensual sexual relations between adults of the same
Id. at § 106.                                               gender is protected by the right to privacy as
          The Court next considered the conditions on       guaranteed by Article 8, ECHR. In Dudgeon v. United
death row, specifically the stringency of custodial         Kingdom, 45 Eur. Ct. H.R. (ser. A) (1981), European
control, services (medical, legal, and social), and         Court of Human Rights held that the right to privacy
controls (legislative, judicial, and administrative) for    included the right to participate in mutual
death row inmates at the Mecklenburg Correctional           masturbation, oral-genital contact, and anal
Center. The European Court noted the protracted             intercourse between adult men. The applicant in the
extra security for death row prisoners on an average of     case challenged the Northern Ireland law
six to eight years. Id. at § 107.                           criminalizing homosexual activity:
          Finally, the European Court considered                               14. The relevant provisions
Soering’s age and mental state. The Court noted that                  currently in force in Northern
Soering was only 18-years-old at the time of his                      Ireland are contained in the
alleged offense. The Court also noted that there was                  Offences against the Person Act
“some psychiatric evidence” that Soering was                          1861 (‘the 1861 Act’), the Criminal
“suffering from [such] an abnormality of mind . . . as                Law Amendment Act 1885 (‘the
substantially impaired his mental responsibility for his              1885 Act’) and the common law.
acts.”                                                                         Under sections 61 and 62 of
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                             32



                    the 1861 Act, committing                         Mr. Dudgeon argued that the Northern Irish
                    and attempting to commit               law violated his right to privacy. The European Court
                    buggery are made offences              of Human Rights agreed. Id. at § 63. Although the
                    punishable with maximum                Court recognized that the law had the legitimate aim
                    sentences of life                      of safeguarding “the moral interests and welfare of
                    imprisonment and 10                    certain individuals or classes of individuals who are in
                    years’ imprisonment,                   need of special protection for reasons such as lack of
                    respectively.      Buggery             maturity, mental disability or state of dependence,” id.
                    consists of sexual                     at § 47, the law was not necessary in a democratic
                    intercourse per anum by a              society. The Court recognized that the case concerned
                    man with a man or a                    “a most intimate aspect of private life,” and,
                    woman, or per anum or per              [a]ccordingly, there must exist particularly serious
                    vaginam by a man or a                  reasons before interferences on the part of the public
                    woman with an animal.                  authorities can be legitimate for the purposes of Article
                    By section 11 of the 1885              8(2).” Id. at § 52. The right to privacy “affected by the
         Act, it is an offence, punishable with            impugned legislation protects an essentially private
         a maximum of two years’                           manifestation of the human personality.” Id. at 60. As
         imprisonment, for any male person,                the Court recognized,
         in public or in private, to commit an
         act of ‘gross indecency’ with                              As compared with the era when that
         another male. ‘Gross indecency’ is                         legislation was enacted, there is now
         not statutorily defined but relates to                     a better understanding, and in
         any act involving sexual indecency                         consequence an increased tolerance,
         between male persons; [citation                            of homosexual behavior to the extent
         omitted] it usually takes the form of                      that in the great majority of the
         mutual masturbation, inter-cural                           member-States of the Council of
         contact or oral-genital contact. At                        Europe it is no longer considered to
         common law, an attempt to commit                           be necessary or appropriate to treat
         an offence is itself an offence and,                       homosexual practices of the kind
         accordingly, it is an offence to                           now in question as in themselves a
         attempt to commit an act proscribed                        matter to which the sanctions of the
         by section 11 of the 1885 Act. An                          criminal law should be applied; the
         attempt is in theory punishable in                         Court cannot overlook the marked
         Northern Ireland by an unlimited                           changes which have occurred in this
         sentence . . . .                                           regard in the domestic law of the
                    Consent is no defence to                        member-States. [citations omitted]
         any of these offences and no                               In Northern Ireland itself, the
         distinction regarding age is made in                       authorities have refrained in recent
         the text of the Acts.                                      years from enforcing the law in
                                                                    respect of private homosexual acts
Id. at § 14. The applicant in Dudgeon was a                         between consenting males over the
homosexual male. During the execution of a search                   age of 21 years capable of valid
warrant, the police discovered personal papers,                     consent . . . . No evidence has been
including correspondence and diaries, belonging to                  adduced to show that this has been
Mr. Dudgeon in which were described homosexual                      injurious to moral standards in
activities. Id. at §§ 32-33. Although the Northern Irish            Northern Ireland or that there has
authorities did not charge him with violating the                   been any public demand for stricter
relevant sections from the 1861 and 1885 Acts, Mr.                  enforcement of the law.
Dudgeon successfully argued that he was liable to
criminal prosecution.                                      Id. at § 60. The Court held that “[a]lthough members
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                              33



of the public who regard homosexuality as immoral           readers as less protective of civil liberties/rights than
may be shocked, offended or disturbed by the                U.S. law. One area is freedom of expression
commission by others of private homosexual acts, this       addressing “hate-speech,” Jersild v. Denmark, 298
cannot on its own warrant the application of penal          Eur. Ct. H.R. (ser. A) (1994); blasphemy, Wingrove v.
sanctions when it is consenting adults alone who are        United Kingdom, – Eur. Ct. H.R. (ser. A) (1996); and
involved.” Id. at § 60. Therefore, the laws violated        sexually explicit expression in public places, Muller v.
Article 8, ECHR.                                            Switzerland, 133 Eur. Ct. H.R. (ser. A) (1988); and
          Since Dudgeon v. United Kingdom, the              school books, Handyside v. United Kingdom, 24 Eur.
European Court of Human Rights in two other cases           Ct. H.R. (ser. A) (1976). Another area is arrest, Art.
has recognized that the right to privacy extends to         5, ECHR; Murray v. United Kingdom, 300-A Eur. Ct.
homosexual activity. Modinos v. Cyprus, 259 Eur. Ct.        H.R. (ser. A) 1994). However, this is not to say that
H.R. (ser. A) (1993) (extending protection to carnal        this law would undermine extant U.S. constitutional
knowledge “against the order of nature”); Norris v.         law protections because the ECHR – as well as many
Ireland, 142 Eur. Ct. H.R. (ser. A) (1988) (protection      other human rights treaties – states that “[n]othing in
extended to anal intercourse between adult men).            [the ECHR] shall be construed as limiting . . . any of
Also, there is a case pending before the European           the human rights and fundamental freedoms which
Court of Human Rights addressing a discrimination           may be ensured under the laws of any High
claim on the basis of gender for homosexual activity        Contracting Party . . . .” Art. 60, ECHR. Accordingly,
for persons under eighteen. See Sutherland v. United        the ECHR is designed to ensure a fundamental
Kingdom, Application No. 15186/1994, Eur. Cm. H.R.          minimum level of rights protection.
(1997).
          In the U.S., there are five states (Arkansas,     Where can one find these European Court of Human
Kansas, Mississippi, Oklahoma, and Texas) that              Rights cases?
prohibit sodomy between same sex partners and fifteen                 The official case reports of the European
states34 and Puerto Rico that prohibit sodomy between       Court of Human Rights are available in most law
both same sex and opposite sex partners. ACLU,              libraries. Usually each decision has its own volume
<http://www.aclu.org/issues/gay/sodomy.html> (visited       number. Also, the European Court of Human Rights
15 January 1999). Again, if any of our readers should       Homepage (<http://www.dhcour.coe.fr>) has the full
be interested in receiving a model brief that uses          text of judgments and the ECHR, as well as other
customary international and treaty law to challenge         information. Its database is searchable, although the
anti-sodomy related state laws, please contact Rights       search techniques available are not as flexible as those
International.                                              for Lexis.
          Finally, another promising area is compelling               The European Commission of Human Rights
state authorities to investigate gross human rights         published its reports in a series called, DECISIONS AND
violations, such as extra-judicial killings by police and   REPORTS, which are in some law libraries. However,
sexual assaults by private individuals. The European        these published case reports are usually incomplete and
Court of Human Rights has declared that state-parties       misplaced. The best source for the European
have affirmative duties to investigate police abuse and     Commission of Human Rights reports is its home page
even sexual assaults by private individuals. See, e.g.,     (<http://194.250.50.201>), which has the more recent
Assenov v. Bulgaria, -- Eur. Ct. H.R. (ser. A) (1998)       reports of the Commission.
(state duty to investigate police brutality); Ergi v.                 Unofficial reports of the Court and
Turkey, -- Eur. Ct. H.R. (ser. A) (1998) (duty to           Commission can be found in the EUROPEAN HUMAN
investigate circumstances of applicant’s death during       RIGHTS REPORTS, which many law libraries have.
security force operation); Güleç v. Turkey, – Eur. Ct.      Lexis also has most of these case reports. In the
H.R. (ser. A) (1998) (duty to investigate applicant’s       “INTLAW” library, check the “ECCASE” file, which
death during clash with police during demonstration);       contains decisions of the Court.
X. and Y. v. The Netherlands, 91 Eur. Ct. H.R. (ser. A)               There is no “Shepard’s” for the ECHR and its
(1985) (state duty to investigate sexual assault).35        caselaw. Using a search engine at the Court’s website
          However, there are areas in which the ECHR        is the best method for hitting all the relevant cases. To
and its caselaw would be viewed by many of our              discover what are the leading cases, we suggest that
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                             34



you look at Martin et al., INTERNATIONAL HUMAN              Galo-Garcia v. Immigration & Naturalization Serv.,
RIGHTS LAW & PRACTICE: CASES, TREATIES AND                  86 F.3d 916 (9th Cir. 1996) (where there is extensive
MATERIALS (The Hague: Kluwer Law International,             legislative scheme, customary international law is
1997) (2 vols.).                                            inapplicable and cannot confer jurisdiction);
         If you should have any further questions about     Committee of United States Citizens in Nicaragua v.
the ECHR and European Court of Human Rights,                Reagan, 859 F. 2d 929 (D.C.Cir. 1988) (federal statute
please feel free to contact Rights International by email   overrides customary international law); United States
(<ricenter@igc.org>) or telephone (305/446-7334).           v. Merkt, 794 F.2d 950, 964 n. 16 (5th Cir. 1986)
                                                            (Congress not bound by “custom” of international
Endnotes:                                                   law), cert. denied, 480 U.S. 946 (1987); Garcia-Mir v.
                                                            Meese, 788 F.2d 1446 (11th Cir) (executive and
*        Francisco Forrest Martin is the President of       legislative acts override customary international law),
Rights International.                                       cert. denied 479 U.S. 889 (1986); United States v.
                                                            Howard-Arias, 679 F.2d 363 (4th Cir.) (federal statute
1.       The other regional systems are the European        overrides customary international law), cert. denied,
Commission and Court of Justice (established by the         459 U.S. 874 (1982).
Treaty of Rome), Inter-American Commission and
Court of Human Rights (established respectively by the      4.        Congress is assumed to legislate in conformity
American Declaration on the Rights and Duties of            with international law. Therefore, federal statutes are
Man, and the American Convention on Human                   construed to comply with international law. Murray v.
Rights), and the African Commission on Human and            The Schooner Charming Betsy, 6 U.S. (2 Cranch.) 64,
Peoples’ Rights (established by the African Charter on      118 (1804). However, if a subsequent federal statute or
Human and Peoples’ Rights).                                 treaty cannot be interpreted to avoid conflict with a
                                                            prior treaty, the Court historically has held that “the
2.         Before its elimination, the Commission was       one last in date will control the other.”Whitney v.
the first tribunal to which applications were submitted.    Robertson, 124 U.S. 190, 194 (1888); The Chinese
Originally, if the Commission found an ECHR                 Exclusion Case, 130 U.S. 581, 600 (1889) (‘last
violation and the contracting state-party did not settle    expression of the sovereign will must control); The
the case, the Commission -- not the individual              Cherokee Tobacco, 78 U.S. 616, 621 (1870); Head-
applicant -- could refer the case to the Court.             Money Cases, 112 U.S. 580, 599 (1884) (treaty subject
Individuals did not have standing before the Court.         to modification by act of Congress). This is known as
However, Protocol 9 to the ECHR later allowed               the “last-in-time” rule. RESTATEMENT §115.
individuals to have standing before the Court if they
were submitting complaints against those countries          5.      Alabama, Arizona, Florida, Idaho, Louisiana,
that had ratified the Protocol. Strictly speaking,          Michigan, Massachusetts, Minnesota, Mississippi,
neither the Commission nor the Court were bound by          North Carolina, South Carolina, Utah, and Virginia.
the decisions of the other body. However, the Court
had the final say on a case. Nevertheless, the decisions    6.      However, it is the Inter-American Court of
of the European Commission are good evidence of             Human Rights and the UN Human Rights Committee
customary international law.                                that has extended such a state affirmative duty to
                                                            include prosecution and punishment. See, e.g.,
3.       See, e.g., United States v. Javino, 960 F. 2d      Velásquez Rodríquez v. Honduras, Inter-Am. Ct. H.R.,
1137 (2d Cir.) (customary international law may             Judgment of 29 July 1988, Ser. C, No. 4; Bautista de
override federal statute) (dictum), cert. denied, 113       Arellana v. Colombia, UN Hum. Rts. Ctte., views
S.Ct. 447 (1992); Rodriquez-Fernandez v. Wilkinson,         adopted 27 October 1995, U.N. Doc.
654 F.2d 1382 (10th Cir. 1981) (noting fundamental          CCPR/C/55/D/1993 (1995).
international law principle against arbitrary detention),
aff’g, 505 F.Supp. 878 (D.Kan. 1980) (indefinite
detention of excludable alien violative of customary
international law and trumps executive order); but see
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                                       7.       GUIDE TO HUMAN RIGHTS
                                                RESEARCH ON THE WEB

                                                        by Marci Hoffman*

                                                 The Web has become a major tool for
                                       accessing human rights information, documents, and
                                       other materials. This guide will focus on some of the
                                       major human rights and related Web sites that are
                                       crucial to the ongoing research efforts of human rights
                                       lawyers, activists, researchers and scholars.

                                       I.       Research Guides and Bibliographies

                                                One of the best places to begin research on a
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                           36



human rights topic is with a research guide or                     Since international human rights law is treaty
bibliography. Listed below are some of the major         based, locating the necessary instrument is usually the
research tools.                                          first place to begin research in this area. The Web
                                                         offers many sites for obtaining the full-text of the most
1)       Rebecca J. Cook & Valerie L. Oosterveld, A      important instruments. A good strategy is to begin
Select Bibliography of Women's Rights:                   with the body that promulgated the instrument. This
<http://www.law.utoronto.ca/pubs/h_rghts.htm>.           section will outline the major Web resources for
                                                         human rights instruments as well as the sources that
2)       Derechos -- Human Rights, Concise Guide to      provide information about the issuing body itself.
Human Rights on the Internet:
<http://www.derechos.org/human-rights/manual.htm>.       1)     United Nations High Commissioner for
                                                         Human Rights <http://www.unhchr.ch/>
3)       Marci Hoffman, ASIL Electronic Research
Guide for International Law: Human Rights:                         In 1995 the Office of the High Commissioner
<http://www.asil.org/resource/humrts1.htm>.              for Human Rights/Centre for Human Rights
                                                         "embarked upon the development of what is hoped will
4)        Steven C. Perkins, Researching Indigenous      become the most complete source of information
Peoples Rights under International Law                   available on the Internet concerning United Nations
   <http://www.rci.rutgers.edu/~sperkins/ipr2.html>.     action in the field of human rights." It contains
See also Steven C. Perkins, International Human          information on the human rights activities of the UN.
Rights Law and Article 38 (1) of the Statute of the      Primary features include the Treaty Bodies Database
International Court of Justice                           <http://www.unhchr.ch/tbs/doc.nsf>, human rights
<http://www.rci.rutgers.edu/~sperkins/icjart.html>.      instruments:
5)       Jack Tobin and Jennifer Green, Guide to         <http://www.unhchr.ch/html/intlinst.htm> and other
Human Rights Research                                    UN        human         rights        documents
 <http://www.law.harvard.edu/Programs/HRP/               <http://www.unhchr.ch/html/otherdoc.htm>.            A
AboutHRPRG.html>.                                        Charter-based bodies database is under construction <
                                                         http://www.unhchr.ch/huridocda/huridoca.nsf >. The
6)       United Nations Dag Hammarskjöld Library,        most important human rights instruments are available
United Nations Documentation: Research Guide on          full-text but they lack complete citations and there is
Human Rights                                             no searching mechanism for the instruments
<http://www.un.org/Depts/dhl/resguide/spechr.htm>.       specifically. Other human rights related documents,
See also a specialized research guide on international   reports, and resolutions from various UN bodies are
law                                                      available. This should be one of the first places to
<http://www.un.org/Depts/dhl/resguide/specil.htm>.       begin research for UN human rights documents and
                                                         information.      Languages: English, French and
7)       UC Berkeley Human Rights Center,                Spanish.
Bibliographies on Issues in Human Rights
<http://globetrotter.berkeley.edu/humanrights/biblio     2)       United     Nations           Home        Page
graphies.html>.                                          <http://www.un.org>

8)       David Weissbrodt and Marci Hoffman,                       This site provides information about the UN
Bibliography for Research on International Human         (history, list of member states, the UN Charter, the ICJ
Rights Law                                               Statute, an online tour, and a calendar of conferences
<http://www.umn.edu/humanrts/bibliog/BIBLIO.             and observances), information about publications and
htm>.                                                    databases and access to UN news and documents.
                                                         Direct access to the Human Rights page
II.      Compilations of Human Rights                    <http://www.un.org/rights/> provides links to many
         Instruments                                     important UN pages, such as the UNHCHR (see
                                                         above), international criminal tribunals and treaties.
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                            37



Languages: English, French, Spanish, Russian,               and many of the instruments are available in French
Chinese and Arabic.                                         and Spanish (also with complete citations). Where
                                                            possible, this site links to the Multilateral Treaties
a.       United Nations Treaty              Collection      Deposited with the Secretary General or other
<http://www.un.org/Depts/Treaty/>                           ratification information. There is also a large
                                                            collection of UN documents <http://www1.umn.
         This site provides access to the full text of      edu/humanrts/un-orgs.htm> materials from other
many of the treaties contained in the United Nations        regional systems (European, African and Inter-
Treaty Series as well ratification and status               American)<http://www1.umn.edu/
information from the Multilateral Treaties Deposited        humanrts/regional.htm> and a good collection of links
with the Secretary General. The treaty section offers       to other Web resources
access by a variety of searching options (type of            <http://www1.umn.edu/humanrts/links/links.htm>.
agreement, signature date, entry into force date, subject
terms, popular name, title words and registration           4)       Multilaterals Project (Tufts University,
number). The electronic version of Multilateral             Fletcher School of Law and Diplomacy)
Treaties Deposited with the Secretary General offers        <http://www.tufts. edu/fletcher/multilaterals.html>
more up-to-date status information than the paper
version. Access is provided through a topical table of                Contains a variety of full-text treaties,
contents and an index. You must first register to use       including many human rights instruments. No
this database and there will be a fee eventually (see the   citations are provided however. There is a searching
Web site for more details).                                 mechanism available and a chronological list of
                                                            agreements. This site also provides a general link to
b.       UN      Documents                                  the UN Treaty Collection and other treaty secretariats.
<http://www.un.org/Docs/>
                                                            III.     Specialized Sites
         Under the UN documents section, there is a
selection of official documents from the                    1)        International Labour Organization (ILO)
Secretary-General, the General Assembly, the Security       <http://www.ilo.org/> This is an outstanding Web
Council and the Economic and Social Council. The            site. Begin by accessing the page of International
archive of documents varies depending on the issuing        Labour Standards and Human Rights.
body. This site also offers access to UN-I-QUE (a           <http://www.ilo.org/public/english/
database offered by the UN Dag Hammarskjöld Library         50normes/index.htm>.        It provides background
designed to provide quick access to document                information on international labour standards and the
symbols)<http://www.un.org/                                 ILO conventions on fundamental human rights.
Depts/dhl/unique/index.html> and a research guide on        Access to the following ILO legal information services
UN      documentation            <http://www.               is available:
un.org/Depts/dhl/resguide/>.
                                                            a.       ILOLEX (database on International Labour
3)       University of Minnesota Human Rights               Standards) http://ilolex.ilo.ch:1567/public/
Library <http://www1.umn.edu/humanrts/>                     english/50normes/infleg/iloeng/index.htm>

         The Library contains a collection of the most      b.       NATLEX (bibliographic database featuring
important international human rights treaties and other     national laws on labour, social security and related
instruments and documents. These documents can be           human rights) <http://natlex.ilo.org/scripts/
accessed by subject matter<http://www1.umn.edu/             natlexcgi.exe?lang=E>
humanrts/instree/ ainstls2.htm>, by instrument list
<http://www1.umn.edu/humanrts/instree/ainstls1.htm>         Languages: English, French and Spanish.
or by using one of the search mechanisms
<http://www1.umn.edu/humanrts/searchdevices.htm>.           2)    United Nations Education, Scientific and
 Many of the documents contain authoritative citations      Cultural Organization (UNESCO)
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                          38



<http://www.unesco.org/>                                 <http://www.coe.fr>

         Provides information about the organization,              This site contains information about the COE,
current events, publications, programs, documentation    its activities and the COE treaties
and databases. There is a section called Legal           <http://www.coe.fr/eng/legaltxt/treaties.htm>.       In
I n s t r u m e n t s                                    addition to human rights treaties, it contains treaties
<http://www.unesco.org/general/eng/legal/index.html>     related to social matters, bioethics, penal, public and
that provides some of the relevant conventions and       international law and other subject areas. Of great
agreements and some full-text documents. Languages:      importance is the signature and ratification
English and French.                                      information for each member State.          Languages:
                                                         English and French.
3)      United Nations High Commissioner for
Refugees (UNHCR)                                         a.       Council of Europe, Human Rights Web
                                                         <http://www.dhdirhr.coe.fr/>
a.       REFWORLD
<http://www.unhcr.ch/refworld/welcome.htm>                        The Human Rights Web of the COE focuses
                                                         on information and activities related to human rights.
          Contains selections of hundreds of documents   There are direct links to major documents as well as
from the REFWORLD databases, developed by the            background information on the instruments. A recent
UNHCR Center for Documentation and Research              addition to this site is the Case-Law collection (Hudoc)
(CDR). REFWORLD contains authoritative                   <http://194.250.50.200/hudoc/
information on refugees, including current country       default.asp>. Hudoc is a Web-based system for
reports, legal and policy-related documents and          searching the case-law of the control bodies established
literature. The Web site is organized into these         under the European Convention on Human Rights.
categories:                                              Languages: English and French.

1.       UNHCR Official Documents                        b.       Council of Europe, European Committee for
<http://www.unhcr.ch/refworld/refworld/unhcr/unhc        the Prevention of Torture<http://www.cpt.coe.fr/>
r.htm>
                                                                   This page contains information about the
2.       UN Official Documents                           Convention for the Prevention of Torture as well as
<http://www.unhcr.ch/refworld/refworld/un/un.htm>        information about the activities and reports of the
                                                         Committee. Under Reference Documents, you will
3.       Legal Information (international instruments    find the convention, background information, rules of
and refugee case law)                                    procedure, and other information related to the
<http://www.unhcr.ch/refworld/refworld/legal/law.ht      convention. Languages: English and French.
m>
                                                         c.       European Court         of   Human       Rights
4.       Country Information                             <http://www.dhcour.coe.fr>
<http://www.unhcr.ch/refworld/refworld/country/cou
ntry.htm>                                                        The official Web site of the Court contains
                                                         general information on the court, pending cases,
Languages: English, French, German, Japanese and         judgments and basic texts (such as the Rules of Court).
Korean.                                                  Languages: English and French.

b.       For more information from and about the         d.       European Commission of Human Rights
High Commissioner, see the main UNHCR web site           <http://www.dhcommhr.coe.fr/>
<http://www.unhcr.ch/welcome.htm>.
                                                               This site contains information about the
4)      Council         of     Europe        (COE)       Commission, its reports, procedures and activities.
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                               39



Languages: English and French.                              collection of "90 treaties and texts, commentaries on
                                                            the four Geneva Conventions and their Additional
5)       Organization of American States (OAS)              Protocols, an up-to-date list of signatures, ratifications
<http://www.oas.org/>                                       relating to IHL treaties and full text of reservations"
                                                            <http://www.icrc.org/unicc/ihl_eng.nsf/web?OpenNa
         This is the official homepage of the OAS. It       vigator>. Languages: English, French and Spanish.
contains a great deal of information about the OAS, its
charter, resolutions, annual report of the Secretary        2)      International Federation of Red Cross and
General, treaties and conventions, speeches and             Red Crescent Societies <http://www.ifrc.org/>
statements and press releases. Some of the documents
available at this site are full-text (resolutions, annual            Current information on humanitarian issues
reports, speeches, etc.). The OAS' Documents page           from around the world. Contains links to other Red
contains the full text of resolutions, treaties and         Cross/Red Crescent organizations on the Internet. Of
conventions <http://www.oas.org/Edocs.asp>. The site        particular interest is the World Disasters Report and
allows for searching by year, subject, alphabetically       Code of Conduct.
and by keywords. Languages: English and Spanish.
                                                            3)       ReliefWeb <http://www.reliefweb.int/>
a.       Inter-American Commission on Human
Rights                                                               A project of the United Nations Department
<http://www.oas.org/EN/PROG/ichr/commission.htm>            of Humanitarian Affairs (DHA). It provides current
                                                            information on the humanitarian relief operations.
                                                            There is also a library filled with reports related to
         The Commission page contains annual reports        population, migration, world emergencies and many
from 1991-1997 as well as some country reports.             other issues. See also the archive on natural disasters.
There is also a link to the Basic Documents
<http://www.oas.org/EN/PROG/ichr/basic.htm> that            V.       Status, Reservations and Declarations
contains the full-text of the instruments as well as
status and ratification information.     Languages:                   Locating status and ratification information as
English, French, Portuguese and Spanish.                    well as reservations and declarations for an instrument
                                                            is of primary importance in international human rights
b.       Inter-American Court of Human Rights               law. This can be a daunting task when relying on
<http://corteidh-oea.nu.or.cr/ci/                           paper sources. Now, there are many sources on the
HOME_ING.HTM>                                               Web for this kind of information – and they are usually
                                                            quite up-to-date.
         This new page contains information about the
Court, jurisprudence (a bit limited at the moment),         1)       UN, Multilateral Treaties Deposited with the
press releases and other information. Languages:            Secretary-General
English and Spanish.                                        <http://www.un.org/Depts/ Treaty/bible.htm>

IV.      Humanitarian Law                                             This material is part of the United Nations
                                                            Treaty           Collection
1)       International Committee of the Red Cross           <http://www.un.org/Depts/Treaty/>. In order to use
<http://www.icrc.org/>                                      this database, you must complete the registration form,
                                                            however, at this time, there is no charge for this
         The documents here are quite good: basic           service. The information can be accessed by a table of
rules of humanitarian law, the Geneva conventions,          contents or by a subject index. For the status of human
information on ratifications, accessions and                rights instruments, go to the human rights section of
successions and humanitarian law issues (war at sea,        the table of contents. There is no searching
landmines, famine and war, etc.).         See the           mechanism available. One of the biggest advantages
International Humanitarian Law (IHL) database, a            of using this tool online is that is more current than the
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                          40



paper version.                                            ratifications
                                                          <http://www.coe.fr/eng/legaltxt/eratpays.htm> of
2)       Treaty Bodies Database                           treaties for each member State is also available.
<http://www.unhchr.ch/tbs/doc.nsf>
                                                          8)       If the U.S. is a party to the agreement,
          This database was established to monitor the    consult other tools such as Treaties in Force
implementation of the principal international human       <http://www.acda.gov/state/> and the "Treaty
rights treaties. The database provides information on     Actions" section in the U.S. Department of State
submission of reports by States, documents issued by      Dispatch
the treaty bodies, and reporting and ratification         <http://www.state.gov/www/publications/dispatch/in
information. The full-text of the documents are           dex.html>.
available as well as status and submission information.
 Documents can be accessed in a variety of ways (by                For more information on ratification
treaty, country, symbol, etc.).                           information on the Web as well as useful phone
                                                          numbers, see the Treaties Chapter of the ASIL Guide
3)        Basic Documents Pertaining to Human Rights      to Electronic Resources for International Law
in the Inter-American System                              <http://www.asil.org/resource/treaty1.htm>.
<http://205.177.229.21/ichr/basic.htm>
                                                          VI.     Jurisprudence, Case law, Decisions and
          This site offers signature and ratification     Reports
information for several of the Inter-American human
rights treaties. Other OAS treaty signature and                    This section contains information from
ratification information can be accessed through the      human rights courts, like the European Court of
Treaties and Conventions section of this site             Human Rights as well as from the bodies established
<http://www.oas.org/EN/PROG/JURIDICO/english/t            under the major human rights instruments, like the
reaties.html>.                                            Human Rights Committee. Keep in mind that only a
                                                          small portion of this information is available in
4)        International Labour Organization               electronic form. Most of the documents are still only
Conventions -- Ratifications by Member States             available in publications from the issuing body (UN,
<http://ilolex.ilo.ch:1567/public/english/50normes/in     COE, etc.) or reprinted in other sources (such as
fleg/iloeng/ratse.htm>.                                   International Legal Materials, Human Rights Law
                                                          Journal, International Human Rights Reports, etc.).
5)       United Nations High Commissioner for
Refugees, the instruments available on the Web site       1)      United Nations
include the ratification information at the end of the
d o c u m e n t                                                    There are a few good Web resources for
<http://www.unhcr.ch/refworld/refworld/legal/law.ht       reports of States parties, concluding observations or
m>.                                                       comments, general comments and recommendations
                                                          and other basic documents submitted to and issued
6)       International Committee of the Red Cross         by the UN Treaty Bodies.
<http://www.icrc.org> and the IHL database                a.       Treaty Bodies Database at the UNHCHR
<http://www.icrc.org/unicc/ihl_eng.nsf/NORM?Ope           Web site <http://www.unhchr.ch/tbs/doc.nsf>
nView>.
                                                          b.       University of Minnesota Human Rights
7)        Each treaty included on Council of Europe       Library, United Nations Documents
treaties page includes signature and ratification         <http://www1.umn.edu/humanrts/un-orgs.htm>
information (on the same page as the text of the
treaty)<http://www.coe.fr/eng/legaltxt/treaties.htm>.              Both of these sites will have documents
Signatures                                                from the following UN bodies: Commission on
<http://www.coe.fr/eng/legaltxt/esignpays.htm> and        Human Rights, Human Rights Committee,
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                      41



Committee Against Torture, Committee on the            e.       Inter-American Human Rights Database
Elimination of Discrimination Against Women,           Contains annual reports, session reports, and special
Committee on the Rights of the Child, Committee on     reports of the Inter-American Commission
the Elimination of Racial Discrimination and           <http://www.wcl.american.edu/pub/humright/digest/
Committee on Economic, Social and Cultural             index.html>.
Rights.
                                                       5.      Other
c.      Other UN Human Rights Documents
                                                       a.       Reports of Cases Before the Court of Justice
          UN Human Rights Documents (resolutions,      <http://www.law.cornell.edu/icj>
reports, and other documents from the General
Assembly, Economic and Social Council, and the         b.       International Court of Justice Web Site
Sub-Commission on Prevention of Discrimination         <http://www.icj-cij.org/>
and Protection of Minorities)
<http://www.unhchr.ch/html/otherdoc.htm>               c.        World Court Digest. A compendium of the
                                                       jurisdiction of the International Court of Justice
2)      European System                                <http://www.virtual-institute.de/en/wcd/wcd_home.c
                                                       fm>
a.       European Court of Human Rights (general
information, pending cases and judgments)              d.       International Criminal Tribunal for the
<http://www.dhcour.coe.fr/>                            Former Yugoslavia
                                                       <http://www.un.org/icty/index.html>
b.       European Commission of Human Rights
<http://www.dhcommhr.coe.fr/>                          e.       International Criminal Tribunal for Rwanda
                                                       <http://www.un.org/law/rwanda/>
c.       Council of Europe Cases
<http://www.unhcr.ch/refworld/refworld/legal/refcas.   f.       International Criminal Court Homepage
htm>                                                   <http://www.un.org/icc/>

d.     Council of Europe Case-Law collection           VII.    Country Reports
(Hudoc)<http://194.250.50.200/hudoc/default.asp>
                                                                Many international organizations produce
3)      Inter-American System                          reports on the human rights conditions in various
                                                       countries. Human rights activists and lawyers rely on
a.      Inter-American Commission. Annual              these reports for asylum proceedings and when
Reports<http://www.oas.org/EN/PROG/ichr/commis         appearing before various treaty bodies and tribunals.
sion.htm>
                                                       1)       REFWORLD Country Reports (UNHCR)
b.       University of Minnesota Human Rights          <http://www.unhcr.ch/refworld/refworld/country/cou
Library, Inter-American Commission, Annual             ntry.htm>
Reports
<http://www.umn.edu/humanrts/cases/commissn.ht         2)       U.S. Dept. of State Country Reports on
m>                                                     Human Rights Practices
                                                       <http://www.state.gov/www/global/human_rights/in
c.       Inter-American Court Jurisprudence            dex.html>
<http://corteidh-oea.nu.or.cr/ci/Juris.htm>
                                                       3)       Amnesty International Country Reports
d.       Inter-American Court on Human Rights          <http://www.amnesty.org/ailib>
Advisory Opinions and Contentious Cases
<http://www.umn.edu/humanrts/iachr/iachr.html>         4)      Human Rights Watch, World Report
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                         42



<http://www.hrw.org/hrw/worldreport/>                    sources.

5)       WRITENET Country Papers                         1)       AAAS Directory of Human Rights Resources
<http://www.unhcr.ch/refworld/refworld/country/wri       on the Internet <http://shr.aaas.org/dhr.htm>
tenet/menu.htm>
                                                                   A good collection of links to hundreds of
6)       UNHCR Public Information Section                human rights organizations worldwide. Also includes
Country Profiles                                         links to many electronic publications on the Internet.
<http://www.unhcr.ch/world/world.htm>                     See also Getting Online for Human Rights, Frequently
                                                         Asked Questions and Answers about Using the Internet
7)       UNHCR Background Papers on Refugee              in Human Rights Work
and Asylum Seekers                                       <http://shr.aaas.org/Online/Cover.htm>.
<http://www.unhcr.ch/refworld/refworld/country/cdr
/menu.htm>                                               2)      American Society of International Law
                                                         <http:www.asil.org>
8)       ICRC Annual Report
<http://www.icrc.org/>                                            A good place to begin researching the Web
                                                         for international law sources. Be sure to check the
9)       UNDP, Human Development Reports                 ASIL Guide to Electronic Resources for International
<http://www.undp.org/>                                   Law. The Guide contains 7 chapters: the UN, Treaties,
                                                         Human Rights, Environmental Law, International
10)      UNICEF, State of the World's Children           Criminal Law, Private International Law and Lists,
<http://www.unicef.org/apublic>                          N e w s g r o u p s       a n d     N e t w o r k s
                                                         <http://www.asil.org/resource/Home.htm>.
11)     Lawyers Committee Critique: Review of the
Department of State's Country Reports on Human           3)       Amnesty      International           Online
Rights                                                   <http://www.amnesty.org/>
<gopher://gopher.igc.apc.org:5000/11/int/lchr> and
LCHR Web site <http://www.lchr.org/lchr/>                        This is the official Internet site for AI. It
                                                         contains the most up-to-date information -- new
12)      ReliefWeb Library and Archives                  document summaries, publications from AI (including
<http://wwwnotes.reliefweb.int/>                         the annual country reports) and links to other sites.

VIII.   Lists and Newsgroups                             4)       Derechos      --       Human         Rights
                                                         <http://www.derechos.org/>
         Listservs and newsgroups are valuable tools
for the human rights researcher. They provide a                   This Web site offers a variety of human rights
mechanism for communicating with other researchers       information, including reports on human rights
and activists as well as provide information on action   violations, actions, links and documents. Information
alerts and documentation. For more information on        is organized by country and by issue; an index and a
how to subscribe as well as information on other law     search engine allow for easy finding of materials. The
related lists, see the Lists, Newsgroups and Other       focus is on Latin America and many of these
Networks Chapter of the ASIL Guide to Electronic         documents are only available in Spanish.
Services         for     International           Law
<http://www.asil.org/resource/lists1.htm>.               5)       Human          Rights          @         igc
                                                         <http://www.igc.org/igc/issues/hr/or.html>
IX.     Other Relevant Web Sites
                                                                  This site contains action alerts, news and
         These Web sites are good places to begin        recent developments, documents, and links to other
one's research since they link to many other relevant    human rights resources on the Internet.
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                           43



6)       Human Rights Internet <http://www.hri.ca/>        source for human rights information, so has the need
                                                           for tools for navigating through the maze of resources.
         Human Rights Internet is an international          Hopefully, this guide will act such a tool for helping
network of human rights organizations, documentation       human rights researchers identify, locate and obtain
centre and publishing house. This site contains many       the materials and information necessary for their work.
things including UN documents, education materials,        Please send comments to Marci Hoffman at
resource guides and lists of links.                        hoffm019@tc.umn.edu.

7)       Max Planck Institute for Public International
Law, Virtual Institute                                     Endnotes:
<http://www.virtual-institute.de/en/vi/evi.cfm>
                                                           *        Marci Hoffman is the Foreign Comparative
         Provides access to a systematic set of links,     International Law Librarian at the University of
the Institute's OPAC which includes references to          Minnesota Law Library.
books, periodicals, and articles in the Institute's
collection (since the end of 1996), and an articles        1.      However, it is the Inter-American Court of
database in the areas of public international law,         Human Rights and the UN Human Rights Committee
comparative law and municipal law.                         that has extended such a state affirmative duty to
                                                           include prosecution and punishment. See, e.g.,
8)       O n e    W o r l d           O n l i n e     <    Velásquez Rodríquez v. Honduras, Inter-Am. Ct. H.R.,
http://www.oneworld.org/>                                  Judgment of 29 July 1988, Ser. C, No. 4; Bautista de
                                                           Arellana v. Colombia, UN Hum. Rts. Ctte., views
         "OneWorld is dedicated to promoting human         adopted 27 October 1995, U.N. Doc.
rights and sustainable development by harnessing the       CCPR/C/55/D/1993 (1995).
democratic potential of the Internet." It contains news,
thematic guides and other resources.

9)      Project DIANA, Online Human Rights
Archive at Yale School <http://diana.law.yale.edu/>

          DIANA is an international archive of human
rights legal documentation. It is designed to be a
reference tool for research in human rights law, with
online litigation documents and links to reference sites
throughout the Internet.

10) Women's Human Rights                         Page
<http://www.law-lib.utoronto.ca/diana/>

         This site focuses on women's human rights by
providing links, documents and a bibliography on the
topic by Rebecca Cook and Valerie Oosterveld.              8.            LITIGATION UPDATE

                                                                                    by
                                                                    Jennifer Green and Paul Hoffman*
X.       Conclusion
                                                           Mehinovich v. Vukovic,(N.D.G.) — This §1350
The Internet has had a profound impact on the way          action was filed on August 20, 1998, on behalf of a
people research and use information, especially in the     Bosnian Muslim refugee now living in Utah against a
area of human rights. As Web has grown as a primary        Bosnian Serb who is alleged to have committed war
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                              44



crimes and crimes against humanity against the              continued to speak (he was in pro per) after being told
plaintiff and others from May to November, 1992, in         not to. This is a civil action for damages and
the northern municipality of Bosanski Samac during          injunctive relief brought by civil rights lawyer Stephen
the "ethnic cleansing" then being conducted by              Yagman. The suit, in addition to raising constitutional
Bosnian Serb forces in the region. The defendant            claims, raised claims based on international human
served as a Bosnian Serb soldier and is alleged to have     rights treaties and customary law.              Amnesty
tortured and abused the plaintiff in a police station and   International filed an amicus curiae brief on these
a warehouse used by Bosnian Serb forces as a                issues.
detention and torture facility. The defendant was                     In January, 1999, the District Court dismissed
discovered living in a suburb of Atlanta.                   many of the plaintiff's claims; however, the Court
          The lawsuit is the first lawsuit filed by the     granted the motion for a preliminary injunction on the
Center For Justice and Accountability ("CJA"), an           plaintiff's constitutional claims and granted plaintiff's
independent organization founded by Amnesty                 motion for class certification. The Court dismissed all
International-USA to bring §1350 lawsuits against           of the international law claims.
human rights violators in the United States. The                      The Court found that it could imply a private
lawsuit was brought with the ACLU of Georgia. For           right of action to enforce a jus cogens norm of
ACLU affiliates interested in CJA's work, you should        international law under Bivens but declined to do so
contact Shawn Roberts, CJA's Legal Director, at 588         because of existing domestic remedies (e.g. 42 U.S.C.
Sutter Street, No. 433, San Francisco, California           §1983), the fact that Congress has already acted in the
94102 (tel. no. 415/544-0444.)                              field of torture (i.e., the Torture Victim Protection Act
          The case should go to trial in late 1999 or       of 1991) and Congress did not legislate to cover torture
early 2000.                                                 committed by U.S. officials. Finally, citing Handel v.
                                                            Artukovic, 601 F.Supp. 1421, 1428 (C.D. Cir. 1985),
Cabello v. Fernandez-Larios,(S.D. Fla.) — This              the Court found that it should defer to the legislative
CJA-initiated lawsuit was filed in January 1999 on          and executive branches in the area. The Court also
behalf of the family of Winston Cabello, an economics       relied heavily on White v. Paulson, 997 F.Supp. 1380
official in the Allende government who was summarily        (E.D. Wash. 1998), in reaching these conclusions.
executed as part of what has become known as the            The Court did not specifically address plaintiff's
"Caravan of Death" in the months following the              separate injunctive claims based on international
September 1973 military coup which overthrew the            customary law in reaching these conclusions.
Allende regime. Larios, who was also involved in the                  The Court rejected plaintiff's claims based on
assassination of Orlando Letelier and Ronnie Moffet         human rights treaties, including the Convention
on the streets of Washington, D.C., see, Letelier v.        Against Torture and the International Covenant on
Republic of Chile, 488 F.Supp. 665 (D.D.C. 1980),           Civil and Political Rights, on the grounds that they
and who has been in the U.S. witness security program       were “non-self-executing,” citing Igartua de le Rosa v.
after entering into a plea agreement in that case, was      United States, 32 F.3d 8, 10 n.1 (1st Cir. 1994); and
found living in South Florida and was served with the       In re Extradition of Chevine, 968 F.Supp. at 1385-87.
complaint in March 1999. He is due to respond to the                  The County has taken an appeal from the
complaint in late May. The law firms of Wilson,             preliminary injunction and class certification rulings.
Soncini, Goodrich and Respto in Palo Alto, California,      The briefing will be completed in June. In May the
and Conception & Sexton in Coral Gables, Florida            Justice Department filed an amicus brief in support of
have joined CJA in this case.                               the County's position.

Hawkins v. Comparet-Cassani, (C.D. Calif.) —                Alvarez v. Berrellez, 107 F.3d 696 (9th Cir. 1997)
This case arises out of the use of a stun belt against a    — This case is the civil damages action brought by the
three strike law defendant in a Municipal Court             ACLU/SC on behalf of Dr. Humberto Alvarez-
hearing in Long Beach, California, in July 1998. The        Machain against the United States. Certain DEA
Municipal Court Judge Joan Camparet-Cassani                 officials and informants and one of the Mexican
directed the bailiff to activate the belt, sending 50,000   nationals kidnapped him in April 1990 at his
volts of electricity through Mr. Hawkins' body, after he    Guadalajara medical office and transported him to the
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                                 45



United States to stand trial for the murder of DEA          police officers, working with the French government,
Agent Enrique Camarena. On remand from the Ninth            of a French child who had filed an asylum petition in
Circuit's 1997 decision in the interlocutory appeals, the   the United States. One of the arguments made in the
case went into an intensive period of discovery, trial      plaintiffs' brief is that the District Court erred by
preparation and numerous cross-motions for summary          dismissing §1350 claims based on the defendants'
judgment. On March 18, 1999, District Judge Steven          interference with the plaintiffs' right to seek and enjoy
Wilson issued a 53 page Order on these motions.             asylum. The appeal also seeks to overturn the
          Most significantly, Judge Wilson granted the      dismissal of plaintiffs' claim for false arrest, inter alia,
plaintiff's motion for summary judgment, under §1350        against the Republic of France under the Foreign
against the Mexican kidnapper, Francisco Sosa,              Sovereign Immunities Act.
finding that state-sponsored transborder kidnapping
was a violation of international law that was               Doe v. Unocal, 963 F.Supp. 880 (C.D. Cal. 1997),
redressible under §1350. The Court rejected the             NCGUB v. Unocal, 176 F.R.D. 329 (C.D. Cal. 1997)
defendant's arguments, inter alia, that §1350 was            — Since the last issue of the Report, these cases have
limited to the enforcement of jus cogens norms.             been in an intensive discovery phase, including
However, the District Court found for the United States     numerous depositions in the United States and Asia.
on the plaintiff's claims under the Federal Tort Class      For months the parties and the Court struggled over
Act ("FTCA"). The Court agreed with the plaintiff           the terms of a Protective Order that would govern the
that his claims were not barred by the FTCA's "foreign      defendants' use of plaintiff identifying information in
activities" exception (because plaintiff had established    their investigation because of the security risks to the
a "headquarters claim," or the "intentional tort"           plaintiffs. These issues, and issues regarding the scope
exception (because defendants were law enforcement          of privileges in discovery have taken a prominent role
officers). However, the Court found that California         in the litigation of the case. The District Judge has
law would find this extraterritorial arrest privileged      dismissed the giant French oil company Total from the
because there was a warrant issued for plaintiff's arrest   Doe v. Unocal case for lack of personal jurisdiction
in April 1990, or because it was an appropriate             and this decision has been appealed.
citizen's arrest, despite the fact that the “arrest” took             The Court has stated that it wants most of the
place in Mexico. This ruling will be the subject of a       discovery completed by September 1999 and for a
further appeal by the plaintiff. A bench trial on           hearing on expected summary judgment motions to be
damages took place May 19, 1999. Final arguments            set in December 1999. The trial is scheduled to start
are set for June 21, 1999.                                  in the late spring of 2000.

Marcos Human Rights Litigation — In late February           Jama v. INS, 22 F. Supp. 2d 353 (D.N.J. 1998) —
1999, Judge Real gave preliminary approval to a $150        On October 1, 1998, nineteen political asylum seekers
million settlement entered into between Class Counsel,      who were formerly detained in an Immigration and
Imelda Marcos and the new Estrada government in the         Naturalization Service (INS) facility in Elizabeth, New
Philippines. Some class members, including six of the       Jersey won an important ruling against INS officials,
ten named class plaintiffs, have filed objections to the    a private contractor and its employees. The decision
proposed settlement and the $35 million fee request by      by Judge Dickinson R. Debevoise of the District of
Class Counsel. After a fairness hearing on April 29,        New Jersey ruled (1) that the Alien Tort Claims Act
1999, Judge Real gave final approval to the settlement,     provides both jurisdiction and a cause of action for
notwithstanding the objections of some class members        claims under customary international law; (2) that the
and Philippine human rights organizations. Seven of         totality of the treatment the detainees were subjected to
the two named class plaintiffs have filed an appeal.        constituted cruel, inhuman or degrading treatment; (3)
The settlement funds have not been transferred from         that the U.S. had not waived its sovereign immunity
the Philippines as of May 1999.                             under the ATCA; (4) that it would be premature on a
                                                            motion to dismiss to decide various claims asserted,
Kamal v. City of Santa Monica — On April 7, 1999,           including whether INS officials had violated customary
the opening brief was filed in the Ninth Circuit in this    international law; (5) that the private contractor and its
case arising out of the 1994 seizure by Santa Monica        employees could be sued under the ATCA; and (6) that
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                             46



administrative claims were properly alleged.               and that England was a more convenient forum.
         The suit is now in discovery, to be closed on               Plaintiffs filed a Motion for Reconsideration
April 30, 1999. The plaintiffs attempted to obtain a       of the dismissal for forum non conveniens, arguing
protective order to prevent copies of plaintiffs' files    that the Court failed to impose the conditions
from being turned over to the defendants but the           necessary to ensure that an adequate forum against all
[magistrate] judge denied this motion. The INS has         defendants was available and that forum non
been ordered to locate missing plaintiffs.                 conveniens dismissal of their claims brought under the
         The plaintiffs are represented by the             Alien Tort Claims Act was inappropriate.
Constitutional Rights Clinic at Rutgers Law School                   Plaintiffs' Motion for Reconsideration was
and O'Melveney & Myers.                                    granted in part but denied in part. The Court granted
                                                           plaintiffs' motion solely to the extent that it imposed
Wiwa v. Royal Dutch Petroleum — This case                  the following conditions on its dismissal for forum non
charges Royal Dutch Petroleum Company and Shell            conveniens: that defendants consent to service of
Transport and Trading Company (Royal Dutch/Shell)          process, comply with all applicable discovery rules,
with complicity in the November 10, 1995 hanging of        consent to pay any judgment rendered, waive any
Ken Saro-Wiwa, John Kpuinen, two of nine leaders of        security bond that might be required and waive any
MOSOP (Movement for the Survival of the Ogoni              statute of limitations defense if the action is committed
People), the torture and detention of Owens Wiwa, and      within one year of the final disposition of this matter.
the wounding of a woman who was peacefully                 The Court denied plaintiffs' motion to condition
protesting the bulldozing of her crops in preparation      dismissal on defendants' waiver of procedural doctrines
for a Shell pipeline, who was shot by Nigerian troops      that plaintiffs argued could preclude plaintiffs from
called in by Shell. The case was brought under Alien       any remedy before English courts.
Tort Claims Act and alleges violations of the Racketeer              The Court further denied plaintiffs' motion for
Influenced and Corrupt Organizations Act (RICO).           reconsideration made in light of a Second Circuit
          Defendants moved to dismiss both the initial     October 5, 1998 decision. In Jota v. Texaco, Inc., 157
and the amended complaints on the grounds of lack of       F.3d 153 (2d Cir. 1998). Plaintiffs argued that the
personal jurisdiction over Royal Dutch/Shell, forum        District Court should determine that a forum non
non conveniens (defendants argued that the case            conveniens dismissal is inappropriate in this action
should be heard in the Netherlands or England), and        brought under the Alien Tort Claims Act, and that a
lack of subject matter jurisdiction (defendants argued,    dismissal in this case would vitiate Congressional
inter alia, that ATCA did not apply to a corporation       intent. Plaintiffs have appealed the ruling;
and that the claim was precluded by the political          defendants have cross-appealed the ruling on personal
question and act of state doctrines, as well as Nigerian   jurisdiction. The briefing will be completed by June
law on corporate liability). The court then ordered        1999.
preliminary discovery on the question of personal                    The plaintiffs are represented by Center for
jurisdiction over the corporation.                         Constitutional Rights, and attorneys Julie Shapiro,
          Final briefing on the motion to dismiss was      Paul Hoffman, Lee Crawford Boyd, and Jody Kelley,
completed at the end of September and the motion was       Alex Ward and Greg Lisa of Jenner & Block.
argued December 5, 1997. On March 31, 1998,
Magistrate Judge Henry Pitman recommended that the         Doe v. Islamic Salvation Front (FIS) and Anwar
Court grant defendants' motion to dismiss (1) for lack     Haddam, 96CV0292 (D.C.D.C) — Nine women and
of personal jurisdiction and (2) pursuant to the           men, and the Rassemblement Algerien des Femmes
doctrine of forum non conveniens. Both parties filed       Democrates (RAFD)--the Algerian Assembly of
timely objections to those portions of the Magistrate      Democratic Women--filed a federal lawsuit under the
Judge's Recommendations and Report with which they         Alien Tort Claims Act in December 1996 against the
disagreed. On September 25, 1998, Judge Kimba              Islamic Salvation Front (FIS) and one of its top
Wood concluded that personal jurisdiction was              leaders, Anwar Haddam.
appropriate in New York, but adopted and accepted the                The suit charges defendants with committing
Report in concluding that defendants' motion to            crimes against humanity and war crimes against the
dismiss should be granted for forum non conveniens         civilian population as part of their armed conflict with
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                               47



the Algerian government, as well as committing a           confined to state actors. Further, the court rejected
range of human rights violations such as assassination     defendant's reliance on the D.C. Circuit ruling in Tel
and torture--including rape, sexual slavery in the form    Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.
of forced "temporary marriage" and the enforcement of      Cir. 1984). Judge Sporkin ruled that the law of
sexual apartheid. Plaintiffs -- feminists, journalists     nations evolves and the alleged acts of the FIS are
and human rights workers who have opposed the              clearly in violation of international law as it stands
policies of the FIS – represent a broad movement in        today, citing Common Article 3's applicability to
Algeria that also opposes the repressive political,        internal armed conflict. The court also found
economic and social policies of the current Algerian       jurisdiction under the TVPA, holding that the statute's
state. Approximately 1000 people in Algeria and in         state action requirement does not require that a
exile have, at extreme personal risk, already signed       particular government be officially recognized; the
papers indicating their support of this case.              court stated that the statute is equally applicable to a de
           The lawsuit was triggered by the presence of    facto state. The court chose not to reach the question
(and, therefore, the ability to assert personal            of whether 28 U.S.C. 1331 supplies jurisdiction for
jurisdiction over) Anwar Haddam in Washington,             violations of international law; reserved ruling on the
D.C., where he established and operated an office for      justiciability under TVPA (depending on factual
FIS. The complaint alleges that Haddam holds or has        determination of whether FIS is recognized as de facto
held high level positions in both FIS and the Armed        state). The Court granted RAFD organizational
Islamic Group (GIA), leading paramilitary groups           standing because they alleged a cognizable injury.
committing atrocities against civilians. The complaint               The case is now in the discovery phase. In
also alleges that Haddam has been a key, high-level        response to plaintiffs' motion for a protective order,
link between the two organizations.                        Judge Sporkin ordered that discovery first proceed
           Haddam was arrested in late 1996 by the         against defendants, and that plaintiffs may, for at least
Immigration and Naturalization Service (INS) after his     the first phase of this sequential discovery, withhold
first application for political asylum was denied. His     names and current addresses from the defendant and
second application for political asylum, though            defendant's counsel. Defendant FIS has defaulted.
supported by the Department of State, was denied at                  The lawsuit was filed by the International
the trial level because he was found to have engaged in    Women's Human Rights Clinic (IWHR), the Center for
the persecution of others. Haddam's appeal to the          Constitutional Rights, the New York law firm of
Bureau of Immigration Appeals was granted in an            Patterson, Belknap, Webb & Tyler, and the
opinion which narrowly defined "persecution of             Washington, D.C. firm of Maggio & Kattar.
others" as requiring a direct nexus between the person
charged and the act, ignoring evidence about the           Belance v. FRAPH, Civ. 94-2619 (E.D.N.Y.) — In
purpose and goal of an organization in which applicant     June 1994, CCR filed a civil damage suit against
played such a key role. The BIA also remanded the          FRAPH on behalf of Alerte Belance, a young mother
case to the Immigration Judge to consider "secret          of three who was nearly hacked to pieces by FRAPH
evidence" about Haddam.            Amici curiae were       members. Belance was captured at home by four
submitted in opposition to the consideration of secret     armed FRAPH members in Port-au-Prince in October
evidence. The International Women's Human Rights           1993 after her husband, an Aristide supporter, fled.
Law Clinic at the City University of New York filed an     They almost decapitated her, hacked off her right arm
amicus curiae brief arguing that the Immigration Judge     with a machete and slashed her face, neck, and mouth,
had the right to reopen the case and examine evidence      and left her for dead in a nearby "killing field."
other than secret evidence.                                          As part of discovery, plaintiffs counsel CCR,
           Haddam filed a motion to dismiss the lawsuit,   Ira Kurzban and Paul Hoffman filed a series of third
which was denied on February 3, 1998, Judge Stanley        party subpoenas duces tecum. After nearly 18 months
Sporkin rejected defendant Haddam's motion to              during which there was no response from FRAPH,
dismiss on the grounds of personal jurisdiction, service   CCR filed a motion for a default judgment in January
and subject matter jurisdiction. In its ruling finding     1996, but asked that the motion be held in abeyance
that there was jurisdiction under the ATCA, the court      until the release of the subpoenaed government
rejected the defendants argument that ATCA was             documents.
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                           48



         CIA reports then obtained in response to the     International Corp, U.S. CNMI Development Corp.
subpoenas revealed that Emmanuel "Toto" Constant,         The complaint alleges violations of the Alien Tort
a CIA "asset" who was also the leader of the Front for    Claims Act, the Racketeer Influenced and Corrupt
Advancement and Progress in Haiti (FRAPH), was            Organizations Act ("RICO") and torts actionable under
involved in the murder of Justice Minister Guy Malary     the federal indentured servitude and anti-peonage
in 1993. Malary was local counsel in the successful       statutes and state common and international law.
suit, Paul v. Avril, and was gunned down in broad                   The case was brought by the law firms of
daylight in Port-au-Prince. Also, the Department of       Milberg, Weiss, Bershad, Hynes & Lerach; Altshuler,
Justice revealed in correspondence that it had in its     Berzon, Nussbaum, Berzon & Rugin, Galloway &
possession 60,000 pages of documents seized from          Associates, and Bushnell, Caplan & Fielding, LLP.
FRAPH headquarters. Press reports added that U.S.                   Two related cases were filed in 1999, one
troops had seized a total of more than 150,000 pages of   under the Fair Labor Standards Act in federal court
documents from the headquarters of the Haitian Armed      and another in state court by Global Exchange,
Forces and FRAPH, but was refusing to give them to        Sweatshop Watch and UNITE charging unfair
the Haitian government. Unconfirmed reports stated        business practices under California Business and
that Belance's photo was among the captured               Professions Codes. (Union of Needletrades Industrial
documents.                                                and Textile Employees v. The Gap, 300474, plaintiffs
         Due to the delay in the production of the        alleged clothing retailers including The Gap Inc.,
balance of the documents, in mid-1996, the motion for     Tommy Hilfiger and J. Crew deceived the public about
default judgment was withdrawn without prejudice          labor abuses at their Saipan factories and that the
pending receipt of government documents. A new            manufacturers clothes are mislabled. For more
default judgment motion was then submitted in             information, see www.saipan.com.
December 1997. The court issued an Order to Show
Cause to the defendant; which the defendant did not       Eastman Kodak v. Kavlin, 978 F. Supp. 1078
respond to. The default hearing is now scheduled in       (S.D.Fla. 1997) — Eastman Kodak employee Juan
June 1999.                                                Jose Carballo brought suit against Kodak subsidiary
                                                          Casa Kavlin and one of its officers, Susuana Kavlin.
Doe v. Gap: Civ. 99-329 (filed C.D. Cal. January 13,      Carballo claimed that false criminal charges were
1999) — Class action lawsuit challenges garment           brought against him and that he was maltreated and
production system on U.S. soil based upon peonage         arbitrarily detained for eight to ten days in Bolivia.
and involuntary servitude, and violations of the rights   The defendant filed a motion to dismiss the complaint
of women, under which tens of thousands of foreign        on the grounds of lack of personal jurisdiction, forum
guest workers work for unfair wages in unlawful           non conveniens and failure to state a claim under
sweatshop conditions in the Commonwealth of the           Bolivian law and the Alien Tort Claims Act.
Northern Mariana Islands. The defendants are                        The district court rejected this motion. The
garment contractors and retailers and manufacturers of    court's opinion contained a detailed analysis of
the CNMI-manufactured garments sold in the U.S.A.:        arbitrary arrest and detention and held that those who
The Gap, Inc., The Associated Merchandising Corp.,        conspire with state actors are liable. An evidentiary
Cutter & Buck, Inc., Dayton-Hudson Corp., J.C.            hearing on personal jurisdiction was held and the
Penney Company, Inc., J. Crew Group Inc., Jones           corporate defendant was dismissed. The case against
Apparel Group, Inc., Lane Bryant, Inc., The Limited,      Susana Kavlin proceeded. On February 12, 1998, a
Inc., The May Department Stores Company,                  Bolivian court entered a final judgment against
Nordstrom Inc., Oskosh B'Gosh, Inc., Sears Roebuck        Eastman Kodak and awarded damages to the plaintiff
and Company, Tommy Hilfiger USA, Inc., Wal-Mart           Casa Kavlin, S.A., the former defendant in the U.S.
Stores Inc., Warnaco Group Inc., American Pacific         action. In March 1998, defendants moved for leave to
Textile, Inc., Concorde Garment Manufacturing Corp,       amend their answer and affirmative defenses, adding
Diorva Saipan Ltd. Global Manufacturing Inc., Hansae      the affirmative defense of collateral estoppel. The
(Saipan), Inc., Marianas Garment Manufacturing, Inc.,     court rejected this motion because of “the current state
Micronesian Garment Manufacturing Inc., Mirage            of the judicial system and Defendant's alleged
(Saipan), Inc., Top Fashion Corp., United                 influence over litigation in Bolivia.” The case recently
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                             49



reached a successful settlement for plaintiffs; the terms
of the settlement are undisclosed.                          Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir. 1998) —
                                                            Two consolidated cases, Aguinda v. Texaco, S.D.N.Y.
Beanal v. Freeport-McMoran — Plaintiff Tom                  Dkt. No. 93 Civ. 7527 (on behalf of residents of the
Beanal, Indonesian citizen and member of Amungme            Oriente region of Ecuador) and Ashanga v. Texaco
tribe, filed class action against Freeport McMoran for      Inc., S.D. Dkt. No. 94 Civ. 9266 (residents of Peru),
cultural genocide, human rights violations and              allege that Texaco polluted the rain forests and rivers
environmental torts for open pit copper, gold and silver    in Ecuador and Peru during oil exploration activities in
mine at the Grasberg Mine in Indonesia. On April 10,        Ecuador between 1964 and 1992: dumping toxic by-
1997, the court ruled that the plaintiff had standing to    products in local rivers, leaked petroleum into the
allege cultural genocide of the Amungme tribe, certain      environment, resulting in physical injuries, including
human rights violations and environmental torts, but        pre-cancerous growths.
stated that plaintiff should amend the complaint. 969                 In 1993, Texaco moved to dismiss on the
F.Supp. 362 (E.D. La. 1997). Defendants' motion to          grounds of forum non conveniens. comity, and failure
strike the second amended complaint was granted on          to join an indispensable party -- the Republic of
August 7, 1997 for failure to state a claim, 1997 U.S.      Ecuador. The Ecuadoran ambassador wrote to letter
Dist. LEXIS 12001. On March 3, 1998, the court              to the court in support of this motion. The late Judge
granted defendant's motion to strike the third amended      Vincent Broderick reserved decision on the motion.
complaint and dismissed with prejudice plaintiffs's         Aguinda v. Texaco, Inc., No. 93 Civ. 7527, 1994 WL
claims. Plaintiffs appealed to the Fifth Circuit.           142006 (S.D.N.Y. 1994).
Briefing was completed in January 1999. Plaintiffs are                After a period of discovery, Texaco renewed
represented by Martin Regan, Regan & Boishea, a             its motion to dismiss. Counsel for the Republic of
New Orleans law firm.                                       Ecuador again supported the motion and submitted an
           Amici curiae were filed by EarthJustice and      affidavit by the Ecuadoran ambassador. The court
EarthRights International arguing environmental             granted Texaco's motion to dismiss as to the Aguinda
human rights violations constitute customary                plaintiffs. Aguinda v. Texaco, Inc. 945 F.Supp. 625
international law violations. The Center for                (S.D.N.Y. 1996), for forum non conveniens and
Constitutional Rights, Center for Justice and               comity, citing Sequiha v. Texaco, Inc., 847 F.Supp. 61
Accountability and Four Directions Council filed an         (S.D. Tex. 1994), and failure to join indispensable
amicus arguing that the court erred in its ruling on        parties (Petroecuador and the Republic of Ecuador).
genocide, failing to properly analyze the standards for     Plaintiffs filed a motion for reconsideration and the
cultural genocide and ignoring customary international      Republic of Ecuador filed a motion to intervene, this
law which provides a right to culture.                      time in favor of plaintiffs due to a change in
                                                            government, which resulted in the Ecuadoran
Alomang v. Freeport-McMoran, 97-1349 (La.App.               government's statement that the case should be heard
4 Cir, 03/04/98); 718 So. 2d 971; 1998 La. App.             in the U.S. court. The District Court (Judge Rakoff)
LEXIS 335 — Yosofa Alomang brought a class action           denied both motions. The plaintiffs appealed.
in state court of Louisiana charging state torts related              On October 5, 1998, the Second Circuit ruled
to cultural genocide and environmental violations. A        that dismissal on the ground of forum non conveniens
March 1998 appellate ruling reversed the lower court        was erroneous in the absence of a condition requiring
dismissal, rejecting defendants' arguments that there       Texaco to submit to jurisdiction in Ecuador. The
were no state law violations alleged, that the              Second Circuit ordered the District Court to make an
defendants was a separate legal entity from the             evaluation of whether a dismissal on the grounds of
corporation in Indonesia, that the Act of State doctrine    forum non conveniens "would frustrate Congress's
precluded the claims and that the Indonesian                intent to provide a federal forum for aliens suing
government was an indispensable party. The case was         domestic entities for violation of the law of nations."
remanded for further proceedings consistent with the                  On the question of the failure to include
opinion. Rehearing was granted April 15, 1998.              indispensable parties, the Court ruled that it was
Reported at 1998 La. App. LEXIS 2119. Another               necessary on remand for the District Court to
motion to dismiss was denied on February 25, 1999.          reconsider this issue in light of the government of
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                                 50



Ecuador's changed litigation position. The case was           his remains," and endangered her as well. In addition
remanded and oral argument was heard in February              to keeping her in ignorance, U.S. officials also did not
1999. The ruling by the District Court is pending.            inform the International Committee of the Red Cross
         The plaintiffs-appellants are represented by         or any other appropriate organization once they
the Law Office of Cristobal Bonifaz; Kohn, Swift &            learned that Everardo had been captured.
Graf, and Sullivan & Damen. The government of                           Finally, Harbury asserts that the "Defendants'
Ecuador and Petroecuador (movant-appellants) are              fraudulent statements and omissions were
represented by Ronald Minkoff.                                intentional...pursuant to a policy and practice of
                                                              intentionally concealing information tending to show
Harbury v. CIA,(D.C.D.C.); Harbury v.                         CIA collaboration in the criminal activities of the
Deutch,(D.C.D.C) — In early 1996, human rights                Guatemalan armed forces."
activist Jennifer Harbury brought a lawsuit charging                    Defendants filed a motion to dismiss in the
U.S. government officials with responsibility for the         fall of 1996. On March 23, 1999, Judge Kotelley of
death of her Guatemalan husband, Efrain Bamaca-               the District Court of the District of Columbia
Velasquez. In the suit, Harbury also alleges that the         dismissed with prejudice many of the claims, but
U.S. officials violated her rights by withholding             allowed the international law and state law tort claims
information about her husband's secret detention and          to continue. At the court's request, Plaintiffs submitted
torture, forcing her to undertake life-threatening            further briefing on the international law claims; the
hunger strikes in an unsuccessful effort to find him.         court declined to dismiss the tort claims because the
          In an earlier suit, filed on July 31, 1995 by       government has not certified that the defendants were
CCR, the National Security Archives and the private           acting in their official capacity.
firm of Morrison and Foerster,, Harbury sought to                       Harbury's lawyers are Jody Kelley of Jenner &
obtain information under the Freedom of Information           Block, Beth Stephens of the Center for Constitutional
Act pertinent to Bamaca's disappearance. At that time,        Rights, Robert McDuff, and Paul Hoffman.
Harbury's husband, known by his nomme de guerre
"Commandante Everardo," had been missing since for            In re Augusto Pinochet — In spring 1997, Elizabeth
more than three years and reported killed in battle.          and Joyce Horman, the mother and widow of Charles
          In response to the FOIA suit, the CIA initially     Horman, joined a suit brought in Spain against
released 200 documents, and have released a handful           General Augusto Pinochet and three other former
of additional releases which support Harbury's claim          members of the military junta that overthrew Chilean
that the government knew about her husband's capture,         President Salvador Allende in 1973.
torture and death, but refused to tell her. Litigation                 Plaintiffs include the sister of a Spanish priest
continues over the CIA's withholding of documents it          who was "disappeared" in Chile, the Chilean
has classified as secret.                                     Association of Detained and Disappeared, and other
          The second lawsuit, for $28 million in              individuals and groups.
damages, was filed in March 1996. In the interim,                      The suit--one of two brought in Spain recently
Harbury had uncovered reports that a supposed CIA             against the military leaders of Argentina and Chile--is
"asset," Guatemala Col. Julio Roberto Alpirez, was            based on Spanish law that recognizes the concept of
involved in her husband's interrogation and torture.          universal jurisdiction for criminal offenses and codifies
Harbury learned that the Guatemalan military had lied         international crimes in its domestic statutes.
when it claimed that Everardo had died in combat.                      Charles Horman's disappearance and death
She learned that U.S. officials covered up the                during the coup against Chilean President Salvador
connection between the CIA and Col. Alpirez, and that         Allende inspired the film "Missing" and was the
they had falsely denied knowing anything about what           subject of a 1977 case, Horman v. Kissinger, in which
had happened to her husband, when they had                    Horman's family attempted, in vain, to find out the
information about his capture, torture and killing,           extent to which U.S. personnel might have been
beginning six days after her husband's capture.               involved in his death.
          Harbury asserts in her damage suit that the                  The Chilean suit charges illegal detention,
actions of these officials "obstructed" her efforts to take   kidnaping, and murder, as well as "child snatching"--
action on his behalf, "either to save his life or recover     the practice of giving away or selling infants of
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                               51



"disappeared" pregnant women later killed while in           workers who make Nike products in China, Indonesia
custody.                                                     and Vietnam are not paid living wages and must work
          Such legal actions as this in Spain are called     long hours in dangerous working conditions for little
"popular action" suits and may be brought by any             pay, and the company violated 17200 because Nike
Spanish citizen, regardless of injury or other standing,     mislead the public about the working conditions of
in the public's interest. Non-citizens may join.             laborers, claiming that its contracts with suppliers
          On October 16, 1998, former Chilean dictator       forbid slave labor, corporal punishment and other
Augusto Pinochet was arrested in London on an                abusive practices.
international arrest warrant issued by a Spanish judge.                Defense counsel moved to dismiss the case
The warrant accused him of crimes against humanity,          based on a First Amendment defense, saying that Nike
genocide, torture and terrorism for (1) the killing of at    can't be sued for speech made in "self-defense" after its
least 4,000 people before, during, and after the 1973        labor practices were subject to public criticism. On
coup by which he came to power, (2) overseeing               February 8, 1999, Judge David Garcia dismissed the
Operation Condor, a secret police conspiracy to murder       case without written opinion. Plaintiffs' counsel Allan
people in Argentina, the United States, Spain, Italy         Caplan of Bushnell, Caplan & Feilding announced that
and other countries.                                         plaintiffs would appeal. Plaintiffs are also represented
          The government of Spain then requested that        by Milberg, Weiss, Bershad, Hynes & Lerach.
Pinochet be extradited to face trial and extradition
requests from France and Switzerland followed.               Linder v. Calero-Portocarrero, (S.D. Fla.) — The
          Pinochet and the Government of Chile               discovery battle to obtain documents from recalcitrant
protested his arrest sought to stop his extradition in       U.S. agencies that might shed light on the murder of
British court, arguing that he was immune due to             Benjamin Linder, a U.S. engineer who was murdered
principles of head of state immunity. On October 28,         in 1987 by U.S.-supported contras in Nicaragua
1998, a unanimous three-judge panel of the High              entered its fifth year.
Court agreed with him. This ruling was reversed in a                   Linder, a U.S. citizen, and two Nicaraguans
3-to-2 decision of five Law Lords on November 25,            were murdered in April 1987 by contras who attacked
1998. That decision was set aside due to and a seven         them while they were constructing a small dam in a
judge panel then heard the case.                             poor, rural area of Nicaragua. A year later, in 1988,
          On March 24, 1999, the seven judge panel           CCR filed suit in federal district court in Miami
ruled, 6-to-1, in that Pinochet was entitled to immunity     against the contra organizations and their leaders,
as a former head of state, and could face charges for        charging them with Linder's death. Linder's father,
abuses committed after 1988, when England enacted a          mother, sister, and brother asserted a cause of action
new Criminal Justice Act, making torture committed           under international law and the wrongful death law of
overseas became a crime punishable in Britain.               Florida--the state in which the contras then had their
Counsel are currently advocating for Pinochet's              headquarters and where much of their leadership
expeditious extradition to Spain and for Spain to try        resided. A 1990 dismissal on political question
General Pinochet for the crimes of which he has been         grounds was reversed in 1992 and the appeals court
accused occurring before 1988.                               stated that tort suits--suits for damages--could be based
          Counsel on the case are the Center for             upon violations of the customary laws of war.
Constitutional Rights and the International Human                      CCR subpoenaed government documents
Rights Clinic of American University.            Activists   relevant to the case in late 1993. A year and a half
in the U.S. continue to press for the U.S. government        later, after the government refused to even discuss
to demand the extradition of Pinochet to the U.S. to         complying with the subpoenas, the court ordered it to
stand trial for killings including Charles Horman,           produce some documents in July 1995.                 The
Frank Terrugi, and Ronni Karpen Moffit. (Contact             implementation of that order have been the subject of
CCR for more information.)                                   the discovery dispute ever since and the subject of two
                                                             circuit court decisions, Linder v. National Security
Kasky v. Nike San Francisco Superior Court —                 Agency, and Linder v. Department of Defense,
Charges Nike Inc. with violating California Business         Department of State, Federal Bureau of Investigation
and Professions Code 17200. The suit alleges that            and Central Intelligence Agency, 94 F.3d 693 (D.D.C.
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                               52



1998). Upon remand, the District Court ordered a             brought against Swiss, Austrian and German banks for
narrow additional search and agreed with the agencies        the return of money belonging to Holocaust victims,
that the plaintiffs must bear some of the costs of the       against European insurance companies for refusing to
search. Plaintiffs are disputing the order to pay costs      pay out on insurance policies purchased by Holocaust
of the search. The issue has been briefed and the            victims, German and U.S. companies for the use of
ruling is pending.                                           slave labor during the Holocaust, and claims
                                                             concerning the Nazi theft of art. A forthcoming article
Gurab v. Federal Laboratories, Inc.&                         summarizes the 46 cases pending and gives a detailed
TransTechnology Corp. --In 1992 CCR filed a claim            legal analysis of their development. Michael Bazyler,
in Pennsylvania state court on behalf of two of the          “Litigating the Holocaust” University of Richmond
plaintiffs in a related case in the Western District of      Law Rev. (1999). The cases summarized below are
Pennsylvania, Abu-Zeinah et al. v. Federal                   discussed in more detail in Professor Bayzler's articles.
Laboratories, Inc. and TransTechnology Corp. (W.D.
Pa.)                                                                   In addition to Professor Bayzler's article, a
          The suit was brought by families of                recent article by Anita Ramasastry discusses the Swiss
Palestinians who were killed by exposure to CS gas, a        bank litigation: “Secrets and Lies? Swiss Banks and
lethal "riot control" weapon manufactured and                International Human Rights, 31 Vand.J. Transnat'l
distributed by Federal Laboratories, Inc. and                L.Rev. 325 (1998).
TransTechnology Corp. It alleged that the companies
sold CS gas to the Israeli armed forces despite their        Case Against Swiss Banks
knowledge that Israel's use of CS gas had resulted in
many civilian deaths.                                        In re Holocaust Victims Assets Litigation, Series of
          The plaintiffs asserted that even though this      three unjust enrichment cases brought in the Eastern
gas was designed to be sprayed outdoors, Israeli forces      District of New York against three Swiss banks. In
fired it directly at people or in enclosed or confined       mid-August 1998, a settlement agreement was reached
residential spaces without giving any warning or             for $1.2 billion. The defendants made the first
allowing people any means of escape, thereby exposing        installment into a trust account in November 1998;
peaceful civilians not involved in "rioting" or other        distribution will be left to a Special Master appointed
unlawful activity to the gas. International human            by the court.
rights groups, including the U.N. Relief and Works
Agency and Amnesty International, reported that at           Cases Against Germand and Austrian Banks:
least 80 Palestinians have died since December 1987
as a result of exposure to CS gas.                           Watman v. Deutsch Bank, et al (No. 98 Civ. 3938)
          While the federal claim was still active, CCR      (S.D.N.Y. filed June 3, 1998) and Duveen v. Deutsch
did not pursue the state action, but upon dismissal of       Bank (No. 98 CV 06620) (E.D.N.Y., filed October 28,
the federal claim on jurisdictional grounds in               1998). Two class action suits against German and
December 1994, CCR re-activated this suit. Federal           Austrian banks for, inter alia, looting gold and other
Labs and TransTechnology moved to dismiss the case,          personal property from Jews during the Holocaust, and
filing an almost identical motion to that filed in federal   financing and profiting from the proceeds of slave
court (which the federal court denied). CCR opposed          labor.
this motion. In fall 1996, the court rejected the
defendants' new attempts to end the case and ruled that      Cases Against Insurance Companies:
plaintiffs would be permitted to go to trial. A second
motion to dismiss was filed and rejected in 1998. The        Drucker Cornell v. Assicurazionie Generali S.P.A.
case was set for trial in 1999; however, a settlement        (97 CV 02262) (S.D.N.Y., March 31, 1997). Winters
has been reached, subject to court approval.                 v. Assicurazioni Generali S.P.A. (98 CV 9186)
                                                             (S.D.N.Y. December 30, 1998). Two class action
        SELECTED HOLOCAUST CASES                             lawsuits brought against 16 European insurance
                                                             companies. A series of individual actions by
         Since 1996, a series of cases have been             individual heirs are also pending in state courts.
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                             53



Currently the national Association of Insurance            subjects, supplying experimental drugs and
Commissioners is negotiating with the defendant            medications to infected inmates, and then using the
companies for the establishment of a fund to pay on the    results of these experiments to develop and market new
disputed.                                                  products. The named plaintiff, Eva Kor, and her twin
                                                           sister Miriam, were subjected to experiments at
Iwanowa v. Ford, 98 Civ. 959 (D.N.J. filed March 4,        Auschwitz.        Specific documentation links a
1998) — The first class action brought under ATCA          concentration camp doctor and Bayer employee, Dr.
on behalf of thousands of persons who were compelled       Helmuth Vetter to the experiments, and
to perform forced labor under inhuman conditions for       correspondence between Bayer and the camp
defendant Ford Werke, A.G., the German subsidiary of       commander discusses Bayer's purchase of 150 female
defendant Ford Motor Company between 1941 and              concentration camp inmates.              Violations of
1945. The suit also alleged unjust enrichment. A           international law alleged include the Geneva
motion to dismiss was filed March 30, 1998, arguing        Convention on the Treatment of Non-Combatants.
that plaintiffs' unjust enrichment and implied                       Lawyers for the plaintiffs are Cohen & Malad
employment contract claims fail to state a cause of        of Indianapolis; Lieff, Cabraser, Heimann & Bernstein
action upon which relieve can be granted. The              in New York; Milberg, Weiss, Bershad, Hynes &
defendants argued that the claims would fail under         LeRach in New York, and Cohen, Milstein, Hasefeld
German law, that they would be time-barred under           & Toll in Washington, DC; Martin Mendelshohn in
state law (Michigan, Delaware, or New Jersey); that        Washington, D.C.; Professor Burt Neuborne of New
they failed to state a cognizable claim against Ford for   York University Law School; Much, Shelist, Freed,
alleged violations of the law of nations. Briefing was     Dennenberg, Ament & Rubinstein in Chicago.
completed in August 1998. The ruling is pending.
          Counsel for the plaintiffs are Goldstein, Lite   Stolen Art Cases:
and DePalma (New Jersey); Milberg, Weiss, Bershad,
Hynes & Lerach LLP (New York and Los Angeles,                       Goodman v. Searle, (N.D. Ill. Eastern Div.
Dohen, Milstein, Hausfeld & Toll, P.L.L.C.                 96-C--6459). Case against Chicago pharmaceutical
(Washington, D.C.), and Professor Burt Neuborne of         magnate by grandchildren of Jewish owner of Degas
New York University Law School.                            painting, who was murdered by the Nazis. In August
          Similar suits have been filed against            1998, on the eve of trial, the case settled: the painting
Volkswagen, Siemens and Heinkel. Milberg, Weiss,           was donated to the Chicago Art museum and the
Berhad, Hynes & Lerach intends to file shortly a series    grandchildren received on-half the value of the
of similar suits against Damler-Chrysler, AEG,             painting from the museum. Another case was brought
Telefunken, General Motors, Continental, BMW and           against the Seattle Art Museum. Rosenberg v. Seattle
others. Milberg Weiss is also representing plaintiffs in   Art Museum, (D. Wash. 1998). Yet a third case was
a suit against Degussa for having invented and             brought in New York state court by the New York
provided to the SS the poison gas Zyklon B, used to        District attorney to prevent the return of two Egon
murder millions in Nazi concentration camp gas             Schiel paintings on loan to the Museum of Modern Art
chambers and for his profiteering through the smelting     from an Austrian museum.
of precious metals seized from victims of Nazi
persecution including dental gold, glasses frames,         Endnotes:
jewelry and religious and ornamental items seized
from the victims. (For regular updates, see the Web        *         Jennifer Green is a staff attorney at Center
site of Milberg, Weiss www.milberg.com)                    For Constitutional Rights. Paul Hoffman is a civil
                                                           rights attorney in Santa Monica, California and is the
Kor et al v. Bayer AG, No. TH99-036-C (SD IN,              National Coordinator of the ACLU International
Feb. 17, 1999) — Class action lawsuit filed against        Human Rights Task Force and Editor of the
German chemical and pharmaceutical giant, Bayer            International Civil Liberties Report.
AG, alleging that the company assisted Joseph
Mengele in experiments on concentration camp
inmates by supplying chemicals and germs to inject the
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                                                                     This essay reviews the Breard case as well as
                                                            other prominent cases involving the Vienna
                                                            Convention. It also examines recent efforts by the U.S.
                                                            State Department to improve consular notification
                                                            efforts nationwide.

                                                            II. A Review of Recent Cases

                                                                      In 1996, the first case addressing the
                                                            implications of the Vienna Convention violations in
                                                            criminal proceedings was reported. Since then,
                                                            litigation concerning the Vienna Convention has
                                                            increased significantly in national and international
                                                            tribunals.38

                                                            A. The Breard Case

                                                                      In 1993, Angel Breard was convicted and
9.       THE VIENNA CONVENTION ON                           sentenced to death in Virginia for capital murder. As
         CONSULAR RELATIONS: RECENT                         a Paraguayan national, Breard was entitled to
         DEVELOPMENTS                                       notification of his right to consular access pursuant to
                                                            the Vienna Convention. After exhausting his state
                         By                                 appeals, Breard subsequently filed a petition for
                  William J. Aceves*                        habeas corpus relief in federal court challenging his
                                                            conviction, inter alia, on the grounds that Virginia
I. Introduction                                             officials failed to inform him of his right to consular
                                                            access. In addition, the Government of Paraguay filed
           The Vienna Convention on Consular                a civil lawsuit in federal court alleging that its own
Relations (hereinafter “Vienna Convention”) was             rights under the Vienna Convention were violated by
adopted in 1963 to codify consular rights and               Virginia officials. Both lawsuits were dismissed by the
obligations.36 Article 36 of the Vienna Convention          district court and the Fourth Circuit on procedural
provides that foreign nationals must be notified of their   grounds. Paraguay then filed a petition before the
right to communicate with consular officials when           International Court of Justice alleging that the United
detained in member states. The purpose of this              States had violated its obligations to Paraguay under
provision is twofold. It allows member states to            the Vienna Convention. On April 9, 1998, the
monitor the well-being of their nationals, and it           International Court of Justice issued a provisional
provides foreign nationals with access to consular          measures order requesting that the United States “take
officials.                                                  all measures at its disposal to ensure that . . . Breard is
           In 1998, the Vienna Convention gained            not executed pending the final decision in these
national and international prominence following             proceedings . . . .”39 On April 14, 1998, the U.S.
rulings by the International Court of Justice (‘ICJ”)       Supreme Court issued a per curiam ruling denying the
and the U.S. Supreme Court in the case of Angel             Vienna Convention claims of both Breard and
Breard, a Paraguayan national facing execution in           Paraguay. Breard v. Greene, 118 S.Ct. 1352 (1998).
Virginia.37 While the Breard litigation highlighted the     Breard was executed later that evening in Virginia.
importance of consular access to detained foreign                     Despite Breard’s execution, Paraguay
nationals, it also emphasized the difficulties in           expressed continued interest in pursuing the case in the
obtaining domestic implementation of Vienna                 International Court of Justice. Indeed, it filed a
Convention obligations. Subsequent cases involving          Memorial on the merits with the ICJ on October 9,
the Vienna Convention reiterate the lessons of the          1998. However, Paraguay subsequently informed the
Breard litigation.                                          Court on November 2, 1998 that it wished to
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discontinue proceedings in the Breard matter.               the Vienna Convention claim until 1992. However,
         On November 3, 1998, the United States             his claim was denied by Texas state courts as well as
informed the ICJ that it concurred in the                   the federal courts.41
discontinuance and in the request that the case be                   Once the Canadian government discovered
removed from the Court’s docket. On that same day,          Faulder’s detention and pending execution, it pursued
the U.S. Embassy in Asuncion, Paraguay issued an            diplomatic negotiations with the U.S. State
apology to the Government of Paraguay for the clear         Department as well as Texas officials in order to
violation of the Vienna Convention in the Breard            commute the death sentence. In September 1998, the
case.40 In addition, the U.S. statement indicated:          Texas Court of Criminal Appeals denied Faulder’s
                                                            remaining petition for habeas relief and an execution
         The United States intends . . . to                 date was set for December 10, 1998. In response to
         ensure that the consular rights of                 significant pressure by the Canadian government, U.S.
         foreign nationals in the United                    Secretary of State Madeleine Albright urged Governor
         States are respected, and that                     George Bush of Texas and the Texas Board of Pardons
         Paraguayan and other foreign                       and Paroles to provide full consideration of Faulder’s
         nationals in the United States are                 Vienna Convention claim. In her correspondence to
         properly notified of their right to                Governor Bush, Secretary Albright indicated:
         request consular assistance if they
         are arrested or detained. Consular                         In past cases, we have generally
         notification is no less important to                       found that the totality of the
         Paraguayan and other foreign                               information available to us
         nationals in the United States than                        suggested either that notification
         to U.S. nationals outside the United                       was unlikely to have affected the
         States. We fully appreciate that the                       proceedings, or that the defendant
         United States must see to it that                          received the kinds of benefits
         foreign nationals in the United                            consular notification is intended to
         States receive the same treatment                          facilitate. . . . Nonetheless, the
         that we expect for our citizens                            consular notification issues in this
         overseas. We cannot have a double                          case are sufficiently troublesome
         standard.                                                  that they may provide sufficient
                                                                    grounds for according discretionary
On November 10, 1998, the ICJ directed the removal                  clemency relief.
of the case from the Court’s docket. Case Concerning
the Vienna Convention on Consular Relations                 In her correspondence to the Texas Board of Pardons
(Paraguay v. United States of America) Order (10            and Paroles, Secretary Albright expressed similar
November 1998).                                             concerns.

B. The Faulder Case                                                 I am deeply troubled by the failure
                                                                    of consular notification in this case.
          In 1975, Stanley Faulder, a Canadian citizen,             Texas has conceded that the [Vienna
was arrested and subsequently convicted of murder in                Convention’s] requirement of
Texas. His first conviction was overturned; however,                consular notification was violated .
he was convicted in a second trial in 1981. His appeals             . . It is clear that, but for these
then proceeded through the state and federal courts.                failures, Canadian consular officials
Throughout his detention, Faulder was never informed                would have visited Mr. Faulder in
of his right to communicate with Canadian consular                  prison and offered him assistance
officials pursuant to the Vienna Convention. Indeed,                before his second trial and direct
he remained uninformed of his rights until his court                appeals had been completed, when
appointed counsel disclosed this to him 15 years after              such assistance would have been
his initial detention. As a result, Faulder did not raise           most critical. Moreover, we are not
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                   confident that the purposes            C. The LaGrand Case
                   of the [Vienna Convention]
                   were served in Mr.                               In 1984, Karl and Walter LaGrand, two
                   Faulder’s case through                 German nationals, were convicted and sentenced to
                   other mechanisms. We are               death in Arizona for murder. Throughout these
                   particularly troubled by the           proceedings, they were never informed of their right to
                   facts that Mr. Faulder’s               communicate with German consular officials. Once
                   legal counsel has been                 the German government discovered their detention and
                   found by the courts to have            pending execution, it issued several diplomatic
                   been deficient in his                  requests urging clemency. Despite these requests,
                   handling of the sentencing             Karl LaGrand was executed on February 24, 1999.
                   phase of trial, that no                The execution of Walter LaGrand was then scheduled
                   mitigation evidence was                for March 3, 1999.
                   presented to the jury in the                     On March 2, 1999, Germany instituted
                   sentencing phase, and that             proceedings against the United States before the
                   Mr. Faulder’s family was               International Court of Justice.            The German
                   not aware of his situation.            government alleged that the United States had violated
                   These are all areas in                 the Vienna Convention by failing to properly notify the
                   which Canadian consular                LaGrand brothers of their right to consular access.
                   officials might well have              Accordingly, Germany requested that the ICJ adjudge
                   taken some action. While               and declare that the United States violated its legal
                   the [Vienna Convention]                obligations under the Vienna Convention. Germany
                   violation in this case does            further requested reparation, in the form of
                   not create any legal right to          compensation and satisfaction, for the execution of
                   relief, we believe that this           Karl LaGrand. It also requested a restoration of the
                   is a case in which consular            status quo ante in the case of Walter LaGrand; that is,
                   notification issues may                to establish the situation that exited before his sentence
                   provide sufficient grounds             and conviction. Given the impending execution of
                   for according discretionary            Walter LaGrand, Germany also submitted a separate
                   clemency relief.42                     request for the indication of provisional measures.
          In addition to this correspondence, the State   Specifically, Germany emphasized the irreparable
Department provided a more elaborate set of               harm that would occur to its case if Walter LaGrand
observations to the Texas Board of Pardons and            was executed prior to the ICJ’s ruling on the merits of
Paroles concerning the consular notification issues       the case.
raised in the Faulder case. Observations of the United
States Department of State Concerning the Consular                 Under the grave and exceptional
Notification Issues in the Case of Joseph Stanley                  circumstances of this case, and
Faulder Submitted to the Texas Board of Pardons and                given the paramount interest of
Paroles (November 1998).                                           Germany in the life and liberty of its
          On November 24, 1998, Faulder filed a                    nationals, provisional measures are
petition for certiorari with the U.S. Supreme Court                urgently needed to protect the life of
requesting review of several issues including the                  Germany’s national Walter LaGrand
Vienna Convention claim. On December 10, 1998, the                 and the ability of this Court to order
U.S. Supreme Court issued a stay of execution in the               the relief to which Germany is
Faulder case pending its consideration of the petition             entitled in the case of Walter
for certiorari. The stay was issued 30 minutes before              LaGrand, namely restoration of the
Faulder was scheduled for execution. The Supreme                   status quo ante.        Without the
Court subsequently denied Faulder’s petition for                   provisional measures requested, the
certiorari on January 25, 1999. At this writing, an                United States will execute Walter
execution date has been scheduled for June 17, 1999.               LaGrand - as it did execute his
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                   brother Karl - before this                principles.” Id. at 1714*2. Accordingly, the Court
                   Court can consider the                    declined to exercise its original jurisdiction. Walter
                   merits of Germany’s                       LaGrand was executed later that evening.
                   claims and Germany will
                   be forever deprived of the                D. The Lombera-Camorlinga Case
                   opportunity to have this
                   status quo ante restored in                         In 1997, Jose Lombera-Camorlinga, a
                   the event of a judgment in                Mexican national, was arrested in Calexico, California
                   its favour.43                             at the U.S.-Mexican border in possession of
                                                             approximately 40 kilograms of marijuana. While U.S.
Given the immediacy of the situation and the inability       customs officers advised Lombera-Camorlinga of his
to hold hearings on the provisional measures request,        Miranda rights, they failed to inform him of his right
the German government requested that the ICJ                 to consular access. Following his indictment, he
exercise its authority under Article 75 of the Rules of      moved the federal district court to suppress his
Court and issue provisional measures without holding         statements made to U.S. customs officers on the
any hearing.                                                 grounds that they were taken in violation of the Vienna
          On March 3, 1999, the International Court of       Convention. The district court denied the application,
Justice issued its provisional measures order proprio        and the defendant entered a conditional guilty plea.
motu.     The ICJ found that the circumstances                         On appeal, the Ninth Circuit reversed the
surrounding the case constituted a matter of the             district court’s denial of Lombera-Camorlinga’s
greatest urgency and, therefore, required the issuance       motion to suppress. United States v. Lombera-
of provisional measures. Accordingly, the Court              Camorlinga, 1999 U.S. App. LEXIS 5053 (9th Cir.
indicated the following provisional measures:                1999). The Court found that foreign nationals have
                                                             individual rights under the Vienna Convention due to
         (a) The United States of America                    its status as the supreme law of the land as well as the
         should take all measures at its                     mandatory and unequivocal nature of the language in
         disposal to ensure that Walter                      Article 36. Because the Vienna Convention establishes
         LaGrand is not executed pending                     individual rights, foreign nationals have standing to
         the final decision in these                         enforce these rights. In these cases, the defendant has
         proceedings, and should inform the                  the initial burden of producing evidence showing
         Court of all the measures which it                  prejudice arising from the lack of consular access. If
         has taken in implementation of this                 the government is unable to rebut the showing of
         Order;                                              prejudice, the defendant is entitled to relief.
         (b) The Government of the United                    (Interestingly, the Court suggested it would reconsider
         States of America should transmit                   these provisions if they proved ineffective in inducing
         this Order to the Governor of the                   compliance with the Vienna Convention.)
         State of Arizona.44                                 Accordingly, the Ninth Circuit remanded the case to
                                                             the district court to determine whether Lombera-
          On that same day, the Supreme Court refused        Camorlinga was prejudiced by the violation of the
to exercise its original jurisdiction in a case brought by   Vienna Convention.45
the German government against the United States and
the Governor of Arizona. Federal Republic of                 III. A Review of State Department Efforts to
Germany v. United States, 1999 U.S. LEXIS 1714               Promote Compliance of the Vienna Convention
(1999). With respect to the action against the United
States, the Court found that the United States had not                In January 1998, the State Department
waived its sovereign immunity. With respect to the           released a booklet containing instructions and
action against Arizona, the Court found that “a foreign      guidance relating to the arrest and detention of foreign
government’s ability here to assert a claim against a        nationals.46 In contrast to the guidance packets
State is without support in the Vienna Convention and        previously issued by the State Department, the booklet
in probable contravention of Eleventh Amendment              provides extensive information regarding consular
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access. Specifically, “[t]his booklet is designed to help   Chinese, Farsi, French, German, Italian, Japanese,
ensure that foreign governments can extend                  Korean, Polish, Portuguese, Russian, Spanish and
appropriate consular services to their nationals in the     Vietnamese. It also contains the telephone and fax
United States and that the United States complies with      numbers of foreign embassies and consulates in the
its legal obligations to such governments.” The             United States. The State Department expects to update
booklet also sets forth the wide-ranging obligation on      the booklet every two years.
all government officials to provide consular access.
“The instructions and guidance herein should be             IV. Conclusion
followed by all federal, state and local government
officials, whether law enforcement, judicial, or other,               While the State Department has sought to
insofar as they pertain to foreign nationals subject to     improve compliance with the Vienna Convention,
such officials’ authority or to matters within such         implementation problems remain at the state and local
officials’ competence.”       If a foreign national is      levels. These problems are compounded by the general
detained or arrested, the booklet requires officials to     reluctance of U.S. courts to remedy past violations of
take the following steps.                                   the Vienna Convention.             Unfortunately, the
                                                            implications of these problems extend far beyond our
         1. Determine the foreign national’s                borders.      Foreign governments have become
         country. In the absence of other                   increasingly frustrated at the apparent intransigence of
         information, assume this is the                    the U.S. government to promote full and effective
         country on whose passport or other                 compliance of Vienna Convention obligations. Indeed,
         travel document the foreign national               the recent decision of the German government to
         travels.                                           institute proceedings against the United States before
                                                            the International Court of Justice is indicative of this
         2. If the foreign nation’s country is              frustration.
         not on the mandatory notification                            While the State Department must continue its
         list:                                              efforts to promote awareness of the Vienna
         -Offer, without delay, to notify the               Convention, the recent ruling of the Ninth Circuit in
         foreign national’s consular officials              Lombera-Camorlinga provides a powerful method by
         of the arrest/detention.                           which these critical treaty rights may be enforced. As
         -If the foreign national asks that                 the Ninth Circuit rightly acknowledged, exclusionary
         consular notification be given, notify             rules may be the most effective method for ensuring
         the nearest consular officials of the              that law enforcement officials comply with the Vienna
         foreign national’s country without                 Convention. However, it is the Inter-American Court
         delay.                                             of Human Rights and the UN Human Rights
                                                            Committee that has extended such a state affirmative
         3. If the foreign national’s country is            duty to include prosecution and punishment. See, e.g.,
         on the list of mandatory notification              Velásquez Rodríquez v. Honduras, Inter-Am. Ct. H.R.,
         countries:                                         Judgment of 29 July 1988, Ser. C, No. 4; Bautista de
         -Notify that country’s nearest                     Arellana v. Colombia, UN Hum. Rts. Ctte., views
         consular officials, without delay, of              adopted 27 October 1995, U.N. Doc.
         the arrest/detention.                              CCPR/C/55/D/1993 (1995).
         -Tell the foreign national that you
         are making this notification.                      Endnotes:

         4. Keep a written record of the                    1.      Professor William J. Aceves is a Professor of
         provision of notification and actions              Law at California Western School of Law in San
         taken.                                             Diego, California.

        The booklet provides translations of selected       2.       Vienna Convention on Consular Relations,
statements in a variety of languages including Arabic,      April 24, 1963, 21 UST 77, TIAS No. 6820.
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3.       In the past year, the Vienna Convention has        Medina, 591 F.2d 529 (9th Cir. 1979); United States
received significant scholarly attention. See Agora:        v. Rangel-Gonzales, 617 F.2d 529 (9th Cir. 1980).
Breard, 92 AM. J. INT’L L. 666 (1998); William J.
Aceves, The Vienna Convention on Consular                   12.      U.S. State Department, Consular Notification
Relations: Study of Rights, Wrongs, and Remedies, 31        and Access, (January 1998). The booklet can be
VAND. J. TRANS’L L. 257 (1998); Henry                       located at the U.S. State Department website:
Richardson, The Execution of Angel Breard By the            (www.state.gov/www/global/legal_affairs/ca_notifica
United States: Violating an Order of the International      tion/).
Court of Justice, 12 TEMP. INT’L & COMP. L.J. 121
(1998).

4.        In addition to these cases, several other cases
have raised the Vienna Convention. See United States
v. Fredi Ademaj, 1999 U.S. App. LEXIS 3494 (1st Cir.
1999); Villafuerte v. Stewart, 142 F.3d 1124 (9th Cir.
1998); United States v. $69, 530.00 in United States
Currency, 22 F.Supp. 2d 587 (W.D. Texas 1998);
United States v. Esparza-Ponce, 7 F.Supp. 2d 1084
(S.D. Cal. 1998); Consulate Gen. of Mexico v.
Phillips, 17 F.Supp. 2d 1318 (S.D. Fla. 1998).

5.      Case Concerning the Vienna Convention on
Consular Relations (Paraguay v. United States of
America) Provisional Measures Order (9 April 1998).

6.       U.S. Dep’t of State, Office of the Spokesman,
Text of Statement Released in Asuncion, Paraguay,
Nov. 4, 1998.

7.       Indeed, he was the first defendant in the
nation to argue that the Vienna Convention conferred
rights to foreign nationals in criminal proceedings.
See Faulder v. Scott, 81 F.3d 515, 520 (5th Cir. 1996).

8.      Correspondence from Secretary of State
Madeleine K. Albright to Victor Rodriguez, Chairman,
Texas Board of Pardons and Paroles (Nov. 27, 1998).

9.       Application of Germany (Germany v. United
States of America) (2 March 1999).

10.     Case Concerning the Vienna Convention on
Consular Relations (Germany v. United States of
America) Provisional Measures Order (3 March 1999).

11.      The Ninth Circuit’s ruling is based upon its
earlier decision in United States v. Calderon-Medina
which involved the failure of immigration officials to
properly notify a foreign national of their right to
consular access. See United States v. Calderon-
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                                       10.      SUMMARY OF DEVELOPMENTS AT
                                                THE 50th SESSION OF THE U.N.
                                                SUBCOMMISSION ON THE
                                                PREVENTION OF DISCRIMINATION
                                                AND THE PROTECTION OF
                                                MINORITIES

                                                             By
                                        David Weissbrodt, Mayra Gómez, and Bret Thiele*

                                       I.       Introduction

                                                  The United Nations Sub-Commission on
                                       Prevention of Discrimination and Protection of
                                       Minorities (Sub-Commission) met in Geneva,
                                       Switzerland, from 3 August to 28 August 1998 for its
                                       fiftieth session.47 The Sub-Commission is a subsidiary
                                       body of the Commission on Human Rights
                                       (Commission). It is composed of 26 members who are
                                       nominated by their respective governments and elected
                                       to four-year terms by the Commission. Under the
                                       principle of geographic distribution, the Sub-
                                       Commission has seven members from Africa, five
                                       from Latin America, five from Asia, three from
                                       Eastern Europe, and six from Western Europe and
                                       Other (including Australia, Canada, New Zealand, and
                                       the United States).
                                                  The mandate of the Sub-Commission includes
                                       human rights standard-setting as well as specific
                                       review of country situations and current human rights
                                       issues in all parts of the world. Because of its role in
                                       initiating action within the United Nations human
                                       rights system and its accessibility to non-government
                                       organizations (NGO), each year hundreds of human
                                       rights activists from dozens of countries travel to
                                       Geneva to attend and address the session of the Sub-
                                       Commission.
                                                  The Sub-Commission develops resolutions
                                       that are presented to and often adopted by the
                                       Commission. Members of the Sub-Commission also
                                       prepare working papers and studies on human rights
                                       problems. Since many treaties and other human rights
                                       instruments have been promulgated, the Sub-
                                       Commission has de-emphasized its standard-setting
                                       function and has given greater attention to promotion,
                                       problem solving, implementation, and the use of public
                                       pressure to improve human rights.
                                                  The Sub-Commission also considered
                                       resolutions on country situations in Afghanistan,
                                       Algeria, Bahrain, Belarus, Bhutan, the Democratic
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People's Republic of Korea (DPRK), and Mexico. In           America.
addition, the Sub-Commission took a new initiative by
adopting a thematic resolution, focusing on the
protection of human rights defenders in nine countries,
including Burma, Colombia, the Democratic Republic          II.      Realization of Economic, Social, and
of the Congo, Honduras, Indonesia, Nigeria, the                      Cultural Rights including the Right to
Philippines, Tunisia, Turkey, and the Federal Republic               Development
of Yugoslavia. The Sub-Commission completed
considerable work in the area of economic, social, and               A.       Final Report on the Relationship
cultural rights, including the final report on the                            Between the Enjoyment of Human
Relationship Between the Enjoyment of Human                                   Rights, in Particular Economic,
Rights, in Particular Economic, Social, and Cultural                          Social, and Cultural Rights, and
Rights, and Income Distribution.                     The                      Income Distribution.
recommendations in this final report will have a
significant impact on the future work of the Sub-                     In its resolution 1998/14 of 20 August 1998,
Commission. In particular, the Sub-Commission will          the Sub-Commission welcomed the final report
restructure its agenda so as to include a Social Forum      prepared by Mr. José Bengoa (expert from Chile)
that will invite the participation of major international   entitled: "The Relationship Between the Enjoyment of
financial organizations such as the World Back and          Human Rights, in Particular Economic, Social, and
International Monetary Fund. The Sub-Commission             Cultural Rights, and Income Distribution" and its
also decided to form a sessional working group, for a       addendum entitled: "Poverty, Income Distribution,
three-year period, to examine the working methods           and Globalization: A Challenge for Human Rights."
and activities of transnational corporations. In            In this report, Mr. Bengoa analyzed the global
addition, the Sub-Commission welcomed the final             distribution of income with particular focus on the
report on Systematic Rape, Sexual Slavery, and              process of globalization of the economy. Mr. Bengoa
Slavery-Like Practices During Armed Conflict,               noted that the process of globalization is perceived as
Including Internal Armed Conflict. Furthermore, the         producing new and growing inequities both within
Sub-Commission adopted the Draft International              countries and between the countries and regions of the
Convention on the Protection of all Persons from            world.
Enforced Disappearance.                                               Coupled with a diminishing ability of States
          The Sub-Commission also continued to              to control the economic development of their countries,
reform its working methods. This year, members of           Mr. Bengoa concluded that the process of globalization
the Bureau of the Commission visited the Sub-               and the resulting inequities in income distribution
Commission in an effort to encourage these reforms.         required international attention. To this end, Mr.
During the second week of the Sub-Commission                Bengoa recommended the formation of a Forum on
session, the Commission Bureau met with the Sub-            Economic, Social and Cultural Rights, hereinafter
Commission in private and public sessions as well as        called the Social Forum.
with non-governmental organizations and government
representatives. The reforms proposed will likely have      1.       The Social Forum
a significant impact on the future of the Sub-
Commission.                                                          In its resolution 1998/14 of 20 August 1998,
          During its 50th session, Sub-Commission           the Sub-Commission endorsed the recommendation in
members listened to statements from representatives         Mr. Bengoa's report of the establishment of a Social
from non-governmental organizations (NGOs).                 Forum within the Sub-Commission.              If fully
Collectively, these NGO representatives raised their        implemented, the Social Forum should have a
concerns over the human rights situations in over           significant impact on the work of the Sub-
thirty countries. Among those countries most                Commission. Beginning in 1999, the Social Forum is
frequently mentioned were Afghanistan, Algeria,             to meet during the Sub-Commission's annual sessions
Indonesia, Kashmir, Kosovo, Mexico, Rwanda, Sri             to analyze violations of economic, social, and cultural
Lanka, Sudan, Turkey, and the United States of              rights. Resolution 1998/14 also seeks authorization
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                            62



from the Commission to appoint a Sub-Commission             overloaded Sub-Commission sessions. Presently, the
expert as Special Rapporteur on economic, social, and       Sub-Commission lacks sufficient time deliberate and
cultural rights to coordinate the work of the Social        consult adequately. Therefore, major restructuring of
Forum.                                                      the agenda will be needed to accommodate the Social
          The Social Forum is an innovative step for        Forum. In addition, there is a question prominent
UN human rights bodies, in general, and for the Sub-        institutions as the World Bank and International
Commission, in particular. In addition to input from        Monetary Fund will bother to attend the Sub-
non-governmental organizations and governments, the         Commission? If they do attend, will the Sub-
proposed Social Forum will break new ground by              Commission be able to manage the Social Forum with
inviting the participation of international organizations   such dominant international organizations in
including:                                                  attendance?
          the United Nations Development
          Program and the United Nations                           B.      Sessional Working Group on
          Children's Fund, specialized                      Transnational Corporations
          agencies, in particular the World
          Bank; the International Monetary                            Pursuant to Sub-Commission resolution
          Fund; the International Labor                     1997/11, Mr. El-Hadji Guissé (expert from Senegal)
          Organization; the United Nations                  presented a working document to the Sub-Commission
          Educational, Scientific, and Cultural             at its 50th session on the issue of human rights and
          Organization; and the United                      transnational corporations. Transnational corporations,
          Nations Industrial Development                    it was noted, have been implicated in a variety of
          Organization; and other bodies                    human rights practices, which may at times jeopardize
          concerned with the promotion and                  the well-being of individuals and entire communities.
          protection of economic, social, and               TNCs have been known to adopt policies which
          cultural rights.                                  perpetuate child labour practices, hazardous working
          The main objectives of the Social Forum are       conditions, exploitation of workers, and which may at
(1) the [e]xchange of information on the enjoyment of       times interfere with the work of trade unions. This
economic, social and cultural rights and its                document addressed, similar to the study of Mr.
relationship with the processes of globalization; (2) the   Bengoa, the impact of transnational economic actors
[f]ollow-up on the relationship between income              on income inequality both nationally and
distribution and human rights, at both the international    internationally. Mr. Guissé also raised concerns about
and national levels; (3) the [f]ollow-up on situations of   the far-reaching impact of TNC policies and practices,
poverty and destitution in the world, bearing in mind       for example, the threat to environmental sustainability
that this amounts to complete and permanent denial of       posed by TNCs.
the rights of persons; (4) the [p]roposal of standards                TNCs have come to occupy a prominent
and initiatives of the juridical nature, guidelines and     position within international economic relationships.
other recommendations for consideration by the              The working document noted that there is a need for
Commission on Human Rights; the Working Groups              the international community to give its attention to
on the Right to Development; the Committee on               these influential, yet understudied, economic actors.
Economic, Social and Cultural Rights; the specialized       Their economic strength coupled with a lack of
agencies; and other instances of the international          accountability may have very serious consequences in
system of the United Nations; and (5) the [f]ollow-up       the area of human rights. Underscoring the powerful
to the agreements reached at the World Summit for           nature of TNCs in the global economy, the document
Social Development in Copenhagen and the Earth              noted that:
Summit in Rio de Janeiro on the fulfillment of                        Transnational corporations play an
questions relating to this final report, and to economic,             important part in international
social and cultural rights in general.                                economic life. Of the 100 biggest
          The establishment of the Social Forum raises                concentrations of wealth in the
a number of interesting issues. The Social Forum will                 world, 51 per cent are owned by
require a significant amount of time during the already               transnational corporations and 49
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                           63



                   per cent by States.                              of transnational corporations.
                   Mitsubishi's turnover                            This sessional working group will be the first
                   exceeds Indonesia's gross              step towards establishing an effective mechanism for
                   national product (GNP);                the gathering of information relating to the human
                   Ford's turnover exceeds                rights implications of TNCs. Several questions remain
                   South Africa's GNP; and                unanswered and could benefit from further study. For
                   Royal Dutch Shell earns                example, how the profit-driven nature of TNCs can
                   more than Norway.                      offer incentives toward bringing TNCs into compliance
                   Transnational corporations             with international human rights standards remains a
                   are very active in the most            potential avenue of inquiry. In addressing these
                   dynamic areas of the                   questions, the sessional working group could help
                   economy, in particular                 make significant gains toward establishing universal
                   telecommunications,                    standards of conduct for TNCs, and may also help to
                   transport, banking,                    suggest other strategies which ultimately ensure
                   insurance and the                      compliance from TNCs themselves.
                   wholesale trade. They have                       The sessional working group is scheduled to
                   a presence in the vital                meet during the 51st session of the Sub-Commission in
                   sectors and are thus in a              1999, however, it remains unclear how this meeting
                   position to block any                  will relate to the Social Forum established by Mr.
                   moves towards the respect              Bengoa (see previous section). A timing issue will no
                   for and protection of                  doubt need to be resolved, as both of these important,
                   human rights.                          and related, discussions are scheduled to occur in an
         The document also noted fragments of the         already overscheduled session. The Sub-Commission
international legal framework available to regulate the   may need to combine the complimentary work of the
human rights practices of TNCs. In general, the           Social Forum and the sessional working group.
integration of both national and international
mechanisms of accountability was viewed as the most       D.      Human Rights as the Primary Objective of
effective strategy towards human rights protection.       Trade, Investment, and Financial Policy
Yet, the potential for using international law to hold
non-state actors, such as TNCs, responsible for                     In its resolution 1998/12 of 20 August 1998,
violations of human rights is an underdeveloped area      the Sub-Commission expressed its concern over the
within international human rights law and must be         controversy surrounding the Multilateral Agreement
further explored by the Sub-Commission and other UN       on Investment (MAI) which is being drafted by the
bodies. The document on TNCs carefully noted,             Organization for Economic Cooperation and
however, that most of the efforts devoted to regulating   Development (OECD), and further expressed its
the working methods of transnational corporations         concern as to the possible negative impact on human
have not derived from international instruments, but      rights resulting from the implementation of the
from other sources such as non-legal guidelines.          Agreement. The Sub-Commission was particularly
Because of the changing landscape of modern global        concerned over ["]the extent to which the Agreement
financial relations, and because of the degree of         might limit the capacity of States to take proactive
influence that TNCs now have over domestic                steps to ensure the enjoyment of economic, social and
economies, the Sub-Commission in its resolution           cultural rights by all people, creating benefits for a
1998/8 of 20 August 1998, decided:                        small privileged minority at the expense of an
         [T]o establish, for a three-year                 increasing disenfranchised minority.["] In keeping
         period, a sessional working group of             with a thematic focus on economic globalization, and
         the Sub-Commission, composed of                  building upon the efforts of Mr. Bengoa on income
         five of its members, taking into                 distribution, and of Mr. Guissé on the working
         account the principle of equitable               methods of transnational corporations, the Sub-
         geographic distribution, to examine              Commission urged United Nations financial agencies,
         the working methods and activities               such as the International Monetary Fund and the
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                                64



World Bank, to “at all times be conscious of and             by the year 2025, some 3 billion people will lack
respect the human rights obligations of the countries        adequate access to safe drinking water, thereby
with which they work." This view was also consistent         jeopardizing the health and sustainability of entire
with the previous recommendations issued by the              populations. The paper also suggested that due to the
Committee on Economic, Social and Cultural Rights            global nature of the drinking water problem, with
in May 1998, in which the Committee asserted that            unequal access both within and between nations, the
financial institutions have an obligation to formulate       issue is one which must be confronted through
policies which are consistent with human rights              international cooperation and sharing of resources. In
standards, and that these obligations apply to the areas     addition to problems of water shortage, however, the
of trade, finance and investment.                            report also noted that "this resource is undergoing
          The Sub-Commission's work on income                increasing degradation and contamination . . . . The
distribution, transnational corporations, and                main causes of these problems include the inadequate
international trade and investment during its 50th           treatment of both domestic and industrial sewage
session suggests a growing concern with the human            water, the destruction of catchment areas, deforestation
rights implications of economic globalization. As all        and the harmful effects of agricultural practices based
human rights are increasingly seen as interdependent         on the heavy use of pesticides and other chemicals, as
and indivisible, the Sub-Commission expressed its            well as the dumping of toxic wastes." In this way, the
concern over the potential negative impacts on all           issues which surround the right to safe drinking water
aspects of human rights, engendered by economic              are also heavily affected by economic globalization and
forces which are not adequately constrained either by        resulting environmental degradation.
national boarders or by international legal and                        The right to access to drinking water and
normative mechanisms.                                        sanitation are likely to become even more pressing in
          Increasing the institutional competence of UN      the near future. The report offered some hope,
human rights bodies in this area is a necessary step         however, when it discussed the potential usefulness of
towards addressing the complexities of the issues            groundwater supplies, and noted that if accessed
raised. Accordingly, the Sub-Commission asked two of         correctly, these supplies would meet the minimum
its members, Joseph Oloka-Onyango (expert from               drinking water and sanitation needs of the entire
Uganda) and Deepika Udagama (alternate from Sri              population of the world. The Sub-Commission in
Lanka), to prepare a working paper on ways and               resolution 1998/7 on the promotion of the realization
means by which the primacy of human rights norms             of the right to drinking water supply and sanitation
and standards could be better reflected in, and could        echoed the concerns voiced by Mr.Guissé, and
better inform, international and regional trade,             recommended to the Commission that he be appointed
investment, and financial policies, agreements, and          as a Special Rapporteur to conduct a detailed study on
practices, and how the United Nations human rights           the relationship between the enjoyment of economic,
bodies and mechanisms could play a central role in           social and cultural rights and the promotion of the
this regard.                                                 realization of the right to drinking water supply and
                                                             sanitation, at both the national and international levels.
        E.      Working Paper on the Right to                The study should also take into account questions
Access to Drinking Water                                     related to the realization of the right to development as
                                                             it effects the right to water. If the Commission
          The Sub-Commission in resolution 1997/18           approves the full study, Mr. Guissé is scheduled to
had asked Mr.Guissé to prepare a working paper on            present a preliminary report before the fifty-first
the right of access of every person to drinking water        session of the Sub-Commission in 1999, followed by a
supply and sanitation services. This paper was               more extensive progress report to be submitted at the
presented before the Sub-Commission at its latest            fifty-second session in 2000, and a final report at the
session, and stressed the urgency of the global situation    fifty-third session of the Sub-Commission in 2001.
regarding the right to drinking water. This right is
intimately related to other basic rights such as the right            F.        Updated Study on Right to Food
to development, the right to health, the right to a clean
environment, and the right to food. It is estimated that              Mr. Asbjørn Eide presented a related report
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                               65



updating the Sub-Commission's study on the right to          relating to the right to food and nutrition which
food. The report noted the severe scope of the problem       developed from the recent policy document finalized
of malnutrition within the world, especially within          by the United Nations Development Programme in
developing nations, and presented alarming statistics        December 1997, entitled "Integrating human rights
suggesting the need for urgent action in order to ensure     with sustainable human development."
the universal right to food:                                          In its decision 1998/106, the Sub-
          [A]pproximately 840 million people                          Commission requested Mr. Eide to
          in developing countries subsist on                          review and update his report on the
          diets that are deficient in calories                        right to food, and to submit the final
          (compared with 730 million in the                           version of the study to the Sub-
          1987 report). Roughly 96 per cent of                        Commission at its 51st session in
          food-insecure persons suffer from                           1999.
          chronic deficiencies, and
          approximately 4 per cent experience                G.      Housing and Property Restitution in the
          temporary energy shortfalls caused                 Context of the Return of Refugees and Internally
          by natural or human-induced events.                Displaced Persons
          Approximately 170 million children
          under 5 years of age are                                     The Sub-Commission took an innovative step
          underweight, representing 30 per                   with its adoption of resolution 1998/26 on 26 August
          cent of the developing world's                     1998. It this resolution, titled "Housing and Property
          children.                                          Restitution in the Context of the Return of Refugees
          Mr. Eide also advocated that a broadened           and Internally Displaced Persons," the Sub-
conception of nutritional health be adopted which            Commission reaffirmed the right of all refugees and
included care for especially vulnerable groups               internally displaced persons to return to their homes
including young children, the elderly, pregnant women        and places of habitual residence in their country or
and lactating mothers, as well as the disabled and           place of origin. This resolution, however, went one
destitute. The report was careful to note that the right     step further by urging "all States to ensure the free and
to food must be understood to mean not only adequate         fair exercise of the right to return to one's home and
caloric intake, but rather also to include access to safe    place of habitual residence by all refugees and
and nutritious food, as well as to be free from hunger.      internally displaced persons and to develop effective
In order to best address these issues, and in order to       and expeditious legal, administrative and other
solve the problem of malnutrition, the report suggests       procedures to ensure the free and fair exercise of this
that a joint effort be made by experts in the fields of      right, including fair and effective mechanisms
agriculture, nutrition, health, education, social welfare,   designed to resolve outstanding housing and property
economics, public works and environmental                    problems." This resolution deals with one of the most
protection.                                                  difficult problems facing the UN High Commissioner
          Much progress has been made in bringing            for Refugees and other organizations trying to achieve
together experts from these different fields in order to     the return with dignity of refugees to their homes and
solve the problems of hunger and malnutrition. The           places of habitual residence in countries such as the
report applauded the recent achievements made at the         former Yugoslavia, Rwanda, and Bhutan.
World Food Summit which met in Rome in 1996, and
hailed this event as a "milestone in the efforts to bring            H.      Working Paper on the Right to
attention to the right to food and nutrition as a human      Education including Human Rights Education
right." The report specifically addressed the issue of
child malnutrition and expressed hope that the                         With its resolution 1998/11 entitled "The
adoption of the Convention on the Rights of the Child,       realization of the right to education, including
with its subsequent near universal ratification, would       education in human rights," the Sub-Commission
provide both a normative and legal framework in              noted with satisfaction the working paper on the right
which to promote the right to food. Further, Mr. Eide        to education prepared by Mr. Mustapha Mehedi
also voiced support for the evolving policy discussions      (expert from Algeria) and requested him to continue
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                           66



towards a more detailed working paper to be presented               Slavery, and Slavery-Like
during the 51st session in 1999. During the 50th                    Practices During Armed Conflict,
session Mr. Mehedi presented a preliminary working                  Including Internal Armed Conflict
paper on the subject of education, especially addressing
the need to develop methods of teaching which                        The Sub-Commission addressed the human
specifically incorporate a human rights centered           rights violations perpetrated against civilians during
curriculum. The right to education and the right to        periods of armed conflict during its 50th session. As
human rights education were seen as necessarily            Special Rapporteur, Ms. Gay McDougall (alternate
linked. This paper emphasized the indivisibility of all    member, USA) presented her final report on rape,
human rights generally, but specifically advocated the     sexual slavery, and slavery-like practices during armed
special "cross-sectoral" nature of the right to            conflict, which had three primary objectives, 1) to
education. Mr. Mehedi pointed out that the right to        reiterate the call for a response to the use of sexual
education cannot be adequately classified under either     violence and sexual slavery during armed conflict, 2)
the "political/civil" or the "economic/social/cultural"    to emphasize the true nature and extent of the harms
rubric of human rights, as it has implications both        suffered by women who are raped, sexually abused and
within and across each of these conceptual domains.        enslaved by parties to an armed conflict, and 3) to
         The paper also addressed the existing legal       examine prosecutorial strategies for penalizing and
framework which is already available at the                preventing international crimes committed against
international level to help protect and promote the        women during armed conflict.
right to education. In this respect, the paper cited                 Ms. McDougall highlighted the need for the
human rights instruments such as the Universal             United Nations to take effective steps towards
Declaration of Human Rights, the International             curtailing the abuses perpetrated against women
Covenant on Economic, Social and Cultural Rights,          during periods of armed conflict, and noted that too
the International Covenant on Civil and Political          many times in the past, the international community
Rights, the Convention on the Rights of the Child, and     has remained complicit and silent on these issues.
the Vienna Declaration and Programme of Action, all        Women remain at special risk during periods of war
of which contain provisions ensuring the right to          and armed conflict. By viewing sexual slavery as a
education. The effectiveness of these legal tools,         crime against humanity, a form of genocide, slavery,
however, must be assessed with reference to the            torture, or as a war crime, international legal
fundamental objectives of education. The paper             instruments may be successfully employed to hold
supported a multi-leveled approach to the goals of         individuals responsible for their abuses.           Ms.
education, centering around the definition provided to     McDougall noted, however, that:
UNESCO by the International Commission on                            [A] new attitude is evolving with
Education for the Twenty-first Century.             This             respect to the prosecution of sexual
definition emphasized the importance of developing                   violence committed during armed
individual competence and learning, while at the same                conflict as serious international
time promoting and maintaining social tolerance and                  crimes. The international
peace.                                                               community has increased its efforts
         Mr. Mehedi is scheduled to present a more                   to end the cycle of impunity for
substantial paper on the right to education at the 51st              these crimes by ensuring, for both
session of the Sub-Commission in 1999. There                         victims and perpetrators, that justice
remains, however, a concern about the duplications of                is done. The International Criminal
effort, as the Commission has authorized its own                     Tribunal for the Former Yugoslavia
Special Rapporteur on the right to education, and has                and the International Tribunal for
taken several initiatives regarding the United Nations               Rwanda, as well as the proposed
Decade for Human Rights Education.                                   permanent International Criminal
                                                                     Court, are welcome advances in this
III.     Studies                                                     campaign for justice, and it is hoped
                                                                     that these tribunals will endeavour
         A.     Systematic Rape, Sexual                              to implement the best practices
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                                67



                   possible in this regard.               decided to propose to the Sub-Commission nine topics
          In addition, in one of its more controversial   for the preparation of studies. In response to this
aspects, the report drew international attention to the   request, the Sub-Commission at its 49th session, in its
abuses perpetrated against the more than 200,000          decision 1997/118 adopted on 28 August 1997,
women enslaved by the Japanese military in so-called      decided to entrust one of its members, Mr. Marc
"comfort stations" during World War II. The appendix      Bossuyt, with the preparation of a working paper on
of the report discussed at length the legal and           the concept of affirmative action. At this year's
normative issues surrounding the comfort women            session, the Sub-Commission had before it this
issue, prompting a response from the Japanese             working paper. In its resolution 1998/5 of 20 August
Government.                                               1998, the Sub-Commission expressed its gratitude to
          Recognizing the contribution made by this       Mr. Bossuyt and decided, since the concept and
report, the Sub-Commission recommended in its             practice of affirmative action requires careful and
resolution 1998/18 that the Commission to extend the      comprehensive inquiry, to request that the Commission
mandate of Ms. McDougall as the Special Rapporteur        approve Mr. Bossuyt as Special Rapporteur of the Sub-
on systematic rape, sexual slavery and slavery-like       Commission with the task of preparing a study on this
practices during armed conflict, including internal       subject.
armed conflict, for another year. Upon approval from                 The Sub-Commission also considered other
the Commission, Ms. McDougall is scheduled to             topics proposed by CERD. In its decision 1998/103 of
present an update to her report at the Sub-               20 August 1998, the Sub-Commission decided to
Commission's 51st session next year.                      entrust Mr. David Weissbrodt with the preparation,
          B.       Studies Undertaken Pursuant to         without financial implications, of a working paper on
Sub-Commission Cooperation with the Committee             the rights of persons who are not citizens of the
on the Elimination of Racial Discrimination               country in which they live, to be submitted under the
                                                          agenda item entitled "Comprehensive examination of
           One way in which the Sub-Commission            thematic issues relating to the elimination of racial
contributes to the field of human rights is by            discrimination," in order to enable it to take a decision
cooperating with the treaty-monitoring bodies. In an      at its fifty-first session on the feasibility of a full study
effort to further such cooperation, the Sub-Commission    on that subject.
has prepared joint studies with treaty-monitoring                    The Sub-Commission further considered ways
bodies. In its decision 1996/120 of 29 August 1996,       of contributing material to the World Conference
the Sub-Commission on Prevention of Discrimination        against Racism, Racial Discrimination, Xenophobia,
and Protection of Minorities decided to entrust two of    and Related Intolerance (Racism Conference) to be
its members, Mr. José Bengoa and Mr. Mustafa              held not later than the year 2001. In its resolution
Mehedi, with the preparation of a joint working paper     1998/6 of 20 August 1998, the Sub-Commission
on article 7 of the International Convention on the       recommended that the topics for studies undertaken in
Elimination of All Forms of Racial Discrimination,        response to the suggestions from CERD be considered
together with two members of the Committee on the         using materials developed by the Sub-Commission, in
Elimination of Racial Discrimination (CERD), Mr.          the preparatory process and at the World Conference
Ivan Garvalov and Mrs. Shanti Sadiq Ali. At this          itself. Furthermore, the Sub-Commission decided to
year's session, the Sub-Commission had before it the      request one of its members, Mr. Paulo Sergio Pinheiro
working paper that resulted from this cooperative         (expert from Brazil), to prepare a paper on proposals
effort.                                                   for the work of the World Conference to be considered
           The Commission on Human Rights, in its         by the Sub-Commission at its fifty-first session. The
resolutions 1996/25, 1997/22, and 1998/28, called         Sub-Commission decided to carry out further studies
upon the Sub-Commission and its members to "further       without delay and to transmit recommendations for
enhance cooperation with mechanisms of the                studies to the Commission at its fifty-fifth session and,
Commission and, within their competence, with all         through the Commission, to the Preparatory
relevant bodies, including human rights treaty bodies."   Committee for the Racism Conference.
           The Committee on the Elimination of Racial
Discrimination (CERD) discussed this issue and            C.        Terrorism
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          One of the more difficult issues facing the        VI.      Working Groups
Sub-Commission in recent years is the responsibility of
non-State actors as perpetrators of human rights abuse.                The Sub-Commission makes a unique
For example, terrorist groups threaten fundamental           contribution to the human rights field through its
human rights by targeting civilian populations with          working groups. These working groups provide the
widespread killing, bombing, mutilation, and other           possibility for a participatory study of current issues,
forms of intimidation. Further compounding and               trends, and difficulties in thematically important areas,
escalating these problems, some States may react             and involve monitoring of human rights problems by
against real or perceived internal terrorism with their      providing a channel for the airing of grievances. In
own counter-terrorism campaigns, resulting in serious        particular, there is no other venue in the United
human rights violations including indiscriminate             Nations where minority issues are being addressed as
killings, disappearance, and torture.                        intensively as in the Working Group on Minorities.
          The Sub-Commission has in the past                 The Working Group on Indigenous Populations has
addressed the issue of human rights and terrorism, and       also made important strides in previously drafting a
in its resolution 1997/39 voiced its "unequivocal            proposed declaration on indigenous rights and
condemnation of all acts, methods and practices of           continuing to hear the concerns of indigenous
terrorism regardless of their motivation, in all its forms   communities from around the world. The other
and manifestations, wherever and by whomever                 working groups, too, help maintain the Sub-
committed, as acts of aggression aimed at the                Commission's distinct role in protecting and promoting
annihilation of human rights . . . ." In 1997, the Sub-      human rights.
Commission recommended that the Commission                             Each working group is composed of one
authorize the appointment of Ms. Koufa (alternate            expert from each of the five geographic regions. All of
member, Greece) as Special Rapporteur to conduct a           the working groups -- with the exception of the
comprehensive study on the subject of human rights           Working Group on Communications is open to
and terrorism. Ms. Koufa was scheduled to present her        participation by observers. Consequently, they have
preliminary report to the Sub-Commission at its 50th         become important for a for specialist agencies and
session, but unfortunately due to time constraints this      organizations to participate in a discussion of a
report could not be prepared in time. The Sub-               particular subject. In addition, expert participation in
Commission, in its resolution 1998/29 requested Ms.          working groups allows Sub-Commission members to
Koufa to prepare her preliminary report for                  focus on a particular area of interest or expertise.
presentation at the 51st session of the Sub-Commission       Further, the working groups allow for reports of
next year.                                                   violations and give governments the chance to
          While the report remained unfinished at the        respond.
time of the session, Ms. Koufa was able to present a                   The working groups compile a report of their
statement on the relationship between human rights           respective sessions, to submit to the Sub-Commission
and terrorism, in which she highlighted several of the       plenary session. In addition, working groups may
major contributions of her work. In this regard, Ms.         place proposals before the Sub-Commission to take
Koufa stressed that modern day terrorism is an               action with respect to a particular issue. As such, the
international phenomenon with both domestic and              working groups can influence the agenda and the
international ramifications. Further, because terrorism      performance of the Sub-Commission.
jeopardizes the lives of the innocent, potentially at the              A number of proposed reforms given
hands of both State and non-State agents, the                particular attention by the Bureau of the Commission
international community has an obligation to intervene       could, if adopted, have a substantial impact on the
in these situations. At the 51st session, Ms. Koufa is       working groups of the Sub-Commission. These
scheduled to elaborate the different international           reforms would remove two of the working groups from
mechanisms which are available to bring terrorists to        the Sub-Commission and place their duties within
justice, as well as to reiterate that States must not        existing institutions.
abuse the basic human rights of citizens in their
attempts to maintain internal security.                               A.       Working Group on Minorities
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          In 1998 the Working Group on Minorities           in article 1 of the Declaration, specifically
convened for its fourth session from 25 to 29 May           understanding that recognition and respect for the
1998. This Working Group is a subsidiary of the Sub-        rights of minorities necessitates national policies of
Commission and Commission and was authorized by             non-exclusion, non-assimilation, and non-
the Commission on Human Rights in its resolution            discrimination. According to article 1 of the
1995/ of 3 March 1995, and endorsed by the Economic         Declaration, not only is the existence and identity of
and Social Council in its resolution 1995/31 of 25 July     persons belonging to minorities to be protected, but
1995. This working group's mandate is to:                   also the State is under special obligation to encourage
          promote the rights of persons                     and promote the social conditions in which these
          belonging to national or ethnic,                  identities are maintained and preserved. Mr. Eide
          religious and linguistic minorities,              noted that his understanding of State obligations and
          as set out in the Declaration on the              minority rights “reflected respect for pluralism and
          Rights of Persons Belonging to                    diversity in national societies while at the same time
          National or Ethnic, Religious or                  maintaining the identity and characteristics of
          Linguistic Minorities and to                      minorities."       Other members, however, also
          examine possible solutions to                     emphasized the need to incorporate further dialogue
          problems involving minorities,                    and commentary on the Declaration so as to ensure its
          including the promotion of mutual                 ultimate, effective implementation.
          understanding between and among                             In addition to these comments, the working
          minorities and Governments.                       group also considered the constitutional and legal
          There is no other place where issues relating     provisions protecting the existence and identities of
to minorities are addressed as intensively and              minorities as elaborated in article 1.1 of the
constructively as the Working Group on Minorities. It       Declaration. It was noted, however, that one
has taken topic-by-topic approach, focusing on matters      fundamental problem in the discussion was the
such as intercultural and multicultural education for       conceptual ambiguity over defining the existence of a
minorities, the role of the media in regard to              minority population. Official non-recognition of
minorities, and generally on constructive ways to           minority groups is problematic because States may
handle situations involving minorities. Its agenda for      simply refuse to acknowledge the existence of
the coming years includes language rights and ways          particular groups, thereby effectively nullifying any
and means to involve minorities in the planning and         obligation that the State may have in protecting the
implementation of national policies. During its first       rights of such a minority. Mr. Bengoa noted that "it
meeting, the working group re-elected Mr. Eide as           was not sufficient for minorities to be allowed to
Chairman-Rapporteur for a two-year term.                    exercise their rights; they should also be able to assert
Throughout the session the working group was                their rights." Being able to "assert" their rights, means
attended by representatives from 37 different               that minority groups must be granted the legitimate
governments, 6 UN specialized agencies and                  avenues through which to make claims relating
intergovernmental organizations, and close to 100           specifically to the rights of minorities. As such, an
non-governmental organizations.                             independent definition must be developed so as to
          As one of its primary efforts, the working        recognize the existence of minority groups, even if they
group reviewed the promotion and practical realization      are not granted this visibility by States.
of the Declaration on the rights of persons belonging                 The working group also considered, in
to national or ethnic, religious and linguistic             keeping with articles 2.1 and 3 of the Declaration, the
minorities. Mr. Eide presented his commentary to the        rights of persons belonging to minorities to,
Declaration, the aims of the which he viewed as             individually or in community, enjoy their own culture,
contributing to the "realization of the principles of the   profess and practice their own religion, and use their
United Nations including peace, territorial integrity,      own language, both in private and in public. Further,
cooperation, the solution of common problems and the        the working group considered the rights of minorities
realization of international human rights instruments       to participate in the cultural, religious, social,
at the universal and regional levels." His commentary       economic and public life of their communities, and
highlighted the importance of the provisions laid out       also to participate in decision-making processes at both
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                           70



the national and regional levels. In order to ensure     peoples from all over the world to assemble in Geneva,
meaningful participation in the society, however, the    exchange experiences, engage in a dialogue with their
rights of minority groups should be acknowledged in      respective governments, and develop common
an environment which promotes tolerance, peace and       proposals addressed to the UN system.
cooperation. In promoting this climate of tolerance,               In 1998 the Working Group on Indigenous
human rights education was discussed as playing a        Population convened for its sixteenth session from
critical role. The right to education was discussed      Monday, July 27 through Friday, July 31. This
within the framework of minority rights, including the   working group's mandate is to:
right to intercultural education, and the right of                 review developments pertaining to
minorities to learn their native language.                         the promotion and protection of the
          The working group explored the potential use             human rights and fundamental
of UN treaty bodies in promoting the rights of                     freedoms of indigenous populations,
minorities. The role of the Human Rights Committee,                together with information requested
the Committee on the Rights of the Child, and the                  annually by the Secretary-General,
Committee on the Elimination of racial Discrimination              and to give special attention to the
were therein discussed. Again, it was noted that, with             evolution of standards concerning
specific regard to the work of the treaty monitoring               the rights of indigenous populations.
bodies, a definition of what constitutes a minority                The sixteenth session of the Working Group
population would be helpful to facilitate the work of    had a record attendance of nearly 1,000 persons,
these committees. In addition, the working group also    including 19 observer governments, 9 United Nations
examined the contributions to be made by United          and inter-governmental organizations; and 312
Nations Special Rapporteurs, United Nations              indigenous nations, organizations, and communities.
specialized agencies, and other inter-governmental or              The Working Group reviewed developments
non-governmental organizations.                          under its Agenda Item 4, which authorizes it to
          The working group has been able to address     "review developments pertaining to the promotion and
a variety of serious concerns relating to minority       protection of human rights and fundamental freedoms
rights, and has helped to identify some of the major     of indigenous populations." Such review provides
issues and obstacles facing minority populations. The    invaluable information to members of the Working
future of the working group was, however, potentially    Group and comments under this agenda item are
in question. The Bureau of the Commission reportedly     considered by them in strengthening ongoing efforts of
considered a proposal to abolish the Sub-Commission's    the UN system to recognize, promote, protect, and
Working Group on Minorities and place its existing       restore the rights of indigenous peoples. It must be
duties within the context of a working group of the      noted, however, that the Working Group does not want
Commission. Nonetheless, while the Bureau did make       to be a "chamber of complaints" and does not act upon
recommendations as to other Sub-Commission               specific allegations concerning violations of human
working groups, the Bureau recommended in its report     rights.
to the Commission the continuation of the Working                  Many governments and NGOs have used
Group on Minorities.                                     Agenda Item 4 as an opportunity to report on efforts to
                                                         promote and protect the human rights of indigenous
B.     Working Group on Indigenous Populations           populations, focusing particularly on this year's
                                                         principle theme of education and language. Many
         The Working Group on Indigenous                 NGOs, however, used Agenda Item 4 as an opportunity
Populations has made a decisive contribution by          to lodge complaints against various government actors.
drafting the Declaration on the Rights of Indigenous     The Chairperson repeatedly reminded speakers that the
Peoples. In recent years the Working Group has           Working Group was not the proper forum for such
focused on issues relating to indigenous education,      complaints, but her warning appeared to go unheeded.
language, and health. This Working Group also plays                The principal theme of this year's session was:
an important role in reviewing developments related to   Indigenous Peoples - Education and Language. In
the situation of indigenous communities throughout       conjunction with the central theme, the Working
the world, providing a unique forum for indigenous       Group considered the Draft Declaration on the Rights
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                            71



of Indigenous Peoples, which it completed at its           important questions but lacked many answers. In
eleventh session in 1994. Many participants of the         particular, Judge Guissé was critical of the study's
Working Group called for a quick approval of the draft     exclusion of indigenous populations from Africa and
Declaration on the Rights of Indigenous Peoples,           Asia. Judge Guissé's comment received applause from
which is presently under consideration by an open-         NGOs representing African and Asian indigenous
ended Working Group of the Commission. The                 interests.
participants stressed to the Sub-Commission's Working                Prof. Alfonso Martínez's study was not
Group that the language of the draft should not be         forwarded to the Secretariat in time for translations
subjected to any more changes that would weaken the        into all of the working languages and thus was not
document, as it already constituted a minimum              available in official form during the Working Group's
standard with respect to the protection of indigenous      session. This delay received a great amount of
rights. The Working Group also considered the              criticism, particularly because the reason for the delay
establishment of a permanent forum for indigenous          was that the study was not yet translated into Spanish.
people, a development which will be discussed later in     A number of Spanish speaking NGOs were particularly
this section.                                              insulted by this fact.
Other highlights of this year's session included the                 This study also contained several
presentation of Prof. Alfonso Martínez's (expert from      controversial conclusions and recommendations,
Cuba) Study on Treaties, Agreements, and Other             including the conclusion that the "treaty of annexation
Constructive Arrangements between States and               between the United States and Hawaii . . . could be
Indigenous Populations and Dr. Daes' Preliminary           declared invalid" and the recommendation that the
Working Paper on Indigenous Peoples and Their              "case of Hawaii [be] re-entered on the list of non-self-
Relationship to Land.                                      government territories of the UN and resubmitted to
          The Commission is currently considering the      the bodies in the Organization competent in the field
establishment of a Permanent Forum for Indigenous          of decolonisation" The US government responded to
People. If established, the Commission is seriously        an omission in the study by pointing out that the
considering abolishing the Sub-Commission's Working        General Assembly, in resolution 14/69 of 12 December
Group on Indigenous Population. There is much              1959, found that the "people of Hawaii exercised their
debate over whether the Permanent Forum will replace       right to self-determination and freely chose statehood."
all of the present functions of the Working Group. Of      Prof. Alfonso Martínez responded that he would
particular concern for organizations representing          include, with his own comments, the US government
indigenous interests is whether NGOs will have direct      response.
access to the Permanent Forum. Such direct access has
been one of the unique and beneficial characteristics of   C. Working Group on Contemporary Forms of
the Working Group. Furthermore, some governments           Slavery
have not supported equal participation by indigenous
representatives. One government delegation to the                    The Working Group on Contemporary Forms
second workshop on a permanent forum stated that "it       of Slavery is the only mechanism in the UN system for
could not support a forum within the United Nations        monitoring compliance with several multilateral
system where indigenous peoples were granted the           human rights treaties relating to slavery and slavery-
same legal status as member States."                       like practices. This Working Group took the initiative
          Prof. Alfonso Martínez, member of the            in developing programs of action against the sale of
Working Group on Indigenous Populations and Special        children, child prostitution, and child pornography; on
Rapporteur, presented his study on Treaties,               child labor; and on prevention of the traffic in person
Agreements, and Other Constructive Arrangements            and the exploitation of the prostitution of others.
between States and Indigenous Populations to the                     In 1998 the Working Group on Contemporary
Working Group on Indigenous Populations. Prof.             Forms of Slavery convened for its twenty-third session
Alfonso Martínez's study was generally well received.      from 18 to 28 May 1998. The Working Group is a
It was, however, not without criticism. Judge Guissé,      subsidiary of the Sub-Commission and Commission
another member of the Working Group, commented             and was established pursuant to Economic and Social
that the study was not complete and that it raised many    Council Economic and Social Council decisions 16
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                             72



(LVI) and 17 (LVI) of 17 May 1974. The Working             Commission.
Group was established in 1975 and has met regularly                   The Working Group recalled the large
before each session of the Sub-Commission. This            number of international instruments relating to
working group's mandate is to:                             slavery. The Working Group continued to receive
           review developments in the field of             information about and be aware of the contemporary
           slavery, the slave trade and the                manifestations of slavery-like practices, including debt
           slavery-like practices, of apartheid            bondage, exploitation of child labor, forced labor,
           and colonialism, the traffic in                 illicit traffic in migrant workers, and traffic in women
           persons and the exploitation of the             and children for prostitution. The Working Group
           prostitution of others, as defined in           asked David Weissbrodt and Anti-Slavery
           the Slavery Convention of 1926, the             International, in consultation with non-governmental
           Supplementary Convention of 1956                organization having an established record in this field,
           on the Abolition of Slavery, the                to prepare a comprehensive review of existing treaty
           Slave Trade, and Institutions and               and customary law covering all the traditional and
           Practices Similar to Slavery, and the           contemporary slavery-related practices and relevant
           Convention of 1949 for the                      monitoring mechanisms. The end product will be a
           Suppression of the Traffic in                   restatement of international norms against slavery,
           Persons and of the Exploitation of              principle by principle, and would thus assess whether
           the Prostitution of Others.                     there are gaps in the legal norms against slavery. The
           During this year's session, the Working Group   working paper should also review the mechanisms
also accepted an NGO proposal for a forum on               established by existing instruments and any apparent
prostitution and trafficking in women and children         gaps in monitoring.
which is scheduled to take place June 21-22, 1999, just               The Bureau of the Commission has proposed
before the working group meets June 23-July 2, 1999.       abolishing the Sub-Commission's Working Group on
This forum will represent a joint effort by United         Contemporary Forms of Slavery and assigning its
Nations organizations and non-governmental                 functions to a Special Rapporteur on contemporary
organizations, who are expected to voice a range of        forms of slavery within the context of the Commission
perspectives on the issue of sexual trafficking. While     on Human Rights who may also be given responsibility
there are some international instruments which address     for the work of the existing Special Rapporteur on the
the issue of sexual trafficking, most notably the 1959     sale of children, child prostitution and child
Convention on Trafficking in Persons, there have           pornography.
nevertheless been virtually no concrete enforcement
mechanisms available which would actually help deter       D.     Sessional Working                 Group       on
the practice. Many of these organizations will no          Administration of Justice
doubt present different, and perhaps at times contrary,
viewpoints on the issue of prostitution. The aim of the              The Working Group on Administration of
forum, however, will be to incorporate these divergent     Justice met periodically throughout the Sub-
perspectives into a common set of objectives against       Commission session to discuss issues related to
the most severe abuses inherent in sexual trafficking.     deprivation of the right to life, habeas corpus as a non-
Presumably, participants can agree upon the most           derogable right and as one of the requirements for the
grievous violations such as abduction, fraud, illicit      right to a fair trial, measures to be taken to give full
transfer, and sexual bondage so that progress can be       effect to the Convention on the Prevention and
made in these areas.                                       Punishment of the Crime of Genocide, juvenile justice,
           This session, the Working Group took the        privatization of prisons, and the Draft Convention on
initial steps towards a consolidation of conventions on    the Protection of All Persons From Enforced
slavery; reviewed, inter alia, developments in the field   Disappearances.
of contemporary forms of slavery, including economic                 As one of its primary tasks, the Working
exploitation of domestic and migrant workers, bonded       Group addressed the issue of the death penalty, and
labor, child labor, and sexual exploitation; and           took note of the worldwide abolitionist movement
recommended a number of resolutions to the Sub-            which has sought to eliminate the practice. Working
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                            73



Group agreed that, while some progress has been made       for its consideration. Ultimately, if the draft
towards the universal eradication of the death penalty,    Convention succeeds and is approved by all the
unfortunately much work remains to be done. To date,       relevant United Nations bodies, the new Convention
ninety-seven countries not only legally allow the death    will be opened for signing and ratification by member
penalty as a method of punishment, but also regularly      states. Thereafter, a new treaty monitoring body, the
apply it in practice. The Sub-Commission, drawing on       Committee against Enforced Disappearances, will be
the work of Amnesty International, did voice some          created to monitor state compliance with the
optimism by reporting that in total:                       Convention.
          Fifty-four countries have abolished the death
penalty by legal enactment for all offenses regardless     VII.     Future of the Sub-Commission
of their gravity or complexion or when they were
committed. De jure abolition means that the penalty                  The future role of the Sub-Commission is in
cannot be pronounced, or at the very least cannot be       serious question. The Bureau of the Commission has
executed. If it is reintroduced, the measures ordering     proposed to reduce the membership of the
its reintroduction can in no event have retroactive        Sub-Commission to 15 individuals selected by the
effect for prior acts.                                     Chair of the Commission, rather than by election in
          The Working Group also expressed its             the entire Commission, for no longer than two four-
concern over the unequal administration of the death       year terms and thus to reduce significantly the
penalty, and noted that "[t]he largest number of           geographical representativeness of Sub-Commission
persons sentenced to death are those who have no           membership. The Bureau has recommended that the
resources and are thus materially and intellectually       Sub-Commission should be deprived of the authority to
incapable of defending themselves. In many countries       adopt resolutions. The Sub-Commission would be
their cases are lost in advance." In this regard, the      authorized to continue holding its open debate on
Working Group suggested that measures be                   country situations, but instead of resolutions
implemented which guarantee the fair trial of accused      expressing concerns about specific countries, it would
persons, and that these individuals be provided with       only be requested to summarize the debate in its report.
the legal and material resources necessary to provide      Accordingly, the Sub-Commission would apparently
for their defense. In addition, the Working Group          not be able to apply human rights issues to concrete
voiced its concern for especially vulnerable groups,       situations and would thus be deprived of one of its
including minors, pregnant women and mothers of            most important functions. Similarly, the Sub-
young children, the elderly, and the mentally ill and      Commission would have no role in the confidential
mentally disabled, who may be executed without             1503 process for dealing with consistent patterns of
consideration of their unique circumstances.               gross violations and its Working Group on
          Perhaps the most formidable work of this         Communications under ECOSOC res. 1503 would be
year's session came, however, during the Working           replaced by a working group under the aegis of the
Group's consideration of the Draft Convention on the       Commission,. At the same time, however, the Bureau
Protection of All Persons from Enforced                    would reduce the length of the sessions from four to
Disappearances. During the 1998 session, Chairman-         two weeks and thus diminish drastically its capacity to
Rapporteur Louis Joinet submitted a revised version of     have any substantive debates, summarize those
the Convention, and after some debate concerning the       controversial discussions, or do other useful work.
text of the document, the Working Group was able to        Such limits will likely discourage NGOs from
agree to send the draft Convention to the full Sub-        participating in Sub-Commission sessions and thus
Commission for its approval. The Sub-Commission            make the Sub-Commission much less visible and
was then able, in its resolution 1998/25, to approve the   useful. One of the principal strengths of the Sub-
draft Convention, and decided to transmit the              Commission has been its accessibility to NGOs and
document to the Commission for its consideration,          their initiatives. It is likely that NGOs would lose
together with the comments of the Working Group and        interest in the Sub-Commission as restructured by the
the Sub-Commission.                                        proposals of the Commission's Bureau.
          If approved by the Commission, the draft
Convention will be sent on to the General Assembly                  The Sub-Commission's Working Group on
INTERNATIONAL CIVIL LIBERTIES REPORT                                          74



Contemporary Forms of Slavery would be replaced by          considerations.
a Special Rapporteur of the Commission. Two other
working groups (on indigenous populations and
minorities) would remain (at least for now). The
Sub-Commission would principally or only do studies.
All of these changes would come into effect in 2000,
but there is considerable uncertainty as to how
transitions will affect its work in 1999. Most of the
proposals considered by the Bureau of the
Commission, if adopted, will diminish substantially
the role currently played by one of the few independent
human rights bodies within the United Nations. The
Bureau did sensibly recommend that the outmoded
name of the Sub-Commission be updated to "the Sub-
Commission on the Promotion and Protection of
Human Rights," but it simultaneously urged that the
Sub-Commission be deprived of most of its role in
protecting human rights.
          The Sub-Commission will meet for its 51st
session from 2 - 27 August 1999, but, as one member
stated:
          A When we come back next year
          this may be a very different
          institution from the one we know.


Endnotes:

*        David Weissbrodt is the Fredrikson and Byron
Professor of Law, University of Minnesota; and a
member of the UN Sub-Commission on Prevention of
Discrimination and Protection of Minorities. Mayra
Gómez is a PhD student in the Department of
Sociology, University of Minnesota. Bret Thiele is a
student at the University of Minnesota Law School.
The authors would like to thank Alexandra Arbogast
and Aarthi Belani for their excellent work and
indispensable help during the 1998 Sub-Commission
session.

1.       This article is a summary of David
Weissbrodt, Mayra Gómez, and Bret Thiele,
Highlights of the 50th Session of the United Nations
Sub-Commission on Prevention of Discrimination, 17
J. LAW & INEQUALITY — (forthcoming 1999).
Readers should consult the full version of this article
for relevant citations and other details not included in
this version. In particular, the sections of this article
on country situations and reform of the Sub-
Commission have been omitted because of space
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                     75



                                                          helped economies to develop and grow so that
                                                          countries could become self-sustaining and
                                                          direct foreign aid could be phased out;

                                                          (2) The Caribbean Basin Economic Recovery
11.      A PROPOSAL FOR AN ENFORCEABLE                    Act (CBERA), 19 U.S.C. §§ 2701-06 (1986),
         SOCIAL CLAUSE TO IMPLEMENT                       which is virtually identical to the GSP
         LABOR RIGHTS IN THE GLOBAL                       program but focuses on the Caribbean basin.
         ECONOMY
                                                          (3) Overseas Private Investment Corporation
         By Terry Collingsworth*                          ("OPIC"), 22 U.S.C. § 2191 (1986), which
                                                          provides financing and insurance to U.S.
          As global trade increases, employers become     companies investing in developing countries
less accountable to their workers and to any particular   provided that the host country is in
nation. Developing countries are forced to compete        compliance with “internationally recognized
against one another to attract new investment by          worker rights;”
offering cheap labor and lax enforcement of laws. This
downward spiral of reverse development lowers living      (4) The Omnibus Trade and Competitiveness
standards for all workers and sends higher profits back   Act, passed in 1988, which amended section
to the multinational companies (MNCs), based largely      301 of the Trade Act of 1974, 19 U.S.C. §
in Europe, the United States and Japan. The major         2411 (1988), which applies to all U.S. trading
barrier to enforcement of labor laws in the global        partners and makes failure to comply with
economy is that individual countries fear that if they    “internationally recognized worker rights” an
require MNCs to comply with the law, the companies        unfair trading practice and subjects the
will flee to another country that will offer greater      offender to a wide range of sanctions.
freedom from regulation.                                  Compliance with this law ensures that a
          There have been various unilateral efforts to   developing country will not be subject to trade
use trade as a lever to promote labor rights in the       sanctions;
global economy. Labor rights advocates in the U.S.
have been particularly successful in legally mandating    (5) The 1992 Amendment to the Foreign
the link between labor rights and trade on a unilateral   Assistance Act of 1961, 22 U.S.C. § 2151 et
basis in U.S. law.48 A series of laws have been passed    seq (1992), which restricts funding of U.S.
that explicitly condition certain trade benefits on       AID programs that contribute to the denial of
compliance with labor rights:                             “internationally recognized worker rights;”

         (1) The Generalized System of Preferences        (6) The 1994 Amendment to the Foreign
         Act ("GSP"), 19 U.S.C. §§ 2461-66 (1986),        Assistance Act, which provides that “the
         which grants developing countries duty free      Secretary of Treasury shall direct the United
         status on many exports to the U.S.               States Executive Directors of the
         conditioned on compliance with                   International Financial Institutions . . . to use
         “internationally recognized worker rights,”      the voice and vote of the United States to urge
         thus providing a substantial comparative         the respective institution . . . to adopt policies
         advantage in U.S. markets. The worker rights     to encourage borrowing countries to
         conditionality was added to GSP in 1984. The     guarantee internationally recognized worker
         idea was that the US was spending billions of    rights;” 22 U.S.C. § 1621 (1996), and
         dollars on direct foreign assistance that was
         having little permanent impact on solving the    (7) The 1997 Sanders Amendment to Section
         underlying problems of poverty. The theme of     307 of the Trade Act of 1930, which clarified
         GSP was "trade not aid," meaning that it         that the ban on importation of products made
         would be a better policy to give benefits that   with “forced” labor applied to products made
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                             76



                  with “forced or indentured child          inclusion of very strict rules to protect intellectual
                  labor.” 19 U.S.C. § 1307 (1997).          property rights in the last GATT round creating the
                                                            World Trade Organization (WTO),Final Act
          All of the these laws except section 307 of the   Embodying the Results of the Uruguay Round of
Trade Act of 1930, which focuses exclusively on child       Multinational Trade Negotiations, December 15, 1993,
labor, incorporate the five factor definition of            Annex I C, and in the North American Free Trade
“internationally recognized worker rights” from the         Agreement (NAFTA), NAFTA, Part VI, Chapter 17.
GSP provision:                                              This is in sharp contrast to the failure of labor and
          (A) the right of association; (B) the right to    human rights organizations to achieve inclusion of a
          organize and bargain collectively; (C) a          binding social clause in these trade agreements. A
          prohibition on the use of any form of forced      social clause to benefit all workers in the global
          or compulsory labor; (D) a minimum age for        economy will only be achieved through solidarity and
          the employment of children; and (E)               united action.
          acceptable conditions of work with respect to
          minimum wages, hours of work, and                          II. The Substance of a Social Clause.
          occupational safety and health. 19 U.S.C. §
          2462 (a)(4).                                               There is an emerging consistency on the
          These unilateral efforts are fundamentally        substance of the social clause, at least insofar as it
flawed, however, because the enforcement process was        addresses labor issues. Probably the most widely-
politicized. Further, there can be no globally-             accepted version of the social clause is proposed by the
applicable labor rights enforcement without globally-       International Confederation of Free Trade Unions
accepted standards. The US experiment has been              (ICFTU), the international body of national trade
extremely helpful in developing the standards and           union federations. The ICFTU’s proposal is to define
demonstrating the conceptual relationship between           the social clause based on key Conventions of the ILO,
trade and labor rights.                                     which have been ratified by most countries of the
          Proponents of the “social clause” seek to         world:
create a global floor for labor standards so that there
can be no place that a company could flee to in order                •        the right to associate (ILO
to avoid compliance. The challenge is to provide                              Convention No. 87);
adequate incentives for countries to cooperate in                    •        the right to organize and bargain
obtaining compliance by MNCs with the social clause                           collectively (ILO Convention No.
and corresponding domestic laws.                                              98);
          The most fundamental concept that must be at               •        equal employment opportunity and
the forefront of efforts to gain acceptance of an                             non-discrimination (ILO
enforceable social clause is that virtually every country                     Convention Nos. 100 and 111);
in the world has domestic labor laws and has ratified                •        Prohibition of Forced Labor (ILO
international instruments, including International                            Convention Nos. 29 and 105); and
Labor Organization (ILO) Conventions, that already                   •        Prohibition of Child Labor (ILO
require compliance with all of the terms of the social                        Convention No.138). See, e.g.,
clause.49 What’s lacking is enforcement, and the effort                       Social Charter for Democratic
is to provide for labor laws what already exists for laws                     Development, ICFTU-APRO
protecting property in the global economy: a                                  (1994).
mechanism to ensure adequate enforcement. While
unions and NGOs continue to have their territorial                    This version of the social clause is endorsed
battles within and across national boundaries, the          by most of the International Trade Secretariats. Also,
MNCs are united in their global vision to protect           the Organization for Economic Cooperation and
property and investments, and to keep wages low and         Development (OECD) has specifically endorsed a
profits high. This is evidenced quite dramatically by       virtually identical version of the social clause. Trade,
the success of highly-competitive technology firms in       Employment and Labour Standards: A Study of Core
cooperating for their mutual interest to secure the         Workers’ Rights and International Trade, Published
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                               77



by the OECD in 1996. (Copy on file at the ILRF).            the lives of working people in the global economy only
          Other versions of a social clause relating to     if there is an effective enforcement mechanism. It is
worker rights include minimum standards for health          essential to note, however, that an enforceable social
and safety and an acceptable minimum wage, based on         clause is not a panacea; trade agreements themselves
the level of economic development of a particular           should reflect a primary concern with improving the
country. See, e.g., Brown, Goold, and Cavanagh,             lives of people and protecting the environment. A Just
Making Trade Fair, World Policy Journal 325-26              and Sustainable Trade and Development Initiative for
(Spring, 1992). At a people’s forum parallel to a           the Western Hemisphere, Alliance for Responsible
governmental gathering in Brazil in May, 1997 to            Trade, Citizen Trade Campaign, and the Mexican
discuss the creation of a Free Trade Area of the            Action Network on Free Trade (July, 19, 1994)(Copy
Americas (FTAA), there was an extraordinary showing         on file at the ILRF). If, instead, a trade agreement
of unity between unions and NGOs resulting in a broad       permits widespread exploitation of workers and the
declaration that supported a social clause going well       environment, but there is a mechanism for seeking
beyond core labor rights. Declaration: Building a           redress, this will not lead to sustainable development.
Hemispheric Social Alliance to Confront Free Trade,                   All of the elements discussed below are
¶ 1 (May 15, 1997)(copy on file at the ILRF). Whether       essential, but there are several options for achieving
to have a broad or narrow clause remains a strategic        the objective of a given element. Those choices must be
choice. It must be noted, however, that the chances of      resolved as part of an overall political strategy, and are
achieving the reality of an enforceable social clause       highlighted here to facilitate debate and resolution
decline as the list of issues covered increase.             among advocates for a social clause. The intention
Governments and companies will unite to resist any          here is to facilitate discussion towards agreement on an
comprehensive regulation. At the same time, the             enforcement mechanism that can become part of a
coalition for supporting the clause grows as new issues     universal effort by unions and NGOs to speak with one
are introduced. Perhaps the most fruitful approach          voice in pressing for an enforceable social clause.
would be to first agree on the components of the social     Regardless of precise choices, an effective enforcement
clause and then engage in a prioritization process to       mechanism for the social clause should include the
phase in the list of rights across several years. As part   following major components:
of this discussion, development aid and debt reduction
could be used to offset the costs incurred by a                      a. Compliance with the social clause as a
developing country as it phases in the rights of the        condition to participation in the trade agreement.
social clause. The EU used a phase in approach with         Regardless of whether the issue is admission to the
its Generalized System of Preferences (GSP) program,        WTO or to a new regional agreement, such as the
first activating prohibitions on forced or child labor,     FTAA, a firm principle must be that all countries
and then gradually phasing in other core labor rights.      seeking to participate in the trade agreement must be
It makes sound strategic sense to focus first on a social   in compliance with the social clause as a condition to
clause that incorporates existing legal norms and tries     membership. Each country would participate in an
to improve enforcement mechanisms. If countries must        extensive review of its law and practice to determine
initially make major changes to their laws to               compliance with the standard. If a country is found not
participate, this will give them a significant incentive    to be in complete compliance, it could have
to resist. In contrast, it will be difficult to mount a     probationary membership, provided it agrees to
persuasive argument to resist acceptance of a social        implement specific reforms within two years, subject to
clause that initially binds countries to their existing     ongoing monitoring. The necessary revisions to law
labor laws and to international obligations that they       and practice could be identified as part of the
have already undertaken.                                    harmonization process discussed in the next section. If
                                                            at the end of the two-year period a country fails to be
        III. A Proposal to Enforce the Terms of a           in complete compliance, then its membership in the
Social Clause.                                              trading group would be terminated with the right to
                                                            reapply only when there is complete compliance with
         A social clause, whatever the specific terms       the social clause.
ultimately are, will make a concrete improvement in                  Among the key issues that need to be resolved
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are what forum would be used to decide whether there        agreements represent an opportunity to make progress
is compliance with the social clause. There is              on worker rights. If the barrier for participation is too
significant support for allowing the ILO to perform         high, then the result will be that there will not be any
this function. Certainly, in the context of an agreed       trade agreements and no opportunities to make
format by the participating nations, the ILO is well-       progress. Assuming this approach is accepted, the
suited to assess whether any given country is in            Panel of Experts could as part of its function draft a
compliance with core ILO Conventions. Indeed, the           very specific work plan to bring a country into
ILO already performs this function to a certain degree      compliance with the social clause, including specific
through its annual review of members’ compliance            recommendations for reform of labor laws and
with ratified conventions. Art. 22, Constitution of the     improving enforcement mechanisms. It should be very
ILO (May, 1989). Further, when there are persistent         clear that the failure of a country to comply with
problems with a particular country’s compliance with        implementation of the plan within the probation period
one or more conventions, there is a procedure to create     must result in automatic expulsion with the option of
a Commission of Inquiry to investigate fully. Id. at        reapplying only when there is complete compliance.
Art. 26. The ILO thus has the experience and mandate        No country will take its obligation seriously if there is
to perform this function.50 If, however, the ILO            a regular pattern of extending time.
declines to participate, or the process for getting its
cooperation is too cumbersome, or, as some assert, the                b. Participation in a process to harmonize
ILO is too lethargic to play a constructive role in         laws upwardly to be consistent with the social clause
international worker rights enforcement, then the           . The premise of the social clause is that one or more
subject trade agreement could assemble its own panel        of the countries participating in the trade agreement
of experts to make these determinations.51 The              either does not have adequate laws or is not enforcing
committee could be drawn from a balance of labor            its laws. Otherwise, a social clause would not be
ministry staff from the participating countries and         necessary. In order to emphasize that the individual
outside experts, or, as was agreed to in the North          countries maintain primary responsibility for ensuring
American Agreement on Labor Cooperation                     the conditions of the social clause, to allow for unique
(NAALC), could be made up entirely of credible,             national solutions, and to avoid creating new
outside experts. NAALC Arts. 23-24. (In limited             multilateral institutions that exist in perpetuity, a
cases, the NAALC allows for the formation of an             process of upward harmonization is recommended.
“Evaluation Committee of Experts.”) Likewise, trade         More fundamentally, this will reduce concerns of loss
unions participating in Mercosur have proposed using        of national sovereignty by emphasizing that the
a “Committee of Specialists” to evaluate compliance         primary intent is to encourage countries to rapidly
with social standards. Whatever its composition, for        improve their own enforcement processes to assume
the remainder of this discussion, the body will be          responsibility for upholding the law. This will, if taken
referred to as the “Panel of Experts.” If the social        seriously, require each country to adjust its laws and
clause includes environmental standards, then the           enforcement mechanisms upwards and to assume
Panel of Experts would need to include experts in this      direct responsibility for enforcement of the provisions
field as well.                                              of the social clause. This is one of the major strategies
          A second major issue that needs to be resolved    for achieving implementation of the European
in light of political reality is whether a country not in   Economic Community Treaty, see, e.g., Stone, Labor
compliance could participate in the trade agreement on      and the Global Economy: Four Approaches to
a probationary basis while implementing a plan to get       Transnational Labor Regulation, 16 Michigan Journal
into compliance. To encourage participation, there          of International Law 987, 997-1004 (1995), and was
should be a reasonable probation period of about two        also advanced as a key aspect for the social charter
years to comply with the standard of the social clause.     proposed for Mercosur and by trade union advocates at
The reason for the recommendation is simply to              the Asia Pacific Economic Cooperation (APEC)
acknowledge the reality that most countries will not be     People’s Summit. This is in sharp contrast with
in complete compliance, and allowing a probationary         NAFTA, which, in the NAALC, precluded review of
period will provide some incentive to participate in        or changes to the domestic labor law of the signatories.
making progress. This also reflects that trade              See NAALC, Art. 3 (1) requiring that “[e]ach Party
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shall promote compliance with and enforce its own           participating countries must cooperate in developing
labor law . . .” The Labor Principles of Annex 1            an annual Labor Information Audit of businesses
specifically “do not establish common minimum               operating in two or more of the trade agreement
standards for [the parties’] domestic law.”                 countries. The audit would be conducted by
          Achieving harmony among the relatively            independent monitors, and would be required of any
similar economies of the European Community is              company that seeks to export or import within the area
significantly different from attempting to unite the        covered by the trade agreement. The companies would
Americas or Asia with the extremely diverse levels of       be required to report information pertaining to all of
economic development, but harmonization should be           their operations, whether under their own corporate
accepted initially as the ultimate goal. It is important    form or through subsidiaries, joint ventures,
to add, however, that with respect to the issue of          contractors, or other business forms. The information
minimum wages, or other issues that are based on            would include: a) location, b) total number of
relative economic condition, the suggestion is not that     employees, categorized by job classification and pay
standards be harmonized to be identical. The issue          grade, c) wages paid for each job classification and/or
would be whether there is a minimum wage, for               pay grade specified by form of payment (i.e., hourly,
example, that is reasonable for the level of economic       daily, weekly, monthly etc. or average wages for
development in the given country. In many developing        piecework), d) total benefits provided to all individual
countries, the minimum wage is the prevailing wage,         or group of employees, present unionization status of
so for most workers having the minimum wage also be         any employees specifying the name of the union,
a liveable wage, based on local economic conditions, is     number of represented employees, status of, and a copy
the most immediate concern that they have. This             of the most recent, collective bargaining agreement,
should be a key issue of the harmonization discussion.      affiliation of union with any central labor body or
Another issue that must be specifically addressed is        confederation, e) health and safety records, and f) some
whether the laws of a given country provide for             record of employment practices that might violate the
sufficient remedies and penalties to encourage              law in one or more trade area countries. The
compliance by employers.                                    information would be publicly available to inform
          A further principle of harmonization is that      governments and organizations seeking to enforce
countries that lack resources and capacity to improve       domestic laws or the provisions of the social clause.
the enforcement of labor laws must be provided with
direct assistance to support these activities and offset              d. Require that companies operating in
the costs of compliance. This is a form of development      more than one country of the trade area must
aid that could actually lead to concrete and sustainable    comply with the terms of the social clause. The
development benefits for working people.                    audit described in part c, above, is designed to develop
                                                            information to promote better compliance with labor
          c. Participation in an information audit by       standards. However, in order to ensure that companies
companies operating in more than one country of             comply with the law, they should be required to abide
the trade area. There must be a firm recognition that       by the terms of the social clause, in addition to the
employers, not governments,52 initially deny workers        labor laws in the countries where they operate. This is
their rights, and then the role of government is to         not a radical proposition. The OECD, (OECD,
enforce the law. A major goal for effective enforcement     Guidelines for Multinational Enterprises (1996)(Copy
of a social clause is to develop a way to regulate the      on file at ILRF)) and the ILO (ILO, Tripartite
employment practices of companies operating in the          Declaration of Principles Concerning Multinational
countries bound by the social clause. Most of the           Enterprises and Social Policy (1996)(Copy on file at
problems relating to a denial of the rights created in      ILRF)) have both called for developing codes of
the social clause would be solved if companies              conduct for MNCs that incorporate similar substantive
respected the law.                                          standards as the proposed social clause. Binding the
          In order to have a basis for monitoring the       companies to the social clause would provide an
activities of companies, more information is needed.        alternative, albeit more mandatory, mechanism for
This process can be initiated by requiring as part of the   ensuring company compliance. This provision is
enforcement mechanism for a social clause that all          essential to clarify the responsibility of MNCs in
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                              80



participating in efforts to improve respect for labor                 IV. Conclusion.
laws. Once harmonization occurs following completion
of part b above, compliance with the provisions of the                 Labor rights and other human rights continue
social clause would be redundant with compliance with        to be relegated to second class status. The new global
the labor laws.                                              economy permits companies to protect investments and
                                                             real and intellectual property with tough, enforceable
          e. Remedies following a violation of the           standards based in the rule of law. Workers who make
social clause by a member country and/or a                   the products sold in global commerce are left with
company operating within a member country. This,             promises of improvement, public pressure, and
of course, is ultimately the issue that will cause           toothless international bodies armed with the power to
resistence to participation by governments. Whether it       issue reports. This difference is based on extreme
is the US or Haiti, no government wants another              disparities in power and influence, rather than any
authority to have enforcement power over it.                 principled distinction in law. The global economy
          To leaven the perception that the social clause    makes the explicit promise that increased trade and
will override national authority we must constantly          investment will lead to increased prosperity for all,
emphasize that any penalty imposed against a                 including workers. Workers are entitled to have those
participating government would flow from a voluntary         promises made enforceable through a social clause.
trade agreement that all member states have agreed to
abide by that imposes substantive standards in the           Endnotes:
social clause that each country is already bound to
through domestic labor law, or international                 *   General Counsel
instruments, including ILO Conventions. The power to             International Labor Rights Fund
avoid penalties rests with the member states’ ability to         733 15th Street N.W. #920
avoid violations. To emphasize strongly this point, any          Washington, D.C. 20005
remedy provision should require notice and                       (202) 347-4100
opportunity to correct.
          If a country fails to remedy a violation of the    1.       See generally, Collingsworth, American
social clause, which would normally mean it refuses to       Labor Policy in the International Economy: Clarifying
enforce its laws, there must be a system of penalties to     Policies and Interests, 31 Boston College Law Review
encourage compliance. There should be a clear                31-100 (1989).
recognition that normally the government doesn’t
violate the rights protected directly, but is charged with   2.        The Southern Cone trade unions made this a
enforcing the law with respect to companies operating        primary argument for uniform labor standards and
within its territory. Given that each country will have,     documented the ILO Conventions that had been
by necessity, passed an assessment of compliance with        ratified by all of the countries participating in
the social clause as per part a, above, to qualify for       Mercosur. In the global economy, China and Vietnam
participation in the trade agreement, there should not       are notable and significant exceptions. Neither have
be too many issues of inadequate law. Penalties              ratified the key Conventions, nor do their domestic
directed at companies, with the cooperation of the host      labor laws adequately protect the core labor rights. The
government, will resolve most problems. The penalties        United States has not ratified most of the ILO
therefore should be designed to encourage                    Conventions, but generally has domestic labor laws
enforcement. Again, this leaves solving the problem          which, if enforced, would satisfy most of the key
within the firm control of the individual governments        Conventions. For a list of ILO Convention ratifications
and allows them to act to prevent any protectionist use      by country, see ILO, Lists of Ratifications by
of the social clause. If a country ultimately refuses to     Convention and by country, Report III (Part 5)(1995).
enforce its own laws as per the commitment made in
accepting the social clause, then the remedy must be         3.      Charnovitz, Trade Employment and Labour
exclusion from the trade agreement and the                   Standards: The OECD Study and Recent
corresponding benefits.                                      Developments in the Trade and Labor Standards
                                                             Debate, 11 Temple International and Comparative
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                           81



Law Journal at 160-63 (1997)(discussing the ILO’s
unique qualification to assess compliance with its
Conventions).

4.        Further concerns are whether the ILO could
in fact perform all of the functions required in
enforcing the social clause and whether giving the ILO
enforcement powers would cause employer and
government representatives to take concerted action to
dilute the standards set by the Conventions, which to
date have been more viewed as of academic interest
since there is no threat of enforcement.

5.     Of course governments, when acting as
employers, can and do violate their own labor laws.




12.      THE HAGUE CONVENTION ON                         I. Potential Threat to Human Rights Litigation
         INTERNATIONAL JURISDICTION                               Civil actions brought by victims or the
         AND THE EFFECTS OF FOREIGN                      families of victims of human rights violations (such as
         JUDGMENTS AND THE THREAT OF                     claims under the Alien Tort Claims Act or the Torture
         EXTINCTION OF HUMAN RIGHTS                      Victim Protection Act in the United States) potentially
         LITIGATION IN DOMESTIC COURTS                   fall under the Convention’s proposed definition of
              Beth van Schaack*                          “civil and commercial matters.” Two sets of
                                                         provisions in Chapter II threaten to significantly
          Governmental delegates to the Hague            curtail such suits in national courts. The first
Conference on Private International Law from the         provision addresses who can sue in tort under the
international community are in the process of            Convention and the second set of provisions concerns
drafting a Convention on International Jurisdiction      the required links between the defendant and the state
and the Effects of Foreign Judgments in Civil and        in which the court sits.
Commercial Matters (Convention on Jurisdiction and                A. Article 10: Where Can the Plaintiff
Judgments). The Hague Conference is an                   Sue?
intergovernmental body, first convened in 1893,                   In cases of torts, the current draft of the
holding regular meetings every four years since 1956.    Convention provides at Draft Article 10 that plaintiffs
The proposed Convention on Jurisdiction and              will only be able to sue in the courts of the state in
Judgments would govern two areas of private              which the harm occurred. In other words, courts in
international law which could have substantial           Contracting States would have to dismiss cases
consequences for human rights litigation in domestic     brought by plaintiffs alleging extraterritorial harm.
courts: (1) the exercise by domestic courts of           This provision promises to greatly hinder the ability
jurisdiction and (2) the regime applicable to the        of victims of grave human rights violations to obtain
recognition and enforcement of foreign judgments.        legal redress for the harms they have suffered,
                                                         because the courts in the countries in which the harm
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                                82



occurred may be unwilling or unable to hear their           Treatment or Punishment.
claims. These victims may be refugees or otherwise                    The Convention as it currently reads does not
in exile from the state in which the harm occurred          reflect that fact that many human rights cases before
such that it is impossible for them to return to the        national courts are brought outside of the state in
state in which the internationally unlawful acts            which the harm occurred or in which the defendant
occurred. Such a system would virtually paralyze            resides. This is because the grave international law
efforts by victims of human rights abuses to obtain         violations at issue most often occur in states that are
judgments in their favor. It would also eliminate an        experiencing political upheaval or are governed by
important avenue of human rights enforcement in an          authorities who themselves are responsible for the
international system without institutions readily           commission of, are complicit in, or are otherwise
accessible to individual victims.                           indifferent to such violations. Domestic courts in
          B. Articles 3 and 20: Where Can the               these states may be unable or unwilling to proceed
Defendant be Sued?                                          effectively against perpetrators or to provide victims
          Similarly, draft Articles 3 and 20 also           with redress. Furthermore, in many human rights
significantly curtail existing law. Draft Article 3         cases, the plaintiffs have had to flee the state in which
provides that an individual may be sued only in the         the harm occurred and it may be impossible for them
courts of the state in which that person is habitually      to return to that state in order to pursue their rightful
resident. Among the proposed prohibited bases of            claims. Thus, in order to seek redress, such victims
jurisdiction is the exercise of so-called “tag” or          must have access to the courts of other nations when
transient jurisdiction—the assertion of jurisdiction        a human rights violator travels abroad. Articles 3, 10
over a defendant who is not habitually in a particular      and 20 as currently drafted would bar these types of
forum. Certain delegates attending these deliberations      cases.
have asserted that the exercise of transient
jurisdiction represents an excessive extension of           II. The Status of the Negotiations
adjudicatory power that should be banned under the                    The Drafting Committee has issued a revised
proposed treaty. This form of jurisdiction is often         and consolidated draft text (Work. Doc. No. 144E)
crucial to human rights litigation in national courts.      that includes a limited number of provisions. This text
If the Convention on International Jurisdiction             will be on the table for consideration at the next
prohibits the exercise of such transient jurisdiction, it   meeting of delegates to be held in The Hague on 7-18
will significantly stymie efforts of states to fulfil       June 1999. The Convention will be open for signature
obligations to prevent, punish or provide reparations       and ratification at the Plenary Session to be held in
for international law violations.                           October 2000.
          C. Conclusion                                               Because the Convention on Jurisdiction and
          In this way, the Convention could extinguish      Judgments is primarily addressed to the recognition of
efforts by certain states to enforce human rights           judgments arising out of securities, products liability
norms through civil litigation in national courts and       and other commercial litigation, it is anticipated that
foreclose efforts to develop similar avenues for            many states, including those states that that support
redress elsewhere. This is especially alarming given        human rights litigation in their domestic tribunals
the lack of international and regional courts               such as the United States, will seek to join the
accessible to individual victims of human rights            Convention to ensure the mutual recognition of their
abuses. If enacted as it stands, the draft Convention       judgments before other tribunals. The delegates
on Jurisdiction and Judgments will significantly            representing participating states are individuals
hinder efforts to fulfil obligations to prevent, punish     drawn mainly from the commercial sectors. Given
or remedy international law violations. Many states,        their concerns, they may be willing to “bargain away”
including those participating in the drafting of the        the right of victims to sue outside of the state in which
Convention, have undertaken these obligations under         the harm occurred or the exercise of transient
international human rights treaties, such as the 1948       jurisdiction in order to receive concessions in other
Convention on the Prevention and Punishment of the          areas of the Convention, either because they don’t
Crime of Genocide and the 1984 Convention Against           understand the significance of these principles to
Torture and Other Cruel Inhuman or Degrading                human rights litigation or simply because they don’t
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                      83



care. In this way, the deliberations surrounding the       0321
draft Convention on Jurisdiction and Judgments have
the potential to eliminate—perhaps unwittingly—one         Endnotes:
of the most progressive developments in international      *   Beth Van Schaack is a Soros Fellow currently
law: the ability of national courts to adjudicate claims   working with the Center for Justice and
arising out of severe violations of international          Accountability in San Francisco.
human rights and provide civil remedies to victims
and their families.
          Despite the obvious relevance of these high
stakes to the work of the international human rights
community, so far there has been very little human
rights NGO participation in these negotiations.
Recently, however, several NGOs—including the
Center for Constitutional Rights, Amnesty
International, Redress Trust, and The Center for
Justice & Accountability—have begun to mobilize
around this issue. This coalition has begun to analyze
the provisions of the Convention and draft alternative
language for inclusion in the Convention to preserve
the rights of victims of human rights violations to
obtain civil redress. This coalition will also work
with other NGOs to raise public awareness in their
home states and lobby their nation’s delegates to the
Conference to ensure that these individuals are
sensitized to the importance of human rights
litigation to the enforcement of international human
rights.

III. Action needed.
1. Conference Attendance. NGOs should seek
accreditation for the next meeting of the Special
Commission in June 7-18, 1999. U.S. NGOs should
make contact with members of the U.S. delegation
and the Department of State to enlist their assistance
in getting NGO access to the proceedings.
2.    Lobbying. United States NGOs should lobby
members of the U.S. delegation about these issues
and send comments on the Convention to the Office
of the Legal Advisor of the U.S. Department of State.
3.    Further Research. The Department of State
maintains a website with copies of some relevant
documents: http://www.his.com/~pildb.
4. NGO Networking. NGOs should inform other
interested NGOs about what is at stake in the current
deliberations.
5.     More Information. Contact The Center for
Justice and Accountability for more information. The
Center for Justice & Accountability, 588 Sutter St.
No. 433
San Francisco, CA 94102, United States, 415-544-
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                              84



13.      THE SUPREME COURT OF                               II. The United States as a Party to The Covenant
         THE UNITED STATES HAS                              on Civil And Political Rights Should Not Be
         BEEN CALLED UPON TO                                Executing Juveniles
         DETERMINE THE LEGALITY                                       Article 6 of the Covenant on Civil and
         OF THE JUVENILE DEATH                              Political Rights states in pertinent part that the death
         PENALTY IN MICHAEL                                 penalty "shall not be imposed for crimes committed by
         DOMINGUES V. STATE OF                              persons below eighteen years of age." Covenant on
         NEVADA                                             Civil and Political Rights, art. 6, para. 5. The United
                                                            States became a party to the Covenant on Civil and
      By Jennifer Fiore* & Connie de la Vega**              Political Rights on September 8, 1992. 138 Cong. Rec.
                                                            S4781-84 (daily ed. Apr. 2, 1992).
I. Introduction
           Since 1990, only six countries have imposed      A. The United States Reservation to Article 6 Is
the death penalty on juvenile offenders: Iran, Nigeria,     Not Valid
Pakistan, Saudi Arabia, the United States, and Yemen.                 In ratifying the Covenant, the Senate reserved
On February 4, 1999, the United States reinforced its       for the United States the right "subject to its
non-compliance with the almost worldwide prohibition        Constitutional constraints, to impose capital
of the juvenile death penalty when it executed Sean         punishment on any person . . . including such
Sellers for crimes he committed while sixteen years of      punishment for crimes committed by persons below
age. The Oklahoma execution of Mr. Sellers was the          eighteen years of age." 138 Cong. Rec. S4781-01, §
first in 1999 to follow the three 1998 executions of        I(2). Though the United States put forth this
juvenile offenders in the United States.53 The United       reservation so that the various states may continue
States is the only country in the world known to have       executing juvenile offenders, the reservation is invalid.
executed juvenile offenders in 1998 and 1999. See                     Under the Vienna Convention, the
Victor Streib, Death Sentences and Executions for           international treaty that governs treaty interpretations,
Juvenile Crimes, January 1973-October 1998 (last            the Senate reservation is not valid because it
m o d i f i e d        O c t .      3 1 ,     1 9 9 8 )     contradicts the "object and purpose" of the Covenant
<http://www.law.onu.edu/faculty/Streib/juvdeath.pdf>.       on Civil and Political Rights itself.             Vienna
          On November 7, 1996, Michael Domingues            Convention on the Law of Treaties, May 23, 1969, art.
challenged his capital sentence to the Nevada Supreme       19, 1155 U.N.T.S. 331, 336-37 (hereinafter Vienna
Court by filing a motion for the correction of an illegal   Convention). Although the United States is not a party
sentence. Domingues v. State of Nevada, 961 P.2d            to the Vienna Convention, the Department of State has
1279, 1279 (Nev. 1998). In a three-two decision, the        recognized it as the authoritative guide to current
Nevada Court, with only a cursory analysis, upheld          treaty law and procedures. Vienna Convention on the
Michael Domingues' capital sentence. Id. In March           Law of Treaties, S. Exec. Doc. No. 92-1, 92nd Cong.,
1999, he filed a Petition for Writ of Certiorari with the   1st Sess. 1. Article 19 states that parties may make a
Supreme Court of the United States. Domigues v.             "reservation unless . . . the reservation is incompatible
State of Nevada, No. 98-8327. Human Rights                  with the object and purpose of the treaty." Vienna
Advocates and Minnesota Advocates for Human                 Convention, art. 19. Hence, the United States
Rights filed an amici curiae brief on behalf of Mr.         reservation to the Covenant on Civil and Political
Domingues urging the Supreme Court to grant                 Rights contradicts the object and purpose of the
certiorari because his capital sentence violates the        Covenant – to protect the right to life through
International Covenant on Civil and Political Rights        prohibiting the imposition of the death penalty on
(International Covenant on Civil and Political Rights,      juvenile offenders. Since the Covenant on Civil and
Dec. 19, 1966, 999 U.N.T.S. 171, art. 6 (hereinafter        Political Rights does not allow the juvenile death
Covenant on Civil and Political Rights)) and the            penalty, but the Senate reservation does, the
customary international law and jus cogens norm that        reservation is void. Applying this argument, the
prohibit the juvenile death penalty.                        United Nations Human Rights Committee, the body
                                                            responsible for monitoring implementation of the
                                                            treaty, concluded that the United States reservation is
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                             85



not valid. See Consideration of Reports Submitted by        from being imposed on juvenile offenders is a
State Parties Under Article 40 of the Covenant, U.N.        defensive use of the treaty, and thus, not contrary to
Hum. Rts. Comm., 53rd Sess., ¶ 14, U.N. Doc.                the Senate reservation.
CCPR/C/79/Add.50 (1995).                                              The defensive use of a treaty is a judicially
         Since the treaty reservation is not valid and      accepted means by which litigants have been
the United States Constitution mandates that treaties       successful in enforcing treaty provisions without
are the Supreme Law of the Land, the Nevada                 having to determine whether the treaties are self-
Supreme Court cannot continue to impose the capital         executing. See Kolovrat v. Oregon, 366 U.S. 187
sentence on Michael Domingues. Under the                    (1961) (treaty used as a defense to escheat proceeding
Constitution of the United States, "all treaties made or    under Oregon law); Ford v. U.S., 119 U.S. 407 (1927)
which shall be made, under the authority of the United      (treaty used as a defense to personal jurisdiction). See
States shall be the Supreme Law of the Land, and the        also Patsone v. Pennsylvania, 232 U.S. 138 (1914)
Judges in every State shall be bound thereby, anything      (Court recognized the defensive use of a treaty in a
in the Constitution or Law of any State to the contrary     criminal case, but ultimately held that there was no
notwithstanding." U.S. Const. art.VI, § 2, cl. 2. When      conflict between treaty and the State law).
a treaty and state law conflict, the treaty controls.       Accordingly, juvenile offenders sentenced to death
Zschernig v. Miller, 389 U.S. 429, 440-41 (1968).           should be allowed to use Article 6, paragraph 5 of the
Accordingly, the Covenant on Civil and Political            Covenant on Civil and Political Rights to challenge the
Rights is the Supreme Law of the Land and State and         imposition of the juvenile death penalty.
federal courts must abide by its provisions and not
sentence juvenile offenders to die.                         III. The Juvenile Death Penalty Violates Customary
                                                            International Law and Jus Cogens
B. The Covenant on Civil and Political Rights Is                      With at most six countries in the world
Self-executing                                              imposing the death penalty on juvenile offenders and
          Amici also addressed the effect of the            with the numerous treaties that prohibit the juvenile
judicially created doctrine of self-executing treaties to   death penalty, a customary international law
this case. A treaty is self-executing when: 1) the          prohibiting the imposition of the death penalty on
Senate expressly states that it is; or 2) the treaty        persons younger than eighteen years of age has
involves the individual rights and its prohibitory          developed. In fact, the prohibition has attained the
language is extremely clear. See Connie de la Vega          status of a jus cogens norm.
& Jennifer Brown,Can a United States Treaty
Reservation Provide a Sanctuary for the Juvenile Death      A. Customary International Law Prohibits the
Penalty?, 32 U.S.F. L. Rev. 735, 762 (1998). Article        Imposition of the Death Penalty on Juvenile
6, paragraph 5 of the Covenant on Civil and Political       Offenders
Rights is self-executing because it involves the                     The prohibition of the juvenile death penalty
individual rights of individuals – juvenile offenders –     is customary international law because the prohibition
and its prohibitory language is clear. Consequently, no     became: 1) state practice, which is evidenced by the
legislation is necessary to implement the prohibition       long-term, wide-spread compliance by many nations;
against the juvenile death penalty.                         and 2) opinio juris, in that nation states believe that
          When the Senate ratified the Covenant on          the law is "not merely, desired, but mandatory and
Civil and Political Rights, it did so with a declaration    required by international law." As required by the
establishing that the treaty was not self-executing. The    aforementioned criteria, there is sufficient evidence to
legislative history of the Senate declaration, however,     establish that the prohibition of the juvenile death
demonstrates that the Senate intended for the self-         penalty is a customary international law to which the
executing declaration to apply only to private causes of    United States must adhere.
action. S. Res. 4783-84, 102nd Cong. (1992). While                   The current practice of most nations in the
questions may arise as to whether that declaration is       world prohibits the imposition of the death penalty on
valid, there is no reason to address it as it pertains to   juvenile offenders. There are at most six countries
the juvenile death penalty. Using the Covenant on           currently allowing the juvenile death penalty – all
Civil and Political Rights to prevent the death penalty     other countries have de facto abolished it or enacted
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                              86



domestic legislation prohibiting it. The United States      juvenile death penalty (see Stanford v. Kentucky, 492
is the only country in the world to execute any juvenile    U.S. 361, 390 n.10 (1989)); and at the time of the
offenders in both 1998 and 1999.                            negotiation through the opening for signature of the
          Numerous treaties and pronouncements by           United Nations Security Council Resolutions, the
international bodies comprise opinio juris. In addition     United States had discontinued its practice of
to the Covenant on Civil and Political Rights, the          sentencing juvenile offenders to die.55
following treaties prohibit the imposition of the death               The United States also signed the Convention
penalty on juvenile offenders: Convention on the            on the Rights of the Child in February, 1995. The
Rights of the Child, Article 37 (Convention on the          Vienna Convention, Article 18 requires a government
Rights of the Child, G.A. Res. 44/25, U.N. GAOR,            that has signed, but not ratified a treaty, "to refrain
44th Sess., Supp. No. 49, at 167, U.N. Doc. A/44/49         from acts which would defeat the object and purpose of
(1989), reprinted in 28 I.L.M. 1448 (1989)); The            [the] treaty . . . until it shall have made its intention
Geneva Convention Relative to the Protection of             clear not to become a party." Vienna Convention, art.
Civilian Persons in Time of War, Art. 68 (Geneva            18. Hence, the United States is obligated to adhere to
Convention Relative to the Protection of Civilian           the object and purpose of the Convention on the Rights
Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S.          of the Child – the protection of juveniles from the
286 (hereinafter Fourth Geneva Convention)); and the        imposition of the death penalty.
American Convention on Human Rights, Chapter 2,                       The United States is not a persistent objector
Article 4, Section 5 (American Convention on Human          and cannot deviate from the prohibition of the juvenile
Rights, O.A.S. Official Records, OEA/Ser. K/XVI/1.1,        death penalty because it was not executing juveniles
doc. 65, rev. 1, corr. 2 (1970) (hereinafter American       nor objecting to the prohibition when the customary
Convention)). Almost every nation in the world has          international law evolved and was created. The
ratified the Covenant on the Rights of the Child. Also,     prohibition against the imposition of the juvenile death
resolutions by the United Nations Economic and Social       penalty is customary international law and is
Council and the General Assembly oppose the                 enforceable in United States courts
imposition of the juvenile death penalty. Accordingly,
the prohibition of the juvenile death penalty is clearly    B. The Juvenile Death Penalty Violates Jus Cogens
established as a customary international norm since                    Not only is the prohibition of the juvenile
numerous treaties and international bodies do not           death penalty customary international law, the
allow persons younger than eighteen years of age to be      prohibition has risen to the level of jus cogens. Jus
sentenced to death.                                         cogens is a "norm accepted and recognized by the
          Nations are bound by customary international      international community of States as a whole as a
law even if they have not agreed to it, unless they are     norm from which no derogation is permitted and
a persistent objector and have consistently objected to     which can be modified only by a subsequent norm of
the norm.54 The United States, however, is not a            general international law having the same character."
persistent objector, and thus, cannot deviate from the      Vienna Convention, art. 53; Restatement (Third) of the
prohibition against the imposition of the juvenile death    Foreign Relations Law of the United States, § 102
penalty.                                                    (1986). Hence, a prohibition rises to the level of jus
          Although, the United States declared a            cogens when the norm is: 1) of general international
reservation to Article 6, paragraph 5 of the Covenant       law; 2) accepted by the States as a whole; 3) immune
on Civil and Political Rights, that one act of dissension   from derogation; and 4) modifiable only by a new
does not make the United States a persistent objector.      norm of the same status. Vienna Convention, art. 53.
The United States is not a persistent objector because:                The prohibition of the juvenile death penalty,
no juvenile offenders were executed in the United           as discussed in regards to customary international law,
States between 1964 and 1983; the United States did         is general international law. Further, numerous
not object to the prohibition at the drafting of the        treaties, including the Covenant on Civil and Political
American Convention; (see de la Vega & Brown, supra         Rights, Covenant on the Rights of the Child, and the
at 756) when signing and ratifying the Fourth Geneva        American Convention, prohibit the imposition of the
Convention, the United States posed no objection to         death penalty on offenders younger than eighteen years
the provision that prohibited the imposition of the         of age at the time of their offence. Accordingly, the
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                              87



prohibition of the juvenile death penalty is of general    preempted by the customary international law and jus
international law.                                         cogens norm that do not approve of imposing capital
         The second requirement is satisfied in that the   sentences on juveniles.
norm is accepted "by 'a very large majority' of states
even if over the dissent by a 'very small number' of       Conclusion
states." Almost no countries have executed juvenile                  The prohibition against the juvenile death
offenders since 1990. As it stands, all but a handful of   penalty is so well-entrenched in the international arena
the nearly 200 nations in the world believe that           that the United States is currently under scrutiny for its
juvenile offenders should not be sentenced to death.       practice. Earlier this year, Mary Robinson, the United
Hence, the prohibition is an accepted norm.                Nations High Commissioner for Human Rights,
         The prohibition is non-derogable. Article 4 of    appealed to the national and state authorities in the
the Covenant on Civil and Political Rights states that     United States to stop the execution of Sean Sellers.
there shall be “no derogation” from Article 6, which       The State of Oklahoma paid no heed to her plea and
prohibits the imposition of the death penalty on           Sean Sellers, the first sixteen year-old juvenile offender
juveniles. Covenant on Civil and Political Rights, arts.   to be executed since 1959.
4, 6. That treaty language alone proves that there shall             Amici urged the Supreme Court to act to
be no derogation from the prohibition of the juvenile      address Michael Domingues’ case since there are
death penalty.                                             seventy-three other juvenile offenders on death row
         As to the fourth and final requirement, there     who could be impacted by its decision. The Supreme
is no emerging norm that contradicts the current norm.     Court, as a branch of the United States government,
The prohibition of the juvenile death penalty has been     must address the United States obligation to faithfully
universally accepted by all but a very small minority of   comply with its treaty obligations as well as the
nations.                                                   customary international law and jus cogens norm that
         Accordingly, the prohibition against imposing     do not permit Michael Domingues and other juveniles
the death penalty on juvenile offenders is a jus cogens    to be executed for crimes committed while below the
norm to which the United States must adhere. No            age of eighteen.
country is allowed to deviate from a jus cogens norm
because it is irrelevant if a nation is a persistent       Endnotes:
objector since jus cogens norms transcend the consent
of governments. See Siderman v. Argentina, 965 F.2d        *        Jennifer Fiore is a law student in the Human
699, 715 (9th Cir. 1992).                                  Rights Clinic at the University of San Francisco School
                                                           of Law. This is a summary of the arguments made in
C. United States Courts Enforce Customary                  the Amici Curiae brief, filed by Human Rights
International Law and Jus Cogens                           Advocates and Minnesota Advocates for Human
          Customary international laws bind nations        Rights, with the United States Supreme Court on
whether or not they formally recognize the laws.           behalf of Michael Domingues, a juvenile offender
Restatement (Third) of Foreign Relations Law of the        convicted with a capital sentence.
United States, § 102 (1986). Further, customary            **       Connie de la Vega is a professor at the
international laws are enforceable in the American         University of San Francisco School of Law and
court system. Id. § 111. As stated by the Supreme          supervises the Civil Litigation and Human Rights
Court of the United States, customary international law    Clinic.
is "part of our law, and must be ascertained and
administered by the courts of justice of appropriate       1.       See Victor Streib, Death Sentences and
jurisdiction." The Paquete Habana, 175 U.S. 677, 700       Executions for Juvenile Crimes, January 1973-October
(1900). Courts are obligated to enforce jus cogens         1998 (last modified Oct. 31 1998)
norms. See, e.g., Siderman, 965 F.2d at 715-16.            —http://www.law.onu.edu/faculty/Streib/juvdeath.pdf™
          Therefore, state and federal courts should
adhere to the prohibition of the juvenile death penalty    2.       The United Nations General Assembly
and not sentence offenders under the age of eighteen to    adopted the United Nations Economic and Social
death. The State statutes enabling them to do so are       Council's resolution to implement safeguards to
INTERNATIONAL CIVIL LIBERTIES REPORT                    88



prevent the juvenile death penalty. See Safeguards
Guaranteeing Protection of the Rights of Those Facing
the Death Penalty, E.S.C. Res. 1984/50, reprinted in
1 Human Rigths, A Compilation of International
Instruments 310 (1994).

3.       See Ved P. Nanda, The United States
Reservation to the Ban on the Death Penalty for
Juvenile Offenders:     An Appraisal Under the
International Covenant on Civil and Political Rights,
42 DePaul L. Rev. 1311, 1319 (1993).
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                                                               1. Proclamations for Human Rights Day/Week
                                                         and/or for Bill of Rights Day by the Governor of North
                                                         Carolina and by the Mayors of Carrboro, Chapel Hill,
                                                         Greensboro, Greenville, Morehead City, Raleigh and
                                                         Thomasville.
14.     CELEBRATING HUMAN RIGHTS                               2. Proclamation of December as Human Rights
        YEAR IN NORTH CAROLINA                           Month by the Governor, of 1998 as Human Rights
                                                         Year by the Chancellor of North Carolina State
             By Slater E. Newman*                        University (NCSU), and resolutions in support of
                                                         Human Rights Year by the Faculty, Staff and Student
     1998 was Human Rights Year, marking the 50th        Senates at NCSU, by the Faculty Senate at the
anniversary of the adoption by the United Nations of     University of North Carolina at Greensboro and by the
the Universal Declaration of Human Rights. In            Faculty Assembly of the Consolidated University of
anticipation of that, the 1997 Biennial Conference of    North Carollina.
the ACLU adopted the following resolution, which was          3. Public reading of the Universal Declaration of
a product of a workshop at that Biennial sponsored by    Human Rights (UDHR) and/or of the Bill of Rights at
the International Human Rights Task Force:               Beaufort, Chapel Hill, Greensboro, Greenville, and
                                                         Raleigh and on the campus at NCSU. The event at
      Celebrating Human Rights Day                       Beaufort included more sponsors than in previous
                                                         years and was very well covered by the media. At
          WHEREAS the Universal Declaration of           Greenville, the reading was from a gender-neutral
Human Rights was adopted by the United Nations on        version of the UDHR, and the main sponsor was again
December 10, 1948 and                                    the City of Greenville's Human Relations Council.
          WHEREAS December 10 and the Week,              Greensboro continued its tradition of creative
December 10-16 have each been proclaimed as Human        celebrations with a program of song, dance and poetry
Rights Day and Human Rights Week, and                    focusing on religious diversity, paying homage to the
          WHEREAS the 1991 Biennial Conference of        First Amendment. At NCSU the reading from the
the American Civil Liberties Union adopted a             UDHR was done by students from many different
resolution which encourages each affiliate and chapter   countries, each reading their assigned article(s) in their
to initiate, where necessary, and help foster the        own language, and this was followed by the blowing
celebration of Human Rights Week and Human Rights        out of candles on a huge birthday cake, and the singing
Day in their respective areas.                           of "Happy Birthday" to the Universal Declaration of
           NOW, THEREFORE the 1997 Biennial              Human Rights. There were two events in Raleigh.
Conference of the American Civil Liberties Union         One was an enthusiastic public reading of the UDHR
strongly endorses the 1991 Resolution and commends       at the Wake County courhouse by fifth-graders from
its observance, and recommends, also that members in     one of the public schools. The other, held at the
communities in which there are no chapters take          Rotunda of the State Capitol, celebrated both the 50th
responsibility for fostering such celebration in their   anniversary of the UDHR and the 207th anniversary of
respective areas.                                        the ratification of the Bill of Rights. The Governor of
                                                         North Carolina, the Chief Justice of the Supreme Court
      It was through the efforts of ACLU chapters in     of North Carolina and Rev. W.W. Finlator, a former
Chapel Hill/Carrboro, Greensboro, Greenville and         National Vice-President of the ACLU, were the
Wake County, and of individual members in Carteret       prinicipal speakers.
County and Thomasville, often in collaboration with                4. The Third Annual International Human
other groups, that this turned out to be the most        Rights Award Dinner, held in Raleigh on December 9,
celebrated Human Rights Week in our state's history.     at which Sister Evelyn Mattern was honored for her
In several communities, there was also activity          work in behalf of human rights in Central America
commemorating Bill of Rights Day (December 15)           and Iraq. An excellent article about her appeared at
which, coincidentally falls within Human Rights          the time of the dinner in the Raleigh News and
Week. Activities included:                               Observer, the leading newspaper in eastern North
INTERNATIONAL CIVIL LIBERTIES REPORT                      90



Carolina.
          5.     A series of three lectures on
human-rights-related topics during the Fall 1998
semester by faculty from the Department of Psychology
at NCSU.

      An important organization contributing to the
success of several of these events has been the Human
Rights Coalition of North Carolina, comprised of 28
statewide and local groups whose main purpose is "...to
enhance among citizens of our state an appreciation of
human rights as elucidated in such documents as the
Universal Declaration of Human Rights and the Bill of
Rights of the United States Constitution." The ACLU
of North Carolina and its Wake County chapter were
founding members of this coalition and continue to be
among its strongest supporters. The Coalition is
beginning to plan for Human Rights Week for 1999,
hoping to build on the success most recently achieved.

Endnotes:

*       Slater Newman is Chair of the ACLU/North
Carolina Committee on International Human Rights.

1.      The resolution referred to was adopted by the
1993 (not the 1991) Biennial Conference.
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                                                             subject to challenge under international law. In this
                                                             article, I will argue that the unique qualities of the
                                                             Internet may support an even more robust application
                                                             of international free expression principles to on-line
                                                             communications. The borderless nature of the Internet
                                                             requires that the phrase “regardless of frontiers,”
                                                             which appears in the key international human rights
                                                             instruments, be applied with a fresh eye. The concept
                                                             of a right to “impart” information takes on new
                                                             meaning when anyone can be a publisher. Since
15.      PROTECTING THE HUMAN RIGHT TO                       censorship in one country may constitute a direct
         FREEDOM OF EXPRESSION ON THE                        infringement on the right of persons in other countries
         GLOBAL INTERNET                                     to “impart” information “regardless of frontiers,” and
                                                             because user-controlled tools such as filtering and
                by James X. Dempsey*                         blocking software are available reflecting a range of
                                                             personal, religious, and family values, the traditional
“Everyone has the right to freedom of opinion and            deference given to local governmental norms may be
expression; this right includes freedom to hold              less appropriate to the Internet. If national and
opinions without interference and to seek, receive and       international bodies recognize these implications, the
impart information and ideas through any media and           Internet could serve as a fulcrum for the expansion of
regardless of frontiers.”                                    free expression principles in general.

Universal Declaration of Human Rights, Article 19            The Internet is a Unique Communications Medium
(emphasis added).                                                     Applying international human rights
          With the advent of the Internet, methods of        principles to the Internet requires an appreciation of
accessing and disseminating information have been            the fundamental characteristics of the digital on-line
fundamentally changed. Like no medium before it,             media. Viewed as a whole, the Internet is uniquely:
the Internet permits any individual with a computer
and a network connection to communicate                         !     Global -- With simple e-mail, it is
instantaneously with others worldwide. To a degree                    as easy to send a message to another
that no other technology can, the Internet transcends                 continent as it is to the building next
national borders and eliminates barriers to the free                  door. Through the World Wide
flow of information. Not only is the technology truly                 Web, thousands of newspapers and
global, but it gives individuals control over the creation            tens of thousands of other
and dissemination of information, art, and other                      information sources are available
intellectual content.                                                 from around the world.
          Governments, however, have already begun to           !     Decentralized -- The Internet was designed
try to impose controls on the Internet. Some have                     to be decentralized and to work without
enacted laws prohibiting certain content and have                     gatekeepers of the kind that exist in
sought to prosecute users and service providers.                      broadcasting, cable television, or satellite
Others have tried to control access, by insisting on the              transmission.       All material is equally
installation of national “proxy servers” and requiring                accessible from all points: it is irrelevant in
the blocking of targeted web sites. And in other                      what country something is posted.
countries, governments have encouraged forms of                  !    Open -- Because of the Internet, anybody
“self-regulation” that are in fact intended to enlist                 who has a computer and a modem can be a
service providers to control the behavior of their                    publisher.          Depending on local
customers.                                                            telecommunications policy, access can be
          Given the broad language of international and               very inexpensive. The costs of creating and
regional human rights documents, there is no doubt                    disseminating content are extremely low.
that government measures to control the Internet are            !     Abundant - - T h e I n t e r n e t h a s
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                              92



                   essentially unlimited                              The principles in the Universal Declaration
                   capacity to hold                         were reiterated and expanded upon in the International
                   information.       Unlike                Covenant on Civil and Political Rights,57 again in
                   broadcast media, there is                language remarkably suited to the digital media.
                   no scarce spectrum to be                 Article 19 of the ICCPR declares: “Everyone shall
                   allocated.                               have the right to hold opinions without interference. …
    !     Interactive -- The Internet is                    Everyone shall have the right to freedom of expression
          designed for bi-directional                       ….” It goes on to expressly state that the freedom of
          communication: All Internet users                 expression extends to all forms of media: “this right
          can be both speakers and listeners.               shall include freedom to seek, receive and impart
          The Internet allows responsive                    information and ideas of all kinds, regardless of
          communication from one-to-one,                    frontiers, either orally, in writing or in print, in the
          from one-to-many, and from many-                  form of art, or through any other media of his choice.”
          to-one.                                           Article 17 of the ICCPR also reiterates the crux of
   !      User-Controlled -- The Internet allows users      Article 12 of the Universal Declaration: “No one shall
to exercise far more choice than even cable television      be subjected to arbitrary or unlawful interference with
or short wave radio. The user can skip from site to site    his privacy, family, home or correspondence.”
in ways that are not dictated by the content providers                These two instruments, while not directly
or by the access provider. Technology is available to       enforceable, constitute part of the corpus of
individual users to encrypt their communications. The       international law. National courts that look to such
decentralized nature of the Internet makes many             norms and international bodies addressing
government controls less effective (even futile),           communications issues should be encouraged to read
because Internet users have numerous ways of                their broad language as requiring especially strong
circumventing them. At the same time, the ability of        protection for expression on the Internet.
users to control the technology means that government
controls are less necessary in some contexts; parents,      European Convention on Human Rights
for example, have tools available to them to protect                  Looked at with a fresh eye,58 the caselaw that
their children from harmful content. Furthermore,           has developed under the European Convention for the
given the essentially unlimited capacity of the Internet,   Protection of Human Rights and Fundamental
there is less basis for government intervention to          Freedoms59 offers considerable support for the
ensure fairness or balance or to protect reputation.        argument that the Internet should enjoy the highest
Good ideas can always achieve the space they deserve.       protection under the principle of freedom of
For example, mistakes can be corrected and the right        expression.
of reply can be effectuated instantaneously. On the                   Article 10 of the Convention protects the right
Internet, we may be able to achieve the “marketplace        of free expression “regardless of frontiers.” The second
of ideas” with far less regulation.                         paragraph of Article 10 specifies that freedom of
                                                            expression can be curtailed in furtherance of a series of
The Universal Declaration and the ICCPR                     enumerated interests, including national security,
          Taken together, Articles 19, 12, and 27 of the    prevention of crime, and protection of morals. In
Universal Declaration of Human Rights constitute a          addition, any restrictions on the exercise of the
blueprint for the protection of free expression on the      freedom of expression must be both “prescribed by
Internet.56 The forward-looking language of Article 19      law” and “necessary in a democratic society” to serve
quoted above (“through any media”) makes it clearly         one of the enumerated interests. At the same time, the
applicable to expression via the Internet. The rights to    European Court has concluded that states are allowed
“seek” and “impart” information seem particularly           a “margin of appreciation” to determine whether a
relevant to “surfing” the Internet and posting              restriction is necessary in light of local
information on Web sites for all to read, while the         circumstances.60 This means that what can be
right to “receive” information encompasses the              prohibited can vary from country to country, especially
exchange of electronic mail and the downloading of          in the area of morals. Much of the interpretation of
information.                                                Article 10 turns on the interplay between the doctrine
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                               93



of "appreciation" and the requirement that any               because parents can be more effective than the
restriction be “necessary in a democratic society.”          government in controlling what their children see, by
The unique elements of the Internet require a                supervision, training, and, if they choose, by using
reconsideration of both concepts.                            filtering software. While filtering, labeling and rating
          The European Court has already made it clear       tools raise serious freedom of expression concerns if
that the free expression principles of Article 10 apply      mandated by the government or imposed at the server
differently to different media. The nature and extent        level, both the US Supreme Court and the European
of permissible restrictions depends on the nature of the     Commission have relied on the availability of
medium. In particular, “the potential impact of the          voluntary, user-controlled filtering software as a reason
medium concerned is an important factor” to be               not to pursue governmental censorship.62
considered in applying Article 10.61 The Court has                     “Necessity” is also implicated by the practice
noted that material that might not be proper for             on the Internet, when a site is shut down by a
broadcast could not be banned from print.             The    government or service provider, of copying or
Internet, for all its power, tends to be a less immediate,   “mirroring” the content on another site outside the
less inflammatory medium. For example, offensive or          control of the government or service provider that
heated language that would pose a threat to public           initially objected. The Court has ruled in several
order in front of a crowd may pose no danger on the          cases that a prohibition on publishing certain content
Internet when readers are dispersed in location and          was not "necessary in a democratic society" if the
may even be dispersed over time.                             information was otherwise available.63
          The Court has indicated that, in order to meet               Even before the Internet, the development of
the necessity test, any government action must be            technology had undermined in the eyes of the Court
effective, in that it must be reasonably likely to in fact   restrictions based on the scarcity of communications
serve one of the permitted governmental interests.           resources. The Internet, with unlimited capacity,
While the Court has not adopted the American “least          might accelerate this trend, calling into question
restrictive means” test, the question of efficacy is         restrictions justified as necessary to protect democratic
important for the Internet because some governmental         discourse: on the Internet, while noxious views find
controls are unlikely to be effective, given the             room, there is no danger that they will crowd out
borderless nature of the medium, while others are not        voices of tolerance and democratic order. Particularly
necessary because they are equally available to              important in this regard is the Court’s conclusion that
individual users. The requirement of efficacy must be        governments have an obligation under Article 10 to
read in combination with the rule of “proportionality,”      promote pluralism. On this basis, the Court found that
which means that a government restriction cannot be          Austria’s broadcasting monopoly violated Article 10 as
overbroad. Certain forms of government are likely to         no longer justified as “necessary in a democratic
run afoul of this test. For example, government proxy        society,” even though Austria argued that the
servers or mandatory ISP level filtering of information      monopoly was intended to ensure balance and
deemed harmful to minors will result in making the           objectivity.64 These values, the Court reckoned, were
same information unavailable to adults, who are              best served not by government controls but by a
entitled to see it.                                          diversity of voices. Certainly the Internet is the most
          The argument that the user-controlled nature       pluralistic medium ever developed. Its diversity,
of the Internet makes government control                     openness, and abundance suggest the need for a
“unnecessary” because the technology itself offers           reexamination of the longstanding conflict between
alternative means of achieving legitimate goals could        freedom of expression and limitations on racist and
be especially relevant in the area of protection of          anti-democratic speech.
morals, where the Court has granted states the widest                  While the European Convention does not
margin of appreciation. Many of the proposed                 apply to private actions, the Court concluded in one
governmental controls on content on the Internet are         case that an official reprimand by a professional
put forth in the name of protecting children from            association qualified as a public action.65 This raises
content that is permissible for adults. But the unique       the question of whether a "self-regulatory" code of
user-controlled nature of the Internet makes                 conduct adopted by an association of Internet Service
government control for this purpose less necessary,          Providers (ISPs) would rise to the level of action
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covered by the Convention. The answer will depend          it was assumed that a country could control content
on a country-by-country understanding of the nature of     within its borders, subject to free expression principles.
the association, its relationship with the government,     Consequently, if a restriction was justified in a
the circumstances under which a particular "code of        particular country, then it applied to both domestically
conduct" was adopted, and the mechanism, if any, for       produced and foreign produced material, even if the
enforcing the code and sanctioning an ISP that did not     foreign material was legal where produced. A
comply. Given governments' increasing reliance on          magazine printed legally in the Netherlands would
"self-regulation" to achieve public objectives, self-      have to be tested by German standards if someone
regulation may not escape scrutiny.                        wanted to distribute or possess it in Germany.
                                                                      But this “margin of appreciation” doctrine --
The Inter-American Convention                              clearly in tension with the language “regardless of
          Among other regional agreements, brief           frontiers” -- was based in large part on the physical
reference to the American Convention on Human              nature of the media by which information and ideas
Rights66 is appropriate. Article 13 protects freedom of    were produced and disseminated. Publishers had some
expression “regardless of frontiers” in language similar   ability to control and direct the distribution of their
to that in the Universal Declaration and the European      materials. (Even in the broadcast realm, there were
Convention. However, the American Convention has           limits to the reach of most transmitters.) Respect for
several features that go beyond other human rights         differing legal norms -- even though freedom of
instruments. For one, the American Convention              expression was raised to the level of an international
explicitly states that the exercise of the right of        right -- was based on the premise that a country had a
freedom of expression “shall not be subject to prior       reasonable chance of success in keeping material out of
censorship.” The rule against prior censorship is also     its territory, at least things like books or reels of film or
reinforced by Article 14, which provides for a right of    paintings on canvass, and that publishers had a
reply by anyone inured by inaccurate or offensive          reasonable chance of success in controlling distribution
statements or ideas disseminated to the general public.    of their materials.
The Inter-American Court of Human Rights has noted                    One of the ways in which the Internet
that the American Convention is more generous in its       promotes free expression is that information is no
guarantee of freedom of expression than the                longer tied to physical objects or geographical location,
corresponding provisions of both the European              so that neither governments nor publishers have the
Convention and the ICCPR.                                  type of control over information they used to exercise.
          In a provision that may be relevant to the       As Judge Martens said in finding a violation of Article
problems posed by Internet "self-regulation," the          10 in the Spycatcher case, “in this ‘age of information’
American Convention applies expressly to private           information and ideas cannot be stopped at frontiers
action and makes it clear that the right of expression     any longer.”68 Judges Pettiti and Farinha made the
may not be restricted by indirect methods or means.        same point in their separate opinion: “In the era of
Article 13(3) provides that the “right of expression       satellite television it is impossible territorially to
may not be restricted by indirect means, such as the       partition thought and its expression or to restrict the
abuse of government or private controls over               right of information of the inhabitants of a country
newsprint, radio broadcasting frequencies, or              whose newspapers are subject to a prohibition.”
equipment used in the dissemination of information, or                The Internet is not a lawless zone. Controls
by another means tending to impede the                     will be meaningful (although never perfect) where
communication and circulation of ideas and opinions.”      there is broad worldwide consensus.                    Child
One of the leading opinions of the court has to do with    pornography, for example, is illegal throughout much
the indirect means of controlling freedom of               of the world, and the Internet does not render that
expression, and specifically with a form of self-          prohibition irrelevant. Nor need the Internet vitiate
regulation. 67                                             protections for intellectual property. Expression on the
                                                           Internet will still be subject to restriction, but the range
Conclusion                                                 of government controls allowed under human rights
        The borderless nature of the Internet has          principles should be far less. Controls justified on the
profound implications for free expression. In the past,    basis of national interests should receive less
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                       95



deference, as the “margin of appreciation” that has
supported country-by-country restrictions loses         Endnotes:
relevance on this borderless medium. If national and
international tribunals recognize the uniquely user-    *        James X. Dempsey is Senior Staff Counsel at
controlled, decentralized nature of the Internet as a   the Center for Democracy and Technology in
medium that truly supports the seeking, receiving and   Washington, D.C. (hhtp://www.cdt.org). This articles
imparting of information regardless of frontiers, the   summarizes a report issues on behalf of the Global
protection of freedom of expression may be raised       Internet Liberty Campaign (http://www.gilc.org).
across all media.                                       Research was supported by a grant from the Open
                                                        Society Institute.

                                                        1.       U.N.G.A. Res. 217 (Dec. 10, 1948),
                                                        http://www.un.org/Overview/rights.html.

                                                        2.       999 U.N.T.S. 171 (Dec. 16, 1966),
                                                        http://www.unhchr.ch/html/menu3/b/a_ccpr.htm .

                                                        3.       While CDT played a central role in the
                                                        federal court litigation challenging the U.S.
                                                        government’s first legislative attempt to regulate
                                                        content on the Internet, which led to the Supreme
                                                        Court’s landmark constitutional ruling in ACLU v.
                                                        Reno, 521 U.S. 844 (1997), we have not participated in
                                                        cases under the European Convention or other
                                                        international agreements.

                                                        4.       312 U.N.T.S. 221 (Nov. 4, 1950),
                                                        http://www.coe.fr/eng/legaltxt/e-dh.htm#conv-dh

                                                        5.      Handyside v. United Kingdom, Series A, no.
                                                        24, 1 EHRR 737 (1979).

                                                        6.      Jerslid v. Denmark, Series A, no. 298, 19
                                                        EHRR 1 (1995).

                                                        7.       See ACLU v. Reno, 521 U.S. 844 (1997),
                                                        http://www.ciec.org/SC_appeal/decision.shtml , and
                                                        the European Commission’s 1996 Communication,
                                                        http://www2.echo.lu/legal/en/internet/content/comm
                                                        unic.html.

                                                        8.       The Observer and Guardian v. United
                                                        Kingdom, 14 EHRR 153 (1992), The Sunday Times v.
                                                        United Kingdom (No. 2), 14 EHRR 229 (1992);
                                                        Vereniging Weekblad Bluf! v. the Netherlands, 9 Feb.
                                                        1995, Series A no. 306-A. Opinions of the Court are
                                                        on-line at:
                                                        http://www.dhcour.coe.fr/eng/Judgments.htm

                                                        9.       Informationsverein Lentia v. Austria, 17
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                          96



EHRR 93 (1994).

10.       Hempfing v. Germany, Application No.           16.      INTERNATIONAL FEDERATION OF
14622/89, admissibility decision of March 1991.                   HUMAN RIGHTS LEAGUES (FIDH)

11.      9 I.L.M. 673 (1970) (signed on Nov. 22,                           By Michael Ellman*
1 9 6 9 ) ,
http://www.umn.edu/humanrts/oasinstr/zoas3con.htm.                 The Federation Internationale des Ligues des
See also Article 9 of the African Charter on Human       Droits de le Homme was founded in 1922 by a small
and Peoples’ Rights, 21 I.L.M. 59 (1981) (signed June    group of European Leagues for Human Rights, with
27,     1981),                                           the Chinese League and one or two others, in the wake
http://www1.umn.edu/humanrts/instree/z1afchar.htm,       of the establishment of the League of Nations. It acted
which declares: “Every individual shall have the right   in the 1920s and 1930s as a focal point for its
to receive information . . . [and] to express and        members to press for Human Rights, particularly civil
disseminate his opinions within the law.”                and political rights, but including even at that stage,
                                                         the notion of social and economic rights. It also called
12.      Compulsory Membership, Advisory Opinion         for the establishment of an international criminal court
OC-5/85 (Nov. 13, 1985), Ser. A no. 5,                   long before the Nuremberg trials.
http://www.umn.edu/humanrts/iachr/b_11_4e.html                     The Federation was based in Paris and with
                                                         the onset of the War, many of its members being
                                                         Jewish or radicals who were hunted down by the
13.    The Observer and the Guardian v. United
                                                         Nazis, the Federation effectively collapsed. (Some of
Kingdom, 14 EHRR 153 (1992).
                                                         its member fled to the USA where they set up the
                                                         International League for Human Rights.)
                                                                   After the war, the FIDH has expanded from
                                                         a handful of members to one hundred and five
                                                         throughout the world, in Europe (including Eastern
                                                         Europe), Latin America, Africa and a sprinkling in
                                                         Asia. From being a small group of friends working on
                                                         a voluntary basis, it has become a professional
                                                         organization with a small staff in Paris and permanent
                                                         representatives in Geneva, Brussels, New York, etc.
                                                         Apart from acting as a focus for solidarity between its
                                                         Leagues, the Federation produces a fortnightly
                                                         newsletter in French, with an English version bi-
                                                         monthly and Spanish and Arabic versions. It send
                                                         missions throughout the world (over 1,000 missions so
                                                         far since its reconstitution in 1948) which publish
                                                         reports which have obtained a good deal of publicity.
                                                         Perhaps most important, it attends the sessions of the
                                                         United Nations Human Rights Commission, the sub-
                                                         Committee of experts and other UN Committees on
                                                         behalf of its members or with its members and is able
                                                         to make representations of the highest levels.
                                                                   In recent years, it has been sending training
                                                         missions to various countries in Africa, Asia and
                                                         Eastern Europe and Latin America, spreading the
                                                         word about activism and the use of international
                                                         mechanisms to enforce Human Rights.
                                                                   Over the last couple of years, it has
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                             97



emphasized particularly social and economic rights --
in partnership with organizations such as Oxfam and
ATD Quart Monde, and is pressing for these to
become justiciable before UN instances. This was
particularly the theme of its tri-annual congress in
Dakar, Senegal, in 1997, (the first to be held in Africa)   17.      CRLAF AND ACLU FILE PETITION
where the number of affiliated and correspondent                     CHARGING THAT DEADLY U.S.
leagues rose to its present total of 105.                            BORDER ENFORCEMENT STRATEGY
         Apart from its tri-annual Congress, the                     VIOLATES INTERNATIONAL HUMAN
Federation is run by an International Board which                    RIGHTS LAW
meets three times a year, sometimes in Paris and
sometimes elsewhere and an Executive Committee                      By Jordan Budd and Claudia Smith*
which meets every three weeks. It has a President,
Secretaries General and 15 Vice-Presidents from                       In February 1999, the American Civil
different parts of the world. Member Leagues pay            Liberties Union of San Diego & Imperial Counties and
subscriptions, but its funding also comes from              the California Rural Legal Assistance Foundation filed
foundations, international organizations such as the        a petition with the Organization of American States’
European Union and even governments, as long as no          Inter-American Commission on Human Rights,
strings are attached. Recently, funds have also been        charging that the United States is violating
accepted from commercial organizations with the             international human rights law by deliberately driving
same proviso. In December 1998, the Federation held,        illegal border crossers into mortal harm’s way. The
jointly with Amnesty International, ATD Quart Monde         petition asks the Commission to find that Operation
and France Liberte, a summit of Human Rights                Gatekeeper — a four-year border enforcement strategy
Defenders in Paris where some 400 activists in Human        designed to force illegal entrants out of the San Diego
Rights, many of whom had been persecuted in their           region and into treacherous desert and mountain areas
own countries, were able to get together to share           to the east — breaches the OAS Charter and American
experiences and celebrate the 50th anniversary of the       Declaration of the Rights and Duties of Man. Since
Universal Declaration of Human Rights.                      the inception of Operation Gatekeeper in 1994, deaths
         The one gap in our membership is in North          of migrants crossing the California-Mexico border
America where only the Quebec League for Human              have increased almost 600%.
Rights is affiliated, and discussions are currently                   One of the architects of Operation
taking place with ACLU and other organizations in           Gatekeeper, former U.S. Attorney Alan Bersin,
North America, with a few to obtaining acting               described the strategy as an effort to “alter
members in this part of the world.                          dramatically the pattern of undocumented aliens and
         Although there are enormous amounts of             force them into a much more inhospitable and rugged
work to be done in Human Rights throughout the              terrain,” where Border Patrol agents have the
world, and every step forward is accompanied by one         advantage. As the Border Patrol agent in charge of the
or more steps backward, some notable successes have         Campo station summarized, “Eventually, we’d like to
been achieved -- and most significant is the fact that      see them all out in the desert -- out in isolated places
without organizations like the Federation, the situation    where we’ve got the upper hand.”
of Human Rights would probably be immeasurably                         The Border Patrol’s blueprint for Gatekeeper
worse in many countries.                                    states that the environment into which the migrant
                                                            traffic is being channeled — places where “the days
Endnote:                                                    are blazing hot and the nights freezing cold” — poses
                                                            a “mortal danger” to illegal entrants.         The U.S.
*     Michael Ellman is the Vice-President of               Department of Justice describes the mountains in this
FIDH.                                                       area as “extremely rugged [with] steep, often
                                                            precipitous, canyon walls and hills reaching 4,000
                                                            feet.” The region’s “steep mountainsides, canyon
                                                            walls, large boulders, and dense vegetation make
travel slow, difficult, and dangerous, and the lack of     not slow them down.”
food, water and transportation compounds the                         The ineffectiveness of Operation Gatekeeper
challenges faced by travelers.” To the east of the         is reflected as well in the continuing availability of
mountains is the Imperial desert, one of the hottest       undocumented labor within the United States. A
locations in the U.S., where summertime daily high         report of the U.S. Commission on Immigration
temperatures average 107 degrees and can climb as          Reform noted no shortage of farm workers following
high as 125 degrees. As noted by the Imperial County       the implementation of Gatekeeper. A recent study of
coroner, a person “can’t carry enough water to get         the San Diego regional economy reached the same
across our deserts from Mexico.”                           conclusion. Of all the employers surveyed, only 8%
          Predictably, the migrant death toll has          noticed any decrease in the number of immigrant job
skyrocketed as Operation Gatekeeper has progressed.        seekers since the beginning of Operation Gatekeeper.
In 1994, the first year of the operation, 23 migrants      By comparison, 69% noticed no change at all.
died along the California-Mexico border. Between           Twenty-three percent actually noticed an increase in
1995 and 1997, the annual number of migrant deaths         the supply of laborers. Even the workers themselves
increased from 61 to 89. In 1998, as the third phase of    frequently complain about an oversupply of labor.
Operation Gatekeeper pushed migration deep into the                  The reason for the continuing migration is
Imperial County desert, annual deaths climbed to 145       simple: people desperate for work go where the jobs
— exceeding the number of migrants who died along          are, despite the dangers they may face. So long as the
the border during the entire decade of the 1980s.          United States offers abundant employment
Since the inception of Gatekeeper, over 400 migrants       opportunities for Mexicans and Central Americans,
has perished in the region, including children and the     they will continue to come. Every senior immigration
elderly.                                                   official in the United States has conceded that illegal
          The U.S. government has moved slowly to          migration will continue until jobs are no longer
mitigate the lethal consequences of its border strategy,   available. However, there has been no meaningful
and only at the urging of human rights activists.          effort to penalize employers who hire undocumented
Despite the grave threat of heatstroke, Border Patrol      workers on the U.S. side of the border. For example,
vehicles carried no water for detainees until August       within the entire San Diego region during 1998, only
1997.      In June 1998, the U.S. and Mexican              ten businesses were fined for employing
governments announced a joint effort to reduce the         undocumented laborers. In sharp contrast to the
number of deaths by warning migrants of border             thousands of Border Patrol agents now deployed along
crossing dangers and improving search-and-rescue           the California-Mexico border, there are no more than
capabilities. Despite this much-belated effort, more       thirty-five INS inspectors available to cover the
than 100 people have died since the safety initiative      500,000 employers throughout Southern California.
began — over a quarter of Gatekeeper's death toll. In                As the death toll mounts, along with evidence
the face of these deadly consequences, Attorney            that Operation Gatekeeper is completely ineffectual,
General Janet Reno continues to reiterate the U.S.         it is increasingly apparent that the strategy is not
government’s commitment to drive migration farther         simply an example of flawed but well-intentioned
and farther to the east.                                   public policy. Politicians ignore illegal immigration
          This lethal enforcement strategy has had         at their peril. The strong vote in favor of Proposition
almost no impact on the rate of migration across the       187 is a clear indication that the issue is important to
California-Mexico border.         While dramatically       Californians. But employer sanctions lack political
rechanneling migration into the treacherous eastern        support, and are opposed by powerful economic
border region, Operation Gatekeeper has done nothing       interests in the United States that profit from illegal
to stem the flow of migration itself. Border Patrol        labor. One senior INS official recently noted that a
detention figures show that although apprehensions in      “unique coalition of special interest groups . . . join
the San Diego sector have fallen almost by half since      together and influence both political parties against
1994, the year Gatekeeper was initiated, virtually all     effective interior enforcement — and specifically
of that migrant traffic has merely moved eastward. As      work site enforcement and employer sanctions.”
a result, the number of migrants apprehended along         Gatekeeper has provided a convenient, if lethally
the entire California border has dropped by less than      hypocritical, solution: simply drive migration far
one percent between 1994 and 1998. Even the Border         enough into the mountains and desert that it is no
Patrol sector chief for the San Diego and Imperial         longer visible to the voting public. Under Gatekeeper,
region acknowledges the callous absurdity of the           immigrants no longer traverse Southern California's
strategy: “You could put an army out there and still       freeways and suburban backyards; they struggle
instead through the barren expanse of the Imperial         18. THE TEXT OF EXECUTIVE ORDER 13107
desert, while voters' interest abates.
          The Clinton Administration, which came to            IMPLEMENTATION OF HUMAN RIGHTS
office with some of the most vigorous rhetoric on                        TREATIES
human rights in more than a decade, has abandoned its
purported principles on our own border — choosing                   By the authority vested in me as President by
instead to pursue a politically expedient policy that      the Constitution and the laws of the United States of
has sacrificed the lives of hundreds of illegal migrants   America, and bearing in mind the obligations of the
for the illusion of border control. In doing so, the       United States pursuant to the International Covenant
United States has violated the right to life safeguarded   on Civil and Political Rights (ICCPR), the Convention
by the American Declaration on the Rights and Duties       Against Torture and Other Cruel, Inhuman or
of Man and has engaged in an abuse of rights in            Degrading Treatment or Punishment (CAT), the
violation of its international law obligations.            Convention on the Elimination of All Forms of Racial
Hopefully the condemnation by OAS member states            Discrimination (CERD), and other relevant treaties
will lead the U.S. government to reconsider a strategy     concerned with the protection and promotion of
that becomes deadlier with each new phase.                 human rights to which the United States is now or may
                                                           become a party in the future, it is hereby ordered as
Endnotes:                                                  follows:

*        Jordan Budd is the Legal Director of the                    Section 1. Implementation of Human Rights
ACLU of San Diego and Imperial Counties. Claudia           obligations. (a) It shall be the policy and practice of
Smith is the Director of CRLA's Border Project in San      the Government of the United States, being committed
Diego. They are the principal attorneys with Paul          to the protection and promotion of human rights and
Hoffman and William Aceves, on the petition filed          fundamental freedoms, fully to respect and implement
with the Intra-American Commission on Human                its obligations under the international human rights
Rights                                                     treaties to which it is a party, including the ICCPR, the
                                                           CAT, and the CERD.
                                                           (b) It shall also be the policy and practice of the
                                                           Government of the United States to promote respect
                                                           for international human rights, both in our
                                                           relationships with all other countries and by working
                                                           with and strengthening the various international
                                                           mechanisms for the promotion of human rights,
                                                           including, inter alia, those of the United Nations, the
                                                           international Labor Organization, and the
                                                           Organization of American States.

                                                                     Sec. 2.      Responsibility of Executive
                                                           Departments and Agencies. (a) All executive
                                                           departments and agencies (as defined in 5 U.S.C. 101-
                                                           105, including boards and commissions, and
                                                           hereinafter referred to collectively as "agency" or
                                                           "agencies") shall maintain a current awareness of
                                                           United States international human rights obligations
                                                           that are relevant to their functions and shall perform
                                                           such functions so as to respect and implement those
                                                           obligations fully. The head of each agency shall
                                                           designate a single contact officer who will be
                                                           responsible for overall coordination of the
                                                           implementation of this order. Under this order, all
                                                           such agencies shall retain their established institutional
                                                           roles in the implementation, interpretation, and
                                                           enforcement of Federal law and policy.
                                                           (b)    The heads of agencies shall have lead
INTERNATIONAL CIVIL LIBERTIES REPORT                                                                             100


responsibility, in coordination with other appropriate      United Nations, the Organization of American States,
agencies, for questions concerning implementation of        and other international organizations;
human rights obligations that fall within their                       (iv) developing effective mechanisms to
respective operating and program responsibilities and       ensure that legislation proposed by the Administration
authorities or, to the extent that matters do not fall      is reviewed for conformity with international human
within the operating and program responsibilities and       rights obligations and that these obligations are taken
authorities of any agency, that most closely relate to      into account in reviewing legislation under
their general areas of concern.                             consideration by the Congress as well;
                                                                      (v) developing recommended proposals and
         Sec. 3.       Human Rights Inquiries and           mechanisms for improving the monitoring of the
Complaints.        Each agency shall take lead              actions by the various States, Commonwealths, and
responsibility, in coordination with other appropriate      territories of the United States and, where appropriate,
agencies, for responding to inquiries, requests for         of Native Americans and Federally recognized Indian
information, and complaints about violations of human       tribes, including the review of State, commonwealth,
rights obligations that fall within its areas of            and territorial laws for their conformity with relevant
responsibility or, if the matter does not fall within its   treaties, the provision of relevant information for
areas of responsibility, referring it to the appropriate    reports and other monitoring purposes, and the
agency for response.                                        promotion of effective remedial mechanisms;
                                                                      (vi) developing plans for public outreach and
          Sec. 4. Interagency Working Group on              education concerning the provisions of the ICCPR,
Human Rights Treaties. (a) There is hereby                  CAT, CERD, and other relevant treaties, and human
established an Interagency Working Group on Human           rights-related provisions of domestic law;
Rights Treaties for the purpose of providing guidance,                (vii) coordinating and directing an annual
oversight, and coordination with respect to questions       review of United States reservations, declarations, and
concerning the adherence to and implementation of           understandings to human rights treaties, and matters as
human rights obligations and related matters.               to which there have been non-trivial complaints or
(b) The designee of the Assistant to the president for      allegations of inconsistency with or breach of
National Security Affairs shall chair the Interagency       international human rights obligations, in order to
Working Group, which shall consist of appropriate           determine whether there should be consideration of
policy and legal representatives at the Assistant           any modification of relevant reservations,
Secretary level from the Department of State, the           declarations, and understandings to human rights
Department of Justice, the Department of Labor, the         treaties, or United States practices or laws. The results
Department of Defense, the Joint Chiefs of Staff, and       and recommendations of this review shall be reviewed
other agencies as the chair deems appropriate. The          by the head of each participating agency;
principal members may designate alternates to attend                  (viii) making such other recommendations as
meetings in their stead.                                    it shall deem appropriate to the president through the
(c)       The principal functions of the Interagency        Assistant to the President for National Security
Working Group shall include:                                Affairs, concerning United States adherence to or
          (i) coordinating the interagency review of        implementation of human rights treaties and related
any significant issues concerning the implementation        matters; and
of this order and analysis and recommendations in                     (ix) coordinating such other significant tasks
connection with pursuing the ratification of human          in connection with human rights treaties or
rights treaties, as such questions may from time to         international human rights institutions, including the
time arise;                                                 Inter-American Commission on Human Rights and the
          (ii) coordinating the preparation of reports      Special Rapporteurs and complaints procedures
that are to be submitted by the United States in            established by the United Nations Human Rights
fulfillment of treaty obligations;                          Commission.
          (iii) coordinating the responses of the United    (d) The work of the Interagency Working Group shall
States Government to complaints against it concerning       not supplant the work of other interagency entities,
alleged human rights violations submitted to the            including the President's Committee on the
INTERNATIONAL CIVIL LIBERTIES REPORT                       101


International Labor Organization, that address
international human rights issues.

         Sec. 5. Cooperation Among Executive
Departments and Agencies. All agencies shall
cooperate in carrying out the provisions of this order.
The Interagency Working Group shall facilitate such
cooperative measures.

         Sec. 6.      Judicial Review, Scope, and
Administration. (a) Nothing in this order shall create
any right or benefit, substantive or procedural,
enforceable by any party against the United States, its
agencies or instrumentalities, its officers
or employees, or any other person.
(b) This order does not supersede Federal statutes and
does not impose any justiciable obligations on the
executive branch.
(c) The term "treaty obligations" shall mean treaty
obligations as approved by the Senate pursuant to
Article II, section 2, clause 2 of the United States
Constitution.
(d) To the maximum extent practicable and subject to
the availability of appropriations, agencies shall carry
out the provisions of this order.


         WILLIAM J. CLINTON

THE WHITE HOUSE,

December 10, 1998.

                         ###
                                                            102

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104
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