Another U.N. Condemnation of the U.S. Embargo of Cuba

                                                                                       O

U.N. General Assembly
U.N. General Assembly

On October 26, the United Nations General Assembly voted, 191 to 0 (with two abstentions), to adopt a resolution proposed by Cuba to condemn the United States embargo of Cuba. For the first time in the 25-year history of the annual vote on such resolutions, the U.S, rather than opposing the text, cast an abstention, prompting Israel to do likewise.[1]

This post will examine the resolution’s text, its presentation by Cuba, its support by other countries and the arguments for abstention offered by the U.S. and Israel. This post will then conclude with a brief discussion of reaction to the abstention in the U.S. Prior posts discussed the similar General Assembly resolutions against the embargo that were adopted in 2011, 2014 and 2015.

The Actual Resolution

The actual resolution, “Necessity of ending the economic, commercial and financial embargo imposed by the United States of America against Cuba” (A/RES/71/5 and A/71/L.3) had two principal operative paragraphs.

It reiterated “its call upon all States to refrain from promulgating and applying laws and measures [like the U.S. embargo against Cuba] . . . in conformity with their obligations under the Charter of the United Nations and international law, which, inter alia, reaffirm the freedom of trade and navigation (¶ 2). It also urged “States that have and continue to apply such laws and measures to take the steps necessary to repeal or invalidate them as soon as possible in accordance with their legal regime (¶ 3).

The resolution’s preamble reaffirmed “the sovereign equality of States, non-intervention and non-interference in their internal affairs and freedom of international trade and navigation, which are also enshrined in many international legal instruments” and recited the previous General Assembly resolutions against the embargo. It then welcomed “the progress in the relations between the Governments of Cuba and the [U.S.] and, in that context, the visit of the President of the [U.S.], Barack Obama, to Cuba in March 2016” while also recognizing “the reiterated will of the President of the [U.S.] to work for the elimination of the economic, commercial and financial embargo against Cuba” and “the steps taken by the [U.S.] Administration towards modifying some aspects of the implementation of the embargo, which, although positive, are still limited in scope.”

Cuba’s Presentation of the Resolution

Bruno Rodriguez
Bruno Rodriguez

Speaking last in the debate, Cuba’s Foreign Minister Bruno Rodriguez Parrilla, presented arguments for adopting the resolution. Here are extracts of that speech:

“[T]here has been progress [between Cuba and the U.S. since December 2014] in the dialogue and cooperation on issues of common interest and a dozen agreements were signed [and] reciprocal benefits reported. Now just announced the vote of the US abstention on this draft resolution.”

“The [U.S.] president and other top officials have described [the embargo/blockade] as obsolete, useless to advance American’s interests, meaningless, unworkable, being a burden for [U.S.] citizens, . . . [harming] the Cuban people and [causing]. . . isolation to the [U.S.] and [have] called [for the embargo/blockade] to be lifted.”

“We recognize that executive measures [to reduce the scope of the embargo] adopted by the government of the [U.S.] are positive steps, but [have] very limited effect and scope. However, most of the executive regulations and laws establishing the blockade remain in force and are applied rigorously to this minute by U.S. government agencies.”

“Meanwhile, the U.S. Congress has not approved any of the 20 amendments or legislative initiatives, with bipartisan support, . . . [for] eliminating some restrictions of the blockade or even all of this policy. [Moreover,] there have been more than 50 legislative initiatives that threaten to reinforce key aspects of the blockade, preventing the President [from] approving new executive or implementing measures already adopted.”

“It cannot be underestimated in any way the powerful political and ethical message that [action by this Assembly] . . . sends to the peoples of the world. The truth always [finds] its way. Ends of justice prevail. The abstention vote announced surely is a positive step in the future of improved relations between the[U.S.] and Cuba. I appreciate the words and the efforts of Ambassador Samantha Power.”

“[There] are incalculable human damages caused by the blockade. [There is no] Cuban family or industry in the country that does not suffer its effects on health, education, food, services, prices of goods, wages and pensions.” For example, the “imposition of discriminatory and onerous conditions attached to the deterrent effects of the blockade restrict food purchases and the acquisition in the U.S. market for drugs, reagents, spare parts for medical equipment and instruments and others.”

“The [embargo/] blockade also [adversely] affects the interests of American citizens themselves, who could benefit from various services in Cuba, including health [services].”

“The [embargo/] blockade remains a massive, flagrant and systematic violation of human rights of all Cubans and qualifies as an act of genocide under the Convention on the Prevention and Punishment of the Crime of Genocide of 1948. It is an obstacle to cooperation [in] international humanitarian areas.”

“The blockade is the main obstacle to economic and social development of our people. It constitutes a flagrant violation to international law, the United Nations Charter and the Proclamation of Latin America and the Caribbean as a Zone of Peace. Its extraterritorial application adds further to its violation of international law nature of magnitude.”

“Other causes, in addition to [the blockade/embargo] . . . , determine our economic difficulties: the unjust international economic order; the global crisis; the historical distortions and structural weaknesses caused by underdevelopment; high dependence on energy and food imports; the effects of climate change and natural disasters; and also . . . our own mistakes.”

“Between April 2015 and March 2016, the direct economic damage to Cuba by the blockade amounted to $4.68 billion at current prices, calculated rigorously and prudently and conservatively. The damages accumulated over nearly six decades reach the figure of $753 billion, taking into account depreciation of gold. At current prices, [that is] equivalent to just over $125 billion.”

“On 16 April 2016 President Raul Castro Ruz said, ‘We are willing to develop a respectful dialogue and build a new relationship with the [U.S.], as that has never existed between the two countries, because we are convinced that this alone . . . [will provide] mutual benefits.’ And last September 17, he said ‘I reaffirm the will to sustain relations of civilized coexistence with the [U.S.], but Cuba will not give up one of its principles, or make concessions inherent in its sovereignty and independence.’”

“The government of the [U.S.] first proposed the annexation of Cuba and, failing that, to exercise their domination over it. The triumph of the Cuban Revolution . . . [prompted the U.S. adoption of the embargo whose purpose] was ‘to cause disappointment and discouragement through economic dissatisfaction and hardship … to deny Cuba money and supplies, in order to reduce nominal and real wages, with the aim of causing hunger, desperation and overthrow of government. ‘”

“The [new U.S.] Presidential Policy Directive [states] that the Government of the [U.S.] recognizes ‘the sovereignty and self-determination of Cuba’ and [the right of] the Cuban people to make their own decisions about their future.’” It also states “the U.S. will not seek a ‘change of regime in Cuba.’”[2]

But the Directive also says “’the [U.S.] will support the emerging civil society in Cuba and encourage partners and non-governmental actors to join us in advocating in favor of reforms. While the United States remain committed to supporting democratic activists, [we] also [will] participate with community leaders, bloggers, activists and other leaders on social issues that can contribute to the internal dialogue in Cuba on civic participation.’ The Directive goes on to say: “The [U.S.] will maintain our democracy programs and broadcasting, while we will protect our interests and values, such as Guantanamo Naval Base … The government of the United States has no intention of modifying the existing lease agreement and other related provisions.’”

The Directive also asserts that Cuba “remains indebted to the [U.S.] regarding bilateral debts before the Cuban Revolution.”

The U.S. needs to “recognize that change is a sovereign matter for Cubans alone and that Cuba is a truly independent country. It gained its independence by itself and has known and will know how to defend [its] greatest sacrifices and risks. We are proud of our history and our culture that are the most precious treasure. We never forget the past because it is the way never to return to it. And we decided our path to the future and we know that is long and difficult, but we will not deviate from it by ingenuity, by siren songs, or by mistake. No force in the world can force us to it. We will strive to build a sovereign, independent, socialist, democratic, prosperous and sustainable nation. We will not return to capitalism.”

Other Countries’ Statements of Support[3]

During the debate the following 40 countries expressed their support of the resolution:

  • Latin America: Argentina, Bolivia, Brazil, Colombia, Costa Rica, Dominican Republic (for Commonwealth of Latin American and Caribbean States (CELAC)), Ecuador, El Salvador, Jamaica (for Caribbean Community (CARICOM)), Mexico, Nicaragua, Saint Vincent and Grenadines, Uruguay and Venezuela (for Non-Aligned Movement (NAM)).
  • Africa: Algeria, Angola, Libya, Mozambique, Namibia, Niger (for African States), South Africa, Sudan and Tonga.
  • Middle East: Egypt, Kuwait (for Organization of Islamic Conference (OIC)) and Syria.
  • Asia: Belarus, China, Democratic People’s Republic of Korea [North Korea], India, Indonesia, Iran, Lao People’s Democratic Republic, Malaysia, Myanmar, Russian Federation, Singapore (for Association of Southeast Asian Nations (ASEAN)), Thailand (for Group of 77 and China) and Viet Nam.
  • Europe: Slovakia (for European Union (EU)).

U.S. Abstention[4]

Samantha Power
Samantha Power

The U.S. Ambassador and Permanent Representative to the United Nations, Samantha Power, announced the U.S. abstention before the debate and voting on the resolution. Here are extracts of her speech about that vote.

“For more than 50 years, the [U.S.] had a policy aimed at isolating the government of Cuba. For roughly half of those years, U.N. Member States have voted overwhelmingly for a General Assembly resolution that condemns the U.S. embargo and calls for it to be ended. The [U.S.] has always voted against this resolution. Today the [U.S.] will abstain.”

“In December 2014, President Obama made clear his opposition to the embargo and called on our Congress to take action to lift it. Yet while the Obama Administration agrees that the U.S. embargo on Cuba should be lifted, . . . we don’t support the shift for the reason stated in this resolution. All actions of the [U.S.] with regard to Cuba have been and are fully in conformity with the U.N. Charter and international law, including applicable trade law and the customary law of the sea. We categorically reject the statements in the resolution that suggest otherwise.”

“But [today’s] resolution . . . is a perfect example of why the U.S. policy of isolation toward Cuba was not working – or worse, how it was actually undermining the very goals it set out to achieve. Instead of isolating Cuba, . . . our policy isolated the [U.S.], including right here at the [U.N.].”

“Under President Obama, we have adopted a new approach: rather than try to close off Cuba from the rest of the world, we want the world of opportunities and ideas open to the people of Cuba. After 50-plus years of pursuing the path of isolation, we have chosen to take the path of engagement. Because, as President Obama said in Havana, we recognize that the future of the island lies in the hands of the Cuban people.”[5]

“Abstaining on this resolution does not mean that the [U.S.] agrees with all of the policies and practices of the Cuban government. We do not. We are profoundly concerned by the serious human rights violations that the Cuban government continues to commit with impunity against its own people – including arbitrarily detaining those who criticize the government; threatening, intimidating, and, at times, physically assaulting citizens who take part in peaceful marches and meetings; and severely restricting the access that people on the island have to outside information.”

“We [,however,] recognize the areas in which the Cuban government has made significant progress in advancing the welfare of its people, from significantly reducing its child mortality rate, to ensuring that girls have the same access to primary and secondary school as boys.”

“But none of this should mean that we stay silent when the rights of Cuban people are violated, as Member States here at the [U.N.] have too often done. That is why the [U.S.] raised these concerns directly with the Cuban government during our [recent] historic dialogue on human rights . . ., which shows that, while our governments continue to disagree on fundamental questions of human rights, we have found a way to discuss these issues in a respectful and reciprocal manner.[6] We urge other Member States to speak up about these issues as well.”

“As President Obama made clear when he traveled to Havana, we believe that the Cuban people – like all people – are entitled to basic human rights, such as the right to speak their minds without fear, and the right to assemble, organize, and protest peacefully. Not because these reflect a U.S.-centric conception of rights, but rather because they are universal human rights – enshrined in the U.N. Charter and in the Universal Declaration of Human Rights – which all of our 193 Member States are supposed to respect and defend. Rights that are essential for the dignity of men, women, and children regardless of where they live or what kind of government they have.”

The U.S. concedes that it “has work to do in fulfilling these rights for our own citizens. And we know that at times in our history, U.S. leaders and citizens used the pretext of promoting democracy and human rights in the region to justify actions that have left a deep legacy of mistrust. We recognize that our history, in which there is so much that makes us proud, also gives us ample reason to be humble.”

“The [U.S.] believes that there is a great deal we can do together with Cuba to tackle global challenges. That includes here at the [U.N.], where the decades-long enmity between our nations has at best been a distraction – and at worst, an obstacle – to carrying out some of the most important work of this institution and helping the world’s most vulnerable people.”

U.S. Reactions[7]

Engage Cuba, a U.S. national coalition of private companies, organizations and state and local leaders working to lift the embargo, said, “Year after year, the international community has condemned our failed unilateral sanctions that have caused great economic hardship for the people of Cuba and continue to put American businesses at a competitive disadvantage. The fact that the Administration and Israel abstained from voting for the first time ever demonstrates the growing recognition that the U.S. embargo on Cuba is a failed, obsolete policy that has no place in today’s international affairs.”

Senator Marco Rubio (Rep., FL), on the other hand, blasted the abstention, saying the Obama administration had failed to honor and defend U.S. laws in an international forum. Similar negative reactions were registered by Senators Ted Cruz (Rep., FL) and Robert Menendez (Dem., NJ), Republican Representatives from Florida, Ileana Ros-Lehtinen and Mario Diaz-Balart, and the U.S.-Cuba Democracy PAC.

As an U.S. citizen-advocate for ending the embargo as soon as possible, I am pleased with the U.S. abstention and agree with Ambassador Power that this vote does not mean the U.S. agrees with the resolution’s stated reasons.

Moreover, too many in the U.S. believe the Cuban damages claim from the embargo is just a crazy Cuban dream, but I disagree. Given the amount of the claim, Cuba will not someday tell the U.S. to forget it. A prior post, therefore, suggested that the two countries agree to submit this and any other damage claims by both countries for resolution by an independent international arbitration panel such as those provided by the Permanent Court of Arbitration at the Hague in the Netherlands.

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[1] U.N. Press Release, U.S. abstains for first time in annual UN vote on ending embargo against Cuba (Oct. 26, 2016).

[2] A prior post replicated the Presidential Policy Directive while another post provided reactions thereto.

[3] U.N. Press Release, General Assembly Plenary (Oct. 26, 2016); The defeat of the blockade is the world’s largest moral and political victory for the people of Cuba against the empire, Granma (Oct. 26, 2016) (Venezuela’s statement); Today not only do we vote against the blockade, we voted for hope, Granma (Oct. 26, 2016) (Bolivia’s statement).

[4] Ambassador Power, Remarks at a UN General Assembly Meeting on the Cuban Embargo (Oct. 26, 2016).  Israel, which also abstained, merely said that it welcomed the improved U.S.-Cuba relations and hoped it would lead to a new era in the region.

[5] A prior post reviewed President Obama’s eloquent speech in Havana to the Cuban people.

[6] A prior post reviewed the limited public information about the recent human rights dialogue.

[7] Ordońez, For 1st time, U.S. changes its position on U.N. resolution blasting Cuba trade embargo, InCubaToday (Oct. 26, 2016); Engage Cuba, Press Release: Engage Cuba Praises First Ever Unanimous Passage of United Nations Resolution Condemning the Cuban Embargo (Oct. 26, 2016); Lederer & Lee, US abstains in UN vote on Cuba embargo for the first time, Wash. Post (Oct. 26, 2016); Rubio, Rubio: Obama Admin Ignoring U.S. Law on Cuba Embargo, Giving More Concessions to Castro Regime at U.N. (Oct. 26, 2016).

President Obama’s Reflections on His Pursuit of Normalization with Cuba      

Jon Lee Anderson, the author of a Che Guevara biography and a forthcoming book about Fidel Castro and the Cuban revolution, has written a fascinating article about President Obama and Cuba in The New Yorker.[1] It provides the following details about Obama’s March 2016 visit to the island and comments about his decision to seek normalization with Cuba beyond those already discussed in earlier posts.[2]

During his visit to Cuba, President Obama hosted an Entrepreneurship and Opportunity Event at La Cervecería (a beer hall) on Havana Harbor. Attending were invited American and Cuban entrepreneurs, government officials and journalists. Brian Chesky, the co-founder of Airbnb, told the group that Cuba was one of its fastest growing markets. In response to Obama’s question, he said his company was now valued at $25 billion after only eight years of operation, and Obama used this as an example of what could happen to a new business. Obama said, “Cuba should take ideas, steal ideas from wherever you see something working, not from where they are not. There are some economic models (like Cuba’s) that just don’t work. That’s just the objective reality. The American people are not interested in Cuba failing. We’re interested in Cuba being a partner with us.”

After Obama had departed the island, a member of Cuba’s security services said that this event was “as subversive as the Bay of Pigs.” Other Communist Party loyalists voiced similar opinions.

Later Obama admitted that he thought the Cuban pushback to his visit would be a lot stronger. The beer hall event, he said, intentionally bypassed the Cuban state in order to advertise and promote the possibilities of commerce freed of political constraint.

Obama also said after his trip that his decision to seek normalization with Cuba was based upon these premises: (1) “Cuba is a tiny, poor country that poses no genuine threat to the [U.S.]” (2) “In this era of the Internet and global capital movements, openness is a more powerful change agent than isolation.” (3) “If you are interested in promoting freedom, independence, civic space inside of Cuba, then . . . remittances to give individual Cubans some cash . . . that then allowed them to start a [business] . . . was going to be the engine whereby individual Cubans . . . can start expecting more.”

Important for Obama was growing up in underdeveloped Indonesia and “never [being] star-struck by revolution. [He believed that Cuba’s revolution had started because of good motives, but he] “was never persuaded that they had taken the right course of action.”

Obama also told Anderson that he believes Raúl Castro’s pursuit of normalization with the U.S. was based upon two conclusions. First, Castro recognized—“particularly in light of what’s happening in Venezuela—that sustaining their economic model over the next ten years becomes increasingly untenable. [Therefore,] how . . . [does he] make [the Cuban] economy run without giving up power. . . . [Second,] Raúl recognizes that any substantial change to their economic system, . . . their civil society, . . . their full political system—requires him to do some downfield blocking [i.e., preparatory work]. If a younger generation tries to pull this off without the revolutionary credentials, there will be too much pushback.”

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[1] Anderson, The Cuba Play, The New Yorker at 42 (Oct. 3, 2016).

[2] See posts listed in “Obama & Cuba, 2007-2014,” “U.S. & Cuba Reconciliation, 2014-2015,” and “Obama’s Visit to Cuba, March 2016” in List of Posts to dwkcommentaries—Topical: Cuba.

U.N. Human Rights Council Is Warned About Human Rights Violations

The U.N. Human Rights Council, which is responsible for strengthening the promotion and protection of human rights around the globe, addressing situations of human rights violations and making recommendations on the subject, [1] is in the midst of its 28th regular session at its headquarters in Geneva Switzerland with the session ending on March 27th. [2]

Zeid Ra-al Al Hussein
Zeid Ra-ad Al Hussein

At the opening of the session on March 2 the U.N. High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, [3] set forth his concerns on human rights. Three days later, on March 5th, he commented on his annual report on human rights. This post will examine both of these speeches.

From March 2 through 5, the Council conducted what it called its High Level Segment, in which national leaders addressed the Council on the overall subject of human rights. Two of those national leaders were U.S. Secretary of State john Kerry and Cuban Foreign Minister, Bruno Rodriguez Parrilla. Their remarks will be covered in subsequent posts while another post will analyze those remarks and the speeches of the High Commissioner.

High Commissioner’s Speech, March 2nd [4]

The “cruelty and moral bankruptcy of violent extremists . . . continue daily, and we condemn their merciless conduct daily.”

“And yet, if we are not careful, if we are not completely principled and cunning in our collective attempt to defang them, we will, unwittingly and inexcusably, be advancing their interests. How we define the opening chapters of this already agitated century depends heavily on us not becoming like them.  For us, international humanitarian law and international human rights law cannot be trifled with or circumvented, but must be fully observed.”

“It has been 70 years since the great Charter of the [U.N.] was drawn up, and since then States have also written and agreed to a range of strong international treaties, to establish in binding law the legal principles of human rights. They are a distillation of all human experience, all the warnings and screams of our combined human history.” By “ratifying the U.N. Charter, [states] have made a clear commitment [in the words of its Preamble] to ‘reaffirm faith in fundamental human rights; in the dignity and worth of the human person; in the equal rights of men and women, and of nations large and small; and to establish conditions under which justice and respect for the obligations arising from treaties, and other sources of international law, can be maintained; and to promote social progress, and better standards of life in larger freedom.’”

“And yet, with alarming regularity, human rights are disregarded, and violated, sometimes to a shocking degree.”

“States claim exceptional circumstances. They pick and choose between rights. One Government will thoroughly support women’s human rights and those of the LGBT communities, but will balk at any suggestion that those rights be extended to migrants of irregular status. [U.S.?] Another State may observe scrupulously the right to education, but will brutally stamp out opposing political views. [Cuba?] A third State comprehensively violates the political, civil, economic, social and cultural rights of its people, while vigorously defending the ideals of human rights before its peers.”

“In recent months I have been disturbed deeply by the contempt and disregard displayed by several States towards the women and men appointed by [the Council] as [its] independent experts – and also by the reprisals and smear campaigns that are all too frequently exercised against representatives of civil society, including those who engage with the Council and its bodies.  I appeal to all of you, once again, to focus on the substance of the complaint, rather than lash out at the critic – whether that person is mandated by States, is a member of my Office, or is a human rights defender.”

“The overwhelming majority of victims of human rights abuses around the world share two characteristics: Deprivation, and discrimination – whether it is based on race or ethnicity, gender, beliefs, sexual orientation, caste or class. From hunger to massacres, sexual violence and slavery, human rights violations are rooted in these hidden, and sometimes not so hidden, factors.”

“They are not spontaneously generated. Most violations of human rights result from policy choices, which limit freedom and participation, and create obstacles to the fair sharing of resources and opportunities.”

“The most powerful instrument in the arsenal we have against poverty and conflict is the weapon of massive instruction. Respect for the human rights of all, justice, education, equality – these are the strongly interlocking elements that will build fair, confident and resilient societies; true development; and a permanent peace.”

“Everybody knows when police use torture, and when tweets are brutally suppressed.  Everybody knows when discrimination means poverty, while corrupt elites gorge on public goods, supported by a corrupt judiciary.  Everybody knows when women are treated like property, and children go hungry, and unschooled, in squalid neighborhoods.”

“Some of the evidence may be hidden. But the reality, in far too many countries, of massacres and sexual violence; crushing poverty; the exclusive bestowal of health-care and other vital resources to the wealthy and well-connected; the torture of powerless detainees [U.S.?]; the denial of human dignity – these things are known. . . . [T]hey are what truly make up a State’s reputation; together with the real steps – if any – taken by the State to prevent abuses and address social inequalities, and whether it honors the dignity of its people.”

“The only real measure of a Government’s worth is . . . the extent to which it is sensitive to the needs – and protects the rights – of its nationals and other people who fall under its jurisdiction, or over whom it has physical control.”

“Some policy-makers persuade themselves that their circumstances are exceptional, creating a wholly new reality unforeseen by the law. This logic is abundant around the world today:  ‘I arrest arbitrarily and torture because a new type of war justifies it. I spy on my citizens because the fight against terrorism requires it. I don’t want new immigrants, or I discriminate against minorities, because our communal identity is being threatened now as never before. I kill without any form of due process, because if I do not, others will kill me.’ “

“I must remind you of the enduring and universal validity of the international human rights treaties that your States wrote and ratified. In reality, neither terrorism, nor globalization, nor migration are qualitatively new threats that can justify overturning the legal foundations of life on Earth.  They are not new.”

“At a time of intensifying global anxiety, I believe the people of the world are crying out for profound and inspiring leadership equal to the challenges we face.  We must therefore renew, by the strongest action, our dedication to the reality of inalienable and universal human rights, to end discrimination, deprivation, and the seemingly inexhaustible litany of conflicts and crises that generate such terrible, and needless, suffering.”

“What will become of us, of our world, if we ignore our treaties and principles? Can we be so stupid as to repeat scenes from the twentieth century, punctured as it was by such awful inhumanity?  You must not make it so.  This is principally your burden, and ours.  Together, if we succeed in turning the corner, in improving our global condition, we can then say the screams of history and of the millions upon millions of victims, have been heard, finally.  Let us make it so.”

High Commissioner’s Speech, March 5th [5]

The High Commissioner was “appalled by the massive suffering ISIL provokes [in Syria, Iraq and Libya]: from the murders, torture, rape and sale of children . . . ; to mass beheadings; burning people alive in cages; seemingly genocidal attacks on ethnic and religious groups; the obliteration of due process; torture; deprivation of income and every kind of service and resource; recruitment of children; the destruction of elements of the cultural heritage of humanity; and, not least, particularly vicious and comprehensive attacks on the rights of women and girls.” [Similar horrible actshe said, were perpetrated in Nigeria by Boko Haram and in Yemen and Somalia by other groups.]

“My Office strongly supports efforts by States around the world to prevent and combat terrorism, and to ensure that the perpetrators of terrorism, as well as their financiers and suppliers of arms, are brought to justice.”

“Terrorist attacks [,however,] cannot destroy the values on which our societies are grounded – but laws and policies can. Measures that build what has been termed the ‘national security state’ – such as arbitrary or prolonged detention; torture and ill-treatment; massive surveillance that contravenes the right to privacy; unfair trials; discriminatory policing; and the abusive use of legislation to curb legitimate rights to peaceful protest and to freedom of expression – are human rights violations. They generate legitimate resentment, harm social cohesion, and undermine the essential values of the international community.”

“There is real danger that in their reaction to extremist violence, opinion-leaders and decision-makers will lose their grasp of the deeper principles that underpin the system for global security which States built 70 years ago to ward off the horror of war. The fight against terror is a struggle to uphold the values of democracy and human rights – not undermine them. . . [C]ounter-terrorist operations that are non-specific, disproportionate, brutal and inadequately supervised violate the very norms that we seek to defend. They also risk handing the terrorists a propaganda tool – thus making our societies neither free nor safe. The use of torture, neglect of due process and collective punishment do not make the world any safer.”

“To be truly effective, any response to extremist violence must be targeted, proportionate, and legal. Military campaigns, financial sanctions and attempts to staunch the inflow of weapons – such as the United Nations Arms Trade Treaty – may be part of the solution.”

“But other actions are needed to stem the root causes that feed into these conflicts. We must acknowledge that large numbers of people do not join such extremist movements en masse because they have been suddenly and inexplicably hypnotized. Extremism – however repugnant – is nurtured by ideology, and by alienation fed by years of tyranny, corruption, repression, discrimination, deprivation and neglect of the legitimate rights of communities.”

He especially was “disturbed by a continuing trend of harsh restrictions on public freedoms by States across all regions. I refer to military crackdowns on demonstrations; harsh sentencing of human rights defenders, journalists and dissidents in politically motivated trials; brutal punishments for simple tweets; censorship; oppressive and illegitimate regulations of civil society movements; the use of new technologies to stifle human rights in the virtual space; and new security laws that are unjustly broad, endangering civil liberties and human rights.”

“And yet the great pillar of every resilient and participative society is freedom of expression. Freedom to formulate the ideas of equality led to the overthrow of colonialism, and has powered every movement against discrimination and injustice. To immunize against dictatorship or totalitarianism, to undo discrimination, to drive justice and accountability, we need freedom of expression – full and free and far-reaching. There is no good governance without free speech.”

The High Commissioner’s speech included specific criticisms of many countries. About the U.S., he said: “In the United States, the Senate report on torture in the context of counter-terrorism operations is courageous and commendable, but profoundly disturbing. For a country that believes so strongly in human rights to have swiftly abandoned their fundamentals at a time of crisis is as astonishing as it is deplorable. And yet few other countries have had the courage to likewise publicly investigate and publicly admit to rights abuses resulting from counter-terror operations – and many should.”

“Under international law, the [Senate] report’s recommendations must be followed through with real accountability. There is no prescription for torture, and torture cannot be amnestied. It should also lead to examination of the institutional and political causes that led the US to violate the absolute prohibition on torture, and measures to ensure this can never recur.”

“As the Senate report clearly demonstrates, the neglect of due process, use of torture and collective punishments that were permitted by US officials in the post-9/11 context did not make the world – or the US – any safer. On the contrary, they increased the threat of terrorism, by feeding into the grievances on which it thrives. The orange jumpsuits of Guantanamo are a recruitment tool for ISIL and other groups. As former President George W. Bush has conceded, Guantanamo became, I quote, ‘a propaganda tool for our enemies.’”

The High Commissioner also expressed regret at the renewed use of the death penalty in a number of countries – Jordan, Pakistan, and Indonesia – and “the continuing extensive use” of the death penalty in China, Iraq, Iran and the U.S.

In conclusion, he said, “It is the people who sustain government, create prosperity, heal and educate others and pay for governmental and other services with their labour. It is their struggles that have created and sustain States. Governments exist to serve the people – not the other way round.”

“Governments that protect human rights, combat discrimination and deprivation, and which are accountable to their people are more prosperous and more secure than those which stifle rights, hamper opportunities, and repress freedoms. When people’s rights are respected – when they are accorded dignity, have opportunities to express their skills and are given a fair share of resources – they form resilient societies. When they are wronged, their rights betrayed, there is a constant threat of turmoil. Respect for the human rights of the people is not destabilizing; but driving legitimate opposition underground is.”

 Conclusion

Speeches about human rights in international fora often are replete with platitudes. These speeches by the High Commissioner are not. While he condemns the horrible actions of ISIL and Boko Haram, these groups are not represented at the Council. Instead the countries that are represented are often the victims of their evil deeds. Therefore, the High Commissioner spent most of his time chastising the latter countries for failing to live up to the human rights commitments they have made as they are combatting terrorism. Moreover, these speeches address some countries by name and point our their failings.

In a later post we will look again at these speeches in the context of the issues of human rights in the process of U.S.-Cuba reconciliation.

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[1] The Human Rights Council has 47 member states elected by the U.N. General Assembly. Currently both the U.S. and Cuba are such members.

[2] Materials about the Council’s 28th session are available on its website.

[3] The High Commissioner for Human Rights is the principal human rights official of the U.N. and the head of the Office of the High Commissioner for Human Rights, which “spearheads the [U.N.’s] human rights efforts . . . by strengthening international human rights mechanisms; enhancing equality and countering discrimination; combating impunity and strengthening accountability and the rule of law; integrating human rights in development and in the economic sphere; widening the democratic space; and early warning and protection of human rights in situations of conflict, violence and insecurity.”

Prince Zeid Ra’ad Al Hussein of Jordan was unanimously elected the High Commissioner by the U.N. General Assembly in June 2014. His many years of diplomatic service include being Jordan’s Ambassador to the U.S., his country’s Permanent Representative to the U.N. and his serving as an officer of the International Criminal Court. He holds a Bachelor of Arts degree from The Johns Hopkins University and a Doctorate in Philosophy from Cambridge University.

[4] Al Hussein, Opening Speech to the High Level Segment of the Human Rights Council, U.N. (Mar. 2, 2015); UN Human rights Council, Human Rights council opens twenty-eighth session (Mar. 2, 2015); Schlein, UN Council: Rights Being Violated to ‘Shocking Degree,’ VOA (Mar. 2, 2015).

[5] Al Hussein, Opening Statement, Item 2, High Commissioner’s Annual Report, U.N. (Mar. 5, 2015); Member States must enforce human rights amid rising tide of extremism—UN rights chief , UN News (Mar. 5, 2015); Human rights principles in struggle against extremism—Zaid, U.N. (Mar. 5, 2015).

 

 

 

 

U.S. State Department’s Report on International Religious Freedom in 2013

USDeptStateseal

On July 28, 2014, the U.S. State Department released its annual report on religious freedom around the world.[1]

 Secretary of State Kerry’s Comments

Announcing the release of the report, U.S. Secretary of State John Kerry said although the U.S. was “obviously far from perfect,” it was important for the U.S. to treasure freedom of religion as “a universal value. . . . The freedom to profess and practice one’s faith is the birthright of every human being . . . [and] are properly recognized under international law. The promotion of international religious freedom is a priority for President Obama and it is a priority for me as Secretary of State.” In short, “religious freedom remains an integral part of our global diplomatic engagement.”

Executive Summary of the Report

The world had the largest displacement of religious communities in recent memory. In almost every corner of the globe, millions of Christians, Muslims, Hindus, and others representing a range of faiths were forced from their homes on account of their religious beliefs. Out of fear or by force, entire neighborhoods are emptying of residents. Communities are disappearing from their traditional and historic homes and dispersing across the geographic map.” In conflict zones (Syria, Central African Republic and Burma), this mass displacement has become a pernicious norm.

All around the world, individuals were subjected to discrimination, violence and abuse, perpetrated and sanctioned violence for simply exercising their faith, identifying with a certain religion, or choosing not to believe in a higher deity at all. Countries where this was a significant problem were Pakistan, Egypt, Saudi Arabia, Iran, Bangladesh, Sri Lanka and Eritrea. Throughout Europe, the historical stain of anti-Semitism continued to be a fact of life.

Governments repressed religious freedom. Governments from all regions subjected members of religious groups to repressive policies, discriminatory laws, disenfranchisement, and discriminatory application of laws. These governmental actions not only infringed on freedom of religion themselves, but they also often created a permissive environment for broader human rights abuses. Restrictive policies included laws criminalizing religious activities and expression, prohibitions on conversion or proselytizing, blasphemy laws, and stringent registration requirements or discriminatory application of registration requirements for religious organizations. This was especially true in North Korea, Saudi Arabia, Iran, Sudan, China, Cuba, Tajikistan, Turkmenistan, Uzbekistan, Pakistan, Burma, Russia and Bahrain.

Governments engaged in discrimination, impunity and displacement of religious minorities. When governments choose not to combat discrimination on the basis of religion and intolerance, it breeds an environment in which intolerant and violent groups are emboldened, even to the point of physically attacking individuals on the basis of their religious beliefs. Governments in these countries failed to protect vulnerable communities and many religious minority communities were disproportionately affected, resulting in a large number of refugees and internally displaced persons. This was especially true in Syria, Sri Lanka, Egypt, Iraq, Bangladesh, Indonesia, India and Nigeria. Rising anti-Semitism and anti-Muslim sentiment in the following countries of Europe demonstrated that intolerance is not limited to countries in active conflict:Belgium, France, Germany, Hungary, Italy, Latvia, Sweden and United Kingdom.

Religious minority communities were disproportionately affected by violence, discrimination and harassment. In many regions of the world, religious intolerance was linked to civil and economic strife and resulted in mass migration of members of religious minority communities throughout the year. In some of these areas, the outward migration of certain communities has the potential to permanently change the demographics of entire regions.

“Countries of Particular Concern”

Pursuant to the International Religious Freedom Act of 1998, the Secretary of State designated the following countries as “Countries of Particular Concern” (CPC): Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, Turkmenistan, and Uzbekistan. Such countries “engage in or tolerate particularly severe violations of religious freedom” or “systematic, ongoing, and egregious violations of religious freedom, including torture, cruel, inhuman, or degrading treatment or punishment, prolonged detention without charges, abduction or clandestine detention of persons, or other flagrant denial of the right to life, liberty, or the security of persons based on religion.”

Turkmenistan, which is new to this State Department list, is the only one of eight countries recommended for such designation by the latest report from the U.S. Commission on International Religious Freedom. The others so recommended by the Commission are Egypt, Iraq, Nigeria, Pakistan, Syria, Tajikistan and Vietnam.

Ambassador-at-large for International Religious Freedom

Simultaneously with this report’s release, the Obama administration announced the nomination of Rabbi David Saperstein as the next ambassador-at-large for international religious freedom. Rabbi Saperstein, a reform rabbi and lawyer known for his work in Washington to advance religious freedom, would be the first non-Christian to lead the State Department’s Office of International Religious Freedom, if confirmed by the Senate.

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[1] This post is based upon the International Religious Freedom Report for 2013 (July 28, 2014); Secretary Kerry, Remarks at Rollout of the 2013 Report on International Religious Freedom (July 28, 2014); Assistant Secretary Malinowski, Remarks on the Release of the 2013 Report on International Religious Freedom (July 28, 2014); Department of State, Fact Sheet: 2013 Report on International Religious Freedom (July 28, 2014). Earlier posts covered the international law regarding religious freedom and the State Department’s reports on the subject for 2011 and 2012.

The U.S. Commission on International Religious Freedom’s Annual Report 2014   

Comm'n Intl Religious Free                                                

On April 30, 2014, the quasi-independent U.S. Commission on International Religious Freedom released its Annual Report 2014, pursuant to the International Religious Freedom Act of 1988 (“the Act”).[1]

Introduction

The Commission relies upon this definition of the freedom in the Universal Declaration of Human Rights: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” Similar provisions are found in several multilateral human rights treaties.[2] (P. 9.)

The Report stressed the importance of this freedom. It says this right “protects the freedom of religious communities, as groups, to engage in worship and other collective activities. It also protects every individual’s right to hold, or not to hold, any religion or belief, as well as the freedom to manifest such a religion or belief, subject only to the narrow limitations specified under international law.” (P. 9.)

This right is important, says the Commission, “because it enables people to follow what their conscience dictates. . . . People are entitled to religious freedom by virtue of their humanity.” Therefore, there can be no “coercion or compulsion in these matters.” (P. 2.)

Moreover, whenever this freedom is abused, “societal well-being would suffer” as well as democracy and other human rights and economic productivity. So too “peace and security may become more elusive.” In short, according to the commission, “the defense of religious freedom is both a humanitarian imperative and a practical necessity.” (P. 3.)

General Recommendations

The Commission recommended that the U.S. do the following with respect to this freedom:

  • develop and implement a religious freedom strategy;
  • demonstrate the importance of religious freedom , including the designation of “countries of particular concern ” identified by the Commission;
  • reinvigorate and create new tools under the Act;
  • expand training, programming and public diplomacy about the subject;
  • expand multilateral efforts on the subject; and
  • protect asylum-seekers from being returned to countries where they face persecution for religious reasons. (Pp. 7-8.)

“Countries of Particular Concern” (Tier 1 Countries)

Under its authorizing statute, the Commission is required to designate as “countries of particular concern” (CPC) (or “Tier 1 Countries”) those that have engaged in or tolerated “particularly severe” violations of religious freedom. (P. 5.)

The latest report recommends that the Secretary of State re-designate the following eight countries as Tier 1 countries: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan and Uzbekistan. In addition, the Report recommends that the following additional eight countries also be so designated by the State Department: Egypt, Iraq, Nigeria, Pakistan, Syria, Tajikistan, Turkmenistan and Vietnam. (P. 5.)

Tier 2 Countries

The Commission also designates some countries as “Tier 2 Countries,” i.e., countries on the threshold of Tier 1 status, i.e., when their “violations . . . are particularly severe” and when at least one, but not all three, of the criteria for that status (“systematic, ongoing and egregious”) is met. (P. 5.)

The latest Report designated the following nine countries as Tier 2: Afghanistan, Azerbaijan, Cuba, India, Indonesia, Kazakhstan, Laos, Russia and Turkey.[3] (P. 5.)

Other Countries

The latest Report also discussed seven other countries (Bahrain, Bangladesh, Belarus, Central African Republic, Ethiopia, Kyrgyzstan and Sri Lanka) and one region (Western Europe) that it monitored during the year. (P. 5.)

Conclusion

Because of my personal interest in Cuba, including its religious freedom, a subsequent post will critique the Report regarding that country.

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[1] The Act § § 202, 205. The Report contains an account of the development of the Act and the 15-year history of its implementation. (Pp. 11-23.) A prior post examined the fascinating structure and composition of the Commission, and another post its report issued in 2013.

[2] See Post: International Law Regarding Freedom of Religion (Jan. 1, 2012).

[3] Previously the Commission called this group the “Watch List of countries where the serious violations of religious freedom engaged in or tolerated by the governments do not meet the CPC threshold, but require close monitoring.” According to the Commission, the “Watch List provides advance warning of negative trends that could develop into severe violations of religious freedom, thereby providing policymakers with the opportunity to engage early and increasing the likelihood of preventing or diminishing the violations.”

 

 

 

 

 

 

 

 

Latest U.S. Reports on International Religious Freedom

Annually the U.S. Department of State, pursuant to statutory authorization, releases a report on the status of religious freedom in every country in the world.[1] In addition, the quasi-independent U.S. Commission on International Religious Freedom releases annual reports on the same subject for selected countries.[2]

It should be noted at the outset that these two agencies are not seeking to impose on the rest of the world the U.S. constitutional prohibition of the “establishment of religion” or of “abridging the free exercise [of religion].” [3] Instead the agencies reports rely upon this definition of the freedom in the Universal Declaration of Human Rights: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” Similar provisions are found in several multilateral human rights treaties.[4]

The post will review the latest State Department report on this subject for all 194 other countries in the world and the Commission’s latest report on 29 countries plus one large region (Western Europe).[5]

Latest State Department Report

USDeptStateseal

After emphasizing the importance of religious freedom, the State Department’s May 20, 2013, report “tells stories of courage and conviction, but also recounts violence, restriction, and abuse. While many nations uphold, respect, and protect religious freedom, regrettably, in many other nations, governments do not protect this basic right; subject members of religious minorities to violence; actively restrict citizens’ religious freedom through oppressive laws and regulations; stand by while members of societal groups attack their fellow citizens out of religious hatred, and fail to hold those responsible for such violence accountable for their actions.”

The report continues.”The immediate challenge is to protect members of religious minorities. The ongoing challenge is to address the root causes that lead to limits on religious freedom. These causes include impunity for violations of religious freedom and an absence of the rule of law, or uneven enforcement of existing laws; introduction of laws restricting religious freedom; societal intolerance, including anti-Semitism and lack of respect for religious diversity; and perceptions that national security and stability are best maintained by placing restrictions on and abusing religious freedom.”

Highlighted for concern by the report were “[l]aws and policies that impede the freedom of individuals to choose a faith, practice a faith, change their religion, tell others about their religious beliefs and practices, or reject religion altogether remain pervasive. Numerous governments imposed such undue and inappropriate restrictions on religious groups and abused their members, in some cases as part of formal government law and practice.” Another concern was the “use of blasphemy and apostasy laws.” They “continued to be a significant problem, as was the continued proliferation of such laws around the world. Such laws often violate freedoms of religion and expression and often are applied in a discriminatory manner.”

The report documented “a continued global increase in anti-Semitism. Holocaust denial and glorification remained troubling themes, and opposition to Israeli policy at times was used to promote or justify blatant anti-Semitism. When political leaders condoned anti-Semitism, it set the tone for its persistence and growth in countries around the world. Of great concern were expressions of anti-Semitism by government officials, by religious leaders, and by the media.”

According to the report, “Governments that repress freedom of religion and freedom of expression typically create a climate of intolerance and impunity that emboldens those who foment hatred and violence within society. Government policy that denies citizens the freedom to discuss, debate, practice, and pass on their faith as they see fit also undercuts society’s ability to counter and combat the biased and warped interpretations of religion that violent extremists propagate. Societal intolerance increased in many regions during 2012.”

Finally the report said, “Governments exacerbated religious tensions within society through discriminatory laws and rhetoric, fomenting violence, fostering a climate of impunity, and failing to ensure the rule of law. In several instances of communal attacks on members of religious minorities and their property, police reportedly arrested the victims of such attacks, and NGOs alleged that there were instances in which police protected the attackers rather than the victims. As a result, government officials were not the only ones to commit abuses with impunity. Impunity for actions committed by individuals and groups within society was often a corollary of government impunity.”

The report also acknowledged the Department’s statutory obligation to designate “Countries of Particular Concern (CPCs), i.e., those countries that are considered to commit “particularly severe violations of religious freedom,” and whose records call for the U.S. government to take certain actions under the terms of the Act. The term ‘‘particularly severe violations of religious freedom’’ means systematic, ongoing, egregious violations of religious freedom, including violations such as: (a) torture or cruel, inhuman, or degrading treatment or punishment; (b) prolonged detention without charges; (c) causing the disappearance of persons by the abduction or clandestine detention of those persons; or (d) other flagrant denial of the right to life, liberty, or the security of persons.”

Accordingly the report re-designated the following eight countries as CPCs: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan and Uzbekistan.[6]

Latest Commission Report

USCommRelFree

 

Under the authorizing statute, the Commission is required to designate as “countries of particular concern” (CPC) (or “Tier 1 Countries”) those that have engaged in or tolerated “particularly severe” violations of religious freedom.

In its latest report, issued on April 30, 2013, the following 15 countries were so designated: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan and Ubekistan (all of which had been designated as “Countries of Particular Concern” (CPC) by the State Department the prior year) plus Egypt, Iraq, Nigeria, Pakistan, Tajikistan, Turkmenistan and Vietnam.

The Commission also designates some countries as “Tier 2 Countries,” i.e., countries on the threshold of Tier 1 status, i.e., when their “violations . . . are particularly severe” and when at least one, but not all three, of the criteria for that status (“systematic, ongoing and egregious”) is met.

The latest report designated the following eight countries as Tier 2: Afghanistan, Azerbaijan, Cuba, India, Indonesia, Kazakhstan, Laos and Russia.[7]

The latest report also discussed six other countries (Bahrain, Bangladesh, Belarus, Ethiopia, Turkey and Venezuela and one region (Western Europe) that it monitored during the year. At first glance the monitoring of Western Europe seems anomalous, but here are the topics of concern to the Commission:

  • Restrictions on religious dress (full-face veils) in France and Belgium.
  • Failure in Sweden, Luxembourg, Switzerland, Poland, Norway and Iceland to exempt religious slaughter of animals from laws requiring prior stunning of the animals.
  • Suggestions in Germany and Norway that religious circumcisions of male children were illegal.
  • Restrictions on construction of Islamic minarets in Switzerland, and the lack of an official mosque in Athens, Greece.
  • “Incitement to hatred” and other laws in almost all European states that can be used to restrict expression of religious beliefs.
  • Reluctance in many European states to provide accommodation of religious objections to generally applicable laws.
  • Measures in France, Austria, Belgium and Germany against religious groups perjoratively characterized as “cults” or “sects.”
  • Societal intolerance, discrimination and violence based on religion or belief such as towards Muslim women with full-face veils, Jewish people and Jehovah’s Witnesses.

It should also be noted that the Commission sometimes takes an adversarial position vis-à-vis the U.S. State Department. For example, on April 30, 2013, when the Commission released its latest report, its simultaneous press release recommended that the Department designate as “Countries of Particular Concern” the seven additional countries the Commission had placed in Tier 1 as noted above.

When the Department failed to do so in its May 20th report, the next day the Commission issued a press release criticizing the Department for failure to make additional CPC designations since August 2011 and to do so for the same seven additional countries.

Conclusion

Because of my personal interest in Cuba, including its religious freedom, a subsequent post will compare and contrast the two reports regarding that country.

Such a comparison, in my opinion, will show that the State Department’s reports are more balanced and fair at least with respect to Cuba.


[2]  Id. § § 202, 205. The fascinating structure and composition of the Commission will be the subject of a future post.

[3]  U.S. Const., First Amend.

[5] A prior post examined the prior State Department report.

[6] The State Department report noted that it considers the recommendations of the Commission on CPCs, but that the Secretary of State makes the final decision on that issue. The Department’s report thereby implicitly rejected the Commission’s recommendation for an additional seven countries to be so designated.

[7] Previously the Commission called this group the “Watch List of countries where the serious violations of religious freedom engaged in or tolerated by the governments do not meet the CPC threshold, but require close monitoring.” According to the Commission, the “Watch List provides advance warning of negative trends that could develop into severe violations of religious freedom, thereby providing policymakers with the opportunity to engage early and increasing the likelihood of preventing or diminishing the violations.”

 

Alien Tort Statute: Important Cases Heading to U.S. Supreme Court

On July 8, 2011, the U.S. Court of Appeals for the District of Columbia Circuit decided an important case under the Alien Tort Statute (ATS) that is headed for the U.S. Supreme Court.

In Doe v. Exxon Mobil Corp., the D.C. Circuit held, 2 to 1, that corporations may be held liable for aiding and abetting human rights violations under the ATS. The plaintiffs were Indonesian villagers who accused Exxon Mobil of aiding and abetting murder, torture and rape by Indonesian soldiers acting under the corporation’s direction to protect its natural-gas operations in that country.[1]

Late last year the U.S. Court of Appeals for the Second Circuit in New York City reached the opposite conclusion, 2 to 1, in Kiobel v. Royal Dutch Petroleum Co., another ATS case, this one by Nigerians against Royal Dutch Petroleum Co. for alleged complicity in crimes against humanity.[2]

In Kiobel, the plaintiffs already have asked the U.S. Supreme Court for review of that case,[3] and it is likely that Exxon Mobil will do as well in the other case. Since an important factor in the Supreme Court’s decision to grant such review (granting the writ of certiorari) is a split in decisions by the courts of appeal on important issues of federal law,[4] the Court, in my opinion, is highly likely to grant such review in both cases and to consider them on the merits next Term (October 2011-September 2012).

The ATS provides that the U.S. district courts have “original jurisdiction of any civil action by an alien [non-U.S. citizen] for a tort only, committed in violation of the law of nations or a treaty of the United States.”[5]

In future posts, I will review (a) the adoption of the ATS in 1789 and its use through 1979; (b) the interpretation of the ATS by the Supreme Court in 2004; (c) the use of the ATS by the lower federal courts since 1980; (d) the issue of aiding and abetting in ATS cases; and (e) the issue of corporate liability in ATS cases.


[1] Doe v. Exxon Mobil Corp., No. 09-7125 (D.C. Cir. July 8, 2011), http://www.cadc.uscourts.gov/internet/opinions.nsf; Reuters, Exxon to Face Lawsuit Over Rights Violations in Indonesia, N.Y. Times (July 8, 2011); Kendall, Exxon Hit by Reversal in Human-Rights Case, W.S.J. (July 9, 2011).

[2]  Kiobel v. Royal Dutch Pet. Co., 621 F.3d 111 (2d Cir. 2010), pet. for reh’g denied, 642 F.3d 268 (2d Cir. 2011), pet. for reh’g en banc denied, 642 F.3d 379 (2d Cir. 2011), pet. for cert. filed (No. 10-1491 June 6, 2011).

[3]  Id.

[4]  U.S. Sup. Ct. Rule 10 (a): “A petition for a writ of certiorari will be granted only for compelling  reasons.  The  following,  although  neither controlling  nor fully measuring  the Court’s discretion,  indicate  the  character of the  reasons  the  Court  considers: (a) a United States court of appeals has entered a decision  in  conflict  with  the  decision  of  another  United States  court  of  appeals  on  the  same  important matter. . . .”

[5] 28 U.S.C. § 1350.