2004 International Law Update, Volume 10, Number 7 (July)

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-à-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.

U.S. Congress approves U.S.-Australia and U.S.-Morocco Free Trade Agreements. On July 14, 2004, the U.S. House of Representatives approved the U.S.-Australia Free Trade Agreement in a 314 to 109 vote, and on July 15 the U.S. Senate voted 80 to 16 in favor of the Agreement (“Australia FTA”). The Agreement provides for largely duty-free trade of manufactured goods, and is based on the Trade Promotion Authority (TPA) granted by Congress in 2002. – In a related matter, the following week, the U.S. Congress voted in favor of the U.S.-Morocco Free Trade Agreement. – The U.S. Trade Representative is currently negotiating Free Trade Agreements with various countries, including Panama and Colombia, as well as the five countries of the Southern African Customs Union (SACU) (Botswana, South Africa, Lesotho, Swaziland and Namibia). Citation: U.S. Trade Representative Press Releases of July 15, 21 and 22, 2004, available on the website www.ustr.gov.