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

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OFFICE OF THE CLERK

No. 15-118

IN THE

Supreme Court of the Anited States

JESUS C. HERNANDEZ, et al.,

Petitioners,

Vv.

JESUS MESA, JR.,

Respondent.

ON 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

DEBEVOISE & PLIMPTON LLP

919 Third Avenue

New York, New York 10022

(212) 909-6000

dfdonovan@debevoise.com

Attorneys for Amicus Curiae

the Government of the United

Mexican States

TABLE OF CONTENTS

ee I Ce inde teins.chctaseskavednccestasinnssnswnsss

I. THERE IS NO PRACTICAL REASON TO DENY A

REMEDY MERELY BECAUSE THE FATAL SHOT

STRUCK SERGIO HERNANDEZ ON THE

MEXICAN SIDE OF THE BORDER .................0--0c00-00-

Il. THE UNITED STATES HAS UNDERTAKEN AN

OBLIGATION TO PROVIDE A REMEDY FOR

HUMAN RIGHTS VIOLATIONS TO INDIVIDUALS

ON BOTH SIDES OF THE BORDER ...................00.0--.

SE inti igneondsiadstbdbiupidedadeusinnéyrigesannanensinions

TABLE OF AUTHORITIES

United States Cases

Atkins vy. Virginia, 536 U.S. 304 (2002).................... 11

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

CEES ha NT SNES PLE AIOE AN re eR EN 3, 5, 6, 7, 17

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

(TE ra EAST eco Pelt 2 veer US OR SO Se: 8,9

Lawrence v. Texas, 539 U.S. 558 (2009)................... 11

Perez v. Brownell, 356 U.S. 44 (1958) .....200.0.....ccceeeee 6

Rodriguez v. Swartz, 111 F. Supp. 3d 1025

(D. Ariz. 2015), appeal filed, No. 15-16410

OY ES RES aah de oe S)

Roper v. Simmons, 543 U.S. 551 (20085) ............. 10, 11

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)......... 10

United States v. Swartz, No. 4:15-cr-1723

CE, Merten. Git Bret, BR ID on cnn cscs cscckccccscascee ss 9

United States v. Verdugo-Urquidez, 494 U.S. 259

Naa dncdiadndlieoinbiticdchiennachchentee nciisawulicdendion 4,6

Interuational Cases

Aisalla Molina Case (Ecuador v. Colombia),

Inter-State Petition [P-02, Inter-Am. Comm’n

H.R., Report No. 112/10, OEA/Ser.L/V/II.140

I aN 14

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

App. No. 61498/08 (June 30, 2009) ....0.........00.002. 15

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

PEO. BE TRIT GO FT, BBE) oc eecicccivcccsccsacessescccsanes 15

ill

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) ........... 14, 15, 16

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

45653/99 (Oct. 27, ZOOS) .............00c.-ccc.cecesssesseesees 16

Armed Activities on the Territory of the Congo

(Dem. Rep. Congo v. Uganda), 2005 I.C.J. 168

RR UA et Le cattle a ee 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 (July 29, 1981) .............ccceeeeeeeeees 12

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

25781/94 (May 10, 2001)..........00..-ccceeeeeceeeeeesseeeee 15

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

H.R. Comm., U.N. Doc. CCPR/C/48/D/470/

nT eS Aa PERIOD 12

Legal Consequences of the Construction of a Wall

in the Occupied Palestinian Territory

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

Se EARLE asd REED MAE RNS 14

Lopez Burgos v. Uruguay, Comm’cn No. 52/1979,

U.N. H.R. Comm., U.N. Doc. CCPR/C/13/D/52/

| __ Saean aeeeterae 13, 14, 16

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) 0.0.0.2... cceeeeeeeeees 12

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

TE kel ees aoe eR nN ee Ee 15

Pad v. Turkey, Eur. Ct. H.R., App. No. 60167/00

CNN ececunmets 16

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

No. 42139/12 (April 21, 2015).............c2sc00000 15, 16

Other Authorities

American Declaration of the Rights and Duties of

Man, O.A.S. Res. XXX (May 2, 1948)................. 15

Convention for the Solution of the Problem of the

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

3 BER. ho | Re 7

International Covenant on Civil and Political

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

Doc. 95-20, 1966 U.S.T. LEXIS 521, 999

ie. & «Oey Re 10, 11, 12, 13, 14

Pa BD onace ssccvecccoceceescscaddceeesunneleeee 13

pk | | Rn Te 1% 3

Article 2(3).................... sensepeeeeesiiekaecabeinea 10

Article 6(1)........ i vvooviensicieleeeenese aaa 10, 11

Letter of Transmittal from the President to the

Senate, Feb. 23, 1978, 1966 U.S.T. LEXIS 521.. 11

McGoldrick, Dominic, The International Coven-

ant on Civil and Political Rights, in Extra-

territorial Application of Human Rights

Treaties (Fons Coomans & Menno T.

Kesaminen offs. SUDO 3. <sciccicscsesscte 12

Restatement (Third) of the Foreign Relations

Law of the United States (1987) ...............0cccccceeees 8

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 26, 2004) ... 13

U.S. Bureau of Transportation Statistics, Border

Crossing/Entry Data, https://transborder.bts

.gov/programs/international/transborder/

TBDR_BC/TBDR_BCQ.html (July 2016) ............. 1

I .cususscnestcesons 3, 10, 11, 12, 18

ER A 3, 11

Neen eunnciees 3, 11

U.S. Customs & Border Protection, CBP Use

of Force’ Statistics, https://www.cbp.gov/

newsroom/stats/cbp-use force (Sept. 26, 2016),

archived at https://perma.cc/PD3Y-5CAH ............ 2

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 Petitioner. Counsel for all parties have

consented in writing to its filing.!

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

the United States is the busiest in the world, with

hundreds of millions of crossings each year.? Each of

the two nations has a legitimate concern for the poli-

cies of the other in connection with their shared bor-

der. 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.

The border runs through populated areas, in

some cases dividing in two a single town, city or In-

dian tribal area. In recent decades, the establish-

ment of a secured and patrolled border has meant

that residents of border communities come into fre-

' 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 or its counsel

made a monetary contribution to its preparation or submis-

sion.

2 See, e.g., U.S. Bureau of Transportation Statistics,

Border Crossing/Entry Data, https://transborder.bts.gov/

programs/international/transborder/TBDR_BC/TBDR_BCQ

-htm!] (uly 2016); White House Press Release, Remarks by

President Obama and President Calderén of Mexico at Joint

Press Conference (March 3, 2011).

quent contact with officers guarding the border. In

some areas, residents going about their daily busi-

ness on the Mexican side of the border spend much

of their day within shooting distance of armed U.S.

Border Patrol agents.

Shootings at the border are, unfortunately, far

from a rare occurrence. According to U.S. Customs

and Border Protection’s own statistics, its officers

(including Border Patrol agents) have reported use of

deadly force involving firearms 243 times from Octo-

ber 2010 through August 2016, nearly all of them at

or near the U.S.-Mexico border. Many of the shoot-

ings resulted in death, and a number of those kill-

ings involved shots fired across the border.

In this case, on June 7, 2010, U.S. Border Patrol

agent Jesus Mesa shot and killed Sergio Adrian

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. Ser-

gio’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.

—

3 See U.S. Customs & Border Protection, CBP Use of

Force Statistics, https-://www.cbp.gov/newsroom/stats/cbp-

use-force (Sept. 26, 2016), archived at https://perma.cc/

PD3Y-5CAH.

* 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.

This case raises important issues concerning the

applicability of the Fourth and Fifth Amendments to

the U.S. Constitution. In recognition of U.S. sover-

eignty, Mexico respects the authority of the United

States courts to interpret their own Constitution and

laws. Mexico, however, hopes and believes 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. Yet the Fifth Circuit’s decision

in this case effectively means the families of those

killed by U.S. Border Patrol agents may not obtain

any remedy, no matter how unjustified the agents’

actions, if the victims happened to be on the Mexican

side of the border when the agent opened fire.

SUMMARY OF ARGUMENT

Under this Court’s decision in Boumediene y.

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

THERE Is NO PRACTICAL REASON TO DENY

A REMEDY MERELY BECAUSE THE FATAL

SHOT STRUCK SERGIO HERNANDEZ ON

THE MEXICAN SIDE OF THE BORDER

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.

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

constitutional protections can extend beyond the na-

tion’s sovereign territory. Most recently, in Boume-

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

that questions of application of U.S. constitutional

rights to persons outside the United States must be

answered on the basis of “objective factors and prac

tical concerns, not formalism.” Jd. at 764; see also id.

at 726-28, 757-63. The Boumediene case involved

prisoners detained at the U.S. Naval Station at

Guantanamo Bay, Cuba, an area under Cuban sov-

ereignty but under the effective control of the United

States. The Court accepted that Guanténamo was

not part of the territory of the United States. But ra-

ther than apply a technical approach based on de ju-

re 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.” Jd. 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 appli-

cation 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

deadly shooting, Sergio Hernandez and several other

children were playing in the 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.5 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 a U.S. court would require

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 Hernandez—not when

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

sible for his actions. Contrary to what the United

5 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.TS. 185.

States has asserted in its Brief in Opposition (at 20-

21), a private civil suit arising from the shooting of a

Mexican national at the border does not implicate

“national security and international diplomacy”

when the victim is struck by a bullet on the Mexican

side of the border any more than when the lethal

impact occurs on the U.S. side of the border. The pri-

or amicus briefs submitted by Mexico, like this brief,

evidence Mexico’s concern that recourse to justice be

available to its nationals regardless of where their

son happened to be standing when the fatal shot was

fired.

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 to

prescribe the applicable law, to punish violations and

to adjudicate disputes. See, e.g., Restatement (Third)

of the Foreign Relations Law of the United States

§ 403 cmt. d (1987); id. §§ 421(2)G)-G), 431(1). Exer-

cise of jurisdiction by either, therefore, is neither im-

practicable nor an affront to the sovereign interests

of the other. Mexico has a fundamental interest in

protecting the rights of its nationals and other per-

sons in its territory, but the United States also has

an interest in preventing its own territory from be-

ing used to launch assaults on nationals of friendly

foreign nations—particularly if those attacks are

carried out by a federal officer of the United States

in the course of his duties.§

6 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

(continued)

Indeed, in a similar case, the United States com-

menced a criminal] prosecution against the Porder

Patrol agent involved,’ illustrating that United

States courts can exercise jurisdiction over cases

arising from cross-border shootings. But criminal

prosecution in the United States is entirely within

the U.S. government’s discretion, and it affords no

meaningful remedy when, as in every Border Patrol

shooting to date except one, the United States de-

clines to prosecute the Border Patrol agent. The

Mexican government has sought the extradition of

Agent Mesa to Mexico, but the U.S. government de-

nied that request and has not itself prosecuted Agent

Mesa. As a practical matter, if Agent Mesa avoids

travel to Mexico, any effective and enforceable reme-

dy against him can only come from the U.S. courts,

regardless of any civil or criminal jurisdiction the

Mexican courts might have.

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).

7 United States v. Swartz, No. 4:15-cr-1723 (D. Ariz.,

filed Sept. 23, 2015). In that case, the victim’s mother also

filed a civil suit, and the U.S. District Court denied the

agent's motion to dismiss. Rodriguez v. Swartz, 111 F. Supp.

3d 1025 (D. Ariz. 2015), appeal filed, No. 15-16410 (9th Cir.

July 14, 2015).

Il.

THE UNITED STATES 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),§ which provides in Ar-

ticle 6(1) that “[elvery human being has the inherent

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 individ-

uals whose rights are violated “shall have an effec:

tive 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 recognized that

decisions interpreting the ICCPR and other interna-

tional human rights treaties may be 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

8 International Covenant on Civil and Political Rights,

Dec. 19, 1966, U.S. Senate Treaty Doc. 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).

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 exist-

ing U.S. constitutional law as being more than suffi-

cient to comply with the ICCPR.®

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-

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

tions of Agent Mesa, exercised power and effective

control over Sergio Hernandez.

®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 521, 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.

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 [ICCPR].” 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.”!° 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

charged with interpreting the ICCPR—has observed

that:

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

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

{ 10.1-10.3 Guly 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, 4 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 Extraterritorial Applica-

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

Kamminga eds. 2004).

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.” Jd. ¥ 12.3."

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 A/ejandre v. Cuba, Case No. 11,589, Inter-

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

11.106 Doc. 3 rev. (Sept. 29, 1999).!2 The Alejandre

case arose out of the well-known 1996 “Brothers to

the Rescue” incident, in which the Cuban Air Force

shot.down two unarmed civilian airplanes in inter-

national airspace between South Florida and Cuba.

'! 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 1.C.J. 168, 4 216 (Dec. 19,

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

the Occupied Palestinian Territory (Advisory Opinion), 2004

L.C.J. 136, ¥4 109-111 (July 9, 2004).

\2 See also, e.g., Aisalla Molina Case (Ecuador v. Colom-

bia), Inter-State Petition IP-02, InterAm. Comm'n H.R.,

Report No. 112/10, OBA/Ser.L/V/II.140 Doc. 10, J4 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).

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’ organization

under their authority.” Jd. § 25. The Commission

went on to hold that the Cuban Air Force’s unjusti-

fied use of lethal force violated fundamental princi-

ples of human rights, including the right to life as

recognized in Article I of the American Declaration of

the Rights and Duties of Man.'3 Id. 4 53.

The European Court of Human Rights has adopt-

ed a similar functional approach in cases arising un-

der the European Human Rights Convention." It

'$ American Declaration of the Rights and Duties of

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

'4 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, ¥ 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 territory

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

H.R. 45, § 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, Eur. Ct. H.R., App.

No. 55721/07, 94 130-150 WJuly 7, 2011) (convention applied

in Iraq where the Coalition Provisional Authority exercised

control).

has applied the Convention in several cases where,

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

in injuries to victims outside its territory. For exam-

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

45653/99 (Oct. 27, 2009), a case involving the shoot-

ing of a civilian across the Turkish-Cypriot cease-fire

line, 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 direct 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 human rights obligations. Jd. 4 25.'®

This case is, in many respects, an even easier

case than the cases cited. Unlike Alejandre, Andreou

and the cases involving occupied territory, the killing

at issue in this case does not involve military action.

Unlike Lopez Burgos, it does not involve overseas

activities by intelligence or national security agen-

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

involve action outside a country’s sovereign territo-

'5 See also, e.g.. Pad v. Turkey, Eur. Ct. H.R., App. No.

60167/00, ¥¥ 52-55 Wune 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 14, 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” into its

jurisdiction, such that the convention and its obligations ap-

ply).

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

shot and killed Sergio Hernandez. The agent was pa-

trolling 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 au-

thority over the boy through use of deadly force

against him. The fact that the boy happened to be on

the other side of the invisible line separating the two

countries does not change the nature of the agent’s

actions in the United States or their lethal conse-

quences.

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’ in-

ternational human rights obligations—demonstrate

that the U.S. Border Patrol’s obligation to refrain

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 reverse the judgment of the

United States Court of Appeals for the Fifth Circuit

and remand the case for proceedings on the merits.

December 9, 2016

Respectfully submitted,