CHAPTER 19
The Development of Human Rights and Private Sector Enforcement (The United States Experience)
I.Human Rights and the Domestic Legal Political Environment
II.Apartheid as a Tort in Violation of the Law of Nations
A.Violation of the Rules of Customary International Law for the Tort of Apartheid Gives Rise to Claims for the Appropriate Civil Action in the Federal Courts under the Alien Tort Statute.
B.Apartheid is defined with sufficient specificity to establish a civil action for tort under the ATS.
C.Apartheid is wrongful and correspondingly unlawful in customary international law
D.Apartheid is an International Tort under the ATS.
E.United States federal courts are a proper forum to adjudicate a civil action for the tort of apartheid in international law
F.Conclusion of Amicus Argument
G.Second Amicus Argument: The Language of the Ats Calls for a Threshold Determination of What a Federal Common Law Tort Is in Violation of the Law of Nations.
H.The Language of The Ats Calls For A Threshold Determination Of What A Federal Common Law Tort Is In Violation of the Law of Nations
I.The Language of the ATS Supports Findings of Subject Matter Jurisdiction and a Civil Action, Regardless of Whether a Textualist or a Non-Textualist Construction and Interpretation is Employed.
J.It is Within the Competence of the Federal Judiciary to Determine What in Federal Common Law Adjudication is a Tort and it is Similarly Within the Competence of the Judiciary to Determine the Appropriate Pleading Form in Which the Right Might be Vindicated
III.The Historical Underpinnings of the ATS Yields Clear Guidance Regarding the Scope of Its Specific Prescription and Application In Particular Cases
A.General Remarks on the Relationship Between Substance and Procedure
B.Substance and Procedure and the Application of the ATS
C.Conclusion on the Argument Relating to Strict Pleadings
D.Have the Courts Retreated From the Promise of Human Rights Litigation in Section 1350 of ATS?
CHAPTER 19
The Development of Human Rights and Private Sector Enforcement (The United States Experience)
Chapter 19 addresses the importance of international law to domestic and regional bodies. As an example, the chapter illustrates the role of human rights in civil litigation in the domestic courts of the United States. We provide a relevant summary of the law relating to claims under the Alien Tort Statute and provide an insider’s view with appropriate documentation of the extensive litigation in the New York courts, In re: Apartheid.[1]
In 1980, the Second Circuit Court of Appeals delivered a landmark judgment on the private sector enforcement of human rights.[2]The theory of liability in Filártiga v. Peña-Irala was that the violation of a particular human right is an international wrong, and has a tortious character.[3]Assuming proper jurisdiction, a plaintiff could thus sue the defendanton a human rights tort in United States federal court. The theory of the case was based on a 1792 Statute: the Alien Tort Statute (“ATS”).[4]The ATS states that a U.S. federal court provides jurisdiction for an alien to sue for a tort in violation of the law of nations.[5]Up until 1980, courts had little experience interpreting the ATS to include the broader “law of nations.”Since 1980, however, some circuit courts invoked the ATS as providing a federal tort for the violation of a human right.[6]Moreover, the Supreme Court has affirmed the decision of the lower federal courts in providing a civil tortious remedy for the violation of human rights norms.[7]
- Human Rights and the Domestic Legal Political Environment
One should understand the developments in political and legal culture forming a background to the use of a nation-state’sdomestic courts to provide remedies for aliens suffering from human rights violations. The first and most important issue is the general question of what role domestic courts should have in applying international law. Historically, there were no judicial fora of an international character by which legal disputes could be settledthrough judicial proceedings applying international law. Thus, with the 20th Century development of human rights laws, regional courts specialized in human rights were created.[8] These courts were not created without reservations. Judicial conservatesworried that the prescription, application, and enforcement of human rights standards are not precise enough for judicial settlement.There also remains a lingering fear that national courts given effect to such norms and standardswould be trenching upon the limits of law, and in fact transforming the courts into institutions of discretionary political preference.However, human rights jurisprudence before the Inter-American Court of Human Rights, as well as the European Court of Human Rights, has demonstrated that judicial settlement of human rights issues has been eminently juridical and principled, and indeed recorded in a impressive jurisprudence of case law and precedent. Thus, in the post-World War II world, there was a gradual acceptance that human rights norms are amenable to the legal culture traditions of the practice of law.
The history of the United States Supreme Courthas reflected a willingness on its part to carve out a role for itself in the making and application of international law. In turn,all U.S. federal courts have historically been active agents in the development of international law through legal processes. These developments, of course,should also be seen against the backdrop of U.S. foreign relations. The role of the courts in cultivating a sophisticated legal respect for human rights had to be balanced against the nation’s evolving foreign policy mandates to position itselfwithinthe global forces that enhance or threaten U.S. interests. These matters became critical as the U.S. observed the outbreak of the First World War.The U.S. long insisted that it was a neutral party and that its neutrality could be challenged or compromised by the participants in the war.[9]
At the back of neutrality was the notion that the United States was exceptional and that its creation rejected strong nationalist sentiment in Europe; A sentiment that expressed itself through intense competition, extensive imperialist ambitions, and a willingness to resort to war as an instrument of national interest. Indeed, the United States had been created in a revolt against colonial exploitation and imperialism. These perspectives of American exceptionalism expressed themselves in two very different outlooks. One was to altogether stayout of the growing mess in Europe. This perspectivebelievedthe Europeans were destroying themselves and the U.S. would do likewise by participating. A second outlook, reflected in Woodrow Wilson’s idealism, was that the European conflict could generate the conditions for U.S. to significantly influence the shape of a future world order. These principles are founded on a more idealistic position, and defended as exceptionally American. The first outlook would endure for a long period and have a significant impact on the U.S. position regarding international human rights. The second outlook gravitated to the right wing of the political spectrum and was reflected in an aggressively promoted agenda of isolationism.
Wilsonian idealismtriggered the peace treaty in 1919,[10] and although making important compromises to the demands of the French and the British, nonetheless put into the peace process the creation of a League of Nations,[11] as well as the notion that all peoples had a right to self-determination.[12]The isolationists, however, had a great victory when Woodrow Wilson returned to the United States and had the treaty rejected by the senate.[13]One of the leading isolationists was Wilson’s arch nemesis, Senator Henry Cabot Lodge of Massachusetts.[14]The isolationists were helped when at a crucial time in the treaty-ratifying campaign Woodrow Wilson suffered a severe stroke and was incapable of advocatingfor ratification.[15]Isolationism therefore reigned triumphant and the United States turned to its internal political issues.[16]
With the escaping andthe Great Depression becoming the focus of American politics, the nationlooked even more inward as it crafted policies towards this end.[17]Meanwhile, in Asia, Japanese imperialism embolded its efforts to secure territorial expansion.[18]Also, in Europe, Adolf Hitlerrose to power in Germany and the growing militarization of the Nazis would threaten neighboring countries, and the U.S. and other nations’ interests worldwide.[19]In between these two growing world powers,Joseph Stalin consolidated his totalitarian regime in Russia.[20]It should be important to note that when Hitler supported Franco in the Spanish Civil War, the neutrality of the U.S. was not necessarily a policy favored by all.[21]Thus, private brigades were created and went to Spain to fight in defense of the Spanish republic. One such example was the Abraham Lincoln brigade.[22]When World War II broke out in 1939, isolationism was the favored position by the American public, and the United States officially stayed out of this latest European entanglement.[23]President Roosevelt, however, had a keen sense on the strategic implications the war had American security, and could note support an absolute isolationist policy whereby the U.S. had little control over the conflict’s outcome.[24] Thus, he worked on a number of mechanisms to support Britain and her allies while still maintaining the fig leaf of neutrality.[25]The debate over U.S. neutrality in World War II ended when the Japanese attacked Pearl Harbor on December 7, 1941.[26]This attack sidelined the leading advocates ofisolationism,as their positions now appeared togive comfort to America’s enemies.
With America at war, Roosevelt developed a framework for the Allies’war aims, often known now as Atlantic charter.[27]The charter contained four freedoms: freedom of speech and expression, freedom of conscience and belief, freedom from fear, and freedom from want.[28]These principles formed the foundational values for the creation of the United Nations and the UN charter.[29]It should be recognized that these principles were also Roosevelt’s principles in which he based hisNew Deal policies.[30]Following the war, and after Roosevelt’s death, the victorious Allies created the UN with the U.S. being a critical player it’s founding and in itsfunctions.[31]Central to the U.N.’s charter areconcerns for world peace and security, and human rights.[32]It was widely acknowledged at the time, however, that human rights should be clarified and possibly codified.[33]For this purpose, President Truman appointed Eleanor Roosevelt as a deleage to the U.N. General Assembly, where she became chairpersonof the committee charged with drafting a declaration of human rights.[34]It will be seen that the universal declaration reflects the new deal values of the U.S. at that time.[35]Certainly, civil and political rights wre paramount.[36]However, Roosevelt himself believed that the fundamental rights of the U.S. were incomplete without the protections of economic human rights.[37]Roosevelt in fact talked about the fact that necessitous men were not free.[38]And before the war, he speculated about a national bill of socio-economic rights.[39]
The U.N. adopted the United Nations Declaration of Human Rights (UDHR) as a resolution of the general assembly.[40] In general, resolutions of the general assembly are not legally binding.[41] To get the degree of global consensus for the adoption of the UDHR meant that, in effect, it would have to be adopted as a non-legally binding resolution.[42]Still the UDHR was not without some political, moral,and juridical currency. It is generally understood that when a sovereign state expresses that it supports a particular issue, it should not act in a manner inconsist with those views. Additionally, although human rights, as a concept,are not specifically defined in the UN charter, the charter doesmake specific reference to “human rights.”[43]This means that the UDHR is based on a constitutional principle, which has a legal character in the UN charter itself.[44]The UN charter is the international constitution.[45]
Internationall, there was a need for an explicit effort to create a treaty-based regime inspired by the UDHR.Thus, the UN generated two important treaties using the UDHR and providing greater explication of the rights contained in it in the form of international treaties. These two treaties are the International Covenant on Civil and Political rights,[46] and the International Covenant on Social Cultural and Economic rights.[47]These three instruments constitute what today would refer to as an International Bill of Rights.[48] The critical question now is the role of the U.S. in adopting these treaties and making them part of U.S. law.[49]In the 1950s, a new form ofisolationism emerged from the extreme right wing of the U.S. senate.[50]Senator John Bricker of Ohio led this movement. Senator Bricker took the view that he wished to bury the human rights covenant so deep that no U.S. president would dare to resurrect it.[51]
A leading disply of the isolationist movement’s power came from its ability to block the adoption of the first human rights treaty.This is the convention that outlawed genocide.[52]Senator Bricker was an impeccable enemy of international human rights.[53]Theisolationist movement in the 1950s was in part fueled by the success former isolationists had in blocking the adoption of the League of Nations treaty.[54]Ideologically, that perspective was also justified by the fact that in the League of Nations there was the International Labor Organization (ILO), whose goal it was to protect the fundamental rights of workers worldwide.[55]Hence, the ILO had the odor of socialism,an ideology deemed anathema to the right wing.[56]Additionally, under the jurisdiction of the ILO were matters concerning the protection of minorities.[57]This presented the problem of the internationalization of race relations under the progressive ILO.[58]This of course was a sensitive matter for the right wing.[59]Additionally, the ILO also developed a jurisdictional concern for indigenous people.[60] The complicated and dark history of the U.S.’s treatment of indigenous peoples further fueled the isolationist outlook.[61]It should be added that in the 1950s the Civil Rights movement for black Americanshad asserted itself in earnest into the nation’s debate halls.[62] The idea that human rights values could be mobilized to support claims for civil and political rights was another reason to sustain the strength of isolationist demands.[63]
There was also a broader political struggle during this time in the Cold War.[64]This decades long contest was fought on many fronts, including, and sometimes most directly, on the front of ideology. In this battle for ideological primacy, the U.S. postured itself as being on the side of freedom, democracy, and fundamental rights.[65]In turn, it sought to portray its adversary, most notably the U.S.S.R., as standing for the opposite values.[66]In this battle, human rights held an important place in the U.S.’s armory of Cold War ideas.[67]In this sense, the isolationists’ antipathy toward human rights was an embarrassment. In particular, its antipathy to the adoption of the genocide convention was an embarrassment to both republican and democratic administrations.The results of isolationist advocacy generated an important and unintended consequence. Since the U.S. was a major grantor of foreign aid, Congress determined that the foreign assistance from the U.S. should be made conditional on some measure of human rights performance.[68]Putting human rights provisions in the Foreign Assistance Act, as a part of ordinary legislation, was a way of avoiding the specific procedure before the senate for the adoption of a treaty.[69] A treaty, of course, requires a supermajority, and thus isolationist participation.
Placing human rights into the framework of legislation and in the Foreign Assistance Act had far reaching implications for human rights advocacy. Since human rights were made a condition for receiving foreign assistance, it attracted interest groups that lobbyied for the granting or withdrawal of foreign assistance based on a particular nation’s human rights performance. This essentially made the culture of human rights a part of ordinary political advocacy in the national legislative process. Foreign assistance legislation developed important constituencies in human rights advocacy, including watchdog groups. Further, in the executive branch, the introduction of human rights values directly into foreign policy resulted in the development of human rights reporting by the Department of State. This included the creation of a human rights position within the department during the Carter Administration. This administration insisted upon the more general principle that human rights be the framework of normative guidance for the foreign policy of the U.S.
The significance of the introduction of human rights into the framework of the U.S. foreign policy meant that there were many advocacy constituencies generated and which targeted the political process. Human rights had in effect become domesticated. Perhaps the most significant human rights achievement, in the context of U.S. foreign relations, occurred during the Reagan administration, afterCongress enacted a unique bill called, Comprehensive Anti-Apartheid Act of 1986. This bill imposed comprehensive sanctions on South Africa based on human rights standards and guidelines.The Reagan Administration opposed the bill but it was enacted over the Reagan veto.The U.S. example of using foreign assistance and foreign policy to advance human rights was also followed by many other developed states.