Amicus Curiae Brief — Hernandez v. Mesa, 136 S. Ct. 567 (2015) (No. 15-118)

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AND

BRIEFS

No. 15-118 OFFICE or TT iE CLE RK

Upreme m, US.

FILED

AUG 26 2015

IN THE

Supreme Court of the Gnited States

JESUS C. HERNANDEZ, et al,

Petitioners,

Vv.

JESUS MESA, JR.,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF THE GOVERNMENT OF THE

UNITED MEXICAN STATES AS AMICUS CURIAE

IN SUPPORT OF THE PETITIONERS

Donald Francis Donovan

Counsel of Record

Carl J. Micarelli

Brandon P. Burkart

Christel Y. Tham

DEBEVOISE & PLIMPTON LLP

919 Third Avenue

New York, New York 10022

(212) 909-6000

dfdonovan@debevoise.com

Attorneys for Amicus Curiae

TABLE OF CONTENTS

ps gE A a eR OR eae i

. 1 g 1... SEEPS Ear eenn ne ii

INTEREST OF AMICUS CURIAE ......0.....0...0200ceec00e 1

SUMMARY OF ARGUMENT....................c0eeceeeeeeeeeees 3

IE iiciiendatsdi dil iiseniaisaniasciaaaenitlaindedsiaiaditated 4

I. THE INCIDENT IN THIS CASE IS NOT AN

BR A CN cccceccvcccoceccnsccesesecscessedsesences 4

Il. It Is IMPORTANT THAT THE U.S. PROVIDE AN

EFFECTIVE REMEDY IN CROSS-BORDER

RES a AER REE ES POA SN 7

A. There Is No Practical Reason to Deny a

Remedy Merely Because the Fatal Shot

Struck Sergio Hernandez on the Mexican

Ny I I rininccananiccscsiniadadesnicamaptiinbercses 7

B. The U.S. Has Undertaken an Obligation

to Provide a Remedy for Human Rights

Violations to Individuals on Both Sides of

RE TS EET CS RIM ECE 11

TT sciisciinsiicinen dasiacaiaiciemapidbeinsdaticnaninebenieliiian 18

TABLE OF AUTHORITIES

United States Cases

Atkins v. Virginia, 536 U.S. 304 (2002) ........000........ 12

Boumediene v. Bush, 553 U.S. 723

SESE A Sei ea 3, 7, 8, 9, 18

Cazares Santillan v. United States, No. 1:14-cv-

GOR16 GED. Tee. Ble BO, BGP 2 ...an<cccccccccecsceces 6

Hernandez v. United States, 785 F.3d 117 (5th

te nae ea Tr Na RE oy See ee 10

Lam Gallegos v. United States, No. 5:14-cv-

00136 (S.D. Tex. Aug. 18, 2015) .0...0......ecccecceeee eee 6

Lawrence v. Texas, 539 U.S. 558 (2003) .................. 12

Perez v. Brownell, 356 U.S. 44 (1958) .......0.0.c0.cccccecee. m

Rodriguez v. Swartz, No. No. 4:14-CV-02251

(D. Ariz. July 9, 2015), appeal docketed, No.

15-16410 (9th Cir. July 15, 2015)........cccccecce cece 5

Roper v. Simmons, 543 U.S. 551 (2005)................... 12

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)........ 11

United States v. Verdugo-Urquidez, 494 U.S.

I Sis hee a eee 3, 8,9

International Cases

Aisalla Molina Case (Ecuador v. Colombia),

Inter-State Petition IP-02, Inter-Am.

Comm’n. H.R., Report No. 112/10, OEA/

Ser.L/V/II.140 Doc. 10 (Oct. 21, 2010) ................ 15

Al-Saadoon v. United Kingdom, Eur. Ct. H.R..,

App. No. 61498/08 (June 30, 2009) ............c:c00006. 16

iil

Al-Skeini v. United Kingdom, Eur. Ct. H.R..,

App. No. 55721/07 @uly 7, 2011)................-. 16, 17

Alejandre v. Cuba, Case No. 11,589, Inter-Am.

Comm’n H.R., Report No. 86/99, OEA/Ser.L/

V/II.106 Doc. 3 rev. (Sept. 29, 1999) ....... 15, 16, 17

Andreou v. Turkey, Eur. Ct. H.R., App. No.

oes 17

Armed Activities on the Territory of the Congo

(Dem. Rep. Congo v. Uganda), 2005 I.C.J.

yA eld Al eee 15

Celiberti de Casariego v. Uruguay, Comm’cn

No. 56/1979, U.N. H.R. Comm., U.N. Doc.

CCPR/C/13/D/56/1979 (July 29, 1981) ................ 13

Cyprus v. Turkey, Eur. Ct. H.R., App. No.

25781/94 (May 10, 2001).............ccceccsescereeecesenees 16

Kindler v. Canada, Comm’cn No. 470/1991,

U.N. H.R. Comm., U.N. Doc. CCPR/C/48/D/

470/1991 WJuly 30, 1993).............cccccseesecesseeeseneeres 13

Legal Consequences of the Construction of a

Wall in the Occupied Palestinian Territory

(Advisory Opinion), 2004 I.C.J. 136 (July 9,

IIIc siiasid ignites seid can umetieenstarnascadeeioataatanian ie tant 15

Lopez Burgos v. Uruguay, Comm’cn No.

52/1979, U.N. H.R. Comm., U.N. Doc.

CCPR/C/13/D/52/1979 (July 29, 1981) ....14, 15, 17

Munaf v. Romania, Comm’cn No. 1539/2006,

U.N. H.R. Comm., U.N. Doc. CCPR/C/96/D/

1539/2006 (Aug. 21, 2009) .0..........cceescecccceeeeeeesens 13

Ocalan v. Turkey, 41 Eur. Ct. H.R. 45 (May 12,

AR TE al A ERS te a kN A 16

Pad v. Turkey, Eur. Ct. H.R., App. No. 60167/

ns eentmieasereduiaeminndes 17

Pisari v. Moldova & Russia, Eur. Ct. H.R., App.

No. 42139/12 (April 21, 2015).............0..0c00000 16, 17

Other Authorities

American Declaration of the Rights and Duties

of Man, O.A.S. Res. XXX (May 2, 1948).....00....... 16

Convention for the Solution of the Problem of

the Chamizal, U.S.-Mex., Aug. 29, 1963, 15

Sa Ms I SEI, IID ciicesceccdentuctieosceeeundietensdus 9

Gonzalez, Daniel, & Rob O’Dell, Use of Force by

Border Agents Falls, Arizona Republic,

pS ERR a ea AE SE, eT 5

International Covenant on Civil and Political

Rights, Dec. 19, 1966, U.S. Senate Treaty

No. 95-20, 1966 U.S.T. LEXIS 521, 999

i ciasdumsiee 11, 12, 13, 14

a al 14

SE Ten Metaiate MaRS cool AN 13, 14

I ah rE aa he 11

AEE RET SIE Eel Rely et al ged wa Sra 11, 12

Letter of Transmittal from the President to the

Senate, Feb. 23, 1978, 1966 U.S.T. LEXIS

McGoldrick, Dominic, The International Coven-

ant on Civil and Political Rights, in Extra-

territorial Application of Human Rights

Treaties (Fons Coomans & Menno T.

Ra ene ae 13

Restatement (Third) of the Foreign Relations

Law of the United States (1987) .................0000000- 10

U.N. H.R. Comm., General Comment No. 31,

Nature of the General Legal Obligation Im-

posed on States Parties to the Covenant,

U.N. Doc. CCPR/C/21/Rev.1/Add.13 (May

ERS IEEE by Rg 14

0 1, 9, 12, 18

ERS ER a I A eR .

I aT Ne NGS CE 1, 12

U.S. Justice Department Press Release, Feder-

al Officials Close the Investigation into the

Death of Ramses Barron-Torres (Aug. 9,

SME TR a SFR ESR SRW ita nd Ae XN ER 6

White House Press Release, Remarks by Presi-

dent Obama and President Calderén of

Mexico at Joint Press Conference (March 3,

INTEREST OF AMICUS CURIAE

The Government of the United Mexican States

respectfully submits this brief as amicus curiae in

support of the petition for a writ of certiorari. Coun-

sel for all parties have received timely notice of Mex-

ico’s intent to file this brief and have consented in

writing to its filing.

On June 7, 2010, U.S. Border Patrol agent Jesus

Mesa shut and killed Sergio Adridn Hernandez

Giiereca, a fifteen-year-old national of Mexico. At the

time of the shooting, the agent was in the United

States, and the boy was in Mexico. Sergio’s parents

sued Agent Mesa in U.S. District Court for damages

for the unjustified killing of their son.? The District

Court and the Court of Appeals en banc held that

their claim could not be heard because their son was

on Mexican soil when he was killed.

The petition in this case raises important issues

concerning the applicability of the Fourth and Fifth

Amendments to the U.S. Constitution. In recognition

of U.S. sovereignty, Mexico respects the authority of

the United States courts to interpret their own Con-

1 No counsel for a party authored this brief in whole or

in part, and no counsel or party made a monetary contribu-

tion intended to fund the preparation or submission of this

brief. No person other than amicus curiae, its members, or

its couns_] made a monetary contribution to its preparation

or submission.

2 As this case is before the Court on review of an order

granting a motion to dismiss for failure to state a claim, we

assume the facts alleged in the complaint to be true for pre-

sent purposes.

stitution and laws. Mexico, however, hopes and be-

lieves that this Court will find it helpful to hear

Mexico’s perspective on matters affecting Mexico’s

sovereign interests.

As a sovereign and independent state, Mexico has

a responsibility to maintain control over its territory

and to look after the well-being of its nationals.

When agents of the United States government vio-

late fundamental rights of Mexican nationals and

others within Mexico’s jurisdiction, it is a priority to

Mexico to see that the United States has provided

adequate means to hold the agents accountable and

to compensate the victims. The United States would

expect no less if the situation were reversed and a

Mexican government agent, standing in Mexico and

shooting across the border, had killed a U.S. national

standing on U.S. soil.

The 2,000-mile-long border between Mexico and

the United States is the busiest in the world, with

over 350 million crossings per year.? Each of the two

nations is strongly engaged in and has a legitimate

concern for the policies of the other in connection

with their shared border. Mexico has a vital interest

in working with the United States to improve the

safety and security of the border and ensure that

both governments’ agents act to protect, rather than

endanger, the safety of members of the public in the

border area.

3 See, e.g., White House Press Release, Remarks by Pre-

sident Obama and President Calderén of Mexico at Joint

Press Conference (March 3, 2011).

SUMMARY OF ARGUMENT

This case involves an important and recurring

fact pattern warranting the attention of this Court.

The border between the United States and Mexico

runs through heavily populated areas, and residents

of border communities, as they go about their daily

business, routinely come in contact with—or within

range of the weapons of—agents of the U.S. govern-

ment. In recent years, officers of the U.S. border

agencies have killed dozens of individuals, justifiably

or otherwise, at or near the U.S.-Mexico border. Yet

the Fifth Circuit ruling effectively means the fami-

lies of those killed may not obtain any remedy, no

matter how unjustified the agents’ actions, if the vic-

tims happened to be on the Mexican side of the bor-

der when the agent opened fire.

Under this Court’s decision in Boumediene v.

Bush, 553 U.S. 723 (2008), there is no bright line at

the border beyond which all constitutional rights

cease. Rather, this Court has employed a case-by-

case inquiry to determine if it would be impractical

or anomalous to apply U.S. constitutional rights out-

side U.S. borders. Here, Agent Mesa was clearly on

U.S. soil when he acted, and there are no practical or

political difficulties in applying U.S. law regardless

of which side of the border Sergio Hernandez was on.

Unlike United States v. Verdugo-Urquidez, 494 U.S.

259 (1990), applying U.S. law in this case would not

interfere with operations of the Mexican government

within Mexico. On the contrary, providing an ade-

quate and effective remedy would show appropriate

respect for Mexico’s sovereignty on its own territory

and for the rights of its nationals.

The decision below also failed to take due account

of the binding international human rights obliga-

tions that the United States has voluntarily under-

taken to Mexico and its nationals. Those include,

among other things, the fundamental right not to be

arbitrarily deprived of life and the right to an ade

quate remedy when that right has been violated. A

nation’s obligations to respect human rights do not

stop at its borders but apply anywhere that the na-

tion exercises effective control. The Fifth Circuit’s

refusal to provide any remedy at all for an unjusti-

fied cross-border shooting of an unarmed Mexican

national is plainly inconsistent with those obliga-

tions.

ARGUMENT

THE INCIDENT IN THIS CASE Is

NOT AN ISOLATED OCCURRENCE.

The border between the United States and Mexi-

co is, as noted, one of the busiest in the world.‘ The

border runs through populated areas, in some cases

dividing in two a single town, city or Indian tribal

area. In recent decades, the establishment of a se-

cured and patrolled border has meant that residents

of border communities come into frequent contact

with officers guarding the border. In some areas, res-

idents going about their daily business on the Mexi-

can side of the border spend much of their day

4 See supra note 3 and accompanying text.

within shooting distance of armed U.S. Border Patrol

agents.

Shootings at the border—whether or not justified

in any particular case—are, unfortunately, far from

a rare occurrence. According to an April 2015 press

report, U.S. Customs and Border Patrol officers and

U.S. Border Patrol agents have killed fifty-one peo-

ple since 2005, nearly all of them at or near the U.S.-

Mexico border.® Five of these killings occurred in the

period from October 2014 to April 2015 alone.

A number of these killings, in addition to the one

at issue in this case, have involved shots fired across

the border. For example, in 2012, 16 year-old José

Rodriguez was shot and killed while walking down

Calle Internacional, a street in Nogales, Mexico,

which runs alongside the international border, by a

U.S. Border Patrol officer in the United States. Calle

Internacional is a busy thoroughfare lined with

commercial buildings, where many residents of

Nogales walk or drive when going about their daily

business. In the Rodriguez case, the victim’s mother

brought a civil action in United States District Court

for the District of Arizona against the Border Patrol

agent who killed her son. But in that case, unlike

here, the District Court denied the agent’s motion to

dismiss.

5 See Daniel Gonzalez & Rob O’Dell, Use of Force by

Border Agents Falls, Arizona Republic, April 9, 2015, at Al.

6 Rodriguez v. Swartz, No. No. 4:14-cv-02251 (D. Ariz.

July 9, 2015) (Pet. App. 153), appeal docketed, No. 15-16410

(9th Cir. July 15, 2015).

Also in 2012, Guillermo Arévalo Pedraza, a Mexi-

can national, was shot by U.S. Border Patrol agents

who were standing on an airboat on the United

States’ side of the Rio Grande near Laredo, Texas,

while he was celebrating his wife’s and daughter’s

birthday at a park on the Mexican bank of the river.

His wife and daughter were standing only feet away.

The Border Patrol agents fled the scene, rendering

no assistance to the victim, who subsequently died.

Arévalo’s widow filed a civil action against the Bor-

der Patrol agents in the Southern District of Texas;

that suit has been stayed pending the outcome of

this certiorari petition.’

That same year, Mexican national Juan Pablo

Pérez Santillan also was killed by U.S. Border Patrol

agents while he was standing in Mexican soil near

the Matamoros—Brownsville, Texas, border. His

mother filed a civil action in the Southern District of

Texas, which has been stayed pending the outcome

of this certiorari petition.®

For yet another example, 17-year-old Ramses

Barron Torres was shot and killed in Nogales, Mexi-

co in 2011 by Border Patrol agents standing on U.S.

soil. The U.S. Justice Department declined to bring

criminal charges against the agents. These exam-

7 Lam Gallegos v. United States, No. 5:14-cv-00136

(S.D. Tex. Aug. 18, 2015) (order granting stay).

8 Cazares Santillan v. United States, No. 1:14-cv-00114

(S.D. Tex. May 20, 2015) (order granting stay).

9U.S. Justice Department Press Release, Federal Offi-

cials Close the Investigation into the Death of Ramses Bar-

ron-Torres (Aug. 9, 2013).

ples illustrate that the incident in this case was not

isolated or unique. Rather, killings of this type have

occurred on multiple occasions in the past and are

likely to continue to occur in the future.

Il.

It Is IMPORTANT THAT THE U.S.

PROVIDE AN EFFECTIVE REMEDY IN

Cross-BORDER SHOOTING CASES

Mexico considers it important that the United

States make available an effective remedy to indi-

viduals on Mexican territory seeking redress for un-

justified violence by U.S. border officers. The lower

courts’ decisions in the case have effectively preclud-

ed any such redress, and review by this Court is im-

portant to ensure that victims of cross-border

violence are not completely deprived of their day in

court.

A. There Is No Practical Reason to Deny a Remedy

Merely Because the Fatal Shot Struck Sergio

Hernandez on the Mexican Side of the Border

This Court has recognized in the past that U.S.

constitutional protections can extend beyond the na-

tion’s sovereign territory. Most recently, in

Boumediene v. Bush, 553 U.S. 723 (2008), this Court

held that questions of application of U.S. constitu-

tional rights to persons outside the United States

must be answered on the basis of “objective factors

and practical concerns, not formalism.” Jd. at 764;

see also id. at 726-28, 757-63. The Boumediene case

involved prisoners detained at Guantanamo Bay

Naval Air Station, Cuba, an area technically under

Cuban sovereignty but under the effective control of

the United States. The Court accepted that Guanta-

namo Bay was not part of the territory of the United

States. But rather than applying a technical ap-

proach based on de jure sovereignty, the Court

looked to the practical effects of U.S. control at

Guantanamo and held that the constitutional right

of habeas corpus applied there.

In so holding, this Court distinguished the case

from United States v. Verdugo-Urquidez, 494 U.S.

259 (1990). In Verdugo-Urquidez, the Court declined

to extend the Fourth Amendment’s search warrant

requirement to a search conducted in Mexico by

Mexican police at the request of the U.S. Drug En-

forcement Administration. The Court noted that ap-

plying U.S. constitutional requirements to actions of

the Mexican police in cooperation with U.S authori-

ties would raise serious practical difficulties for the

ability of the United States to “functiol[n] effectively

in the company of sovereign nations.” Id. at 275

(quoting Perez v. Brownell, 356 U.S. 44, 57 (1958)).

In his concurring opinion, Justice Kennedy empha-

sized that the inapplicability of the warrant re-

quirement did not necessarily prevent’ the

application of other U.S. constitutional rights, but he

agreed with the majority that the circumstances of

that case would make adherence to the Fourth

Amendment’s warrant requirement “impracticable

and anomalous.” Id. at 278 (Kennedy, J., concurring)

(quoted in Boumediene, 553 U.S. at 759-60).

Here, by contrast, applying U.S. law would cause

no clashes between U.S. and Mexican law. Agent

Mesa, unlike the U.S. DEA agents in Verdugo-

Urquidez, was not acting in cooperation with Mexi-

can law enforcement agencies, nor was he carrying

out any operations on Mexican territory. He was op-

erating on U.S. soil as part of his duties under U.S.

law, and he was in the United States when he fired

the fatal shot. Extending the requirements of the

U.S. Constitution to cover the actions of a U.S. of-

ficer in the U.S. would not interfere in any way with

Mexico’s “control over its territory ... and authority

to apply the law there.” Boumediene, 553 U.S. at 754

(quotation and citation omitted).

According to the Complaint, just prior to the fatal

shooting, Sergio Hernandez and several other chil-

dren were playing in the nearly dry, concrete-lined

channel of the Rio Grande, which separates El] Paso

from Ciudad Juarez. Pet. App. 146. The internation-

al border invisibly runs down the center line of that

concrete channel.!° The children were repeatedly

running up the side of the channel, touching the U.S.

border fence (which is on U.S. territory), and then

running back down into the channel. Sergio Hernan-

dez was apparently on the Mexican side of the bor-

der when Agent Mesa shot him. But there would be

no practical difficulties involved if the U.S. courts

were to apply the same law of excessive force to

Agent Mesa’s actions, regardless of which side of

that invisible line Sergio happened to be on when

Agent Mesa’s fatal shot struck him.

There is no reason why requiring Agent Mesa to

answer for his actions in U.S. court would require

10 Convention for the Solution of the Problem of the

Chamizal, U.S.-Mex., art. 3, Aug. 29, 1963, 15 U.S.T. 21, 505

U.N.T.S. 185.

any different considerations than any other exces-

sive-force case heard by the U.S. courts. Applying

U.S. constitutional law in such a case does not disre-

spect Mexico’s sovereignty. Any invasion of Mexico’s

sovereignty occurred when Agent Mesa shot his gun

across the border at Sergio Hernadndez—not when

the boy’s parents sought to hold Agent Mesa respon-

sible for his actions.

When an illegal act is committed in one country

and has a direct effect in another country, it is well

recognized that both countries have jurisdiction. See,

e.g., Restatement (Third) of the Foreign Relations

Law of the United States § 403 cmt. d (1987). Exer-

cise of jurisdiction by either, therefore, is neither

impracticable nor an affront to the sovereign inter-

ests of the other. Mexico has a fundamental interest

in protecting the rights of its nationals and other

persons in its territory, but the United States also

has an interest in preventing its own territory from

being used to launch assaults on nationals of friend-

ly foreign nations—particularly if those attacks are

carried out by a federal officer of the United States

in the course of his duties.1!

The Mexican government has sought the extradi-

tion of Agent Mesa to Mexico, but the U.S. govern-

11 For that reason, Judge Dennis was mistaken when he

suggested, in his concurring opinion below, that it would

raise “practical and political questions” to apply the U.S. law

of excessive force to Agent Mesa’s actions in this case. Her-

nandez v. United States, 785 F.3d 117, 133 (5th Cir. 2015)

(en banc) (Dennis, J., concurring in part and concurring in

the judgment) (Pet. App. 32).

ment denied that request. As a practical matter, if

Agent Mesa avoids travel to Mexico, any effective

and enforceable remedy against him can only come

from the U.S. courts.

B. The U.S. Has Undertaken an Obligation to

Provide a Remedy for Human Rights Violations

to Individuals on Both Sides of the Border

Mexico and the United States have recognized

that respect for basic human rights, including the

right not to be arbitrarily deprived of life, is part of

the international obligations of every nation. Among

other things, both Mexico and the United States

have ratified the International Covenant on Civil

and Political Rights (ICCPR),!2 which provides in

Article 6(1) that “[elvery human being has the inher-

ent right to life. This right shall be protected by law.

No one shall be arbitrarily deprived of his life.” The

ICCPR further provides, in Article 2(3), that indi-

viduals whose rights are violated “shall have an ef-

fective remedy,” including judicial remedies, and

that those remedies must be enforced when granted.

Although the United States’ obligations under the

ICCPR have not been treated as directly enforceable

in United States courts, see Sosa v. Alvarez

Machain, 542 U.S. 692 (2004), this Court has recog-

nized that decisions interpreting the ICCPR and

other international human rights treaties may be

12 International Covenant on Civil and Political Rights,

Dec. 19, 1966, U.S. Senate Treaty No. 95-20, 1966 U.S.T.

LEXIS 521, 999 U.N.T.S. 171 (ratified by Mexico Mar. 23,

1981; ratified by U.S. June 8, 1992).

persuasive to the extent they shed light on basic

human rights principles that are common to those

treaties and the U.S. Constitution. See, e.g., Roper v.

Simmons, 543 U.S. 551, 575-76 (2005); Lawrence v.

Texas, 539 U.S. 558, 573 (2003); Atkins v. Virginia,

536 U.S. 304, 316 n.21 (2002). The international

commitments that the United States undertook in

Article 6(1) of the ICCPR have obvious parallels in

the Fourth Amendment and the Due Process Clause

of the Fifth Amendment to the U.S. Constitution. In

fact, the principal reason the United States declared

the ICCPR non-self-executing in U.S. courts was

that it regarded existing U.S. constitutional law as

being more than sufficient to comply with the

ICCPR.}3

It is well established under the ICCPR and other

international human rights treaties that a nation

has human rights obligations whenever it exercises

“effective control” over an individual, even if such

control is exercised outside of its own territory. The

claim in this case lies within the scope of the United

States’ international human rights commitments be-

13 The Executive Branch advised the Senate that “the

substantive provisions of [the ICCPR] are entirely consistent

with the letter and spirit of the United States Constitution

and laws,” except in a few instances in which the U.S. took

an explicit reservation against specific ICCPR provisions.

Letter of Transmittal from the President to the Senate, Feb.

23, 1978, 1966 U.S.T. LEXIS 621, at *2. Interpreting the

U.S. Constitution and laws as inapplicable in a situation

covered by the ICCPR would leave an unexpected gap in the

intended U.S. legal framework for compliance with the

ICCPR.

cause the U.S. federal government, through the ac-

tions of Agent Mesa, exercised power and effective

control over Sergio Hernandez.

In particular, Article 2(1) of the ICCPR requires

each party “to respect and to ensure to all individu-

als within its territory and subject to its jurisdiction

the rights recognized in the [[CCPR].” This provision

has been read disjunctively to apply to “all individu-

als within [the State’s] territory” and “all individuals

... Subject to [the State’s] jurisdiction.”'4 In keeping

with the intent of the ICCPR to protect individual

human rights, “jurisdiction” has been given a flexible

reading, turning on the State’s effective exercise of

control rather than on legal technicalities. The Unit-

ed Nations Human Rights Committee—the body

14 Celiberti de Casariego v. Uruguay, Comm’cn No. 56/

1979, U.N. H.R. Comm., U.N. Doc. CCPR/C/13/D/56/1979,

{J 10.1-10.3 Wuly 29, 1981) (Covenant applies to cases of

kidnapping by State agents abroad); Munaf v. Romania,

Comm’cn No. 1539/2006, U.N. H.R. Comm., U.N. Doc.

CCPR/C/96/D/1539/2006, § 14.2 (Aug. 21, 2009) (State may

be liable for violations of the Covenant outside of its area of

control, as long as State’s activity was “a link in the causal

chain that would make possible violations in another juris-

diction”); Kindler v. Canada, Comm’cn No. 470/1991, U.N.

H.R. Comm., U.N. Doc. CCPR/C/48/D/470/1991, 4 14.6 (July

30, 1993) (State party may be liable under the Covenant for

extraditing a person within its jurisdiction or under its con-

trol if there is a real risk that the extradited person’s rights

under the Covenant will be violated in the receiving jurisdic-

tion); Dominic McGoldrick, The International Covenant on

Civil and Political Rights, § 4.3, in Extraterritoria]l Applica-

tion of Human Rights Treaties (Fons Coomans & Menno T.

Kamminga eds. 2004).

charged with interpreting the ICCPR—has observed

that:

States Parties are required by article 2,

paragraph 1, to respect and to ensure the

Covenant rights to all persons who may be

within their territory and to all persons

subject to their jurisdiction. This means

that a State party must respect and en-

sure the rights laid down in the Covenant

to anyone within the power or effective

control of that State Party, even if not sit-

uated within the territory of the State

Party.

U.N. H.R. Comm., General Comment No. 31, Nature

of the General Legal Obligation Imposed on States

Parties to the Covenant, U.N. Doc. CCPR/C/21/

Rev.1/Add.13, | 10 (May 26, 2004).

This principle has been applied in a variety of

situations in which States have violated the rights of

individuals without fully controlling the territory on

which those violations occur. For example, the U.N.

Human Rights Committee has opined that the al-

leged secret detention and torture of a trade-union

activist in Argentina by Uruguayan security officials

would violate the ICCPR. Lopez Burgos v. Uruguay,

Comm’cn No. 52/1979, U.N. H.R. Comm., U.N. Doc.

CCPR/C/13/D/52/1979 (July 29, 1981). The Commit-

tee observed that “it would be unconscionable to so

interpret the responsibility under article 2 of the

Covenant as to permit a State party to perpetrate

violations of the Covenant on the territory of another

State, which violations it could not perpetrate on its

own territory.” Id. J 12.3.15

Under other human rights instruments, a similar

principle has been found to apply even in situations

where the State has used lethal force without ever

obtaining physical custody of the victim. It is the use

of force itself that constitutes sufficient exercise of

control for purposes of the jurisdiction under the rel-

evant human rights instruments. For example, the

Inter-American Commission on Human Rights has

applied an effective-authority test in several cases,

including the Alejandre v. Cuba, Case No. 11,589,

Inter-Am. Comm’n H.R., Report No. 86/99, OEA/

Ser.L/V/II.106 Doc. 3 rev. (Sept. 29, 1999).16 The

Alejandre case arose out of the well-known 1996

“Brothers to the Rescue” incident, in which the Cu-

ban Air Force shot down two unarmed civilian air-

16 Similarly, the International Court of Justice has re-

peatedly recognized that the ICCPR applies in occupied ter-

ritory under a State’s control, even though that territory is

not technically part of the State’s sovereign territory. See,

e.g., Armed Activities on the Territory of the Congo (Dem.

Rep. Congo v. Uganda), 2005 I.C.J. 168, 9 216 (Dec. 19,

2005); Legal Consequences of the Construction of a Wall in

the Occupied Palestinian Territory (Advisory Opinion), 2004

L.C.J. 136, {J 109-111 Wuly 9, 2004).

16 See also, e.g., Aisalla Molina Case (Ecuador y. Co-

lombia), Inter-State Petition IP-02, Inter-Am. Comm’n. H.R.,

Report No. 112/10, OEA/Ser.L/V/II.140 Doc. 10, 94 87-103

(Oct. 21, 2010) (American Convention on Human Rights ap-

plied in Ecuador where Colombian armed forces conducted a

bombing raid and thereafter “exercised acts of authority

over the survivors” in the bombed area).

planes in international airspace between South Flor-

ida and Cuba. The Commission found that the facts

constituted “conclusive evidence that agents of the

Cuban State, although outside their territory, placed

the civilian pilots of the ‘Brothers to the Rescue’ or

ganization under their authority.” Id. { 25. The

Commission went on to hold that the Cuban Air

Force’s unjustified use of lethal force violated fun-

damental principles of human rights, including the

right to life as recognized in Article I of the Ameri-

can Declaration of the Rights and Duties of Man."’

Id. 4 53.

Likewise, the European Court of Human Rights

has adopted a similar functional approach in cases

arising under the European Human Rights Conven-

tion.!8 It has applied the Convention in several cases

17 American Declaration of the Rights and Duties of

Man, O.A.S. Res. XXX (May 2, 1948).

18 Convention for the Protection of Human Rights and

Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222.

See, e.g., Pisari v. Moldova & Russia, Eur. Ct. H.R., App.

No. 42139/12, 9 33 (April 21, 2015) (convention applied to

Russia where Russian solider shot and killed a Moldovan

citizen even though Russian soldier was not in Russian ter

ritory when he fired his weapon); Ocalan v. Turkey, 41 Eur.

Ct. H.R. 45, 9 91 (May 12, 2005) (convention applied in view

of “effective Turkish authority” over individual in custody of

Turkish officials in Nairobi, Kenya); Cyprus v. Turkey, Eur.

Ct. H.R., App. No. 25781/94, 4] 69-80 (May 10, 2001) (con-

vention applied where Turkey exercised “effective control” in

the Turkish Republic of Northern Cyprus); Al-Saadoon v.

United Kingdom, Eur. Ct. H.R., App. No. 61498/08, 4] 86-89

(June 30, 2009) (convention applied in U.K. military prison

in Iraq); Al-Skeini v. United Kingdom, Fur. Ct. H.R., App.

where, as here, a State’s actions within its territory

resulted in injuries to victims outside its territory.

For example, in Andreou v. Turkey, Eur. Ct. H.R.,

App. No. 45653/99 (Jan. 27, 2010), the European

Court of Human Rights held that “even though the

applicant sustained her injuries in territory over

which Turkey exercised no control, the opening of

fire on the crowd from close range, which was the di-

rect and immediate cause of those injuries, was such

that the applicant must be regarded as ‘within the

jurisdiction’ of Turkey” so as to engage Turkey’s hu-

man rights obligations. Id. § 25.1%

This case is, in many respects, an even easier

case than the cases cited. Unlike Alejandre and the

cases involving occupied territory, the killing at is-

sue in this case does not involve military action. Un-

like Lopez Burgos, it does not involve overseas

activities by intelligence or national security agen-

cies. And unlike each of those cases, ic does not even

involve action outside a country’s sovereign territo-

No. 55721/07, 4] 130-150 (uly 7, 2011) (convention applied

in Iraq where the Coalition Provisional] Authority exercised

control).

19 See aiso, e.g., Pad v. Turkey, Eur. Ct. H.R., App. No.

60167/00, 94 52-55 (June 28, 2007) (convention applied

where Turkish helicopter shot and killed seven Iranian men

near the Turkey-Iran border, even if it was unclear whether

the Iranian men had crossed the border into Turkey); Pisari,

supra note 18, 4 33 (noting the accepted rule that “in certain

circumstances, the use of force by a State’s agents operating

outside its territory may bring the individual thereby

brought under the control of the State’s authorities” such

that the convention and its obligations apply).

ry—Agent Mesa was standing on U.S. soil when he

shot and killed Sergio Hernandez. He was patrolling

the United States side of the border in the course of

his law-enforcement duties for the U.S. government

and exercised effective control and authority over

Sergio Hernandez through his use of deadly force

against Sergio Hernandez, who happened to be

across the invisible line separating the two coun-

tries.

This Court has already reached a similar result

in Boumediene, in which it rejected a rigid territorial

approach to the application of rights guaranteed by

the U.S. Constitution to individuals outside the

United States. Here, as in Boumediene, practicality

and common sense—as well as the United States’

international human rights obligations—demon-

strate that the U.S. Border Patrol’s obligation to re

frain from unjustified use of deadly force does not

vanish when the victim is located just across the

border in the territory of a foreign nation.

CONCLUSION

For the reasons stated above, amicus curiae the

Government of the United Mexican States respect-

fully urges the Court to grant the petition for a writ

of certiorari.

August 26, 2015

Respectfully submitted,