Affordable Care Act & International Law

Mar 282012
 

Risa E. Kaufman, Executive director of the Human Rights Institute at Columbia Law School, provides an interesting perspective on  the Affordable Care Act.   In  ”A Human-Rights Lens on the Affordable Care Act,”  Kaufman concludes:

The enactment of the ACA was an important and deliberate advance toward decreasing race discrimination in access to health care. Significantly, the ACA also furthers the nation’s international human rights treaty obligations, a point that should inform both the public discussions of the law and the Court’s consideration of its constitutionality.

Read the entire article here.

Alleged Meddling Evangelist Meets Alien Tort Act

Mar 162012
 

A Ugandan gay and lesbian rights organization has filed suit against Massachusetts evangelist Scott Lively for “participat[ing] in a decade-long campaign in Uganda to persecute persons on the basis of sexual orientation and gender identity.”  The American Bar Association Journal has the story as well as a link to the plaintiff’s complaint.

The suit is being filed under the Alien Tort Act, which you may remember has been a source of controversy of late and is currently being reviewed by the United States Supreme Court in a case involving Nigerian plaintiffs and a Shell Oil subsidiary.  More details here.

Uganda has been the center of a recent human rights outcry regarding the nation’s anti-homosexuality bill, frequently referred to as the “Kill the Gays” bill.  The proposal would punish homosexuality by life imprisonment or death.

The Arab Spring and Human Rights

Mar 132012
 

The international community continues to grapple with new realities following last year’s “Arab Spring.”   Nowhere is this more evident than in Egypt.

Months after Hosni Mubarak was removed from power, Egypt’s transitional government continues to fight western influence.  You may have seen news reports chronicling 43 western citizens (including 13 Americans) fleeing Egypt to avoid criminal prosecution.  Most of the accused are members of pro-democracy Non Governmental Organizations that the Egyptian government claims are using foreign capital to cite unrest amongst Egyptians.

The dispute balances political interests including Egypt’s receipt of foreign aide and the nation’s foreign policy towards Israel; however, human rights advocates and western leaders fear that Egypt’s transitional government may be no more committed to democracy than the regime it replaced.

In Monday’s Washington Post, Kareem Elbayar, an attorney for the International Center for Not-for-Profit Law, pointed out that “[u]nder Egyptian law, individuals must obtain permission from the government to associate or they risk imprisonment.  The application process… can take months, if not years…”  Elbayar notes that this requirement violates principles of International Law.

I have long been skeptical that regime change throughout the Middle East would produce long-lasting human rights advances.  There has been a long history of western-supported regime change that results in tyrannical regimes.  As I watch transformations across Egypt, Lybia, and now Syria, I can only hope that continuing international pressure can help ensure progress in human rights.

Enforcing Social Rights

Mar 072012
 

There is a substantial body of international law addressing human rights; however, enforcement such laws is often relegated to the political process, which can be unreliable.

I recently came across a Harvard International Law Journal article entitled “The Reality of Social Rights Enforcement.”  David Landau argues:

…most social rights enforcement has benefited middle- or upper-class groups, rather than the poor. Courts are far more likely to protect pension rights for civil servants or housing subsidies for the middle class than they are to transform the lives of marginalized groups. Moreover, the choice of remedy used by the court has a huge effect on whether impoverished groups feel any impact from the intervention. Super-strong remedies like structural injunctions are the most likely ways to transform bureaucratic practice and to positively impact the lives of poorer citizens. The solution to the socio-economic rights problem is to make remedies stronger, not weaker.

For those interested in such things, it is an interesting read.

SCOTUS & The Alien Tort Act: Take Two

Mar 062012
 

Last week, I blogged about Kiobel v. Royal Dutch Petroleum Company, which was argued before the United States Supreme Court.

The issue was whether the Alien Tort Act allows foreign plaintiffs to sue US corporations for certain human rights violations; however, questioning ventured into the broader question of whether United States Courts could ever hear human rights cases when the alleged abuses occurred outside the United States.

It turns out that the Court may want to address the broader question.  The Court has asked the parties to file additional briefs and appear for reargument.  The Court ordered:

This case is restored to the calendar for reargument. The parties are directed to file supplemental briefs addressing the following question: Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States. The supplemental brief of petitioners is due on or before Thursday, May 3, 2012. The supplemental brief of respondents is due on or before Monday, June 4, 2012. The reply brief is due on or before Friday, June 29, 2012. The time to file amicus curiae briefs is as provided for by Rule 37.3(a). The word limits and cover colors for the briefs should correspond to the provisions of Rule 33.1(g) pertaining to briefs on the merits rather than to the provision pertaining to supplemental briefs.

Odds and Ends

Mar 022012
 

 

  • I blogged yesterday about the US Supreme Court hearing a case regarding foreign plaintiffs suing under the Alien Tort Act.  Law.com published an interesting article that discusses the exchange and the judge’s perceived hostility towards the plaintiffs.
  • Chevron is pleased that an international arbitration tribunal has ruled that it has jurisdiction to hear Chevron’s claim against Ecuador.  The tribunal took its lead from treaty law.  This was not unexpected, and the saga continues…
  • Human Rights abuses in Syria continue to dominate world news, and today the United Nations Human Rights Council voted to condemn the Syrian regime’s continual abuses against it’s citizens.  The vote was 37 to 3.  Among the three nations voting no, China and Russia have continually blocked the UN from taking decisive action in this matter.  For now, the world will continue to watch the images from Syria in horror.

SCOTUS & The Alien Tort Act

Mar 012012
 

 

On Tuesday, the United States Supreme Court heard oral arguments in a case brought by Nigerian Plaintiffs against a Shell Oil subsidiary.  The issue is whether 28 USC §1350, commonly known as the Alien Tort Act, allows foreign plaintiffs to sue US corporations for certain human rights violations.

According to the transcript and media reports, the oral arguments were broad and shifted between the previously mentioned issue to whether United States courts can hear human rights cases where the alleged violations are committed abroad.

The Alien Tort Act states: “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.”

The Act has not been historically used to hold US companies liable in US courts; however, there has been an increased trend to try to use the Act in this manner.  Just last July, I highlighted a similar case between Indonesian plaintiffs and Exxon Mobil.

Should the Court hold that US companies can be liable for human rights violations, multinational corporations will potentially face much greater scrutiny and will be forced to make changes to business practices, including how they respond to human rights accusations abroad.

Then again, multinational corporations could get their way, and Congress could eliminate the Alien Tort Act altogether.  (Send in the lobbyists…)

The New York Times and ABC News do a fairly good job at chronicling the issue and oral arguments.  For those wanting a more in depth account, a full transcript of the oral argument before the Court can be found at the Court’s website.