JOSHUA SONDHEIMER (SBN 152000)
MATTHEW J. EISENBRANDT (SBN 217335)
The Center for Justice & Accountability
870 Market Street, Suite 684
San Francisco, CA 94102
Tel: (415) 544-0444
Fax: (415) 544-0456
Email: jsond@cja.org
PAUL HOFFMAN (SBN 71244)
Schonbrun DeSimone Seplow Harris
& Hoffman LLP
723 Ocean Front Walk
Venice, CA 90291
Tel: (310) 396-0731
Fax: (310) 396-7040
Counsel for All Plaintiffs
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
1.
The undersigned are
professors who specialize in international law, international human rights, and/or the right to
freedom of religion or belief. A
list of credentials for the undersigned is attached to this affidavit in
Appendix A. Counsel for the
Plaintiffs requested our expert opinion regarding whether the allegations in the
complaint state violations of the customary international norm protecting
freedom of religion or belief that are actionable under the Alien Tort Claims
Act (ATCA), 28 U.S.C. § 1350. In
our opinion, the answer is yes.
2.
This affidavit embraces and supplements the explanation of the
international status of freedom of religion or belief set forth in the Affidavit. of Professor Jordan J. Paust, ¶¶ 3-5. As set forth more fully below, freedom
of religion or belief is a well- established norm
of customary international law, which protects both freedom ofto private religion and belief and freedom to
express and practice one’s religion or belief through peaceable means. The international norm extends to both
religious and non-religious forms of belief and is one of the core protections
of the international human rights system.
The conduct alleged by the plaintiffs in this case, including arrest and
imprisonment without process,
and torture and other ill-treatment as a result of the plaintiffs’
peaceful adherence and practice of belief violates the international norm
protecting freedom of religion or belief and is actionable under the ATCA.
I.
NORMS ACTIONABLE UNDER THE ATCA
3.
To
be actionable under the Alien Tort Claims Act, an international norm must be
“‘specific, universal, and obligatory.’”
Martinez v. City of Los Angeles, 141 F.3d 1373, 1383 (9th Cir. 1998),
quoting In re Estate of Ferdinand E. Marcos, Human Rights Litigation, 25 F.3d
1467 (9th Cir. 1994). Courts
determine whether a particular norm meets this standard “‘by consulting the
works of jurists, writing professedly on public law; or by the general usage and
practice of nations; or by judicial decisions recognizing and enforcing that
law.’” Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714-15 (9th
Cir. 1992), quoting United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61
(1820) (Story, J.).
4. Universality under the ATCA does not require that the norm have achieved the status of a peremptory or jus cogens norm of international law. The norm must simply have achieved the status of customary international law and must be sufficiently specific to be objectively interpreted and applied. See, e.g., H.R. Rep. No. 102-367 (1991) at 3-4 (acknowledging that the ATCA allows “suits based on . . . norms that already exist or may ripen in the future into rules of customary international law”), quoted in Kadic v. Karadzic, 70 F.3d 232, 241 (2d Cir. 1995), and Doe v. Islamic Salvation Front, 993 F. Supp. 3, 7 (D.D.C. 1998). See also The Paquete Habana, 175 U.S. 677, 694 (1900) (standard ripens into settled rule of international law by “general assent” of civilized nations). To demonstrate specificity of a norm, plaintiffs need not demonstrate “that every aspect of what might comprise a standard . . . [is] universally agreed upon.” Xuncax v. Gramajo, 886 F. Supp. 162, 187 (D. Mass. 1995). Plaintiffs need demonstrate only “a general recognition” that the specific conduct alleged is prohibited. Forti v. Suarez-Mason, 694 F. Supp. 707, 709 (N.D. Cal. 1988). Moreover, the universal and obligatory status of a norm is not undermined by the fact that many nations may violate their international obligations in practice. As the Second Circuit said in Filartiga:
The fact that the prohibition of torture is often honored in the breach does not diminish its binding effect as a norm of international law. As one commentator has put it, “The best evidence for the existence of international law is that every actual State recognizes that it does exist and that it is itself under an obligation to observe it. States often violate international law, just as individuals often violate municipal law; but no more than individuals do States defend their violations by claiming that they are above the law.
Filartiga v. Pena-Irala, 630 F.2d 876, 884 n. 15 (2d Cir. 1980), quoting J. Brierly, The Outlook for International Law, 4-5 (Oxford 1944).
II. THE
CUSTOMARY INTERNATIONAL LAW NORM OF FREEDOM OF RELIGION OR BELIEF
5. The international norm protecting freedom of religion or belief clearly is sufficiently “specific, universal, and obligatory” to be actionable under the ATCA. As discussed below, the right to hold and peacefully express the religious or other beliefs of one’s choice are among the core animating principles set forth in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and other international human rights instruments. Arrests, detention, torture, and other physical abuse solely as a result of an individual’s private adherence to, membership in, or peaceful practice of, their religion or belief would violate this international norm.
6.
Freedom of religion or belief, together with other rights to
opinion and expression, are foundational rights of the modern international
human rights system which are designed to protect individual autonomy from
impermissible interference by the state.
Freedom of religion appeared in early modern-day international
instruments. E.g., Augsburg Peace
Treaty of 1555, cited in U.N. Covenant On Civil And Political Rights,
CCPR Commentary § 1__, at 309 n. 1
(Manfred Nowak, ed., N. P. Engel 1993) [hereinafter CCPR Commentary]. Freedom of religion or belief now isare protected by a wide range
of fundamental multilateral and regional human rights instruments, including
Article 18 of the Universal Declaration of Human Rights ,
G.A. Res. 217A (III), U.N. GAOR, 3d Sess., Supp. No. 16, U.N. Doc A/810 at 71
(1948) [hereinafter “Universal Declaration” or “UDHR”], and Article 18 of the
International Covenant on Civil and Political Rights (ICCPR),
adopted Dec. 16, 1966, 999 U.N.T.S. 171, 6 I.L.M. 360 (1967) (entered into force
Mar. 23, 1976) [hereinafter “ICCPR”].
7.
The Universal Declaration, the foundational instrument of the
modern international human rights regime, was adopted overwhelmingly
unanimously by the U.N. General Assembly, including
China, in 1948. Although the
UDHR itself is not a legally binding treaty, many of its provisions are
recognized as having attained the status of customary international law.[1]
Article 18 of the Universal Declaration provides as follows:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
8.
The principles set forth in the UDHR, including the protection
of freedom of religion or belief, were codified by the ICCPR and the
International Covenant on Economic, Social and Cultural Rights (“ICESCR”),
G.A. Res. 2220A (XXI), U.N. GAOR, 21st
Sess., pt.1, Annex, at 165, U.N. Doc. A/6546 (1966), into binding treaty
law. Thus, Article 18 of the ICCPR
provides in relevant part as follows:
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
9.
The fact that China has signed but not ratified the ICCPR does
not mean that the norm is not applicable to China, since China’s
signature obligates it to uphold the object and purpose of the treaty, and
freedom of religion or belief is widely recognized as a norm of customary
international law.[2]
The U.N. Human Rights Committee,
which is the U.N. treaty body officially responsible for overseeing and
interpreting the ICCPR, has recognized freedom of thought, conscience, and religion in the
Covenant as a norm of customary international law. See General Comment No. 24 (52), ¶ 8, U.N.
Doc. CCPR/C/21/Rev.1/Add.6 (1994), available at http://www1.umn.edu/humanrts/gencomm/hrcom24.htm (visited
June 19, 2002). Moreover, as of
June 2002, a substantially larger number of countries have ratified the ICCPR
(148 countries), than are parties to the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 Dec.
1984, G.A. Res. 39/46, U.N. GAOR
39th Sess., Supp. No. 51, at 197, U.N. Doc.
A/39/51 (1984) (entered into force 26 June 1987) (129 countries),[3] though torture has been
recognized as a customary international law norm actionable under the ATCA. E.g., Filartiga v. Pena-Irala, 630 F.2d
876 (2d Cir. 1980).
10.
14. The customary
international law status of freedom of religion or belief is further evidenced
by the numerous international and regional instruments recognizing the
norm. In addition to the Universal
Declaration and ICCPR, addressed above, the U.N. Charter obligates all member
states, including China, to promote “universal respect for, and observance of,
human rights and fundamental freedoms for all without distinction as to . . .
religion.” U.N. Charter, art. 55(c); see also id. art. 1(1). Freedom of religion or belief is
protected by Article 9(1) of the European Convention for the Protection of Human
Rights and Fundamental Freedoms, 312 Nov. 4, 1950, 213 U.N.T.S. 221, as amended
by Protocols Nos. 3, 5, 8, and 11, which entered into force on Sept. 21, 1970,
Dec. 20, 1971, Jan. 1, 1990, and Nov. 1, 1998, respectively [hereinafter
European Convention]; Article 12 of the American Convention on Human
Rights, opened for signature Nov. 22, 1969, art. 8, § 1, 9 I.L.M. 673 (entered
into force July 18, 1978)., and
Article 8 of the African [Banjul] Charter on Human and Peoples’ Rights, June 27,
1981, , 21 I.L.M. 59 (1981). The international norm is further
recognized in nonbinding instruments such as the Declaration on the Elimination
of All Forms of Intolerance and of Discrimination Based on Religion or Belief,
G.A. Res. 36/55, 36 U.N. GAOR, Supp. No. 51, at 171, U.N. Doc. A/36/684 (1981)
[hereinafter “Declaration on Religious Intolerance”], and the Conference on
Security and Cooperation in Europe Final Act (Helsinki Final Act), 14 I.L.M.
1292 (1975), which was signed by representatives of the United States, the
Soviet Union, and eastern and western European states. In 1986, the U.N. Commission on Human
Rights also established the office of the Special Rapporteur on Freedom of
Religion or Belief, further evidencing the importance of religious freedom among
the human rights protected by the U.N. system.
11.
15. The United States not only
recognizes the international freedom of religion or belief, but has played a
primary role in defining and implementing the norm around the world. The United States proposed the
language that ultimately was adopted nearly unchanged as Article 18 of the UDHR,
see CCPR Commentary § 4__, at 311-12, and was a
leader in the negotiations over Article 18 of the ICCPR. The ICCPR is one of the few international
human rights treaties that the United States has signed and ratified, indicating
the support of the U.S.
government for the rights and protections provided by that treaty. More recently, the United States
has taken affirmative steps to promote religious freedom globally through the
adoption of the International Religious
Freedom Act of 1998 [hereinafter “(IRFA)”], Pub. L. 105-292, Oct. 27,
1998, 112 Stat. 2787.
12.
16. In adopting the IRFA, Congress
recognized that “[f]reedom of religious belief and practice is a universal human
right and fundamental freedom articulated in numerous international
instruments,” which “should never be arbitrarily abridged by any government.” 22
U.S.C. §§ 6401(a)(2) and (3).
Congress further provided that it is the policy of the United States “to
condemn violations of religious freedom.”
Id. § 6401(b)(1). The Act
defines the international right to religious freedom according to Articles 18 of
the UDHR and ICCPR, and other international human rights instruments. Id. § 6402(13). The United States
further recognizes that violations of the norm include detention, interrogation,
imprisonment, forced religious conversion, beating, torture, mutilation, or
murder, if committed on account of an individual’s religious belief or practice,
or any arbitrary restrictions on or punishment for assembling for peaceful
religious activities, speaking freely about one’s religious beliefs, or changing
one’s religious affiliation. Id. §§ 6402(13)(A) and (B).
III. THE SCOPE
OF FREEDOM OF RELIGION OR BELIEF
13.
Freedom of religion or belief enjoys an unusually protected
status in international law. The rights protected by Article 18 of the ICCPR are
among the few rights designated in the treaty as “non-derogable,” which means
that a state cannot suspend compliance with the article as the result of a
public emergency. ICCPR, art. 4(2).
See also General Comment No. 22(48), ¶ 1, U.N. Doc. A/48/40, pt. I (20
July 1993) [hereinafter “General Comment No. 22”], (“The fundamental character
of these freedoms is also reflected in the fact that this provision cannot be
derogated from, even in time of public emergency”), available at
http://www1.umn.edu/humanrts/gencomm/hrcomms. htm (visited June 19, 2002). Moreover, although many states have
qualified their obligations under other provisions of the ICCPR through
reservations or declarations, no ratifying states have entered substantial or
significant reservations to Article 18.[4] Furthermore, the exceptions allowed to
the public expression of religion or belief under Article 18(3) are more
restrictive than other exceptions in the Covenant. CCPR Commentary § 4__, at 312.
14.
The principle set forth in Article 18 was explicitly intended
to be legally binding. A Soviet
proposal to make freedom of thought and religion “a mere legal proviso in
accordance with ‘the dictates of public morality’ was defeated in the
negotiating process. CCPR
Commentary § 4__, at 312, ; see
also What are the
titles to these?
citing
E/CN.4/272; E/CN.4/SR.117, 10.
A. The
International Norm Applies to Both Religious and Non-Religious
Beliefs
15.
Article 18 protects both religious and non-religious forms of
belief. Although the English version
of the text (“religion or belief”) might be read as limited to religious belief,
the authoritative French version (“une religion ou une conviction”) makes clear
that non-religious beliefs are included. CCPR Commentary § 14__, at 316. As the negotiating history, or travaux préparatoires, of the ICCPR
indicates, this question was the subject of extensive discussions. In the 3d Committee of the General
Assembly, it was pointed out that “religion or belief” was used to cover
non-religious beliefs, such as agnosticism, free thought, atheism, and
rationalism. Travaux Préparatoires A/C.3/SR.1027, § 34; see
also CCPR
Commentary §
__, at 316. When some members in the
General Assembly maintained that Article 18 should address only religious
belief, others insisted that Article 18 was intended to provide for complete
freedom of thought, conscience, and religion, and therefore, necessitated
protection of non-religious beliefs.
See Marc J.
Bossuyt, Guide to the
‘Travaux
Préparatoires’ of the International
Covenant on Civil and Political
Rights 362 (Martinus Nijhoff 1987) [hereinafter
“Travaux
Préparatoires”], citing Third Committee,
15th Sess. (1960), A/4625, § 51; A/C.3/SR.1024, § 17
(WAN); A/C.3/SR.1025, § 22 (RA); § 27 (RA); § 56 (SU); A/C.3/SR.1026, § 2 (E), §
6 (F), § 14 (YV); § 18 (CL), § 23 (J).
When asked by one delegation whether the word “belief” was meant to have
a non-religious connotation, the representative of the Secretary-General
referred the Committee to the Study of Discrimination in the Matter of Religious
Rights and Practices, which indicated:
“In view of the difficulty of defining ‘religion’, the term ‘religion or
belief’ is used in this study to include, in addition to various theistic
creeds, such other beliefs as agnosticism, free thought, atheism and
rationalism.” Travaux Préparatoires