The twentieth century has witnessed a marked change in the character of international law in the field of human rights. One of the most significant aspects of that change concerns the extent to which a citizen is entitled to protection against his own country’s infringement of his fundamental rights, such as the right to freedom from torture and other cruel or degrading treatment. Traditionally, entitlement to such protection has been characterized as a domestic matter, unrelated to international law. International law has generally involved the relationship among nations and has conferred solely upon the state the right of redress for a violation of international law. A treaty’s obligations were perceived as running toward the signatory nations, and not toward the citizens of those nations. Thus, even when the subject matter of a treaty was of great importance to the individual, he was not entitled to invoke international law. An individual could seek relief for a violation of international law .only through the internal mechanisms of his own state. He faced a dim prospect of attaining such relief when the state itself was the alleged offender against his fundamental rights.
Gradually, the notion that the right to relief for violations of international law belongs solely to the state, and not to the aggrieved individual, has eroded. The widespread endorsement of such instruments as the United Nations Charter, the Universal Declaration of Human Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms, and other international covenants, conventions, and declarations has contributed to this erosion. Still unresolved is the extent to which the human rights norms embodied in these international instruments have become part of customary international law. The question involves the modern attempt to define and enforce substantive human rights. This Note will explore these concerns in relation to the proper role of the federal courts of the United States in deciding cases which involve allegations of tortbre prohibited under international law.
The Note will focus upon the case of Filartiga v. Pena-lrala, which currently confronts the Second Circuit with the question whether, for purposes of jurisdiction under 28 U.S.C. § 1350, the Alien Tort Claims Act, torture should be held to be violative of either the law of nations or of a treaty of the United States. This Note will suggest that the prohibition of torture in human rights instruments has become a norm of international law which binds governments in their relations with their own citizens. Consequently, an alien’s allegations of torture committed by an official of the alien’s state satisfies jurisdictional requirements when federal jurisdiction is grounded upon violations of international law. This Note will then inquire into the policy considerations relevant to the federal courts’ decision whether to exercise that jurisdiction.
Voting rights advocates should explore section 11(b) of the Voting Rights Act as a vehicle to combat voter intimidation.
Mandatory arbitration for guestworkers, a uniquely vulnerable group, will result in class inequality and worse conditions for all workers.
DOJ guidance for mentally impaired detainees in immigration removal proceedings should be amended to provide counsel at earlier signs of incompetence.
An evidentiary privilege to protect workers' confidential communications from disclosure in federal and state court proceedings would support unions.