New challenges for the American lawyer in international human rights

Washington and Lee Law Review, Summer 1998 by Karamanian, Susan L

Irrespective of where we serve inthe legal community, however, we all have a special responsibility to advance human rights. We are privileged because we have had the opportunity of studying the role of human rights in society under the rule of law. We have an obligation to share this knowledge with others. For a genuine observation of human rights, it is important that this knowledge also be spread to the grass roots.' C. Litigation When appropriate, lawyers should continue to assert claims based on international human rights norms. As the Filartiga court recognized, standards of international law are "evolving," and the courts should apply the international law in effect when the issue is raised.98 Thus, the lawyer needs to keep abreast of all of the new developments from whatever possible sources, including new conventions, declarations, and cases. Lawyers should act deliberately in identifying those norms that are sufficiently specific, universal, and obligatory to meet the test of Filartiga. For example, the Ninth Circuit in Hilao v. Estate of Marcos9 held that while "cruel, inhuman, or degrading treatment" is a universally-recognized norm under international law, it is not sufficiently specific to allow a claim for its violation under the Alien Tort Claims Act. Ioo But the district court in Xuncax v. Gramajoll found that torture, ransacking of homes, and bombings qualify as specific examples of "cruel, inhuman or degrading" activity in violation of international law.l02 Clearly, over the next few years, parties will litigate the scope of "cruel, inhuman or degrading."'03 Further, lawyers should be mindful of the Torture Victim Protection Act, which now provides a federal cause of action for official torture and extrajudicial killing.'0 But they should also realize that the Torture Victim Protection Act requires a showing that the individuals who have committed torture or extrajudicial killing must have acted "under actual or apparent authority, or color of law, of any foreign nation."los

It is likely that Congress will enact new laws that require courts to examine international human rights principles. For example, the Antiterrorism and Effective Death Penalty Act of 1996'* may prompt important decisions on issues such as exemption from the sovereign immunity doctrine and statesponsored terrorism. At all times, though, the lawyer should examine each case from the perspective of relevant international human rights principles and, when appropriate, attempt to incorporate those principles into the analysis. As the late Professor Lillich wrote, using the "`indirect incorporation' approach seems to be a sensible strategy for human rights lawyers and a wise policy for U.S. courts concerned with developing the promising relationship between the U.S. Constitution and international human rights law."''' IV Conclusion Professor Kronman reminds us that lawyers should aspire to serve the public good, to be devoted citizens committed to the spirit of the law. As such, we must be advocates for international human rights. And we must do more. On the day Justice Blackmun announced his retirement from the Supreme Court, hejust happened to be giving the keynote address at the Annual Meeting of the American Society of International Law. That day also coincided with Professor Henkin's retirement as President ofthe Society. Justice Blackmun's concluding statement was a simple reminder to everyone of the work that remains: "I look forward to the day when the majority of the Supreme Court will inform almost all of its decisions almost all of the time with a decent respect to the opinions of mankind."los For that day to ever come, we as lawyers must assume our solemn responsibilities on behalf of all of mankind.