Rabi Abdullahi v. Pfizer, Inc.
heard in New York
_______________
An Appraisal of Human Experimentation in International Law and Practice: The Need for International Regulation of Human Experimentation, 72 J.Crim. L. & Criminology
REVERSED and REMANDED.
*1 This consolidated appeal is from the judgments of the United States District Court for the Southern District of New York (Pauley, J.) dismissing two complaints for lack of subject matter jurisdiction under the Alien Tort Statute, 28 U.S.C. § 1350 (“ATS”), and in the alternative, on the ground of forum non conveniens. Plaintiffs-Appellants Rabi Abdullahi and other Nigerian children and their guardians sued Defendant-Appellee Pfizer, Inc. under the ATS (“the Abdullahi action”).
They alleged that Pfizer violated a customary international law norm prohibiting involuntary medical experimentation on humans when it tested an experimental antibiotic on children in Nigeria, including themselves, without their consent or knowledge. Plaintiffs-Appellants Ajudu Ismaila Adamu and others, also children and their guardians who were part of Pfizer’s Nigerian drug experiment, brought a similar action against Pfizer, alleging violations of
the ATS, the Connecticut Unfair Trade Practices Act (“CUTPA”), and the Connecticut Products Liability Act (“CPLA”) (“the Adamu action”). Pfizer moved to dismiss both actions for lack of subject matter jurisdiction and on the basis of forum non coveniens. The district court granted the motions and both sets of plaintiffs have appealed.
As explained below, we conclude: (1) that the district court incorrectly determined that the prohibition in customary international law against nonconsensual human medical experimentation cannot be enforced through the ATS; (2) that changed circumstances in Nigeria since the filing of this appeal require re-examination of the appropriate forum, albeit on the basis of a legal analysis different from that employed by the district court; and (3) that the district court incorrectly applied Connecticut’s choice of law rules in the Adamu action. Consequently, we reverse and remand the cases to the district court for further proceedings.
Working in concert with Nigerian government officials, the team allegedly recruited two hundred sick children who sought treatment at the IDH and gave half of the children Trovan and the other half Ceftriaxone, an FDA-approved antibiotic the safety and efficacy of which was well-established. Appellants contend that Pfizer knew that Trovan had never previously been tested on children in the form being used and that animal tests showed that Trovan had life-threatening side effects, including joint disease, abnormal cartilage growth, liver damage, and a degenerative bone condition.
Pfizer purportedly gave the children who were in the Ceftriaxone control group a deliberately low dose in order to misrepresent the effectiveness of Trovan in relation to Ceftriaxone. After approximately two weeks, Pfizer allegedly concluded the experiment and left without administering follow-up care. According to the appellants, the tests caused the deaths of eleven children, five of whom had taken Trovan and six of whom had taken the lowered dose of Ceftriaxone, and left many others blind, deaf, paralyzed, or brain-damaged.
*2 Appellants claim that Pfizer, working in partnership with the Nigerian government, failed to secure the informed consent of either the children or their guardians and specifically failed to disclose or explain the experimental nature of the study or the serious risks involved.
Although the treatment protocol required the researchers to offer or read the subjects documents requesting and facilitating their informed consent, this was allegedly not done in either English or the subjects’ native language of Hausa.
The appellants also contend that Pfizer deviated from its treatment protocol by not alerting the children or their guardians to the side effects of Trovan or other risks of the experiment, not providing them with the option of choosing alternative treatment, and not informing them that the non-governmental organization Médecins Sans Frontières (Doctors Without Borders) was providing a conventional and effective treatment for bacterial meningitis, free of charge, at the same site.
FN1 The appellants allege that at that time, Pfizer, the world’s largest pharmaceutical corporation, sought to gain the approval of the U.S. Food and Drug Administration (“FDA”) for the use on children of its new antibiotic, Trovafloxacin Mesylate, marketed as “Trovan.” They contend that in April 1996, Pfizer, dispatched three of its American physicians to work with four Nigerian doctors to experiment with Trovan on children who were patients in Nigeria’s Infectious Disease Hospital (“IDH”) in Kano, Nigeria. FN2
The appellants allege that, in an effort to rapidly secure FDA approval, Pfizer hastily assembled its test protocol at its research headquarters in Groton, Connecticut, . . . “ (IBID).
The appellate judges decided that the lower court was in error in dismissing the case. They further found that: “ The judgment (at Nuremberg) (emphasis mine) concluded that “[m]anifestly human experiments under such conditions are contrary to the principles of the law of nations as they result from usages established among civilized peoples, from the laws of humanity, and from the dictates of public conscience.” Id.
(emphasis added and internal quotation marks omitted).
The Code created as part of the tribunal’s judgment therefore emphasized as its first principle that “[t]he voluntary consent of the human subject is absolutely essential.” Id. at 181.
The American tribunal’s conclusion that action that contravened the Code’s first principle constituted a crime against humanity is a lucid indication of the international legal significance of the prohibition on nonconsensual medical experimentation. As Justices of the Supreme Court have recognized, “[t]he medical trials at Nuremberg in 1947 deeply impressed upon the world that experimentation with unknowing human subjects is morally and legally unacceptable.” (IBID).
The judges also cited the “bedrock norms” referred to in the Stanley decision.
From the case:
“United States v. Stanley,
Moreover, both the legal principles articulated in the trials’ authorizing documents and their application in judgments at Nuremberg occupy a position of special importance in the development of bedrock norms of international law.
United States courts examining the Nuremberg judgments have recognized that “[t]he universal and fundamental rights of human beings identified by Nuremberg-rights against genocide, enslavement, and other inhumane acts …-are the direct ancestors of the universal and fundamental norms recognized as jus cogens, from which no derogation is permitted, irrespective of the consent or practice of a given State.
Siderman de Blake v. Republic of Arg.,
965 F.2d 699, 715 (9th Cir.1992) (cited in Sampson v. F.R.G., 250 F.3d 1145, 1150 (7th Cir.2001)).” (IBID). 483 U.S. 669, 687, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) (Brennan, J., concurring in part and dissenting in part) (emphasis added); see also id. at 709-10 (O’Connor, J., concurring in part and dissenting in part).
This court found that adherence to the Nuremberg Code’s prohibition on non-consensual experimentation was an accepted mode of practice in the United States. It is an issue of law to be decided at trial in this case.
_________________________________
Nuremberg Code Cited and Upheld
In the case where non-consensual experimentation is alleged.
Rabi Abdullahi v. Pfizer, Inc.
See Sosa, 542 U.S. at 732; Vietnam Ass’n for Victims of Agent Orange, 517 F.3d at 117. The prohibition on nonconsensual medical experimentation on human beings meets this standard because, among other reasons, it is specific, focused and accepted by nations around the world without significant exception.An Appraisal of Human Experimentation in International Law and Practice: The Need for International Regulation of Human Experimentation, 72 J.Crim. L. & CriminologySee Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers, with annexed Charter of the International Military Tribunal art. 2, Aug. 8, 1945, 59 Stat. 1544, 82Id. at art. 6.
From the Decision:
i. Universality
*9 The appellants must allege the violation of a norm of customary international law to which States universally subscribe.
The evolution of the prohibition into a norm of customary international law began with the war crimes trials at Nuremberg. The United States, the Soviet Union, the United Kingdom and France “acting in the interest of all the United Nations,” established the International Military Tribunal (“IMT”) through entry into the London Agreement of August 8, 1945. M. Cheriff Bassiouni et al.,
1597, 1640 & n. 220 (1981) (internal quotation marks omitted). Annexed to the London Agreement was the London Charter, which served as the IMT’s Constitution.
U.N.T.S. 279. According to the Charter, the IMT had the “power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organisations, committed,” among other offenses, war crimes and crimes against humanity.
Case
United States Court of Appeals,
Second Circuit.
Rabi ABDULLAHI, individually and as the natural guardian and personal representative of the estate of her daughter Lubabatau Abdullahi, Salisu Abullahi, individually and as the natural guardian and personal representative of the estate of his son Abulliahi {Manufi} Salisu,, et al
v.
PFIZER, INC., Defendant-Appellee.
Docket Nos. 05-4863-cv (L), 05-6768-cv (CON).
Argued: July 12, 2007.
Decided: Jan. 30, 2009.
Plaintiffs-Appellants appeal from judgments of the United States District Court for the Southern District of New York (Pauley,
v.
J.) dismissing complaints for lack of subject matter jurisdiction and on the ground of forum non conveniens. REVERSED and REMANDED.
Before POOLER, B.D. PARKER, and WESLEY, Circuit Judges.
BARRINGTON D. PARKER, Circuit Judge:
*1 This consolidated appeal is from the judgments of the United States District Court for the Southern District of New York (Pauley,
the ATS, the Connecticut Unfair Trade Practices Act (“CUTPA”), and the Connecticut Products Liability Act (“CPLA”) (“the
As explained below, we conclude: (1) that the district court incorrectly determined that the prohibition in customary international law against nonconsensual human medical experimentation cannot be enforced through the ATS; (2) that changed circumstances in Nigeria since the filing of this appeal require re-examination of the appropriate forum, albeit on the basis
of a legal analysis different from that employed by the district court; and (3) that the district court incorrectly applied Connecticut’s choice of law rules in the
J.) dismissing two complaints for lack of subject matter jurisdiction under the Alien Tort Statute, 28 U.S.C. § 1350 (“ATS”), and in the alternative, on the ground of forum non conveniens. Plaintiffs-Appellants Rabi Abdullahi and other Nigerian children and their guardians sued Defendant-Appellee Pfizer, Inc. under the ATS (“the Abdullahi action”). They alleged that Pfizer violated a customary international law norm prohibiting involuntary medical experimentation on humans when it tested an experimental antibiotic on children in Nigeria, including themselves, without their consent or knowledge. Plaintiffs-Appellants Ajudu Ismaila Adamu and others, also children and their guardians who were part of Pfizer’s Nigerian drug experiment, brought a similar action against Pfizer, alleging violations ofAdamu action”). Pfizer moved to dismiss both actions for lack of subject matter jurisdiction and on the basis of forum non coveniens. The district court granted the motions and both sets of plaintiffs have appealed.Adamu action. Consequently, we reverse and remand the cases to the district court for further proceedings.0 0 0
BACKGROUND
A. Pfizer’s Trovan Test in Nigeria
On review of a district court’s grant of a motion to dismiss, we assume as true the facts alleged in the complaints, construing them in the light most favorable to the appellants.
The central events at issue in these cases took place in 1996, during an epidemic of bacterial meningitis in northern Nigeria.
marketed as “Trovan.” They contend that in April 1996, Pfizer, dispatched three of its American physicians to work with four Nigerian doctors to experiment with Trovan on children who were patients in Nigeria’s Infectious Disease Hospital (“IDH”) in Kano, Nigeria. Working in concert with Nigerian government officials, the team allegedly recruited two hundred sick children who sought treatment at the IDH and gave half of the children Trovan and the other half Ceftriaxone,
an FDA-approved antibiotic the safety and efficacy of which was well-established. Appellants contend that Pfizer knew that Trovan had never previously been tested on children in the form being used and that animal tests showed that Trovan had life-threatening side effects, including joint disease, abnormal cartilage growth, liver damage, and a degenerative bone condition. Pfizer purportedly gave the children who were in the Ceftriaxone control group a deliberately low dose in order to misrepresent the effectiveness of Trovan in relation to Ceftriaxone. After approximately two weeks, Pfizer allegedly concluded the experiment and left without administering follow-up care. According to the appellants, the tests caused the deaths of eleven
children, five of whom had taken Trovan and six of whom had taken the lowered dose of Ceftriaxone, and left many others blind, deaf, paralyzed, or brain-damaged.
*2 Appellants claim that Pfizer, working in partnership with the Nigerian government, failed to secure the informed consent of either the children or their guardians and specifically failed to disclose or explain the experimental nature of the study or the serious risks involved. Although the treatment protocol required the researchers to offer or read the subjects documents requesting and facilitating their informed consent, this was allegedly not done in either English or the subjects’ native language of Hausa. The appellants also contend that Pfizer deviated from its treatment protocol by not alerting the children or their guardians to the side effects of Trovan or other risks of the experiment, not providing them with the option of choosing alternative treatment, and not informing them that the non-governmental organization Médecins Sans Frontières (Doctors Without Borders) was providing a conventional and effective treatment for
bacterial meningitis, free of charge, at the same site.
See Vietnam Ass’n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir.2008). FN1 The appellants allege that at that time, Pfizer, the world’s largest pharmaceutical corporation, sought to gain the approval of the U.S. Food and Drug Administration (“FDA”) for the use on children of its new antibiotic, Trovafloxacin Mesylate,FN2The appellants allege that, in an effort to rapidly secure FDA approval, Pfizer hastily assembled its test protocol at its research headquarters in Groton, Connecticut, and requested
0 0 0
i. Universality
*9 The appellants must allege the violation of a norm of customary international law to which States universally subscribe.
The evolution of the prohibition into a norm of customary international law began with the war crimes trials at Nuremberg. The United States, the Soviet Union, the United Kingdom and France “acting in the interest of all the United Nations,” established the International Military Tribunal (“IMT”) through entry into the London Agreement of August 8, 1945. M. Cheriff Bassiouni et al.,
1597, 1640 & n. 220 (1981) (internal quotation marks omitted). Annexed to the London Agreement was the London Charter, which served as the IMT’s Constitution.
U.N.T.S. 279. According to the Charter, the IMT had the “power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organisations, committed,” among other offenses, war crimes and crimes against humanity.
The IMT tried 22 “major” Nazi war criminals leaving “lower-level” war criminals, including “[l]eading physicians … and leading German industrialists,” to be tried in subsequent trials by U.S. military tribunals acting “under the aegis of the IMT.” United States Holocaust Memorial Museum,
Allied Control Council,
stated that its purpose was to “give effect to the terms of … the London Agreement … and the [London] Charter,” and “to establish a uniform legal basis in Germany for the prosecution of war criminals.” Allied Control Council No. 10, preamble, (Dec. 20, 1945),
http://avalon.law.yale.edu/imt/imt10.asp. Law No. 10 expressly incorporated the London Agreement, identifying it as an “integral part[ ] of this Law.”
See Sosa, 542 U.S. at 732; Vietnam Ass’n for Victims of Agent Orange, 517 F.3d at 117. The prohibition on nonconsensual medical experimentation on human beings meets this standard because, among other reasons, it is specific, focused and accepted by nations around the world without significant exception.An Appraisal of Human Experimentation in International Law and Practice: The Need for International Regulation of Human Experimentation, 72 J.Crim. L. & CriminologySee Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers, with annexed Charter of the International Military Tribunal art. 2, Aug. 8, 1945, 59 Stat. 1544, 82Id. at art. 6.War Crimes Trials, Holocaust Encylopedia (2008), http:// http://www.ushmm.org/wlc/article.php?lang=en & ModuleId=10005140. The law that authorized the creation of the U.S. military tribunals, Control Council Law No. 10, was enacted in 1945 by thesee id., an authority through which the London Agreement signatories exerted joint-control over Germany, see Encyclopedia Britannica, Germany, Encyclopedia Britannica Online (2009), Id. at art. I. Law No. 10 also authorized military tribunals of the occupying powers to prosecute individuals for the same crimes over which the IMT had jurisdiction, including war crimes and crimes against humanity,see id.
Council Law No. 10 served to implement the commitments undertaken in the London Agreement,
*10 In August 1947, Military Tribunal 1, staffed by American judges and prosecutors and conducted under American procedural rules,
(George J. Annas & Michael A. Grodin eds., 1992), promulgated the Nuremberg Code as part of the tribunal’s final judgment against fifteen doctors who were found guilty of war crimes and crimes against humanity for conducting medical experiments without the subjects’ consent,
at arts. II-III, and made military tribunal prosecutions subject to the IMT’s right of first refusal,
see id. at art. III. Consequently, the U.S. military tribunals effectively operated as extensions of the IMT, see Telford Taylor, Final Report to the Secretary of the Army on the Nuernberg War Crimes Trials Under Control Council Law No. 107, 107 (1949) [hereinafter Report on Nuernberg War Crimes Trials], available at http://www.loc.gov/rr/frd/Military_Law/pdf/NT_final-report.pdf (explaining that “the trials under Law No. 10 were to be a means of carrying out such ‘declarations of criminality’ … as the International Military Tribunal might make” and that “[t]he first [IMT] trial and the 12 following [military tribunal] trials … form a single sequence based on common principles”), and Controlsee id. at 7 (noting that “the two documents supplemented each other” and “[m]ajor criminals not tried under the one could be tried under the other”). see George J. Annas, The Nuremberg Code in U.S. Courts: Ethics versus Expediency in The Nazi Doctors and the Nuremberg Code 201, 201Brandt,
that the subjects occupied the status of volunteers.
2 Nuremberg Trials, at 181-82. Among the nonconsensual experiments that the tribunal cited as a basis for their convictions were the testing of drugs for immunization against malaria, epidemic jaundice, typhus, smallpox and cholera.
Id. at 175-178. Seven of the convicted doctors were sentenced to death and the remaining eight were sentenced to varying terms of imprisonment. Id. at 298-300. The tribunal emphasized that [i]n every single instance appearing in the record, subjects were used who did not consent to the experiments; indeed, as to some of the experiments, it is not even contended by the defendantsId.
at 183. The judgment concluded that “[m]anifestly human experiments under such conditions are
contrary to the principles of the law of nations as they result from usages established among civilized peoples, from the laws of humanity, and from the dictates of public conscience.” Id.(emphasis added and internal quotation marks omitted). The Code created as part of the tribunal’s judgment therefore emphasized as its first principle that “[t]he voluntary consent of the human subject is absolutely essential.”
The American tribunal’s conclusion that action that contravened the Code’s first principle constituted a crime against humanity is a lucid indication of the international legal significance of the prohibition on nonconsensual medical experimentation. As Justices of the Supreme Court
have recognized, “[t]he medical trials at Nuremberg in 1947 deeply impressed
Id. at 181.upon the world that experimentation with unknowing human subjects is morally and legally unacceptable.”United States v. Stanley,
Moreover, both the legal principles articulated in the trials’ authorizing documents and their application in judgments at Nuremberg occupy a position of special importance in the development of bedrock norms of international law. United States courts examining the Nuremberg judgments have recognized that “[t]he universal and fundamental rights of human beings identified by Nuremberg-rights against genocide, enslavement, and other inhumane acts
…-are the direct ancestors of the universal and fundamental norms recognized as
483 U.S. 669, 687, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) (Brennan, J., concurring in part and dissenting in part) (emphasis added);
see also id. at 709-10 (O’Connor, J., concurring in part and dissenting in part).jus cogens, from which no derogation is permitted, irrespective of the consent or practice of a given State.Siderman de Blake v. Republic of Arg.,
temporary political expedients, and this fundamental point is apparent from the reaffirmation of the Nuernberg principles in Control Council Law No. 10, and
965 F.2d 699, 715 (9th Cir.1992) (cited in Sampson v. F.R.G., 250 F.3d 1145, 1150 (7th Cir.2001)). As Telford Taylor, who served as an assistant to Justice Robert Jackson during his time as Chief Prosecutor for the IMT and then became Chief Counsel for War Crimes on the Nuremberg trials held under the authority of Control Council Law No. 10, explained, “Nuernberg was based on enduring [legal] principles and not ontheir application and refinement in the 12 judgments rendered under that law during the 3-year period, 1947 to 1949.” Taylor, Report on Nuernberg War Crimes Trials, at 107 (emphasis added).
If a norm of customary international law, as the prohibition on non-consensual medical experimentation, occurs, a claim can proceed to trial. This is one of the important findings in the case of Rabi Abdullahi, et al. v. Pfizer, Inc., 05-4863 cv (L), 05-6768-cv(CON). The findings of the trial court were reversed and remanded for trial on January 30, 2009 in the U.S. Second Circuit Court of Appeals in the Southern District of New York.
Judges Poole, Wesley and Parker stated that this prohibition “meets this standard because, among other reasons, it is specific, focused and accepted by nations around the world without significant exception“ (Rabi Abdullahi, et al. v. Pfizer, Inc., et al.).
Their decision further states that : “The evolution of the prohibition into a norm of customary international law began with the war crimes trials at Nuremberg. The United States, the Soviet Union, the United Kingdom and France “acting in the interest of all the United Nations,” established the International Military Tribunal (“IMT”) through entry into the London Agreement of August 8, 1945. M. Cheriff Bassiouni et al., An Appraisal of Human Experimentation in International Law and Practice: The Need for International Regulation of Human Experimentation, 72 J.Crim. L. & Criminology
1597, 1640 & n. 220 (1981) (internal quotation marks omitted). (IBID).
The Nuremberg Code was one result of these war crimes trials. It unequivocably states that no human experimentation can occur without the informed consent of the human subject. The decision in this case illustrates the universal application of this code in national law.
In this case the American Pfizer Corporation tested Nigeran children with the drug Trovan and Ceflriaxone in 1996 without their consent. From the case:
“ during an epidemic of bacterial meningitis in northern Nigeria.
Working in concert with Nigerian government officials, the team allegedly recruited two hundred sick children who sought treatment at the IDH and gave half of the children Trovan and the other half Ceftriaxone, an FDA-approved antibiotic the safety and efficacy of which was well-established. Appellants contend that Pfizer knew that Trovan had never previously been tested on children in the form being used and that animal tests showed that Trovan had life-threatening side effects, including joint disease, abnormal cartilage growth, liver damage, and a degenerative bone condition.
Pfizer purportedly gave the children who were in the Ceftriaxone control group a deliberately low dose in order to misrepresent the effectiveness of Trovan in relation to Ceftriaxone. After approximately two weeks, Pfizer allegedly concluded the experiment and left without administering follow-up care. According to the appellants, the tests caused the deaths of eleven children, five of whom had taken Trovan and six of whom had taken the lowered dose of Ceftriaxone, and left many others blind, deaf, paralyzed, or brain-damaged.
*2 Appellants claim that Pfizer, working in partnership with the Nigerian government, failed to secure the informed consent of either the children or their guardians and specifically failed to disclose or explain the experimental nature of the study or the serious risks involved.
Although the treatment protocol required the researchers to offer or read the subjects documents requesting and facilitating their informed consent, this was allegedly not done in either English or the subjects’ native language of Hausa.
The appellants also contend that Pfizer deviated from its treatment protocol by not alerting the children or their guardians to the side effects of Trovan or other risks of the experiment, not providing them with the option of choosing alternative treatment, and not informing them that the non-governmental organization Médecins Sans Frontières (Doctors Without Borders) was providing a conventional and effective treatment for bacterial meningitis, free of charge, at the same site.
FN1 The appellants allege that at that time, Pfizer, the world’s largest pharmaceutical corporation, sought to gain the approval of the U.S. Food and Drug Administration (“FDA”) for the use on children of its new antibiotic, Trovafloxacin Mesylate, marketed as “Trovan.” They contend that in April 1996, Pfizer, dispatched three of its American physicians to work with four Nigerian doctors to experiment with Trovan on children who were patients in Nigeria’s Infectious Disease Hospital (“IDH”) in Kano, Nigeria. FN2
The appellants allege that, in an effort to rapidly secure FDA approval, Pfizer hastily assembled its test protocol at its research headquarters in Groton, Connecticut, . . . “ (IBID).
The appellate judges decided that the lower court was in error in dismissing the case. They further found that: “ The judgment (at Nuremberg) (emphasis mine) concluded that “[m]anifestly human experiments under such conditions are contrary to the principles of the law of nations as they result from usages established among civilized peoples, from the laws of humanity, and from the dictates of public conscience.” Id.
(emphasis added and internal quotation marks omitted).
The Code created as part of the tribunal’s judgment therefore emphasized as its first principle that “[t]he voluntary consent of the human subject is absolutely essential.” Id. at 181.
The American tribunal’s conclusion that action that contravened the Code’s first principle constituted a crime against humanity is a lucid indication of the international legal significance of the prohibition on nonconsensual medical experimentation. As Justices of the Supreme Court have recognized, “[t]he medical trials at Nuremberg in 1947 deeply impressed upon the world that experimentation with unknowing human subjects is morally and legally unacceptable.” (IBID).
The judges also cited the “bedrock norms” referred to in the Stanley decision.
From the case:
“United States v. Stanley,
Moreover, both the legal principles articulated in the trials’ authorizing documents and their application in judgments at Nuremberg occupy a position of special importance in the development of bedrock norms of international law.
United States courts examining the Nuremberg judgments have recognized that “[t]he universal and fundamental rights of human beings identified by Nuremberg-rights against genocide, enslavement, and other inhumane acts …-are the direct ancestors of the universal and fundamental norms recognized as jus cogens, from which no derogation is permitted, irrespective of the consent or practice of a given State.
Siderman de Blake v. Republic of Arg.,
965 F.2d 699, 715 (9th Cir.1992) (cited in Sampson v. F.R.G., 250 F.3d 1145, 1150 (7th Cir.2001)).” (IBID). 483 U.S. 669, 687, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) (Brennan, J., concurring in part and dissenting in part) (emphasis added); see also id. at 709-10 (O’Connor, J., concurring in part and dissenting in part).
This court found that adherence to the Nuremberg Code’s prohibition on non-consensual experimentation was an accepted mode of practice in the United States. It is an issue of law to be decided at trial in this case.
Nuremberg Rule Upheld in Pfizer Case
1597, 1640 & n. 220 (1981) (internal quotation marks omitted). (IBID).
The Nuremberg Code was one result of these war crimes trials. It unequivocably states that no human experimentation can occur without the informed consent of the human subject. The decision in this case illustrates the universal application of this code in national law.
In this case the American Pfizer Corporation tested Nigeran children with the drug Trovan and Ceflriaxone in 1996 without their consent. From the case:
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