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quarta-feira, 19 de setembro de 2018

Resisting the Inter-American Human Rights System

Yale Journal of International Law, Forthcoming

67 Pages Posted:   
Jorge Contesse
Rutgers Law School

Date Written: September 13, 2018

Abstract
Questions of scope of authority and enforcement are ripe at what is an increasingly critical time for international human rights law. Since 1988, the Inter-American Court of Human Rights has seen its case law and its influence expand. The Court’s opinions, along with the reports of the Inter-American Commission on Human Rights, have become widely seen by domestic courts as authoritative, thereby realizing many of the promises of international norms and holding Latin American states accountable for their unwillingness or inability to fulfill their international obligations. Along with the significant institutionalization of human rights law in other regions, as well as at the global level, human rights law in the Americas has become part of the legal and political landscape of states and the individual, creating a kind of inter-American constitutionalism.

Despite this trend, the system of human rights protection has recently come under fire, as have other regional human rights regimes and international courts. States in general, and their courts, in particular, have become less receptive, and at times even opposed to what they perceive as a too aggressive approach to adjudication. Drawing on interviews with current constitutional judges from three Latin American countries, this Article identifies and analyzes three core facets of resistance and backlash in the inter-American human rights system. It then offers two avenues for reform to strengthen the system: first, the reformulation of legal doctrines used by the international human rights courts to mediate their relation with member states; and second, the adoption of new mechanisms to monitor compliance with decisions by international courts.

Keywords: human rights, Inter-American Court of Human Rights, Latin America, backlash,

Referência
CONTESSE, Jorge. Resisting the Inter-American Human Rights System (September 13, 2018). Yale Journal of International Law, Forthcoming. Disponível em: <https://ssrn.com/abstract=3248979>. Acesso em 18 set. 2018.

sexta-feira, 7 de setembro de 2018

The Foreign Sovereign Immunities Act's Evolving Genocide Exception

UCLA Journal of International Law and Foreign Affairs, Vol. 23, 2019, Forthcoming

U. of Pittsburgh Legal Studies Research Paper No. 2018-27

46 Pages Posted: 28 Aug 2018  
Vivian Grosswald Curran
University of Pittsburgh - School of Law

Date Written: August 27, 2018

Abstract
The Foreign Sovereign Immunities Act (FSIA) was passed by Congress as a comprehensive statute to cover all instances when foreign states are to be immune from suit in the courts of the United States, as well as when foreign state immunity is to be limited. Judicial interpretation of one of the FSIA’s exceptions to immunity has undergone significant evolution over the years with respect to foreign state property expropriations committed in violation of international law. U.S. courts initially construed this FSIA exception by denying immunity only if the defendant state had expropriated property of a citizen of a nation other than itself. Later, such suits were allowed even where the plaintiffs were deemed by the court to have been formal citizens so long as they had not been treated as such at the time of the expropriation. This tended to occur where states had dispossessed groups of citizens, often minority populations, of their property rights, and often coincided with grave human rights violations.

In the most recent appellate decisions to consider the issue, two circuits, the Seventh and D.C., nationality has been discarded entirely as a criterion to abrogate immunity if a court considers the defendant state’s expropriation to have been part of a policy of genocide. The D.C. Circuit has gone still further in the later of the cases and equates the act of property expropriation with genocide. Both circuits initially also imposed a new exhaustion of local remedies requirement. As of 2018, a conflict exists between the two circuits on that issue.

The genocide interpretation with the imposition of exhaustion distorts both the FSIA and international customary law. It risks trivializing the concept of genocide, and in the Seventh Circuit it removes exhaustion from its international law roots in cases that occur exclusively in international tribunals by inserting the requirement into a domestic court framework. Neither development is consistent with the FSIA statute. Coupling the new genocide category with an exhaustion requirement also has a net effect of depriving plaintiffs of recovery inasmuch as lawsuits in the foreign defendant states are unlikely to succeed, and the obstacles are steep for persuading U.S. federal courts subsequently to retry a case once an adverse foreign judgment has been issued.

Referência

CURRAN, Vivian Grosswald. The Foreign Sovereign Immunities Act's Evolving Genocide Exception (August 27, 2018). UCLA Journal of International Law and Foreign Affairs, v. 23, 2019, Forthcoming; U. of Pittsburgh Legal Studies Research Paper No. 2018-27. Disponível em: <https://ssrn.com/abstract=3239554>. Acesso em: 06 set. 2018.