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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

AND {

DEC 3 - 20%

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

$s

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

lV

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

v

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).

2

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.

3

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-

4

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.

5
ARGUMENT

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

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.

6

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

7

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.

8

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)

9

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).

10

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).

11

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.

12

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).

13

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

14

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).

15

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).

16

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).

17

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

18
Respectfully submitted,

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0600%3A26. Public record. Not legal advice.