Filartiga V. Peña Irala (1980), U.S

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Filartiga v. Peña Irala (1980), U.S. Court of Appeals, 2nd Cir. • The facts of the case. • Alien Tort Statute of 1789: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” • Two questions before the Court of Appeals: 1. Did the court have the authority to hear this case? Court says yes. (A U.S. law question.) 2. Was the torture of Joelito Filártiga a violation of the law of nations? Court says.... (An international law question.) Why Judge Kaufman answered that, yes, the torture of Joelito Filartíga violated the law of nations

• The prohibition of torture is supported by an international consensus. The evidence:…… • UN Charter, UDHR and other UN declarations, treaties, ofﬁcial statements, national laws and constitutions, all of which amount to a general repudiation of the practice • An example of customary international law reasoning From Judge Kaufman’s opinion

• “Having examined the sources from which customary international law is derived -- the usage of nations, judicial opinions and the works of jurists -- we conclude that ofﬁcial torture is now prohibited by the law of nations.” • “[T]he torturer has become, like the pirate and slave trader before him, hostis humani generis, an enemy of all mankind.” Signiﬁcance of the Filártiga ruling

• Legal significance: It asserts that torture is a violation of customary international law. (And it suggests that other human rights abuses may also violate customary international law.) • Practical significance: It encouraged human rights advocates to use the Alien Tort Statute to sue human rights abusers in US federal courts. • Political significance: It helped spur the Congress to pass the Torture Victim Protection Act (1991). “An individual who … subjects an individual to torture … or subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages.” Some differences between the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA)

• Only aliens may sue under the ATS. They may sue agents either of the US government or foreign governments. • Both aliens and US citizens may sue under the TVPA, but they can sue only agents of foreign governments, not the US government. Legacy of Filartiga, cont.

• Victims of human rights abuses could use the 1789 Alien Tort Statute (ATS) and 1991 Torture Victim Protection Act (TVPA) to seek justice in US courts. • However, in 2013, the U.S. Supreme Court, ruling 5-4 in Kiobel v. Royal Dutch Petroleum, sharply narrowed the reach of the ATS. It held there is a presumption against extraterritorial application of the ATS, and that the presumption can be overcome only when the matter “touches and concerns” the United States with “sufﬁcient force.” • The ATS may face further challenges, as the Supreme Court moves further to the right. • Civil, not criminal, remedies. What are the advantages and disadvantages of civil actions (lawsuits) compared with criminal prosecutions? Alien Tort Statute and TVPA case law since Filartiga – emerging doctrine:

• Foreign governments may not be sued. (Argentina and Chile) • Current heads of state or foreign ministers may not be sued. (Mugabe in Zimbabwe) • Former heads of state, cabinet ministers, and other government ofﬁcials may be sued. (Marcos, former president of the Philippines; Samantar, former defense minister of Somalia) • Current heads of state that lack international recognition may be sued. (Karadzic in Serb Republic of Bosnia) • Can US and foreign multinational corporations be sued? (UNOCAL in Burma.) Appeals courts were long divided. But in April 2018, the Supreme Court answered no in a 5-4 decision (Jesner v. Arab Bank). Next topic: International treaties

• general discussion of treaty law • overview of the UN human rights treaties • examination of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) Treaty law • A treaty, covenant, or convention is a legally binding agreement between states. • Rules governing the formation of treaty law are spelled out in the Vienna Convention on the Law of Treaties (1969). • Underlying postulate of treaty law: pacta sunt servanda. Meaning: treaties are legally binding. Stages in the formation of treaty law:

• Adoption of treaty text • Signature • Ratiﬁcation (or accession or succession). (Formally: “Consent to be bound.”) • Domestic implementation

• In some countries, but not in others, a treaty must be incorporated by separate legislation before its provisions form part of domestic law. • Monism and dualism …. Relation of international and domestic law

• Monism v. Dualism: two different approaches • Monism: international and domestic law form an integrated whole. International law is automatically incorporated into domestic law and overrules contrary domestic law provisions. • Dualism: International and domestic law constitute two independent sources of authority. International law is not automatically incorporated into domestic law. Dualism allows the possibility of unresolved conﬂict between domestic and international law. Both are binding, yet they may conﬂict. • Britain as an example of dualism; Netherlands as an example of monism. • Monism v. dualism is a rough distinction corresponding to a far more complex reality…. Is the United States monist? dualist? neither of the two?

• Treaties are negotiated and signed by the President (or executive branch). Ratification requires a 2/3 vote in the Senate. • Under Article VI of the Constitution, treaties are the “supreme Law of the Land.” • However, court rulings and judicial practice have muddied the picture…. UN-based human rights treaties (with number of ratifications) (Starred treaties are those ratified by US)

• International Covenant on Economic, Social and Cultural Rights, 164 • International Covenant on Civil and Political Rights, 168 * • International Convention on the Elimination of All Forms of Racial Discrimination, 177 * • Convention on the Elimination of All Forms of Discrimination Against Women, 189 • Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 158 * • Convention on the Rights of the Child, 196 • Genocide Convention, 146 * • Refugee Convention, 145 * • Statute of the International Criminal Court, 122 UN-based human rights treaties, cont.

• Migrant Workers Convention, 48 • Convention on the Rights of Persons with Disabilities, 159 • Slavery Convention, 99 * • International Convention for the Protection of All Persons from Enforced Disappearance, 51 • and several others ….. For more on contemporary international human rights law, see: http://www.ohchr.org/EN/ProfessionalInterest/Pages/ InternationalLaw.aspx Regional human rights treaties

• European Convention on Human Rights, 1950 • Inter-American Convention on Human Rights, 1969 • African Charter on Human and Peoples’ Rights, 1981 First human rights treaties adopted by the UN:

• Convention on the Elimination of All Forms of Racial Discrimination (CERD), 1965 • International Covenant on Civil and Political Rights (ICCPR), 1966 • International Covenant on Economic, Social, and Cultural Rights (ICESCR), 1966 • The US ratiﬁed the CERD (1994) and the ICCPR (1992), but has not ratiﬁed the ICESCR. • CERD, Article 2: “States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races.”