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December 23, 2013
Posted by Tyler Giannini and Susan Farbstein
A busy couple of days on the Alien Tort Statute (ATS) front had our International Human Rights Clinic in full swing right up to the end of the semester today.
First, along with co-counsel, we filed an opposition to a motion dismiss in our Mamani case last Wednesday with the district court in Florida. The ATS case, against the former Bolivian president and minister of defense, alleges that they devised a plan to kill civilians in order to quash popular protests against their government’s economic policies. In urging the Court to allow the case to proceed, the brief argues the Defendants executed their plan by agreeing to use military force to kill thousands of civilians until the population was terrorized enough to abandon demonstrations. The deaths that followed, including those of Plaintiffs’ family members in late 2003, were, according to the brief, “the intended result of a systematic plan in which military sharpshooters repeatedly shot and killed or injured civilians, in multiple locations over many weeks.” Defendants fled to the United States to escape criminal prosecution in Bolivia and have sought safe haven here for more than ten years, refusing to return to Bolivia to face trial.
We also filed our second and third amicus curiae briefs of the term in key ATS cases, on Thursday in D.C. (Doe v. Exxon), and today in California (Doe v. Cisco). These briefs were similar to the amicus curiae brief on behalf legal historians that we filed in November with the Fourth Circuit in Al Shimari v. CACI. The briefs make it clear that when the Founders enacted the statute in 1789, they would have expected the ATS to apply to U.S. defendants. The Exxon and Cisco cases, both currently before district courts, center on allegations that U.S. corporations aided and abetted human rights violations abroad—in Indonesia and in China, respectively.
Last Thursday, the Ninth Circuit also came down with a significant decision in Doe v. Nestle. Those who follow the ATS know that it has been a busy year, ever since the U.S. Supreme Court’s ruling in Kiobel last April established a new presumption against extraterritoriality for ATS claims; dozens of cases that were previously on hold are again moving through the courts. The Nestle decision is important because it affirms that corporate liability still exists under the ATS even after Kiobel, thereby rejecting an extreme and categorical position that would bar all ATS claims against corporations. Continue Reading…
December 18, 2013
Posted by Susan Farbstein
As South Africa and the world remember Nelson Mandela, there is perhaps no greater way to honor his legacy than to continue the struggle for social justice. A quality education for all children must be at the core of such efforts, as Mandela himself recognized. “Education is the most powerful weapon which you can use to change the world,” he said. In the week before his death, real progress was made on the education front in South Africa.
After three years of sustained campaigning by our South African partners, Equal Education (EE) and Equal Education Law Centre (EELC), Minister of Basic Education Angie Motshekga finally released binding norms and standards for school infrastructure on November 29th. The norms represent a significant victory for future generations of South African students, and for South Africa itself.
The norms—which are legally binding—mandate substantial changes to public schools across the country, many of which must be realized on a relatively short time horizon. Mud schools must be replaced within three years; schools that currently lack water, power, and toilets must be provided such facilities within three years; all schools must have classrooms, electric connectivity, and security measures within seven years; and all schools must have libraries and laboratories within ten years. As a first step, provincial ministers will be required to develop school infrastructure plans within a year, and then report annually on their progress towards implementing the norms.
There are still serious concerns. The norms do not require provincial ministers to make either their plans, or their progress reports, available to the public. The norms also contain a potentially worrisome legal loophole, in the form of language stating that they must only be implemented “as far as reasonably practicable.” Equally troubling are some of the specific provisions, such as the proposed minimum number of toilets per student, which falls well short of international standards recommended by UNICEF and the WHO.
Nevertheless, the norms carry the promise of tangibly improving the education, and therefore the lives, of millions of South African schoolchildren. Our partners have fought long and hard to secure decent school infrastructure for all of South Africa’s students. The norms victory would never have been possible without the advocacy work of EE student and parent members, who joined voices to ensure that their demands could not be ignored. Their collaborative and creative efforts demonstrate that—as Mandela teaches us—while justice and equality may be a long time coming, a group of dedicated and committed people can transform a society. Our Clinic is proud to support their work.
December 3, 2013
Posted by Bonnie Docherty
Five years ago this week, 94 countries gathered in Oslo to sign the Convention on Cluster Munitions. The historic ceremony, held in the hall where the Nobel Peace Prize is awarded, was a moment of celebration and inspiration.
The groundbreaking treaty banned a class of weapons that cause serious harm to civilians. It also showed that humanitarian disarmament, which prioritizes humanitarian concerns over security interests, had become an established means of governing weapons.
While the anniversary of the Convention on Cluster Munitions offers an occasion to reflect on an earlier success, the past month also marked a breakthrough for those working to prevent future civilian casualties. At an international disarmament conference in Geneva, 117 countries turned their attention toward another threat: fully autonomous weapons, also known as “killer robots.” On November 15, the last day of the conference, states parties to the Convention on Conventional Weapons (CCW) unanimously agreed to take up the issue next year.
Cluster munitions have caused civilian casualties during and after conflicts for half a century. Fully autonomous weapons, which would target and fire on targets without meaningful human intervention, might do the same over the coming decades. They do not exist yet, but technology is moving rapidly in their direction.
The Campaign to Stop Killer Robots, a coalition of nongovernmental organizations (NGOs) coordinated by Human Rights Watch, has called for a preemptive prohibition of fully autonomous weapons because of their potential to revolutionize warfare and endanger civilians. The International Human Rights Clinic has supported its efforts through several joint advocacy publications with Human Rights Watch, including one released at CCW in November.
CCW is usually a slow-moving forum so the forthcoming discussions do not mean a treaty banning fully autonomous weapons will be negotiated in 2014. But the fact that parties to the convention, including such military powers as China, Russia, and the United States, have acknowledged the importance of the issue is truly remarkable. It is a tribute in large part to the effort of advocates working on the issue, including the Clinic’s students. Continue Reading…
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