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WESTPHALIAN PROCEDURE,
Eric Allen Engle*
In Mamani et al
v. Sánchez de Lozada/Mamani et al v. Sánchez Berzain1 the survivors of
the murderous suppression of a riot by the Bolivian
government bring suit in the U.S. under the Alien Torts
Statute (ATS).2 The cases represent a conflict between
Westphalian and
This normative conflict is resolved by seeing it in terms of substance versus procedure: Procedurally, the Westphalian system’s rules condition the substantive post- Westphalian claims. So, issues such as comity (a discretionary doctrine),7 the act of
* Professor of Law,
1.The
pleadings in Mamani are available at http://ccrjustice.org/ourcases/current-
2.28 USC 1350, available at http://www4.law.cornell.edu/uscode/28/1350.notes.html
3.See, e.g., Mark Rothert, On Intervention in East Timor, 39 COLUM. J. TRANSNAT'L L. 257 (2000), at 262.
4.See, S.S. Lotus (Fr.
v. Turk), 1927 P.C.I.J.
(ser. A) No. 8, 4, 32 (Sept. 7) (Rejecting
France’s contention that the Turkish criminal proceedings
against Lt. Demons, the officer on watch on the Lotus during
the collision with the
5.A jus cogens norm is “a norm accepted and recognized by the international community of states as whole from which no derogation permitted can be modified only subsequent general law having same character.” See, Siderman de Blake v. Republic of Argentina, 965 f.2d 699, 714 (9th cir. 1992) (Quoting Vienna Convention on Treaties, art. 53, May 23, 1969, 1155 UNTS 332, 8 ILM 679).
6.See. E.A. Engle, The
Transformation of the International Legal System: The
7.Sabbatino,
376 U.S.
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state doctrine, and jurisdiction8 are governed by Westphalian concepts
such as the general principles of
In contrast to the realist Westphalian
procedural rules, the
Under the Westphalian system, the
substantive claims in Mamani would
never have been cognizable. First, the sovereign acted in his
sovereign capacity and thus would be immune. Second, the
general principle of
8.See generally, Eric Allen Engle, The Alien Tort Statute and the Torture Victims' Protection Act: Jurisdictional Foundations and Procedural Obstacles, 14 WILLAMETTE J. INT'L L. & DISPUTE RES. 1 (2006), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1020512
9.No state may impose its will on any other sovereign state. See, S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 18 (Sept. 7).
10.Prosecutor v. Blaskic, Appeals
Judgment, No.
11.Crimes against humanity have been recognized
as a violation of customary international law since the
Nuremberg Trials in 1944. See,
Aldana v. Fresh Del Monte Produce, Inc., 305
F. Supp. 2d 1285, 1299 (S.D. Fla.
2003); see also Mujica v.
Occidental Petroleum Corp., 381
F. Supp. 2d 1164,
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humanity depends on the facts of this case. Since the court could choose to adjudicate on the merits, we examine the legal rights at issue in detail.
International law and U.S. law alike12 recognize claims for crimes against humanity due to extrajudicial killings.13 A claim for a crime against humanity in the case of extrajudicial killings must prove two elements: first, “a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”14 A widespread attack is “conducted on a large scale against many people.”15 U.S. Courts have recognized crimes against humanity even with fewer than 100 victims.16 In Cabello, the Eleventh Circuit upheld a finding of crimes against humanity involving the killing of approximately 72 people.17 In Hurtado, this court issued a default judgment for crimes against humanity for an attack in which 60 people were killed.18 A systematic attack in contrast reflects “a high degree of orchestration and methodical planning.”19 The distinction appears to be: number of bodies (widespread) and whether an identifiable class of persons was deliberately targeted for killing (systematic). Notice also that it is in the alternative: either systematic or widespread extrajudicial killing is a violation of the fundamental human right to life. The facts in Mamani appear to meet either criterion.
(C.D. Cal. 2005).
12.Cabello, 402 F.3d at
13.http://www.worldlii.org/int/cases/IACHR/2001/5.html; Cabello, 402 F.3d at 1154; Almog
v.Arab Bank, PLC, 471
F. Supp. 2d 257, 278 (E.D.N.Y. 2007); Doe v. Saravia, 348
F. Supp. 2d 1112,
14.Statute of the International Criminal Court, § 7(1)(a), available at http://www.c- fam.org/docLib/20080625_Rome_Statutes_Criminal_Ct.pdf ; See also, Cabello, 402 F.3d at 1161 (“To prove the claim of crimes against humanity, the Cabello survivors had to prove a widespread or systematic attack directed against any civilian population.”). Though the U.S. has not (yet) ratified its adhesion to the Rome Statute, that treaty is evidence of international customary law.
15.Presbyterian Church of Sudan v. Talisman
Energy, Inc., 226 F.R.D. 456,
16.
17.402 F.3d at 1152, 1161.
18.No. CA
19.Prosecutor v. Limaj, No.
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Substantively then, the case presents a
valid claim of a violation of the right to life. However, even
if the litigants overcome the procedural obstacles
(jurisdiction, comity, the act of state doctrine, immunity)
they must still meet other U.S. prudential documents which
could well preclude liability for what is, in Westphalian
terms is a “purely internal affair” a “political” not “legal”
issue. Since
Likewise, since Sosa it is clear that the requirement of exhaustion of local remedies is a strict one.24 Lower courts have made clear that exhaustion is a serious obstacle to ATS Claims: “Although we decline to impose an absolute requirement of exhaustion in ATS cases, we conclude that, as a threshold matter, certain ATS claims are appropriately considered for exhaustion under both domestic prudential standards and core principles of international law. Where the “nexus” to the United States is weak, courts should carefully consider the question of exhaustion, particularly, but not exclusively, with respect to claims that do not involve matters of “universal concern.” Matters of “universal concern” are offenses “for which a state has jurisdiction to punish without regard to territoriality or the nationality of the offenders.”25 ATS may be
20.See generally, Eric
Allen Engle,
v.Sosa: The Brooding Omnipresence of Natural Law, 13 WILLAMETTE J. INT'L L. & DISPUTE RES. (2005), available at SSRN: http://ssrn.com/abstract=1020514.
21.Kadic v. Karadzic, 70 F.3d 232, 248 (2d Cir.1995).
22.Flores v. Southern Peru Copper Corporation 414
F.3d 233,
23.Beanal v.
24.Sosa, 542 U.S. at 725, 124 S.Ct. 2739
(“[C]ourts should require any claim based on the
25. Sarei v. Rio Tinto, PLC 550 F.3d 822 C.A.9 (Cal.), 2008, available online at http://ca.findacase.com/research/wfrmDocViewer.aspx/xq/fac.%5CC09%5C2008%5C20081216_000 5649.C09.htm/ and citing 825 Kadic v. Karadzic, 70 F.3d 232, 240 (2d Cir.1995) (citing Restatement (Third) Foreign Relations Law of the United States § 404 (1987).
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invoked as to any tort, not merely jus cogens violations though the jus cogens torts have a procedural advantage with respect to the procedural limits on the ATS remedy.
Thus, in Mamani, I argue that plaintiffs should base their claim against extradjudicial killing on the Torture Victims Protection Act as well as the ATS. “A TVPA claim requires the following three elements: (1) an individual (2) committed torture or extrajudicial killing (3) under actual or apparent authority, or colour of law, of any foreign nation.”26 On the merits, a TVPA claim would likely succeed due to specific legislative enumeration of the substantive claim, as opposed to an uncertain claim on customary international law.
Mamani presents theoretically good substantive claims under international law which could be remedied under the ATS or TVPA.27 The question is, whether and how the U.S. government will react to these claims. I argue that a vigorous enforcement of international human rights, particularly of jus cogens rights, via the ATS and TVPA will prove key in restoring the U.S. to its rightful role as a leader in the struggle for human rights and freedoms.
26.Sinaltrainal v.
§1350 note § 2(a).
27.See, http://www.haguejusticeportal.net/eCache/DEF/10/034.html (for the legal papers on
Mamani),