2004.04.24 - PEGC Extra ======================= 1) SUPREME COURT ISSUES [2] SOME THOUGHTS FROM PROFESSOR PAUST Prof. Jordan J. Paust (University of Houston Law Center) responded to my earlier post today with some valuable insights: Feel free to distribute this re: the International Covenant on Civil and Political Rights and the fact that the Alien Tort Claims Act (ATCA), 28 U.S.C. Sec. 1350, is relevant implementing legislation that executes any treaty of the U.S. for purposes covered by the statute. Note that the habeas statute is also relevant implementing legislation, since it expressly applies to treaties of the U.S. and implements any such treaty for habeas purposes. Jordan J. Paust, INTERNATIONAL LAW AS LAW OF THE UNITED STATES 97, 361-62, 373 (2 ed. 2003) (noting that a U.S. declaration of non-self-execution is expressly inapplicable to Article 50, which mandates (also in self-executing language) that all of "**[t]he provisions** of the present Covenant **shall extend** to all parts of federal States **without any limitations or exceptions**" (emphasis added); that the Executive Explanation concerning the declaration of partial non-self-execution identifies a special meaning that the intent was that the International Covenant would not itself directly create a cause of action, thus allowing other uses of rights under the treaty, including use of rights defensively or to limit governmental power; and that the Executive Explanation concerning Article 50 was emphatic that "the Covenant will apply ... the intent is not to modify or limit U.S. undertakings under the Covenant.... the U.S. will implement its obligations under the Covenant by appropriate ... judicial means, federal or state"). Since, the ATCA creates a domestic cause of action and expressly covers a violation of any treaty of the United States, it is not that important whether the treaty also creates a cause of action or whether the declaration is void as a matter of law because it is inconsistent with the object and purpose of the treaty. Concerning the issue whether the declaration is void, see, e.g., PAUST, supra, at 363-69, 377." Prof. Paust's outstanding amicus brief in Padilla for the INTERNATIONAL LAW PROFESSORS [ http://www.wiggin.com/db30/cgi-bin/pubs/Law%20Professors.pdf ] is also worth quoting here: Whether Mr. Padilla is a peacetime detainee, a wartime "enemy combatant" detained in the U.S., or a so-called unlawful combatant detained in the U.S., is ultimately unimportant, because every person has a fundamental human right to freedom from arbitrary detention, every person has a fundamental and peremptory human right to judicial review of the propriety of detention (see next section), and customary human rights to due process are incorporated through common Article 3 of the 1949 Geneva Conventions and apply to any person who is detained during an armed conflict regardless of personal status. Id. at 6. See also Jordan J. Paust, JUDICIAL POWER TO DETERMINE THE STATUS AND RIGHTS OF PERSONS DETAINED WITHOUT TRIAL, 44 Harv. Int'l L.J. 503 (2003), available at: http://www.law.harvard.edu/students/orgs/ilj/paust.pdf -------------------------------------------------------------------------------- CORRECTION: My article today on Supreme Court Issues stated: "THE WAR CRIMES ACTS OF 1996 & 1997, 18 USC 2441, which makes it a federal crime to commit any grave breach of the Geneva Conventions, any violation of Geneva Common Articles 1-3, or any violation of the Hague IV (1907) Annex of Regulations arts. 23, 25, 27, or 28." That should read "any violation of Geneva Common Article 3," not "any violation of Geneva Common Articles 1-3." My online copy of the Update has been corrected. Regards, Charly * * * Charles Gittings Oakland, California cbgittings@sbcglobal.net +1-510-923-1688 PROJECT TO ENFORCE THE GENEVA CONVENTIONS (PEGC) http://PEGC.no-ip.info PEGC Update http://PEGC.no-ip.info/PEGC_Update.html