International Human Rights Law Update
Volume 1, No. 1 -- Fall 1994
Katherine C. Hall, Editor
I. U.S. Cases involving Human Rights

(a) Sale v. Haitian Centers Council, Inc., 113 S. Ct. 2549 (1993). The Supreme Court held that neither Section 243(h) of the Immigration and Naturalization Act nor Article 33 of the United Nations Convention Relating to the Status of Refugees limits the president's power to order the Coast Guard to repatriate Haitian undocumented aliens intercepted on the high seas. The Court reasoned that neither provision was meant to have extraterritorial effect: both limit only what authorities could do to an alien already in the country or at the border.

(b) Saudi Arabia v. Nelson, 113 S.Ct. 1471 (1993). The Supreme Court held that the Foreign Sovereign Immunities Act (FSIA) denies jurisdiction in a suit by an American against the Saudi government for wrongful arrest, imprisonment and torture which allegedly occurred after he tried to report hazards at the Saudi hospital where he was employed. The Court stated that the "restrictive" theory of foreign sovereign immunity, codified by the FSIA, could not accommodate Nelson's argument that the alleged tortious acts were a "commercial activity" under the FSIA.

(c) Barrera-Echavarria v. Rison, 21 F.3d 314 (9th Cir. 1994). The court held that the eight year imprisonment of an excluded alien who had arrived from Cuba on the Mariel boat lift, because the U.S. government deemed him a danger to society, violated the prisoner's Fifth Amendment rights, because such extended detention was "excessive in relation to its regulatory goal."

(d) Osorio v. Immigration and Naturalization Serv., 18 F.3d 1017 (2d. Cir 1994). A Guatemalan union leader was held eligible for asylum and withholding of deportation on the grounds that activities for which he might be persecuted were not only economic, but also political. Construing Immigration and Naturalization Serv. v. Elias-Zacarias, 112 S. Ct. 812 (1992), the court stated that simply because activities can be characterized as economic does not preclude them from also being characterized as political. The union leader's activities implied a political opinion which marked him for persecution by the authorities.

(e) Gisbert v. U.S. Attorney General, 988 F.2d 1437 (5th Cir. 1993). Petitioners argued that their continued detention following determination of their exclusion, while the U.S. sought to have them accepted by their home country or a third country, is unconstitutional and violates international law. Petitioners' immigration parole was revoked after they completed sentences for violations of state and federal law. The court held that customary international law's prohibition against prolonged arbitrary detention cannot supersede U.S. statutes, the Attorney General's actions and judicial decisions (such as Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953)) supporting the petitioners' detention. The court's ruling concurred with other circuit court holdings. See Alvarez-Mendez v. Stock, 941 F.2d 956, 959 (9th Cir. 1991), and Garcia-Mir v. Meese, 788 F.2d 1446 (11th Cir.), cert. denied, 479 U.S. 889 (1986).

(f) Linder v. Portocarrero, 963 F.2d 332 (11th Cir. 1992). The family of a U.S. citizen murdered by the Contras in Nicaragua brought suit against the Contra organization and their leaders alleging that they ordered or condoned executions of civilians and charging them with violations of international law and Florida's wrongful death law. The district court dismissed the case on political question grounds. See 747 F. Supp. 1452 (1990). The court of appeals reversed in part and remanded, holding that there is no foreign civil war exception to the right to sue for tortious conduct that violates the fundamental norms of the customary laws of war. Furthermore, tortious conduct allegedly took place in southern Florida and a cause of action would lie under Florida law.

II. Refugee Issues:

(a) Sale v. Haitian Centers Council, Inc.; Barrera-Echavarria v. Rison; Osorio v. Immigration and Naturalization Serv.; Gisbert v. U.S. Attorney General:

See Section I above.

(b) Inter-American Human Rights Commission Holds Haitian Refugees Case Admissible

Case No. 10.675, Inter-Am. C.H.R. 334, OEA/Ser. L/V/II.85, doc. 9 rev. (1994). The petition alleges that U.S. policies authorizing the interdiction, screening and return of Haitians violates the American Declaration, the American Convention on Human Rights as supplemented by Article 18 of the Vienna Convention on the Law of Treaties, articles 55 and 56 of the U.N. Charter, the Universal Declaration of Human Rights, the U.N. Refugee Convention and Protocol and customary international law. On October 13, 1993, the Commission ruled against U.S. arguments that the case was inadmissible because petitioners had not exhausted their domestic remedies before filing the complaint, finding that domestic remedies had been exhausted once the Supreme Court upheld the interdiction policy in Sale v. Haitian Centers Council, Inc. The Commission is expected to hear the merits of the case in September 1994 or February 1995.

(c) Proposed Rules on Asylum Adjudication

The I.N.S. has proposed rules to streamline the adjudication process for asylum applicants. 59 Fed. Reg. 14779 (1994) (to be codified at 8 C.F.R. pts. 103, 208, 236, 242 and 274a) (proposed Mar. 30, 1994). Under the proposed rules, Asylum Officers would no longer need to prepare detailed justifications for denials or conduct interviews. Further, applicants with pending asylum claims will be required to wait 150 days to apply for employment authorization. Those claims denied within 150 days would not be eligible for employment authorization. The proposed rules also require a filing fee for asylum applications and employment authorization applications to fund the asylum adjudication process. The procedural requirements under the current rules have helped create a backlog of 350,000 asylum claims. Comments on the proposed rules were due on May 31, 1994. The I.N.S. expects to issue the final regulations before the end of 1994.

III. Ratifications of Human Rights Treaties and Related Issues:
(a) Implementing Legislation for Torture Convention

On April 30, 1994, President Clinton signed the Foreign Relations Authorization Act, Pub. L. 103-236, 103d Cong., 2d Sess.; Section 506 of the Act includes implementing legislation for the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (23 I.L.M. 1027 (1984), as modified, 24 I.L.M. 535 (1985)) to which the U.S. Senate gave its advice and consent, with amendment, on October 27, 1991. The Senate declared that the U.S. should not ratify the Convention until implementing legislation was in place. The implementing legislation amends Title 18 of the U.S. Code to establish criminal penalties for persons committing or attempting to commit torture outside the United States. U.S. jurisdiction over this activity shall apply if the alleged offender is a U.S. national or is present in the U.S., regardless of the victim's or alleged offender's nationality. The U.S. will now deposit its instrument of ratification with the U.N.

(b) Senate Ratifies ICERD; Status of Ratification of Other Conventions

At the U.N. World Conference on Human Rights in June 1993, (see below) Secretary of State Warren Christopher announced the Administration's support for ratification of four human rights treaties: the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the International Convention on the Elimination of Racial Discrimination (ICERD), the International Convention on Economic, Social and Cultural Rights (ICESCR) and the American Convention on Human Rights (ACHR). The Senate gave its consent to ratification of ICERD on June 24, 1994 (see S. Exec. Rep. No. 29, 103rd Cong., 2d Sess. (1994)). The Senate's consent was subject to three reservations (concerning the First Amendment, private conduct and dispute settlement); one understanding (concerning Federalism); and one declaration (that the ICERD should not be self-executing). Despite Assistant Secretary of State John Shattuck's statement in a September 1993 hearing that the CEDAW was also a priority, floor action appears unlikely in 1994. The Administration has also expressed its support for U.S. signature and ratification of the Convention on the Rights of the Child (CRC) in the near future. According to the State Department, the ACHR is under study but the ICESCR is not being seriously considered for ratification.

(c) Objections to U.S. reservations to the International Covenant on Civil and Political Rights (ICCPR)

The Netherlands entered a formal objection to two U.S. reservations to its ratification of the ICCPR: The barring of the execution of juvenile offenders and the prohibition of torture and ill-treatment. The latter reservation requires compliance only to the extent that the conduct is also forbidden under the U.S. Constitution's Eighth Amendment. The Dutch claimed that the reservations are "incompatible with the object and purpose of the treaty."

IV. United Nations:
(a) The U.N. World Conference on Human Rights

The U.N. World Conference on Human Rights was held June 14-25, 1993 in Vienna, Austria. One hundred sixty-seven governments attended the Conference and adopted the Vienna Declaration and Programme of Action. See 32 I.L.M. 1661 (1993). The creation of a permanent international criminal court was discussed and the Declaration encouraged the U.N.'s International Law Commission to continue its decades-long discussion of the issue. See Section (b) below.

The Declaration encouraged the universal ratification of several human rights treaties and, in some cases, suggested specific time frames (1995 for CRC and 2000 for CEDAW). Women's rights were expressly recognized as human rights and the desirability of appointing a Special Rapporteur on violence against women was discussed. The Declaration states that freedom and protection for the media is guaranteed only "within the framework of national law." While the Declaration notes the universal, indivisible, interdependent and interrelated nature of human rights, the document also refers to the significance of regional particularities and the relevance of historical, cultural and religious backgrounds. Governments with poor human rights records pushed for the latter caveat.

(b) The Proposed International Criminal Court

In May 1993, the International Law Commission established a Working Group on a draft statute for an international criminal court as encouraged by the Vienna Declaration and U.N. General Assembly Resolution 47/33 of 25 November 1992. The Working Group submitted a draft statute with commentaries in July 1993 consisting of detailed articles under the following categories: Establishment and Composition of the Tribunal; Jurisdiction and Applicable Law; Investigation and Commencement of Prosecution; the Trial; Appeal and Review; International Cooperation and Judicial Assistance; and Enforcement of Sentences. See Report of the International Law Commission on the work of its forty-fifth session, 3 May - 23 July 1993, UN GAOR, 48th Sess., Supp. No. 10, pp. 255-335 (U.N. Doc. A/48/10, Annex); 33 I.L.M. 253 (1994).

On January 26, 1994, the Senate approved final passage of S. 1281, the State Department Authorization Bill, whose section 170A(b) expresses Congress' sense that the U.S. should "make every effort to advance" the concept of a permanent international criminal court at the U.N. Senator Helms' amendment to strip the provision from the bill was voted down 55-45. It is the first time either house of Congress has expressed support for the concept.

(c) U.N. High Commissioner for Human Rights

Responding to support for the idea expressed in the Vienna Declaration, the U.N. General Assembly approved Resolution 48/141 establishing the position of the U.N. High Commissioner for Human Rights ("the Commissioner"). The Secretary General selects the Commissioner with the consent of the General Assembly for a term of four years which may be renewed once. The resolution refers to the Commissioner "playing an active role in removing the current obstacles" to the realization of human rights and "preventing the continuation of human rights violations," but does not explicitly refer to the use of fact-finding missions and instead requires the Commissioner to "respect the sovereignty, territorial integrity and domestic jurisdiction of States." The Commissioner's responsibilities, include: rationalization, coordination and strengthening of U.N. human rights activities, notably education and public information programs; supervision of the Centre for Human Rights; and providing advisory services and technical and financial assistance to requesting states.

On February 14, 1994, the Secretary-General's appointment of José Ayala Lasso, Ecuador's U.N. Ambassador, as the first Commissioner was approved by the General Assembly.

(d) Yugoslavia War Crimes Tribunal

The Statute of the Yugoslavia War Crimes Tribunal, (the "International Tribunal"), was adopted by the Security Council on May 25, 1993 in its resolution 827 (1993). See United Nations: Security Council Resolution on Establishing an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, 32 I.L.M. 1203 (1993). The Statute gives the International Tribunal the power to prosecute persons for serious violations of international humanitarian law in the territory of the former Yugoslavia. The Statute sets forth four principal areas of international human rights law as the sources of the tribunal's power: grave breaches of the Geneva Conventions of 1949 (Article 2); violations of the laws or customs of war (Article 3); genocide (Article 4); and crimes against humanity (Article 5). The Statute provides detail as to the investigation and preparation of the indictment by the Prosecutor (Article 18); its review by a judge of the Trial Chamber (Article 19); the rights of the accused (Article 21); judgment (Article 23); penalties (Article 24); and appellate proceedings (Article 25).

Pursuant to Article 15 of the Statute, on February 11, 1994, the International Tribunal announced its adoption of Rules of Procedure and Evidence of the Tribunal ("Rules"). See International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1992: Rules of Procedure and Evidence, March 14, 1994, 33 I.L.M. 484 (1994). The Rules provide the structure for the functioning and organization of the Tribunal as well as for the conduct of the pre-trial phase of the proceedings, including investigation and indictment, trials and appeals, the admission of evidence, the protection of victims and witnesses, orders and warrants and the appointment of counsel. In drafting the rules the judges tended towards the adversarial model familiar in the U.S. rather than the inquisitorial model followed in some European countries.