The case of the day is Barapind v. Government of the Republic of India (9th Cir. 2016). Kulvir Singh Barapind, an Indian national, was a member of a Sikh nationalist party that supported the secession of Punjab from India. He applied for asylum in the United States in 1993, claiming that “Indian security forces” had arrested and tortured him because of his political activity. In 1994, while the asylum request was pending, the Indian government sought extradition pursuant to the extradition treaty between the two countries. The charge was murder. The District Court certified his extraditabilty, but he sought relief under the UN Convention Against Torture. The US received assurances from India, via an exchange of diplomatic notes, that Barapind would not be tortured, and he was then extradited. But at his trial in India in 2008, Barapind was acquitted. He resumed his political activities and, he alleges, he was arrested and tortured in 2012.
In 2013, Barapind sued the Indian government in the Eastern District of California, asserting claims under the Convention and the Trafficking Victims Protection Act. The defense was, of course, foreign sovereign immunity, but Barapind claimed India had waived its immunity in the exchange of diplomatic notes that had led to his extradition. The court dismissed for lack of jurisdiction, and Barapind appealed.
Under Ninth Circuit precedent, an implied waiver of foreign sovereign immunity can be found “where a written agreement entered into by a foreign sovereign ‘contemplated adjudication of a dispute by the United States courts.’” Here was India’s first note:
India has signed [the Convention Against Torture.] As a signatory, India has a good-faith obligation not to act against the objectives and purposes of the Convention. The Indian constitution provides for the protection of life and personal liberty. … India has legislation for the protection of human rights. … Indian criminal law prohibits the use of force or causing hurt to extort confession. Persons violating these provisions are subject to prosecution and imprisonment. …
Thus [Barapind] on extradition to India will be dealt with in accordance with the law. He will be entitled to all rights of defence, protection, and remedies available and shall not be subject to any kind of torture.
A second note was similar. The Ninth Circuit held that neither note contemplated litigation in the United States, and thus there was no implied waiver of India’s immunity. The court went on to say that in any event, Barapind’s claim would fail on the merits, because the Convention Against Torture did not provide a private right of action in the US for torture occurring elsewhere: it merely requires India to provide a private right of action for torture that is committed in India. The TVPA gives rise to a cause of action only against natural persons, not governments. But all this is, of course, dicta.