Dear Ted,

I wrote a book chapter in 2005 that describes the practice generally and illustrates it with the Myrna Mack case: The Expanding Scope and Impact of Reparations Awarded by the Inter-American Court of Human Rights, in OUT OF THE ASHES: REPARATIONS FOR GROSS VIOLATIONS OF HUMAN RIGHTS, K. De Feyter, S. Parmentier, M. Bossuyt and P. Lemmens eds. (Intersentia 2005), pp. 191-223.

Unfortunately, the chapter does not seem to be on the internet, so I will email it to you separately. The web link to the Inter-American Court opinion in the Myrna Mack case is http://www.corteidh.or.cr/docs/casos/articulos/seriec_101_ing.pdf . In that case, after the Inter-American Court ordered an apology, the President of the country, the President of the congress and the President of the Supreme Court, in presence of the Mack family, held a public ceremony of apology in the central square of Guatemala City. That was unusual. Most countries ordered to do apologies in fact do so, but with fewer officials, and not at so high a level or with such public fanfare.

Thanks for commenting, Doug. I appreciate your insight on the Inter-American Court’s use of apologies. As I noted, that’s a new one for me. Do you have any citations that illustrate how this works in practice?

Thanks for this analysis. I will not at this stage comment on the many issues of US law (e.g., standing, private RICO suits) that go beyond my main concern as a human rights lawyer, which is the fraud and misconduct committed by Donziger and his team, that also had the effect of tainting their environmental evidence beyond repair, and which hijacked the good name of human rights to the detriment of their clients particularly and of the human rights movement generally.

I will comment on one set of issues within my field of specialization. The Inter-American Court’s awards of orders of public apology give Donziger no support, for several reasons. First, the Court awards them as moral reparations, not as punitive damages, as the Lago Agrio court purported to do. Second, the Court never makes money damages awards contingent on apologies, as the Lago Agrio court did. Third, not a single Latin American domestic judicial system allows punitive damages, period, let alone the conditional punitive damages award ordered by the Lago Agrio court.

This part of the trial court judgment was such an outrageous aberration from any known Latin American legal practice, that even Ecuador’s National Court knocked it out of the judgment on cassation review. Had they left it in, the message to other courts in Latin America, where plaintiffs might try to enforce their judgment, would have been even clearer that the Lago Agrio court was in the plaintiffs’ pocket.