Recent news has pointed to alleged forced hysterectomies of women in US detention centers.[1] Foreign Minister of Mexico, Marcelo Ebrard, is investigating such accusations and is likely to seek recourse on behalf of the victims if the investigation finds credible evidence. There are numerous agencies that focus in an effort to combat forced sterilization, including but not limited to the Office of the High Commissioner of Human Rights, United Nations Agency for Gender Equality and the Empowerment of Women (UN Women), United Nations Children Fund (UNICEF), and the World Health Organization (WHO).[2] These agencies cite a number of treaties and declarations in support of their efforts to put an end to forced, coercive, and otherwise involuntary sterilization. Some of these are the United Nations Declaration on the Rights of Indigenous People, the Convention on the Rights of the Child, and Article 7 of the Rome Statute of the International Criminal Court.[3] Mr. Ebrard is likely to rely on many of these to bring these claims against United States officials. The main issue with a lot of these international documents is that they are not binding, and therefore even if a country has signed on and ratified the agreement, it is very hard to enforce and ultimately seek recourse. Because of this, Mexico is likely to rely on legal precedent to bring claims against the United States. A noteworthy case regarding whether or not Mexico can sue on behalf of their citizens in the United States is Pfizer Inc. v. Government of India.[4] In Pfizer, the Supreme Court held that foreign nations were entitled to sue the United States’ entity Pfizer, despite the fact that respondents were foreign.[5] The case regarded an alleged violation of antitrust laws, and the Court’s rationale affirmed that foreign nations had standing to sue regardless of the fact that they were sovereign.[6] Here, the Sherman and Clayton Acts each provided that the word “person” shall be deemed to include corporations and associations.[7]
In contrast, a United States District Court dismissed a claim because the federalism justifications that might permit states to bring suit parens patriae were absent.[8] In Estados Unidos Mexicanos v. DeCoster, Mexican immigrant workers and the nation of Mexico brought a civil rights action against their employer.[9] The employer, a Maine private entity, was accused of discriminating against and treating its employees unfairly.[10] The court refused to extend the doctrine of parens patriae to a foreign nation absent a clear indication of intent to grant such standing, by the United States Supreme Court or by the other two branches of government.[11] Ultimately, the court held that the plaintiffs in this suit, could find potential relief under the executive branch through the North American Free Trade agreement or other labor agreements.[12]
Parents patriae, or “parent of the nation”, is a common law doctrine that allows a state to protect “quasi-sovereign interests.”[13] The doctrine is a basis for state standing, and allows a state to sue on behalf of its citizens in the interest of the “well-being of its populace.”[14] The interest must be recognized by the Supreme Court.[15] Here, the government of Mexico may be able to sue on behalf of the individuals who were forced to undergo sterilization procedures while in the custody of US officials, under the guise that a recognized interests is a “state’s effort to secure its citizens ‘from the harmful effects of discrimination.’”[16]
The women who suffered the forced sterilizations can bring suit in the United States under the Alien Tort Statute. The Alien Tort Statute, or ATS, is a federal law adopted in 1789 that gives federal courts jurisdiction to hear lawsuits by non-U.S. citizens for torts committed in violation of international law.[17] International law has expanded to include the protection of human rights, and ATS has enabled survivors of egregious human rights abuses to bring suit against the perpetrator in the United States.[18] Although ATS provides standing to sue, a foreign national suing US government officials will likely face significant legal challenges.[19] Courts have often rejected suits against US officials for human rights violations on grounds of political question doctrine or sovereign immunity.[20]
Sexual violence, which includes forced or coercive sterilization, is considered an international crime. The women who have suffered through these procedures, can sue under a number of international agreements, including the Fourth Geneva Convention, or the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[21] The Rome Statute of the International Criminal Court delineates that “enforced sterilization refers to forcibly sterilizing an ethnic group as part of a systematic attack against that ethnic group” is a crime against humanity.[22] Ultimately, the women in the detention center have a number of ways to ensure recourse against US officials, but do face significant challenges if suing in United States courts.
[1]Rachel Treisman, Whistleblower Alleges ‘Medical Neglect,’ Questionable Hysterectomies of ICE Detainees, NPR, Sept. 16, 2020, https://www.npr.org/2020/09/16/913398383/whistleblower-alleges-medical-neglect-questionable-hysterectomies-of-ice-detaine.
[2]International Human Rights Clinic, Forced Sterilization, United Nations, https://lawguides.scu.edu/c.php?g=5744&p=2559362.
[3]Id.
[4]Pfizer, Inc. v. Gov’t of India, 434 U.S. 308 (1978).
[5]Id.
[6]Id.
[7]Id.
[8]Estados Unidos Mexicanos v. DeCoster, 229 F.3d 332 (1st Cir. 2000).
[9]Id.
[10]Id.
[11]Id.
[12]Id.
[13]Kenneth Juan Figueroa, Immigrants and The Civil Rights Regime: Parents Patriae Standing, Foreign Governments and Protection from Private Discrimination, 102 Colum. L. Rev.408 (2002).
[14]Id.
[15]Id.
[xvi]Id.
[17]The Alien Tort Statute, The Center for Justice and Accountability, https://cja.org/what-we-do/litigation/legal-strategy/the-alien-tort-statute/.
[18]Id.
[19]Id.
[20]Id.
[21]Sexual Violence as International Crime, Human Rights Watch, https://www.hrw.org/legacy/campaigns/kosovo98/seviolence.shtml#:~:text=The%20statute’s%20definition%20of%20crimes,sexual%20violence%20of%20comparable%20gravity.%22.
[22]Forced Sterilization, Legal Information Institute, Cornell Law School, https://www.law.cornell.edu/wex/enforced_sterilization#:~:text=Primary%20tabs,of%20the%20International%20Criminal%20Court.
New York International Law Review 