2004
International Law Update, Volume 10, Number 7 (July)
Legal Analyses published by Mike Meier,
Attorney at Law. Copyright 2017 Mike Meier. www.internationallawinfo.com.
ALIEN
TORT CLAIMS ACT
In
international abduction case, U.S. Supreme Court holds (1) that the Federal
Tort Claims Act’s exception to waiver of U. S. sovereign immunity for claims
“arising in” foreign country bars claims based on injury suffered in Mexico
regardless of where tortious act or omission occurred and (2) that Alien Tort
Claims Act does not create alien’s right of action for false arrest in foreign
nation
The
underlying events began in 1985, when Humberto Alvarez-Machain (plaintiff) was
a medical doctor in Guadalajara, Mexico. Allegedly, he assisted in the torture
and murder of Drug Enforcement Administration (DEA) Special Agent
Camarena-Salazar. After a federal grand jury indicted him, the DEA arranged to
have plaintiff abducted and brought to the U.S. Francisco Sosa, a former
Mexican policeman, was one of those who had taken part in Alvarez-Machain’s
abduction. The district court held that it did have jurisdiction to try
plaintiff.
The
criminal case ended up in the Supreme Court. In 1992, the Court had held, in
United States v. Alvarez-Machain, 504 U.S. 655, 669 (1992), that the abduction
did not deprive the district court of criminal jurisdiction over plaintiff. It
did note, however, that plaintiff “may be correct” in claiming that his
abduction was in violation of general international law principles. Eventually,
the district court granted plaintiff’s motion for a judgment of acquittal.
Plaintiff
then sued Sosa and other Mexicans involved in his abduction, along with the
United States, and four DEA agents. The district court granted the Government’s
motion to dismiss the Federal Tort Claims Act (FTCA) [28 U.S.C. Section
1346(b)(1), Sections 2671-2689] claim, but gave summary judgment and awarded
damages on the Alien Tort Claims Act (ATCA) [28 U.S.C. Section 1350] claim. A
divided en banc Ninth Circuit then held in Alvarez-Machain v. United States,
331 F.3d 604 (9th Cir. 2003), that the DEA had no authority to arrest and
detain plaintiff and that he may seek redress under the FTCA and the ATCA. See
2003 International Law Update 83. The U.S. Supreme Court granted certiorari and
finds that Alvarez-Machain lacks a remedy under either statute.
Under
the first claim, the FTCA’s exception for claims arising in a foreign country
applies. Plaintiff’s arrest was “false” (meaning “tortious”) to the extent that
it occurred in Mexico. The Court rejects the “headquarters doctrine” that some
Courts of Appeals have applied in cases where acts or omissions committed in
the U.S. have an operative effect in a foreign country.
“The
potential effect of this sort of headquarters analysis flashes the yellow
caution light. ‘It will virtually always be possible to assert that the
negligent activity that injured the plaintiff [abroad] was the consequence of
faulty training, selection or supervision – or even less than that, lack of
careful training, selection or supervision – in the United States.’ ...”
“Legal
malpractice claims, ... allegations of negligent medical care, ..., and even
slip-and-fall cases, ..., can all be repackaged as headquarters claims based on
the failure to train, a failure to warn, the offering of bad advice, or the
adoption of a negligent policy. If we were to approve the headquarters
exception to the foreign country exception, the ‘’headquarters claim’ [would]
become a standard part of FTCA litigation’ in cases potentially implicating the
foreign country exception. ... The headquarters doctrine threatens to swallow
the foreign country exception whole, certainly at the pleadings stage. [...]”
“Although
not every headquarters case is rested on an explicit analysis of proximate
causation, this notion of cause is necessary to connect the domestic breach of
duty (at headquarters) with the action in the foreign country (in a case like
this) producing the foreign harm or injury. It is necessary, in other words, to
conclude that the act or omission at home headquarters was sufficiently close
to the ultimate injury, and sufficiently important in producing it, to make it
reasonable to follow liability back to the headquarters behavior. Only this way
could the behavior at headquarters properly be seen as the act or omission on
which all FTCA liability must rest under Section 2675.” [2749]
Congress
seemingly intended that a claim “arising in a foreign country” would bar
application of the headquarters doctrine because it would apply to injury or
harm that took place in a foreign country. “There is ... specific reason to
believe that using ‘arising under’ as referring to place of harm was central to
the object of the foreign country exception.”
“Any
tort action in a court of the United States based on the acts of a Government
employee causing harm outside the State of the district court in which the
action is filed requires a determination of the source of the substantive law
that will govern liability. When the FTCA was passed, the dominant principle in
choice of law analysis for tort cases was lex loci delicti: courts generally
applied the law of the place where the injury occurred. ... For a plaintiff
injured in a foreign country, then, the presumptive choice in American courts
under the traditional rule would have been to apply foreign law to determine
the tortfeasor’s liability. [...]”
“The
object being to avoid application of substantive foreign law [in tort suits
against the U.S.], Congress evidently used the modifier ‘arising in a foreign
country’ to refer to claims based on foreign harm or injury, the fact that
would trigger application of foreign law to determine liability. That object,
addressed by the quoted phrase, would obviously have been thwarted, however, by
applying the headquarters doctrine, for that doctrine would have displaced the
exception by recasting claims of foreign injury as claims not arising in a
foreign country because some planning or negligence at domestic headquarters
was their cause. And that, in turn, would have resulted in applying foreign law
of the place of injury, in accordance with the choice-of-law rule of the
headquarters jurisdiction.” [2751-52]
The
Supreme Court concludes that the FTCA’s foreign country exception bars all
claims against the U.S. based on any injury suffered in a foreign country,
regardless of where the tortious act or omission occurred.
The
Court then turns to plaintiff’s ATCA claim against Sosa. Essentially, the Court
finds that the ATCA is merely jurisdictional and does not authorize the
plaintiff’s substantive right of action for false arrest.
“We
think it is correct, then, to assume that the First Congress understood that
the district courts would recognize private causes of action for certain torts
in violation of the law of nations, though we have found no basis to suspect
that Congress had any examples in mind beyond those torts corresponding to
Blackstone’s three primary offenses: violation of safe conducts, infringement
of the rights of ambassadors, and piracy.”
“We
assume, too, that no development in the two centuries from the enactment of
Section 1350 to the birth of the modern line of cases beginning with Filartiga
v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), has categorically precluded federal
courts from recognizing a claim under the law of nations as an element of
common law; Congress has not in any relevant way amended Section 1350 or
limited civil common law power by another statute. ...”
“Accordingly,
we think courts should require any claim based on the present-day law of
nations to rest on a norm of international character accepted by the civilized
world and defined with a specificity comparable to the features of the
18th-century paradigms we have recognized. This requirement is fatal to
Alvarez’s claim.” [2761-62]
Plaintiff
sought support in the Universal Declaration of Human Rights [G.A. Resolution
217(A) (III), U.N. Doc. A/810 (1948)][UDHR] and the International Covenant on
Civil and Political Rights [December 19, 1966, 999 U.N.T.S. 171][ICCPR] to
argue that his abduction in Mexico was unlawful. The Court, however, is
unconvinced.
The
UDHR was a United Nations resolution not originally intended to be binding
international law. Moreover, the U. S. ratified the ICCPR with the express
understanding by the Senate that it was not self-executing, i.e., did not
itself create substantive obligations enforceable in the federal courts.
The
Court concludes that “[w]hatever may be said for the broad principle Alvarez
advances, in the present, imperfect world, it expresses an aspiration that
exceeds any binding customary rule having the specificity we require. Creating
a private cause of action to further that aspiration would go beyond any
residual common law discretion we think it appropriate to exercise. It is
enough to hold that a single illegal detention of less than a day, followed by
the transfer of custody to lawful authorities and a prompt arraignment,
violates no norm of customary international law so well defined as to support
the creation of a federal remedy.” [2769]
Citation:
Sosa v. Alvarez-Machain, 124 S.Ct. 2739, 72 U.S.L.W. 4660 (2004).
HABEAS
CORPUS
In
Rasul v. Bush, the U.S. Supreme Court rules that 28 U.S.C. Section 2241 confers
jurisdiction on district court to hear petitioners’ habeas corpus challenges to
legality of their indefinite incommunicado detentions at Guantanamo Bay Naval
Base
Congress
passed a joint resolution Authorization for Use of Military Force (AUMF). It
authorized the use of necessary and appropriate force against nations,
organizations, or persons that planned, authorized, committed, or aided in the
September 11, 2001, al Qaeda terrorist attacks. Accordingly, the President sent
armed forces into Afghanistan to wage a military campaign against al Qaeda and
the Taliban regime that had been supporting it.
The
Petitioners here are 2 Australian and 12 Kuwaiti citizens captured in
Afghanistan and held incommunicado at the Guantanamo Naval Base since early
2002.
The
Base encompasses 45 square miles of land and water along the southeast coast of
Cuba, pursuant to a 1903 Lease Agreement executed with the newly independent
Republic of Cuba in the aftermath of the Spanish‑American War. Under the
Agreement, “the United States recognizes the continuance of the ultimate
sovereignty of the Republic of Cuba over the [leased areas],” while “the
Republic of Cuba consents that during the period of the occupation by the
United States ... the United States shall exercise complete jurisdiction and
control over and within said areas.”
Their
relatives filed various actions in the U.S. District Court for the District of
Columbia, challenging the legality of the detentions. The District Court
dismissed them under Johnson v. Eisentrager, 339 U.S. 763 (1950). It saw them
as habeas corpus petitions under 28 U.S.C. Section 2241 by aliens detained
outside the sovereign territory of the U.S.
The
U.S. Court of Appeals for the District of Columbia Circuit affirmed, and the
U.S. Supreme Court granted certiorari. The precise issue taken up by the Supreme
Court is whether the habeas statute confers a right to judicial review of the
legality of Executive detention of aliens in a territory over which the U.S.
exercises plenary and exclusive jurisdiction, but not “ultimate sovereignty.”
The Court’s answer is affirmative.
The
Court begins its analysis with Johnson v. Eisentrager. It held that a federal
district court lacked habeas corpus jurisdiction over German citizens captured
by U.S. forces in China. A military commission convicted them and the Allies
imprisoned them in occupied Germany.
It
then, however, distinguishes the present case from Eisentrager. Here, the
“detainees” are not nationals of a country at war with the U.S.; they deny that
they have engaged in acts of aggression against the U.S. In addition, they have
never had access to any tribunal and the U.S. has been confining them in
territory over which, by a treaty with Cuba, the U.S. exercises exclusive
jurisdiction and control. Furthermore, Braden v. 30th Judicial Circuit Court of
Ky., 410 U.S. 484, 495 (1973), held that a prisoner’s presence within the
territorial jurisdiction of the district court is not an absolute requirement
for habeas jurisdiction. Instead, the habeas writ acts upon the custodian of
the prisoner.
“In
the end, the answer to the question presented is clear. Petitioners contend
that they are being held in federal custody in violation of the laws of the
United States. No party questions the District Court’s jurisdiction over
petitioners’ custodians. ... Section 2241, by its terms, requires nothing more.
We therefore hold that Section 2241 confers on the District Court jurisdiction
to hear petitioners’ habeas corpus challenges to the legality of their
detention at the Guantanamo Bay Naval Base.” [2698]
Three
Justices vigorously dissent. “The Court today holds that the habeas statute, 28
U.S.C. Section 2241, extends to aliens detained by the United States military
overseas, outside the sovereign borders of the United States and beyond the
territorial jurisdictions of all its courts. This is not only a novel holding;
it contradicts a half-century-old precedent on which the military undoubtedly
relied, Johnson v. Eisentrager, ...”
“The
Court’s contention that Eisentrager was somehow negated by Braden., ... – a decision
that dealt with a different issue and did not so much as mention Eisentrager –
is implausible in the extreme. This is an irresponsible overturning of settled
law in a matter of extreme importance to our forces currently in the field. I
would leave it to Congress to change Section 2241, and dissent from the Court’s
unprecedented holding.” [2701]
Citation:
Rasul v. Bush, 124 S.Ct. 2686, 72 U.S.L.W. 4596 (2004).
HABEAS
CORPUS
The
Supreme Court also rules in Hamdi v. Rumsfeld that citizen-detainee seeking to
challenge his classification as “enemy combatant” must receive notice of
factual basis for this classification, and must obtain fair opportunity to
rebut Government’s factual assertions before a neutral decisionmaker
Pursuant
to the AUMF, U.S. forces went after the Taliban in Afghanistan who were
supporting Al Qaeda. Hamdi presents the question whether, and, if so, how long,
the U.S. government can detain a U.S. citizen as an “enemy combatant” without
formal charges or proceedings. Yaser Esam Hamdi was born a U.S. citizen in
1980, but moved to Saudi Arabia as a child. Coalition forces captured him in
Afghanistan, and he is now in a Naval brig in Charleston, South Carolina.
Hamdi’s
father filed a habeas corpus petition in a Virginia federal court, alleging
that Hamdi had gone to Afghanistan to perform humanitarian work and that he had
not been in Afghanistan long enough to get military training.
The
Executive supported its “enemy combatant” classification with an affidavit (the
“Mobbs Declaration”) by Michael Mobbs, Special Advisor to the Under Secretary
of Defense. He declared that, based on available reports and records, coalition
forces found that Hamdi was working with the Taliban and was carrying a
Kalishnikov assault rifle. The district court certified the sufficiency of the
Mobbs Declaration for appellate review. The Fourth Circuit, however, ordered
the habeas petition dismissed, and held that the AUMF does authorize
petitioner’s detention.
On
certiorari, a divided Supreme Court reverses and remands. It does agree with
the Government’s argument that the AUMF has in fact authorized Hamdi’s
detention. The essentially unrebutted Mobbs Declaration provided enough of a
basis for treating Hamdi as an enemy combatant.
“[Hamdi]
posits that his detention is forbidden by 18 U.S.C. Section 4001(a). Section
4001(a) states that ‘no citizen shall be imprisoned or otherwise detained by
the United States except pursuant to an Act of Congress.’ ... [The government]
maintains that Section 4001(a) is satisfied, because Hamdi is being detained
‘pursuant to an act of Congress’ – the AUMF. ...”
“[W]e
conclude that the Government’s ... assertion is correct. ... In other words,
... we conclude that the AUMF is explicit congressional authorization for the
detention of individuals in the narrow category we describe ..., and that the
AUMF satisfied Section 4001(a)’s requirement that a detention be ‘pursuant to
an Act of Congress’ (assuming, without deciding, that Section 4001(a) applies
to military detentions).” [2639-40]
As
for Hamdi’s argument that the AUMF does not authorize indefinite detention, the
Court agrees. It explains that such detention may only last for the duration of
the relevant conflict. As long as U.S. troops are taking part in active combat
in Afghanistan, such detentions are part of the exercise of necessary and
appropriate force authorized by the AUMF.
After
finding that Congress has authorized Hamdi’s detention, the Court turns to the
question of what process is constitutionally due to him as a detainee. “We ...
hold that a citizen-detainee seeking to challenge his classification as an
enemy combatant must receive notice of the factual basis for his
classification, and a fair opportunity to rebut the Government’s factual
assertions before a neutral decisionmaker. ...”
“‘For
more than a century the central meaning of procedural due process has been
clear: ‘Parties whose rights are to be affected are entitled to be heard; and
in order that they may enjoy that right they must first be notified.’ It is
equally fundamental that the right to notice and an opportunity to be heard
‘must be granted at a meaningful time and in a meaningful manner.’ ... These
essential constitutional promises may not be eroded.”
“In
sum, while the full protections that accompany challenges to detentions in
other settings may prove unworkable and inappropriate in the enemy‑combatant
setting, the threats to military operations posed by a basic system of
independent review are not so weighty as to trump a citizen’s core rights to
challenge meaningfully the Government’s case and to be heard by an impartial
adjudicator.”[2649-50]
Citation:
Hamdi v. Rumsfeld,124 S.Ct. 2633, 72 U.S.L.W. 4607 (2004).
HABEAS
CORPUS
In
Rumsfeld v. Padilla, Supreme Court decides that New York federal court lacked
Habeas Corpus jurisdiction over petitioner’s immediate custodian, only proper
forum for his habeas petition being South Carolina federal court in district
where commanding officer of Naval brig is situated
Armed
with a material-witness warrant, federal authorities arrested Jose Padilla, a
U.S. citizen, as he disembarked from a plane arriving from Pakistan at
Chicago’s O’Hare International Airport. They took him to New York as a potential
witness about the 9/11 attacks. The President later classified him as an “enemy
combatant” based on suspicions as to his planned terrorist activities and
ordered him into military custody.
The
government is currently holding him in a brig on a U. S. Naval Base in
Charleston, South Carolina. Through a next friend, petitioner filed for habeas
corpus relief in a New York federal court. He named the President, the
Secretary of Defense, and Commander Melanie Marr, the commanding officer of the
Naval brig in question. The District Court denied his petition.
The
Second Circuit agreed that the Defense Secretary was a proper respondent and
that the Southern District had jurisdiction over the Secretary under New York’s
long‑arm statute. The appeals court reversed on the merits, however, holding
that the President lacks the authority to detain Padilla militarily.
On
certiorari, the Supreme Court reverses and remands. It limits its holding to
the proposition that Commander Marr was the only proper respondent as Padilla’s
immediate custodian and thus the New York federal court lacked jurisdiction to
decide the petition.
Under
the federal habeas statute, the Court observes that: “the person who has
custody over [the petitioner]” is the proper respondent. 28 U.S.C. Section
2242. “... [T]he identification of the party exercising legal control only
comes into play when there is no immediate physical custodian with respect to
the challenged ‘custody.’ In challenges to present physical confinement, we
reaffirm that the immediate custodian, not a supervisory official who exercises
legal control, is the proper respondent. If the ‘legal control’ test applied in
physical-custody challenges, a convicted prisoner would be able to name the
State or the Attorney General as a respondent to a Section 2241 petition.”
[2720]
Here,
the immediate custodian is Commander Melanie Marr, the officer in charge of the
naval brig where Padilla is detained. A petitioner has to bring a habeas
petition in the district court whose territorial jurisdiction includes the
location of the immediate custodian. Thus, Padilla should have brought his
habeas petition only in the federal district where Charleston, South Carolina
lies.
Citation:
Rumsfeld v. Padilla, 124 S.Ct. 2711, 72 U.S.L.W. 4584 (2004); see also The
Washington Post, Tuesday, June 29, 2004, page A1.
HUMANITARIAN
LAW
In
Advisory Opinion requested by U.N. General Assembly, International Court of
Justice concludes that Jewish settlements in occupied Palestinian territory are
unlawful and that, despite Israel’s undoubted right of self-defense against
terrorism, construction of wall on that occupied territory is violating
customary international law and several conventions on human rights and
humanitarian law to which Israel belongs
On
December 10, 2003, the Secretary-General of the United Nations (UN) forwarded
to the International Court of Justice (ICJ) a decision the U. N. General
Assembly (GA) had taken. Resolution ES-10/14 called for an Advisory Opinion by
the Court.
The
question is this: “What are the legal consequences arising from the
construction of the wall being built by Israel, the occupying Power, in the
Occupied Palestinian Territory (OPT), including in and around East Jerusalem,
as described in the report of the Secretary‑General (SG), considering the rules
and principles of international law, including the Geneva Convention relative
to the Protection of Civilian Persons in Time of War of 12 August 1949 (“Fourth
Geneva Convention” or GC4) [6 U.S.T. 3516; T.I.A.S. 3365; 75 U.H.T.S. 287], and
relevant Security Council (SC) and GA resolutions?”
On
the question of its own jurisdiction to give the opinion, the Court first
points out that the competence of the Court rests on Article 65, ¶ 1 of its
Statute. Moreover, the United Nations Charter (UNC) authorizes the Court to
render an advisory opinion on the law when requested by authorized UN entities.
Article
96, ¶ 1 empowers the GA to ask for such opinions from the ICJ. Moreover, in the
ICJ’s view, the question deals with a threat to international peace and
security, one of the main concerns of both the GA and the SC. Finally,
labelling the question “political” rather than “legal” does not impair the
ICJ’s jurisdiction.
Although
the Court finds that it does have the power to decide, its jurisprudence shows
that it may, in its discretion, decline to exercise it. Invoking this
discretion, Israel first objects that it has not consented to this proceeding
though it does bring the legality of its actions into question. The wall
dispute, however, is far from being a purely bilateral matter; it involves
broad dangers to international peace and security.
Israel
also urged that this Advisory Opinion could hinder a negotiated, political
solution to the Israeli-Palestinian conflict under the “Roadmap” endorsed by
Council Resolution 1515 (2003). This fails to persuade the ICJ to abstain here.
It
was also contended that the Court should refrain from opining because the wall
issue is only one facet of a much wider conflict. Nevertheless, the GA was free
to focus on the legal implications of building the wall within the OPT. Nor, as
Israel contended, does the Court have so little relevant information about the
situation that it will end up speculating or assuming facts.
Since
the GA has already made up its mind that building the wall in the OPT is
unlawful and has called upon Israel to stop and reverse the building, Israel
maintains that the GA has never explained how it plans to make use of an
Opinion to the same effect. The Court rejects this notion. It is not for the
Court to tell the GA how to exercise its powers.
Finally,
Israel relied on Palestine’s lack of “clean hands” because of its many
terrorist attacks on Israeli civilians. In the Court’s view, however, the requested
opinion is merely advisory and goes only to the GA and the SC. It, therefore,
will impose no costs or benefits upon any individual nation or entity.
Turning
to the merits, the ICJ first summarizes the history of the Arab-Israeli
conflicts. It recalls that the armistice of 1949 between Israel and Jordan set
up a “Green Line.” In the 1967 armed conflict with Jordan, Israel occupied the
territories located between the Green Line and the former eastern boundary of
Palestine under the League of Nations Mandate. With respect to these regions,
customary international law regards, and continues to regard, Israel as an
occupying Power.
Based
mainly on information supplied by the U.N., the Court observes that the UNC,
various treaties, customary international law, and relevant resolutions which
the GA and the SC have adopted pursuant to the UNC, bear on the legality of the
wall in question (other than the parts within Israeli territory which are not
before the Court).
The
UNC Article 2, ¶ 4 provides that: “All Members shall refrain in their
international relations from the threat or use of force against the territorial
integrity or political independence of any State, or in any other manner
inconsistent with the Purposes of the United Nations.” GA Resolution 2625 (XXV)
is entitled “Declaration on Principles of International Law concerning Friendly
Relations and Co‑operation among States” (hereinafter “Resolution 2625 (XXV)”).
It declared, inter alia, that: “No territorial acquisition resulting from the
threat or use of force shall be recognized as legal.”
Moreover,
the UNC enshrines the basic principle of self-determination of peoples. GA
Resolution 2625(XXV) reaffirms this. It warns that “Every State has the duty to
refrain from any forcible action which deprives peoples referred to [in that
Resolution]... of their right to self‑determination.” Additionally, Common
Article 1 of the International Covenant on Economic, Social and Cultural Rights
(ICESCR) and the International Covenant on Civil and Political Rights (ICCPR)
sets forth the right of all peoples to self-determination and obligates the
States parties to respect that right as set forth in the UNC.
Contrary
to what Israel (a party to both agreements) argued, the two Conventions may
apply not only in peacetime but also during armed conflicts. In the Court’s
view, the right of self-determination is erga omnes today.
The
Court then turns to the impact of humanitarian law. Pursuant to the GC4, the
humanitarian goal of protecting civilians in the midst of armed conflict is
primary. “After the occupation of the West Bank in 1967, the Israeli
authorities issued an order No. 3 stating in its Article 35 that: ‘the Military
Court . . . must apply the provisions of the [GC4] with respect to judicial procedures.
In case of conflict between this Order and the said Convention, the Convention
shall prevail.’” [¶ 93].
Israel
contended here, however, that while it generally does apply Convention
standards within the OPT, the Convention does not apply de jure to this
territory. This is because, as of 1967, it had not come within the sovereignty
of any High Contracting State (HCS), i.e., Jordan at that time.
The
ICJ disagrees. It points to the widespread conviction within UN organs, the
International Red Cross (ICRC), and the Convention parties’ conference in 1999
that the Convention does not limit its protections to the territory of an HCS.
“The
Court would note finally that the Supreme Court of Israel, in a judgment
[concerning the wall] dated 30 May 2004, also found that: ‘The military
operations of the [Israeli Defence Forces] in Rafah, to the extent they affect
civilians, are governed by Hague Convention IV Respecting the Laws and Customs
of War on Land 1907 ... and the [GC4] .’” [¶ 100]
“In
view of the foregoing, the Court considers that the [GC4] is applicable in any
occupied territory in the event of an armed conflict arising between two or
more High Contracting Parties. Israel and Jordan were parties to that
Convention when the 1967 armed conflict broke out.”
“The
Court accordingly finds that that Convention is applicable in the Palestinian
territories which before the conflict lay to the east of the Green Line and
which, during that conflict, were occupied by Israel, there being no need for
any enquiry into the precise prior status of those territories.”[¶ 101.]
On
October 3, 1991, Israel ratified both the 1966 [ICESCR] and the [ICCPR.] It
also ratified the United Nations Convention on the Rights of the Child (UNCRC)
of November 20, 1989. It remains a party bound by these three instruments.
The
question then becomes whether the Human Rights treaties to which Israel is a
party apply to its activities within the West Bank and the Gaza Strip. The
Court notes that before the UN Human Rights Committee (HRC), Israel had
consistently maintained that they did not “directly” apply in those areas. It
had also contended that the draftsmen of the human rights instruments crafted
them to ensure the rights of citizens against their own governments in
peacetime. The HRC was unpersuaded.
The
ICJ observes that there are three possible situations: [1] some rights may be exclusively
matters of international humanitarian law; [2] others may be exclusively
matters of human rights law; [3] yet others may be matters of both of these
branches of international law. In order to answer the question put to it, the
Court will have to take into account both of these areas of international law,
namely human rights law and, as lex specialis, international humanitarian law.
Article
2 of the ICCPR refers to the protection of those within the member state’s
jurisdiction. “[T]he [HRC] reached the following conclusion: ‘in the current
circumstances, the provisions of the Covenant apply to the benefit of the
population of the Occupied Territories, for all conduct by the State party’s
authorities or agents in those territories that affect the enjoyment of rights
enshrined in the Covenant and fall within the ambit of the State responsibility
of Israel under the principles of public international law.’ (CCPR/CO/78/ISR,
para. 11).” The Court agrees, noting that the emergency derogation provision in
the ICCPR Article 4 does not apply to the taking of human life.
“The
travaux preparatoires of the Covenant confirm the [HRC’s] interpretation of
Article 2 of that instrument. These show that, in adopting the wording chosen,
the drafters of the Covenant did not intend to allow States to escape from
their obligations when they exercise jurisdiction outside their national
territory. They only intended to prevent persons residing abroad from
asserting, vis-Ã -vis their State of origin, rights that do not fall within the
competence of that State, but of that of the State of residence ... [Cites].”
[¶ 109]
“In
conclusion, the Court considers that the [ICCPR] is applicable in respect of
acts done by a State in the exercise of its jurisdiction outside its own
territory.” [¶ 111].
The
ICJ also rejects Israel’s contention that the ICESCR is inapplicable within the
OPT. “[The Court] would also observe that the territories occupied by Israel
have for over 37 years been subject to its territorial jurisdiction as the
occupying Power. In the exercise of the powers available to it on this basis,
Israel is bound by the provisions of the [ICESCR].”
“Furthermore,
it is under an obligation not to raise any obstacle to the exercise of such
rights in those fields where competence has been transferred to Palestinian
authorities.” [¶ 112] By a similar line of reasoning, the ICJ rules that the
Convention on the Rights of the Child also is in force within the OPT.
With
respect to the settlements and to the wall’s actual and potential effect on the
lives of affected Palestinians, the ICJ quotes Article 49, ¶ 6 of the GC4. It
provides that “The Occupying Power shall not deport or transfer parts of its
own civilian population into the territory it occupies.”
Furthermore,
the Court remains dubious about Israel’s assurances that the wall is temporary
and amounts neither to a fait accompli as to the future frontier between Israel
and Palestine nor to an annexation of parts of the OPT.
“The
Court recalls, moreover, that, according to the report of the
Secretary-General, the planned route would incorporate in the area between the
Green Line and the wall more than 16 per cent of the territory of the West
Bank. Around 80 per cent of the settlers living in the [OPT] that is 320,000
individuals, would reside in that area, as well as 237,000 Palestinians.
Moreover, as a result of the construction of the wall, around 160,000 other
Palestinians would reside in almost completely encircled communities.”
[¶
122]
The
Court then observes that the State of Emergency that Israel had proclaimed in
May 1948 has remained in force over the last 56 years. Among other measures,
Israel has declared with respect to the ICCPR: “In so far as any of these
measures are inconsistent with article 9 of the Covenant, Israel thereby
derogates from its obligations under [Article 4(1)].” The Court then points out
“that the derogation so notified concerns only Article 9 of the [ICCPR], which
deals with the right to liberty and security of person and lays down the rules
applicable in cases of arrest or detention. The other Articles of the Covenant
therefore remain applicable not only on Israeli territory, but also on the
[OPT].” [¶ 127]
“As
regards the [ICESCR], that instrument includes a number of relevant human
rights protections. For example, it supports the right to work (Articles 6 and
7); protection and assistance accorded to the family and to children and young
persons (Article 10); the right to an adequate standard of living, including adequate
food, clothing and housing, and the right ‘to be free from hunger’ (Art. 11);
the right to health (Art. 12); [and] the right to education (Arts. 13 and 14).”
[¶ 130].
“To
sum up, the Court is of the opinion that the construction of the wall and its associated
regime impede the liberty of movement of the inhabitants of the [OPT] (with the
exception of Israeli citizens and those assimilated thereto) as guaranteed
under Article 12, paragraph 1, of the [ICCPR].They also impede the exercise by
the persons concerned of the right to work, to health, to education and to an
adequate standard of living as proclaimed in the [ICESCR] and in the [UNCRC].
Lastly, the construction of the wall and its associated regime, by contributing
to the demographic changes referred to ... above, contravene Article 49,
paragraph 6, of the [GC4] and the [SC] resolutions cited ... above.” [¶ 134]
Israel
next invoked UNC Article 61 on a State’s inherent right of self-defense. The
Court, however, finds this provision inapplicable here since it, in terms,
refers to defending from an attack by one sovereign State against another
State. “The fact remains that Israel has to face numerous indiscriminate and
deadly acts of violence against its civilian population. It has the right, and
indeed the duty, to respond in order to protect the life of its citizens. The
measures taken are bound nonetheless to remain in conformity with applicable
international law.”
“In
conclusion, the Court considers that Israel cannot rely on a right of
self-defence or on a state of necessity in order to preclude the wrongfulness
of the construction of the wall resulting from the considerations mentioned ...
above. The Court accordingly finds that the construction of the wall, and its
associated regime, are contrary to international law.” [¶¶ 141-42]
The
following are some key paragraphs in the final orders of the Court: “A. By
fourteen votes to one, The construction of the wall being built by Israel, the
occupying Power, in the [OPT] including in and around East Jerusalem, and its
associated regime, are contrary to international law;”
“B.
By fourteen votes to one, Israel is under an obligation to terminate its breaches
of international law; it is under an obligation to cease forthwith the works of
construction of the wall being built in the [OPT] including in and around East
Jerusalem, to dismantle forthwith the structure therein situated, and to repeal
or render ineffective forthwith all legislative and regulatory acts relating
thereto, in accordance with ... this Opinion;”
“C.
By fourteen votes to one, Israel is under an obligation to make reparation for
all damage caused by the construction of the wall in the [OPT] including in and
around East Jerusalem;”
“D.
By thirteen votes to two, all States are under an obligation not to recognize
the illegal situation resulting from the construction of the wall and not to
render aid or assistance in maintaining the situation created by such
construction; all States parties to the [GC4] have in addition the obligation,
while respecting the [UNC] and international law, to ensure compliance by
Israel with international humanitarian law as embodied in that Convention;”
“E.
By fourteen votes to one, The United Nations, and especially the [GA] and the
[SC] should consider what further action is required to bring to an end the
illegal situation resulting from the construction of the wall and the
associated regime, taking due account of the present Advisory Opinion.” [¶
163(3)]
Citation:
International Court of Justice (ICJ), Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory (request for
advisory opinion), Advisory Opinion of 9 July 2004; ICJ Press Release 2004/28.
The decision will be available on the ICJ website at www.icj-cij.org.
TERRORISM
Fourth Circuit affirms quashing of writs
of attachment against Iran under newly enacted Terrorism Risk Insurance Act
(TRIA) because plaintiffs had already accepted compensation under Victims
Protection Act (VPA)
In December 1984, members of Hezbollah
murdered Charles Hegna, an employee of the U.S. Agency for International
Development (USAID), during their hijacking of a Kuwaiti airliner over the Gulf
of Oman. This terrorist organization has links to the Islamic Republic of Iran.
Congress later amended the Foreign Sovereign Immunities Act (FSIA) to permit
victims of terrorism to sue countries that the U. S. State Department has
designated state sponsors of terrorism. See 28 U.S.C. Section 1605(a)(7). This
enabled Hegna’s family (plaintiffs) to bring suit in April 2000 against Iran
and the Iranian Ministry of Information and Security (MOIS). Iran did not
respond, and the Hegnas obtained a default judgment totaling $375 million.
The plaintiffs tried to enforce the
judgments against Iran under Section 201(a) of the newly enacted Terrorism Risk
Insurance Act of 2002 (TRIA) [Pub.L. No. 107-297, Section 201(a), 116 Stat.
2322, 2337, codified at 28 U.S.C. Section 1610 note]. They asked for two writs
of attachment to execute on two Iranian-owned properties in Bethesda, Maryland.
The Maryland District Court issued the
writs of attachment, and the U.S. marshal levied on the properties in May 2003.
Because of severed diplomatic relations between the U.S. and Iran, however,
those properties are now in the possession of the U.S. government.
The government moved to quash the writs of
attachment. They argued that, because the writs did not aim at “blocked assets”
as defined in TRIA Section 201(d)(2), the properties were not subject to
attachment. Before the Court had ruled, however, the plaintiffs accepted a
pro-rata payment under the Victims of Trafficking and Violence Protection Act
of 2000 (VPA) [Pub.L. No. 106-386, Section 2002, 114 Stat. 1464, 1541] of more
than $8 million. By this action, plaintiffs arguably relinquished all their
rights and claims to punitive damages, as well as all rights to execute on
property that is at issue in claims against the U.S. before an international
tribunal.
The District Court quashed the writs and
the plaintiffs noted an appeal. The U.S. Court of Appeals for the Fourth
Circuit affirms, but on different grounds. By accepting compensatory payment
under the VPA, the Court rules that the plaintiffs had indeed given up any
rights to compensation under TRIA. “Congress has devised two avenues by which
individuals like the Hegnas – successful plaintiffs in suits brought under
section 1605(a)(7)’s exception to sovereign immunity – may satisfy their
judgments against state sponsors of terrorism.”
“First, Congress has subjected an
increasingly broad class of property owned by these nations in the United
States to execution and attachment in aid of execution. Congress’ latest effort
in this regard is embodied in section 201(a) of the TRIA, 28 U.S.C. Section
1610 note.”
“Section 201(a) states in part:
‘Notwithstanding any other provision of law, ... in every case in which a
person has obtained a judgment against a terrorist party on a claim based upon
an act of terrorism, or for which a terrorist party is not immune under section
1605(a)(7) of title 28, the blocked assets of that terrorist party ... shall be
subject to execution or attachment in aid of execution in order to satisfy such
judgment ...’ ...”
“Second, in the Victims Protection Act,
Congress directed the Secretary of the Treasury to make direct payments to
certain judgment creditors of Iran and Cuba from funds belonging to those
nations but being held by the United States government. See Victims Protection
Act Section 2002. As first enacted, the group of individuals eligible to
receive these payments under the Act was relatively small and, with five
specific exceptions, did not include individuals, such as the Hegnas, who
obtained their judgments after July 20, 2000. ...”
“Payments under the Act were not designed
merely to supplement the plaintiffs’ recoveries of their judgments, but rather
to replace them. The initial payments authorized by the VPA were equal to the
amount of compensatory damages awarded in judgments, and the VPA required the
recipients of those payments to relinquish both their ‘rights and claims’ to
compensatory damages and, depending on the size of the payment the recipient
elected to receive, either the rights to punitive damages or their rights ‘to
execute against or attach’ certain properties owned by Iran or Cuba ...” [Slip
op. 4-6]
Section 201( c) of TRIA amended the VPA by
(1) expanding the group of eligible judgment holders to include persons who
filed suit against Iran before October 28, 2000, and (2) directing the
distribution of remaining funds to qualified judgment holders on a pro-rata
basis. Because the pro-rata payments were likely substantially smaller than the
court-awarded compensatory damages, the recipients no longer had to relinquish
their rights to enforce compensatory damages, only their “rights and claims” to
punitive damages and their rights to execute against property that is at issue
in claims against the U.S. before an international claims tribunal.
Assuming, without deciding, that the two
Bethesda properties are “blocked assets” and thus subject to execution and
attachment, the Court finds that the plaintiffs have forfeited their rights to
execute on those properties. “By their receipt of payment from the United
States treasury, the Hegnas relinquished ‘all rights to execute against or
attach’ certain properties. ... These rights include not only the rights that
the Hegnas had already exercised at the time of relinquishment, the rights to
obtain a writ of attachment on judgment and to have a marshal levy against the
property under that writ, but also rights of ‘execution’ that the Hegnas had
not yet exercised, such as the rights to proceed under that writ of attachment
on judgment and, eventually, to have the property sold by the marshals and to
receive the proceeds of that sale. ... Thus, while the marshal’s levy on the
Bethesda properties represented an important step in the Hegnas’ execution of
those properties, it did not exhaust the Hegnas’ bundle of rights ‘to execute
against’ the properties because it did not complete the sale of the properties
in satisfaction of the Hegnas’ judgment.” [Slip op. 13-14]
State law applies to determine whether at
the time of relinquishment further execution against the properties was
necessary to satisfy the plaintiffs’ judgment. Under Maryland law, the Hegnas
would have had to secure a judgment of condemnation absolute or a writ of
execution on the properties. If the Bethesda properties are within the scope of
the relinquishment and if the Hegnas have received a sufficient payment from
the Treasury, the Court must approve the quashing of the writs of attachment.
As for the first aspect, the properties
are clearly within the scope of the relinquishment. In 1982, Iran had filed
claims against the U.S. in the Iran-U.S. Claims Tribunal, alleging that the
U.S. had breached its obligations under the Algiers Declarations by failing to
grant Iran custody of its U. S. diplomatic and consular properties. This claim
is still pending and includes the two Bethesda properties. As for the second
prong, the plaintiffs have received the amount of compensation they are
entitled to under Section 2002(d)(1) of the VPA and in so doing, had
surrendered their TRIA rights.
Citation: Hegna v. The Islamic Republic of Iran, No.
03-2159 (4th Cir. July 14, 2004); The Daily Record (Baltimore, Maryland),
“Victim’s law blocks levy,” (July 15, 2004).
WORLD TRADE ORGANIZATION
WTO panel issues report on Argentina-U.S.
anti-dumping dispute, finding that U.S. sunset review procedures for
anti-dumping measures regarding oil country tubular goods are inconsistent with
WTO rules
On July 16, 2004, a Dispute Settlement
Panel of the World Trade Organization (WTO) issued its report in the
Argentina-U.S. dispute “United States – Sunset reviews of anti-dumping measures
on oil country tubular goods from Argentina” (DS 268).
Argentina had requested consultations, in
October 2002 and later the setting up of a Dispute Settlement Panel (DSP). It
was to look into certain aspects of the U.S. sunset review laws, regulations
and procedures, as well as their application in the anti-dumping investigation
of oil country tubular goods (OCTG) from Argentina. The anti-dumping
investigation at issue began in 1994 (before the establishment of the WTO)
according to pre-WTO U.S. laws and regulations. The U. S. finished in 1995 by
imposing an anti-dumping duty of 1.36 percent. At the time, Siderca was the
only Argentinian exporter; it then stopped exporting to the U.S.
The U.S. Department of Commerce (USDOC)
began a sunset review of the OCTG anti-dumping duty with the U.S. producers and
Siderca taking part. Eventually, the USDOC found that dumping was likely to
continue or recur at 1.36 percent if the duty were revoked. In June 2001, the
U.S. International Trade Commission (USITC) published its final injury
determination: it decided that recurrence of material injury was likely. The
USDOC published the notice of continuation of the anti-dumping duty on OCTG
from Argentina in July 2001.
The WTO Panel makes five salient points.
On the waiver provisions of U.S. law, it first decides that the several
provisions are inconsistent with the investigating authorities’ duty to
determine the likelihood of continuation or recurrence of dumping under Article
11.3 of the Anti-Dumping Agreement. These include Section 751(c)(4)(B) of the
Tariff Act relating to affirmative waivers; and Section 351.218(d)(2)(iii) of
the USDOC’s regulations for deemed waivers. Furthermore, Section
351.218(d)(2)(iii) does not square with Articles 6.1 and 6.2 of the Agreement.
Secondly, the Panel deals with the
allegedly irrefutable presumption of likelihood under U.S. law. It concludes
that the provisions of Section II.A.3 of the Sunset Policy Bulletin (SPB) are
as such incompatible with the investigating authorities’ duty to make findings
on the likelihood of continuation or recurrence of dumping under Article 11.3
of the Agreement.
Thirdly, the DSP looks at the U.S.
standard for the likelihood of continuation or recurrence of injury
determinations in sunset reviews. It then concludes that Sections 752(a)(1) and
(5) of the Tariff Act do not clash with Article 11.3 of the Anti-Dumping
Agreement.
In the Fourth place, the Panel evaluates
the USDOC’s determinations in the OCTG sunset review. In its view, the USDOC’s
actions did not harmonize with Articles 11.3 and 6.2 of the Agreement. On the
other hand, they were compatible with Articles 12, 6.1, 6.8 and Annex II of the
Agreement.
Finally, with respect to the USITC’s
determinations in the OCTG sunset review, the USITC did not act inconsistently
with Article 11.3 of the Anti-Dumping Agreement. This refers to its application
of Sections 752(a)(1) and (5) of the Tariff Act in its findings as the probable
volume, price and impact of dumped imports, as well as its use of cumulation.
The DSP concludes that the inconsistent
measures nullify or impair Argentina’s benefits under the Anti-Dumping
Agreement. Therefore, the U.S. should conform these measures with its WTO
obligations.
Citation: United States – Sunset Reviews of
Anti-dumping Measures on Oil Country Tubular Goods from Argentina (DS 268). [See
text of report available on WTO website at www.wto.org.].
Tunisia and U.S. sign science and
technology agreement. A
U.S. Undersecretary of State and the Tunisian Secretary of State met in Tunis
on June 22, 2004 to formally sign a ten-year Agreement on Science and
Technology Cooperation with the government of Tunisia. The main beneficiaries
of this wide-ranging collaboration should be Tunisian government agencies,
“technopoles” (national research centers), academic research institutions and
private corporations. In its initial stages, the Agreement would focus on
meteorology and weather forecasting, public health, integrated watershed
management, environmental protection, alternative energy (particularly wind
power), biotechnology, and educational exchanges. The Agreement also encourages
scientists from the neighboring Maghreb countries of northwest Africa to take
part in the science and technology discourse. The U.S. is working toward the
signing of similar agreements with Algeria and Morocco to formalize the
possibilities for U.S.‑ Maghreb collaboration and to launch an energetic
dialogue about science matters. Citation: Media Note # 2004/698, Office
of Spokesman, U.S. Department of State, Washington, D. C., Tuesday, June 22,
2004.
China nullifies Pfizer drug patent. After FDA approval, Pfizer launched its
U.S. sales of Viagra in 1998. Two years later, China’s State Intellectual
Property Office (SIPO) approved it for sale in China under the brand name “Wan
Ai Ke.” Not long after this, several Chinese drug companies asked the SIPO to
cancel Pfizer’s patent on the theory that it had failed to comply with the
“novelty requirement” of Chinese law. On July 7, Pfizer announced that SIPO’s
patent re‑examination board had overturned its Viagra patent. Though it has
plans to appeal in China, the company has lost out in like cases in Colombia
and Venezuela. Citation: The Associated Press (online), Beijing,
Wednesday, July 7, 2004 at 12:41:08 G.M.T.
Highest Canadian court decides that ISPs
do not owe royalties on downloaded music. The Supreme Court of Canada ruled unanimously on June 30, 2004 that
Internet Service Providers (ISPs) do not have to pay royalties to composers and
artists for music downloaded by Web customers. It regarded such companies as
mere “intermediaries” as to whom Canadian copyright legislation had no binding
effect. The Society of Composers, Authors and Music Publishers of Canada
(SOCAN), had asked the courts to let them impose a tariff on ISPs. SOCAN also
tried to persuade the Court to extend the reach of Canadian copyright law to
offshore Web sites that reach Canadian residents. The music industry claims to
have lost billions of dollars in revenue in recent years as customers avoided
retail stores and obtained their music from the Internet. On the other side was
the Canadian Association of Internet Providers. It includes the Canadian
subsidiaries of such U.S. industry leaders as Sprint Corp., American Online,
Inc, MCI, IBM Corp. and Yahoo! Inc. They had mainly argued that the artists
should collect their royalties directly from those Web sites that offer their
works. Citation: The Associated Press (online), Toronto, Canada;
Wednesday, June 30, 2004 at 15:45:42 G.M.T.
