2008 International Law Update, Volume 14, Number 8 (August)

2008 International Law Update, Volume 14, Number 8 (August)

Legal Analyses published by Mike Meier, Attorney at Law. Copyright 2017 Mike Meier. www.internationallawinfo.com. 

ALIEN TORT CLAIMS ACT

In case by West African plantation workers charging pesticide makers and users with genocide, crimes against humanity and racial discrimination under Alien Tort Claims Act (ATCA), Ninth Circuit finds that current state of U.S. and international law does not support such claims

Dole Food Company, Inc. entered into an agreement with Societe d’Etat pour le Developpement de la Production des Fruitieres et Legumes (Sodefel), an entity of the Ivory Coast government. It allegedly called for Sodefel, which owned and operated the plantations, to grow fruit according to Dole Food’s specifications; these included the use of DBCP produced by Dow Chemical Company, Shell Oil Company or AMVAC Chemical Corporation (collectively Defendants).

Akebo Abagninin, and other African nationals who have worked on Ivory Coast plantations (Plaintiffs), sued the Defendants in a California federal court. Plaintiffs allege that exposure to DBCP caused male sterility and low sperm counts and that Defendant AMVAC had been aware of these risks since the 1950s. The Plaintiffs’ alleged the Defendants’ commission of genocide and Crimes against Humanity under the Alien Tort Claims Act (ATCA), 28 U.S.C. Section 1350.2. Plaintiffs’ also claimed racial discrimination and unlawful distribution of pesticides.

Defendant Dow Chemical, joined by AMVAC, moved for judgment on the pleadings. The district court then dismissed the Plaintiffs’ claims for genocide and unlawful distribution of pesticides for failing to allege a violation of applicable norms of international law. The court determined that genocide required a specific intent to destroy a particular racial or other identifiable group of victims. The court rejected Plaintiffs’ argument that the Rome Statute of the International Criminal Court required only knowledge of the effects of DBCP, because the statute did not constitute a norm of international law under ATCA. The district court dismissed the remaining claims for failure to allege a State or organizational policy to injure civilians.

Plaintiffs next filed an amended complaint alleging Crimes against Humanity and racial discrimination under the ATCA. Dow Chemical joined by AMVAC moved to dismiss. The district court found that Plaintiffs had failed to sufficiently allege a State or organizational policy to sterilize Plaintiffs and dismissed the case with prejudice.

When Plaintiffs appealed these rulings to the Ninth Circuit, it affirms. The Court finds that Plaintiffs failed to sufficiently allege violations of applicable norms of international law, either with regard to [1] the specific intent necessary to sustain a claim of genocide or [2] the presence of a State or organizational policy necessary to state a claim of Crimes against Humanity.

The Court explains that all claims under the ATCA must be “committed in violation of the law of nations or a treaty of the United States.” It construes the phrase “law of nations” narrowly to include only those “norms of international character accepted by the civilized world.” The Court, however, does decline to limit such claims to universal violations of international law, such as piracy. The Court recognizes the need to avoid creating new violations of international law and the need to consider the practical consequences of making such claims generally available.

As to the Plaintiffs’ genocide claim, the Circuit Court focuses its analysis on the international norms issue. The U.S. has not ratified the Rome Statute that the Plaintiffs identify as lowering the standard for genocide to mere knowledge that its actions would have a genocidal effect. This precludes any jurisdictional basis under the “treaty” language of the ATCA.

The Court also determines that the Rome Statute lacks the status of a “norm of international character” and could not therefore provide the basis for a new standard of liability on the genocide claim. While the Court recognizes that many nations have ratified the new standard, the court is not convinced that the standard has reached the level of definiteness and acceptance contemplated by the ATCA. Therefore, absent an allegation of specific intent to destroy an identifiable group of people, it was proper to dismiss the genocide claim.

As to the claims of Crimes against Humanity, the Circuit Court agrees with the district court that neither AMVAC, nor the governmental entity, Sodefel, had violated a norm of international law; neither one had acted pursuant to a “State or organizational policy” to attack civilians.

In upholding the dismissal of the ATCA claim for Crimes against Humanity against AMVAC, the Court rejects the Plaintiffs’ claims that AMVAC, as a business organization, used DBCP under an “organizational policy” to injure or kill civilians. The Court does recognize some modification of the ATCA requirements to include certain non‑state actors. The Court does not agree with Plaintiffs, however, that international law has relaxed the requirement to the extent of including a business organization like AMVAC.

“The traditional conception regarding crimes against humanity was that a policy must be present and must be that of a State, as was the case in Nazi Germany. [Cite]. This conception was expanded to include non‑State entities which, although not a part of the legitimate government, have de facto control over a defined territory [...] De facto control thus requires control analogous to that of a State or government, such as erecting checkpoints on main roads, examples of exercising command and control, developing civilian structures, and holding a substantial percentage of territory. [Cite].” [Slip Op. 15]

As to the ATCA claim for Crimes against Humanity against Sodefel, the Circuit Court does not find that Sodefel acted pursuant to a State or organizational policy as defined by customary international law. Although Sodefel is an agency of the Ivory Coast government, its actions fell short of satisfying the “state action” requirement. The simple charge of buying DBCP for use on plantations failed to allege a state or organizational policy to “sterilize the plantation workers,” that would support a claim for Crimes against Humanity.

Citation: Abagninin v. AMVAC Chemical Corporation, 2008 WL 4330544; No. 07‑56326 (9th Cir., 2008).

CHILD ABDUCTION

Where mother moved children from Venezuela to permanent stay in United States, Seventh Circuit rules that father had sufficient “rights of custody” under Hague Abduction Convention to have U.S. court order return of children to Venezuela, since father also had right of patria potestas under Venezuelan law

In 1999, Jose Gregorio Altamiranda Vale (Petitioner) and Maria Jose Figuera Avila (Respondent) got married in Venezuela . Respondent gave birth to twins a year later. Six years later, Respondent met an American man on the Internet and divorced Petitioner pursuant to a mutual agreement. The court awarded physical custody of the children to Respondent, but granted both parents rights of patria potestas or “paternal power.” Under Venezuelan law, this term includes all the parental duties and rights as to their children’s care, development and education.

Respondent obtained Petitioner’s consent in 2006 ostensibly to take the twins to Florida to attend a wedding. Respondent, however, took them to Peoria, Illinois where she married the man she had met on the Internet. As part of the ongoing dispute, an Illinois state court issued an uncontested judgment declaring that the children were now habitual residents of Illinois.

Petitioner filed a petition in Illinois federal court for the return of the children under the Hague Convention on the Civil Aspects of International Child Abduction (Convention), T. I. A. S. No. 11,670, 1343 U. N. T. S. 89 (in force for U.S. July 1, 1988) and its implementing U.S. statute: the International Child Abduction Remedies Act (ICARA), 42 U.S.C. Sections 11601 et. seq. The parties later settled and dismissed the litigation by Agreement.

Respondent, however, failed to abide by the Agreement. Petitioner filed his Hague Convention petition and moved to set aside the judgment dismissing his suit, alleging that the Respondent had obtained that judgment by fraud. The district court set aside the judgment, citing evidence that Respondent had lied about financing the children’s travel and about the children’s ability to travel. Ruling that removal of the children had violated Petitioner’s rights of custody, the court ordered the children returned to Venezuela. Respondent appealed. The Seventh Circuit affirms.

The Court dismissed Respondent’s objection that the district court lacked the power to reopen the proceeding. The Court explains that: “The settlement agreement itself authorizes Petitioner to resume his Convention suit if Respondent violated it, and she did — and the Agreement is part of the state court judgment. ... [T]he reopening of the judgment was lawful... [as was] the judgment rendered by the district court after the reopening, since implicit in the state court judgment authorizing the reopening was the possibility that the result would be a Convention order that the children be sent back to Venezuela.” [Slip Op. 7]

Thus the district court had jurisdiction over Petitioner’s case. The substantive holding then is that Respondent’s removal of the children to Illinois violated Petitioner’s “rights of custody” under Venezuelan law and the Convention.

“The Convention does not speak simply of ‘custody,’ but of ‘rights of custody,’ and these are broadly defined to include ‘rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.’ ... [S]o the enumeration is not necessarily exhaustive. By virtue of the doctrine of patria potestas, [Petitioner], the father, had rights relating to the care of the person of the child, and, by virtue both of that doctrine and even more clearly by virtue of the doctrine of ne exeat, the right to determine that the child’s place of residence would remain Venezuela rather than the United States.”

“No more is necessary to establish that Petitioner had ‘rights of custody,’ which Respondent infringed. ... [The authorities] hold that the doctrine of ne exeat does not create a right of custody, reasoning that, if it did, the effect would be to send the child to a parent who did not have custodial rights but merely a right to prevent the child from being removed to another jurisdiction. That is a fair point, though cutting against it is the invitation to abduction that is tendered if a parent can violate ne exeat with impunity.”

“But we need not decide whether the doctrine of ne exeat creates custody rights, for in none of the cases that answer the question in the negative did the plaintiff also have the right of patria potestas. Only Gonzalez v. Gutierrez, 311 F.3d 942 (9th Cir. 2002), is cited for the proposition that patria potestas does not confer a custody right; ... [but] all that case actually holds (besides that the doctrine of ne exeat does not by itself create a right of custody) is that patria potestas is a default doctrine and hence does not override rights conferred by a valid custody agreement between the parents. Id. at 954. (The father in Gonzales had access rights as well as ne exeat, but not patria potestas.) There is no such override here.”

“The divorce decree gave Respondent physical custody of the children subject to Petitioner’s right of patria potestas. It provided: ‘The Father and the Mother shall both EXERCISE THE PATRIA POTESTAS over our children as we have been doing and as established by the Law. The aforementioned children shall remain under the Guard of the mother, with whom they are currently living.’ When the parent who does not receive physical custody is given the rights and duties of patria potestas, he has custody rights within the meaning of the Hague Convention.” [Slip op. 8‑9].

Citation: Altamiranda Vale v. Avila, 538 F.3d 581; No. 08‑2161 (7th Cir. 2008).

CONSULAR RELATIONS

U.S. Supreme Court declines to issue stay of execution for Mexican defendant, who alleges prejudicial error resulting from violation of Vienna Convention on Consular Relations in absence of congressional implementation of Convention

Jose Ernesto Medellin (Petitioner), a Mexican citizen on death row in Texas, applied for a stay of execution. A jury had convicted him of raping and strangling two teenaged girls. He argued that either the U.S. Congress or the Texas Legislature could determine that the International Court of Justice’s (ICJ’s) ruling in this matter could lead to vacating his death sentence. In 2004, the ICJ held in the Case Concerning Avena and Other Mexican Nationals (Mexico v United States of America (Judgment) [31 March 2004] ICJ, available at http://www.icj‑cij.org), that the 51 Mexican nationals (including Medellin) sentenced in various states of the U.S. were entitled to review and reconsideration of their convictions and sentences because of a breach of the consular notification requirements of the Vienna Convention on Consular Relations [21 U.S.T. 77; T.I.A.S. 6820; 596 U.N.T.S 261; in force for U.S. Dec. 24, 1969].

Justice Scalia, writing for the narrow majority, denied the application. He held that that the possibility of legislative action is too remote to stay the execution. “It is up to Congress whether to implement obligations undertaken under a treaty which (like this one) does not itself have the force and effect of domestic law sufficient to set aside the judgment or the ensuing sentence, and Congress has not progressed beyond the bare introduction of a bill in the four years since the ICJ ruling and the four months since our ruling in Medellín v. Texas, 552 U.S. ___ (2008). This inaction is consistent with the President’s decision in 2005 to withdraw the United States’ accession to jurisdiction of the ICJ with regard to matters arising under the [Consular] Convention.”

“The Department of Justice of the United States is well aware of these proceedings and has not chosen to seek our intervention. Its silence is no surprise: The United States has not wavered in its position that Petitioner was not prejudiced by his lack of consular access.” [Slip Op. 1]

The decision resulted in several dissents that questioned the wisdom of the Court’s decision. Justice Stevens noted that, “... waiting a short time to guarantee that the views of the Executive have been given respectful consideration is only prudent. Balancing the honor of the Nation against the modest burden of a short delay to ensure that the breach is unavoidable convinces me that the application for a stay should be granted.” [Slip Op. 2].

Justices Souter, Ginsberg and Breyer also dissented. Justice Breyer’s dissent criticized the majority for failing to acquiesce to the four justices’ desire for a stay. “A sufficient number of Justices having voted ...., it is particularly disappointing that no Member of the majority has proved willing to provide a courtesy vote for a stay so that we can consider the Solicitor General’s view once received.” [Slip Op. 3].

Citation: Medellin v. Texas, 2008 WL 3821478; 77 U.S.L.W. 3073 (U.S. 2008).

EVIDENCE

In diversity suit over enforcement of Uruguayan garantia solidaria, Seventh Circuit rules that witness not timely reported on trial expert list could not offer lay opinion on alleged impairment of collateral’s value based on witness’s generalized familiarity with international tire trade where he lacked personal knowledge of relevant matters as required by Federal Rules of Evidence

Titan International, Inc. (Defendant) is an international tire maker based in Illinois. In June 1998, Defendant bought a controlling interest in Fabrica Uruguaya de Neumaticos S.A. (FUNSA), a tire manufacturer based in Uruguay. At that time, FUNSA had an existing line of credit in the amount of $5 million from Banco de la Republica Oriental del Uruguay (the bank).

FUNSA property and equipment secured the line of credit. In April 1999, Defendant asked for additional credit from the bank to fund FUNSA’s operations. The bank agreed to increase FUNSA’s line of credit by $1 million if Defendant would guarantee the increase. On April 19, 1999, Defendant executed a document called Garantia Solidaria (guarantia). Defendant agreed to serve as a surety for any debt owed to the bank by FUNSA, up to $1 million. The bank, accordingly, increased FUNSA’s line of credit; a pledge of FUNSA’s plant and equipment (the collateral) secured this new debt as well as Defendant’s guarantia.

On March 4, 2002, FUNSA declared bankruptcy under Uruguayan law. As of the date of the bankruptcy filing, FUNSA owed more than $4 million to the bank. On December 31, 2003, the bank transferred its FUNSA indebtedness to Plaintiff. This deal included all of its rights in the collateral and all of its rights against Defendant under the garantia.

The parties sought buyers for the collateral both before and after the bank transferred it to Plaintiff, but the parties could never agree on the terms of a sale. In March 2004, Plaintiff obtained a third‑party appraisal of the collateral. The appraiser valued the collateral at between $1.5 million and $2.3 million. On May 6, 2004, Plaintiff sold its interests in the collateral, along with a number of other outstanding notes, to a third party for $2 million. Plaintiff, however, failed to notify Defendant of this sale in advance. The third party later foreclosed on the collateral, another party bought it at public auction pursuant to Uruguayan bankruptcy law for $1 million.

With about $2 million of FUNSA’s debt left unpaid, Plaintiff then pursued other avenues of collection. First, It demanded that Defendant pay it $1 million, the amount of FUNSA’s debt that Defendant had guaranteed. Defendant, however, refused to pay under the garantia. It contended, inter alia, that Plaintiff’s failure to provide pre‑sale notice had impaired Defendant’s rights in the collateral that secured the debt. As a result, Plaintiff filed this federal diversity action to enforce the garantia agreement.

During discovery, the district court issued a scheduling order that required the parties to disclose all of their expert witnesses by February 3, 2006. Defendant did not disclose any expert witnesses prior to that date. On February 21, however, nearly three weeks after the expert witness disclosure deadline and days before fact discovery was set to end, Defendant served Plaintiff with two expert notices. In one, a Ricardo Olivera offered an opinion on the interpretation of Uruguayan law. In the other, a Mark Haron offered an opinion on the value of the FUNSA collateral based on his experience buying and selling tires and equipment on the worldwide tire market. Defendant did not disclose any other experts at this time.

Plaintiff moved to strike both experts’ reports as untimely disclosed. On April 21, 2006, the district court granted Plaintiff’s motion to strike Defendant’s proffered expert declarations because the delay was neither justified nor harmless. Two months later, Plaintiff moved for summary judgment. It contended that Defendant had presented no credible evidence that the value of the collateral was, in fact, greater than the price for which it had been sold; accordingly, Plaintiff claimed, Defendant could not show that its interests in the collateral had been impaired.

On June 27, 2006, Defendant filed its opposition to Plaintiff’s motion for summary judgment. As evidence of the value of the collateral, it attached an affidavit from Maurice Taylor. He was the Defendant’s President and chairman at the time that Defendant filed his affidavit. Paragraphs 8 and 9 of his affidavit asserted his opinion that the value of the FUNSA collateral exceeded $10 million. Plaintiff moved to strike paragraphs 8 and 9 of this affidavit as undisclosed expert testimony, and the district court granted its motion.

On October 19, 2006, the district court gave summary judgment to Plaintiff It held that Defendant had failed to put forth any competent evidence that either the bank or Plaintiff had impaired the value of the collateral or otherwise increased the risk to Defendant under the garantia. Defendant timely appealed.

The U.S. Court of Appeals for the Seventh Circuit affirms in a July 10 opinion. The Court explains its thinking. “We generally review for an abuse of discretion the district court’s decision to exclude expert testimony. Mannoia v. Farrow, 476 F.3d 453, 456 (7th Cir. 2007). When this decision is based on an interpretation of the Federal Rules of Evidence, however, we review de novo the court’s interpretation of the law. The district court’s classification of a witness as lay or expert is a legal interpretation that we review de novo. See United States v. Davis, 471 F.3d 783, 788 (7th Cir. 2006) (‘Legal conclusions made by the trial court in reaching the decision to admit expert testimony are reviewed de novo.’); United States v. Gray, 410 F.3d 338, 347 (7th Cir. 2005) (‘[O]ur review of whether [the witness] was properly qualified as an expert is de novo and our review of the decision to admit the testimony is for an abuse of discretion.’).”

“Here, the district court classified Maurice Taylor’s affidavit as expert testimony under Federal Rule of Evidence 702, and therefore it was inadmissible because Defendant had not disclosed Taylor as an expert witness. Defendant contends that Taylor’s testimony should have been characterized as lay opinion testimony under Rule 701, not as expert testimony under Rule 702, and, therefore, it was not required to disclose Taylor as an expert witness prior to the scheduled date.”

“Rule 701 provides: ‘If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.’”

“Defendant contends that Taylor’s testimony was based on his ‘extensive experience purchasing and selling used Tire and Wheel manufacturing equipment on the world market,’ ... but not on any specialized or scientific techniques or processes of reasoning that can be mastered only by specialists in the field. In Defendant’s view, therefore, Taylor’s opinion was based on his own perceptions of, and experience in, buying and selling the equipment in question. According to Defendant, Taylor’s testimony was ‘quintessential Rule 701 testimony’ regarding ‘the value of his property.’ United States v. Conn, 297 F.3d 548, 554 n. 2 (7th Cir. 2002) (quoting Asplundh Mfg. Div. v. Benton Harbor Eng’g, 57 F.3d 1190, 1198 (3d Cir. 1995)).” [Slip op. 3].

“In support of its position, Defendant relies on a number of cases from other circuits that permit business owners or officers to testify without being qualified as experts. See Asplundh, supra at 1198 (noting that a maintenance supervisor was competent to testify as to the cause of an accident when he had personally inspected the damaged parts); Lightning Lube v. Witco, 4 F.3d 1153, 1174 (3d Cir. 1993) (holding that the owner of a small business may testify as a lay witness regarding the projected future profits of his business); State v. Brown, 836 S.W.2d 530, 549‑50 (Tenn. 1992) (holding that a nurse may testify as a lay witness about the nature of injuries she personally observed).”

“The Advisory Committee notes to Rule 701 explain, however, that a business owner or officer is allowed to testify without being qualified as an expert only because that testimony is tied to his or her personal knowledge: ‘[M]ost courts have permitted the owner or officer of a business to testify to the value or projected profits of the business, without the necessity of qualifying the witness as an accountant, appraiser, or similar expert. See, e.g., Lightning Lube, Inc. v. Witco Corp. 4 F.3d 1153 (3d Cir. 1993) (no abuse of discretion in permitting the plaintiff’s owner to give lay opinion testimony as to damages, as it was based on his knowledge and participation in the day‑to‑day affairs of the business). Such opinion testimony is admitted not because of experience, training or specialized knowledge within the realm of an expert, but because of the particularized knowledge that the witness has by virtue of his or her position in the business. The amendment does not purport to change this analysis.’”

“This case does not present such a circumstance. Taylor purported to value the collateral by applying his generalized knowledge of the worldwide tire market, gained through his experience in the worldwide tire business, to a proffered list of specific items owned by a third party. Taylor’s only connection to the items in question is the fact that he is an officer of a company that, at one time, held a controlling interest in a company that, at one time, owned the collateral.”

“Defendant, however, had no ownership interest in FUNSA at the time that Taylor made his purported valuation. Furthermore, Defendant identifies no evidence that Taylor participated in FUNSA’s initial purchase of the particular items in question, and his affidavit belies any contention that he based his valuation opinion on personal knowledge of the collateral. Indeed, in his deposition, Taylor specifically disclaimed any personal knowledge of the particular items that were included in the sale.”

“Taylor’s position therefore was not akin to the owner of a small business testifying to the value of that business. His attempt at valuation was not based on any knowledge obtained through his special relationship with the items in question; instead, he simply looked at a list of items provided by Plaintiff, and he estimated their value based on his extensive experience purchasing and selling the type of goods at issue. This is the kind of testimony traditionally provided by an expert: ‘[I]t could have been offered by any individual with specialized knowledge of the [tire] market.’ Conn, supra at 555. In fact, Taylor’s testimony on this issue was essentially the same as that of Defendant’s originally retained valuation expert, Haron, whose statements already had been excluded by the district court because they were untimely disclosed.” [Slip op. 4]

“Rule 701 recently was amended ‘to emphasize that lay opinion testimony is limited to those observations of a lay witness that are not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Conn, supra at 553 (quoting Fed. R. Evid. 701). The amendment was designed to avoid this very situation – to prevent parties from ‘proffering an expert in lay witness clothing.’ Fed. R. Evid. 701 (advisory committee notes). We have noted: ‘Before the 2000 amendment to Rule 701, some courts had become more lenient in the admission of lay opinion on subjects appropriate for expert testimony. The amendment was designed to make clear that courts must scrutinize witness testimony to ensure that all testimony based on scientific, technical or other specialized knowledge is subjected to the reliability standard of Rule 702.’ Conn, supra at 553.”

“Testimony based solely on a person’s special training or experience is properly classified as expert testimony, and therefore it is not admissible under Rule 701. Id. at 554‑55. Taylor’s valuation attempt was based on his special experience in the tire industry, not on his personal knowledge of the goods in question; therefore, it falls within the purview of Rule 702.

Accordingly, we conclude that the district court properly classified paragraphs 8 and 9 of Taylor’s affidavit as expert testimony.” [Slip op. 5] Because Defendant failed to disclose Taylor as an expert witness prior to the disclosure deadline, the district court did not abuse its discretion when it kept out his testimony.

Citation: Compania Administradora De Recuperacion De Activos Administradora De Fondos De Inversion v. Titan International, Inc.,533 F.3d 555; 76 Fed. R. Evid. Serv. 1220 (7th Cir. 2008).

EXPROPRIATION

In protracted proceedings between U.S. corporation and Iran over Iranian expropriation, District of Columbia Circuit finds that U.S.‑Iran Treaty of Amity does not create private right of action for compensation, and remands for district court to determine whether there is cause of action under Iranian law or customary international law, and whether Act of State Doctrine applies

This case began in 1982 when McKesson (Plaintiff) filed suit in the District of Columbia federal court, claiming that Iran had unlawfully expropriated its investment in the dairy company, Sherkat Sahami Labaniat Pasteurize Pak (Pak). At issue in Iran’s appeal are the district court’s rulings that McKesson had a cause of action under a treaty with Iran and customary international law. The District of Columbia Circuit remands.

The Court finds that the district court properly asserted subject matter jurisdiction, but reverses the district court’s conclusion that the Treaty of Amity, Economic Relations, and Consular Rights (in force: June 16, 1957; 8 U.S. T. 899; T. I. A. S. 207; 284 U. N. T. S. 93) (TOA ) provides a cause of action. Also, the district court should have re‑considered its 1997 ruling that customary international law (CIL) provides a cause of action.

The Court had held in the earlier McKesson proceedings that there was federal jurisdiction under the “commercial activity” exception to the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. Section 1605(a)(2). Also, in McKesson III, the Court held that the [TOA] provided McKesson with a cause of action. Iran unsuccessfully petitioned the U.S. Supreme Court for certiorari to review McKesson III. Because the U.S. Government opposed certiorari, the Court of Appeals vacated the McKesson III holding that the [TOA] provided a cause of action.

The Circuit Court now reverses the district court, and explains its action. “We must determine whether the [TOA] provides a private cause of action. If it does, then McKesson’s appearance as a Plaintiff in federal court was a proper exercise of its ‘right . . . to seek judicial relief from injuries caused by another’s violation of a legal requirement.’ Cannon v. Univ. of Chicago, 441 U.S. 677, 730 n.1 (1979) (Powell, J., dissenting). If it does not, and if a cause of action cannot otherwise be found, then McKesson’s complaint must be dismissed. The district court had concluded that McKesson had a cause of action under the [TOA]. McKesson Corp. v. Islamic Republic of Iran, 520 F. Supp. 2d 38, 52‑55 (D.D.C. 2007). Reviewing this interpretation de novo, we reverse.”

“[...] The [TOA], like other treaties of its kind, is self‑executing. ... Curtis A. Bradley & Jack L. Goldsmith, Foreign Relations Law 379 (2d ed. 2006) (‘[C]ourts commonly assume that certain types of bilateral treaties, such as . . . Friendship, Commerce, and Navigation (FCN) treaties, are self‑executing.’). As such, it ‘operates of itself without the aid of any legislative provision,’ ... and its text is ‘the supreme Law of the Land,’ U.S. CONST. Art. VI, cl. 2, on par with that of a statute ... That the [TOA] is self‑executing begins but does not end our search for a treaty‑based cause of action, because ‘[w]hether a treaty is self‑executing is a question distinct from whether the treaty creates private rights or remedies.’ RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES Section 111 cmt. h (1986) [hereinafter RESTATEMENT] ... ‘Even when treaties are self‑executing in the sense that they create federal law, the background presumption is that ‘[i]nternational agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts.’ ‘ Medellin, 128 S. Ct. at 1357 n.3 (quoting RESTATEMENT, supra, Section 907 cmt. a).”

“We find nothing in the [TOA] that overcomes this presumption. To be sure, article IV(2) of the [TOA] directly benefits Plaintiff by declaring that ‘property shall not be taken except for a public purpose, nor shall it be taken without the prompt payment of just compensation.’ Plaintiff contends that the [TOA] creates a right (‘property shall not be taken’) and provides a remedy (‘just compensation’), and that together these make a cause of action. Not so. The [TOA] tells us what Plaintiff will receive — money — but leaves open the critical question of how Plaintiff is to secure its due. For a federal court trying to decide whether to interject itself into international affairs, the [TOA]’s silence on this point makes all the difference.” [Slip op. 5‑7]

The mere fact that a treaty provides for rules of conduct and that compensation shall be paid is not enough to create private rights of action to recover from foreign states in U.S. courts. See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 442 (1989). There are in fact treaties that specify such compensation rights, such as the Convention for the Unification of Certain Rules Relating to International Transportation by Air (Warsaw Convention), Oct. 12, 1929, 49 Stat. 3000, 137 L.N.T.S. 11 (‘carrier[s] shall be liable for damage’ to passengers and baggage). Since there is no clear wording in the [TOA] to provide such rights, the Court concludes that the U.S. President and the Senate intended to enforce it through bilateral interaction, not through the courts. The U.S. Government shares this view. The Court therefore remands for further proceedings and instructs the district court to consider three issues:

“First, the district court must consider whether Plaintiff has a cause of action under Iranian law. Plaintiff has so contended in the district court, but the court has had no reason to address the issue before now. Second, it must reconsider, in light of, inter alia, the Supreme Court’s intervening decision in Sosa v. Alvarez‑Machain, 542 U.S. 692 (2004), whether CIL provides Plaintiff a cause of action. Third, it must determine whether the Act of State doctrine applies to this case. ‘The act of state doctrine `precludes the courts of this country from inquiring into the validity of the public acts a recognized foreign sovereign power committed within its own territory.’ ‘ World Wide Minerals, Ltd. v. Republic of Kazakhstan, 296 F.3d 1154, 1164 (D.C. Cir. 2002) (quoting Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 401 (1964)). The doctrine must be addressed before this litigation is completed because , if it applies, Iran cannot be held liable.”

“On the latter two issues, the district court shall invite the views of the United States, whose interests may be implicated by those matters. Because it is unclear whether Plaintiffs suit may proceed, we defer for now Iran’s challenges to the district court’s interpretation of the remand order in McKesson III and its rulings at trial.” [Slip op. 10‑11]

Citation: McKesson Corp. v. Islamic Republic of Iran, 539 F.3d 485(D.C. Cir. 2008).

EXTRADITION

Where U.S. authorities sought formal extradition of British Defendant charged with hacking into and erasing many high level U.S. military computers and, in exchange for his surrendering, offered to recommend reduced sentence to U.S. court and repatriation to serve part of sentence in U.K., House of Lords dismisses Defendant’s appeal from extradition order since offers amounted to reasonable plea bargaining rather than threats of dire consequences for failure to accept offers

Gary McKinnon (Defendant) is an unemployed 42‑year‑old British citizen, who had considerable skill with his home computer in London. During the Spring of 2002, he used it to identify network computers of the U.S. Government, to copy the identities of certain administrative accounts and passwords, and to install unauthorised software which made it possible for him to access and change the data on those computers. He then deleted data from 97 computers, many of them high level U.S. military computers. The cost of repairs allegedly amounted to US $700,000.

The U.S. charged that the Defendant’s conduct was intentional and calculated to influence the U.S. Government by intimidation and coercion. When interviewed under caution, the Defendant admitted responsibility but not that he had caused damage.

Before requesting the Defendant’s formal extradition, the U.S. prosecutors informed the Defendant’s legal representatives that, if Defendant went voluntarily to the U.S. without contesting extradition and if he pleaded guilty to two counts of “fraud and related activity in connection with computers,” the prosecution would recommend to the court [1] that it sentence the Defendant for 3 to 4 years’ imprisonment and, [2] that, after serving 6 to 12 months in the U.S. , the prosecutor would recommend to the Department of Justice that the Defendant serve the rest of his sentence in the United Kingdom, and [3] that the court and the department were likely to accept these recommendations. The Defendant was offered a plea bargain on those terms.

His lawyers also told the Defendant that if he turned down this plan and the U. K extradited him to the U.S. and a jury convicted him on a not guilty plea, he could expect to receive a sentence of at least 8 to 10 years’ imprisonment, possibly more and would serve the whole sentence in the U.S., probably in a high security prison. The Defendant refused the plea bargain offer and extradition proceedings began.

The English judge found that the Defendant’s extradition to the U.S. would square with his rights under the U.K.–U.S. Extradition Treaty of January 21, 1977 [28 U.S.T.S 227; T.I.A.S. 8468; 1049 U.N.T.S 167 ] as supplemented by Treaty of December 23, 1986 [T.I.A.S. 12050; 1556 U.N.T.S. 369] and sent the case to the Secretary of State who ordered the Defendant’s extradition.

The Defendant appealed on the ground that the wide disparity between the predicted likely outcome if he co‑operated with the U.S. authorities, and the threatened likely outcome if he did not co‑operate was disproportionate, subjected him to impermissible pressure to surrender his legal rights and amounted to an abuse of process. The judge ruled against Defendant. On appeal, the Divisional Court of the Queen’s Bench Division dismissed the appeal.

On further resort to the House of Lords, that tribunal addresses the following issue: “Is it an abuse of process of extradition proceedings, such that the proceedings should be stayed, and/or an unjustified interference with the Defendant’s human rights, for the requesting state to engage in plea bargaining, including a threat to the Defendant that, unless he agrees to be extradited, repatriation to the United Kingdom to serve any sentence imposed in the requesting state will not be supported by the prosecuting authority in the requesting state?” The Lords also dismiss Defendant’s appeal.

The lead opinion explains this result in part as follows. “For this submission and indeed more generally in support of the abuse of process argument, the Appellant relies principally upon the judgment of the Supreme Court of Canada in U.S. v. Cobb [2001] 1 S.C.R. 587 . The USA there had indicted a large number of Defendants, including the two Canadian appellants, on mail fraud charges. Many had submitted voluntarily to the court in Pennsylvania and, on sentencing one of them, the trial judge, Judge William Caldwell, had said, at p 593: ‘I want you to believe me that, as to those people who don’t come in and co‑operate and if we get them extradited and they are found guilty, as far as I’m concerned they are going to get the absolute maximum jail sentence that the law permits me to give.” [¶ 30]

“Turning, with these considerations in mind, to the questions raised by Cobb [2001] 1 S.C.R. 587 and central to the determination of the present appeal, I for my part would unhesitatingly answer all of them in the negative. As the Divisional Court itself pointed out [2007] E.W.H.C. 762 at ¶ 34, the gravity of the offences alleged against the Appellant should not be understated: the equivalent domestic offences include an offence under section 12 of the Aviation and Maritime Security Act 1990 for which the maximum sentence is life imprisonment.”

“True, the disparity between the consequences predicted by the U.S. authorities dependent upon whether the Appellant co‑operated or not was very marked. It seems to me, however, no more appropriate to describe the predicted consequences of non‑co‑operation as a ‘threat’ than to characterise the predicted consequences of co‑operation as a ‘promise’ (or, indeed, a ‘bribe’).”

“In one sense all discounts for pleas of guilty could be said to subject the defendant to pressure, and the greater the discount the greater the pressure. But the discount would have to be very substantially more generous than anything promised here (as to the way the case would be put and the likely outcome) before it constituted unlawful pressure such as to vitiate the process. So too would the predicted consequences of non‑co‑operation need to go significantly beyond what could properly be regarded as the Defendant’s just deserts on conviction for that to constitute unlawful pressure.”

“The differences between this case and Cobb [2001] 1 S.C.R. 587 are striking. In Cobb it was the judge who stated that non‑co‑operation would result in ‘the absolute maximum jail sentence that the law permits me to give’ (see p. 593) and he, after all, unlike the prosecuting authority, had the power to pass sentence. And in Cobb, the prosecutor, so far from forewarning the Defendant of the differing consequences which could be expected to follow (perfectly properly) from his decision whether or not to co‑operate, effectively threatened (and here I use the word advisedly) those not co‑operating with homosexual rape.”

“The high watermark of the Appellant’s case here consists of Mr Lawson’s recollection that, unless the Appellant consented to extradition (as opposed merely to pleading guilty if extradited), the prosecuting authorities would oppose his repatriation. That, however, even were it to be regarded as an unlawful threat, has now been expressly repudiated by Mr. Wiechering, again in marked contrast to the position in Cobb. In my judgment ,it would only be in a wholly extreme case like Cobb itself that the court should properly regard any encouragement to accused persons to surrender for trial and plead guilty (in particular if made by a prosecutor during a regulated process of plea bargaining), as so unconscionable as to constitute an abuse of process justifying the requested state’s refusal to extradite the accused. It is difficult, indeed, to think of anything (other than the threat of unlawful action) which could fairly be said so to imperil the integrity of the extradition process as to require the accused, notwithstanding his having resisted the undue pressure, to be discharged irrespective of the strength of the case against him.”

“In my judgment this is far from being such a case and accordingly I would dismiss the appeal.” [¶¶ 38‑42]. Other members of the panel concur.

Citation: McKinnon v. Government of the United States of America, [2008] U.K.H.L. 59; [2008] 1 W.L.R. 1739; 2008 WL 2872468 (HL) ( 2008).

JURISDICTION (TORT)

In libel‑on‑Internet suit against Yahoo of U.S. , where Plaintiff sued Defendant in British Columbia, B.C. Court of Appeals upholds jurisdictional dismissal of case on grounds that Plaintiff failed to specifically allege that libel was broadly published to anyone within Province outside of restricted web site

Wayne Crookes (Plaintiff) alleges that someone made libelous statements against him on an internet site, the host service provider of which is Yahoo! Inc., a U.S. corporation. Yahoo (Defendant) has no business presence in this jurisdiction. The allegedly posted website is a restricted site run by a group of individuals having a common interest in discussing matters pertaining to a particular political party. Access to the site is available only to individuals whom those in charge of the group invited or otherwise permitted to take part. The general public does not have access to the postings and information on the site.

Plaintiff does not plead any particulars of the statements as being published in this jurisdiction; he does not allege that any particular individual has read the statements, nor does he plead that anyone read then at any particular time or place in British Columbia. Plaintiff pleads only: “The libelling of the Plaintiffs by the Defendants occurred in the Province of British Columbia, and its distribution on the internet, has cause the libel to be published throughout Canada and around the world.

On hearing the application, the lower court judge dismissed the action against Defendant . In material respects, she said: “None of the individual defendants live in British Columbia. The headquarters of all the corporate defendants lie in California. With respect to internet communications, the site of the alleged defamation is where the damage to reputation occurs: Dow Jones Co. Inc. v. Gutnick, (2002), 194 Aust. L. R. 433 (H.C.); Barrick Gold Corp. v. Blanchard and Co., [2003] O. J. No. 5817 (S.C.). It is when a person downloads impugned material from the internet that may damage reputation and it is at that time and place that the tort of defamation takes place.”

“Defendant is a foreign defendant with no ties to British Columbia. In order for this court to assume jurisdiction over Defendant, there must be a real and substantial connection between the cause of action against Defendant and British Columbia. Plaintiff must show that someone in British Columbia accessed, downloaded and read the alleged defamatory postings on the GPC‑Members website, hosted by Defendant on servers outside British Columbia, thereby damaging his reputation in British Columbia. Plaintiff has neither alleged nor tendered any evidence that this has happened.

Publication is an essential element for an action in defamation. In this case, there is no pleading alleging that the purported defamatory postings were published in British Columbia; that is, communicated to a third person: Braintech Inc. v. Kostiuk, [1999] B.C.J. No. 622, 1999 B.C.C.A. 169. There is no evidence that anyone read the material in British Columbia and there is no basis for this court to draw that inference. As such, there is no basis to find Section 10(g) of the Court Jurisdiction and Proceedings Transfer Act S. B.C. 2003, c. 28 (our jurisdictional statute) applicable, I. e. that one or more Defendants committed a tort in British Columbia.

From the lower court’s dismissal for lack of jurisdiction, Plaintiff duly noted an appeal. In an opinion by the British Columbia Court of Appeal, the Court dismisses.

Plaintiff maintains the judge below erred because she failed to apply what he says is the doctrine of “presumed publication” which, in the circumstances of the case, renders pleaded particulars of publication unnecessary. He says that, once it is established that someone has posted a defamatory statement on the internet, publication in this province is to be presumed. The appellate court disagrees.

“Plaintiff acknowledges the general rule that publication must be pleaded and proved by adducing evidence of libel that is the subject of an action having been read by some person, but he says that is not required where statements are made in books or newspapers or, for that matter, are broadcast transmitted to the general public in this province, citing Sections 2 and 12(2) of the Libel and Slander Act, R. S .B.C. c. 264 and Taylor‑Wright v. CHBC‑TV , [1999] B.C.J. No. 334 (B.C.S.C.) at ¶ 27. Publication is presumed. He says the same must follow in respect of statements made that could be downloaded from the internet in this jurisdiction. He relies on Wiebe v. Bouchard, 2005 B.C.S.C. 47 (B.C.S.C.) where he says the proposition for which he contends was implicitly accepted.”

“In Wiebe significance was attached to the fact the libelous statements were posted on the internet nationwide as well as being made available in the main public library in Victoria. But they were posted on a Government of Canada website and, as was noted, were made available to everyone in the country who had a computer.”

“By contrast, the statements that are the subject of Plaintiff’s action were posted on a website with restricted access that was not available to the public. The basis for any presumption that might be said to have been recognized in Wiebe does not exist here. I do not consider the mere fact a statement was posted on a website with the kind of restricted access there was in this case supports the presumption it was read by anyone in British Columbia.”

“Plaintiff also contends the judge erred in holding Defendant had, without tendering any evidence in support, demonstrated there was no publication in British Columbia. But in my view, the judge reached no such conclusion. She observed [that] Plaintiff’s pleaded case was deficient and [that] no evidence had been adduced on the application that the statements had been read in this province, or that would permit an inference to that effect to be drawn. She held there was no basis to find [that] the proceeding concerned a tort committed in British Columbia such that the court was without jurisdiction.” [¶¶ 5‑7]. The appeal is unanimously dismissed.

Citation: Crookes v. Holloway et al., 2008 Carswell BC 919, 2008 B.C.C.A. 165, 77 B.C.L.R. (4th) 201 (2008).

SOVEREIGN IMMUNITY

In case of foreign Defendants who had financed charities alleged to have ultimately funded al Qaeda, Second Circuit rules that certain Defendants are not subject to federal jurisdiction under the FSIA or its Commercial Activity exception, joining sister circuits in holding that individual official of foreign state acting in his official capacity can be “agency or instrumentality” of that state, and thus is immunized by FSIA

Victims who suffered personal injuries and financial losses as a result of the September 11, 2001 terrorist attacks in the U.S. (Plaintiffs) filed suit in a New York federal court against numerous Defendants, alleging that the Defendants played a critical role in the attacks by supporting charities that ultimately funded al Qaeda.

The district court entered judgment on January 10, 2006, dismissing the claims against twelve of the Defendants. Plaintiffs appealed the judgment as to seven of the Defendants to the Second Circuit, challenging the District Court’s interpretation of the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. Sections 1330, 1602‑1611 (FSIA). The seven Defendants are the Kingdom of Saudi Arabia (Saudi Arabia), four Saudi princes, a Saudi banker and the Saudi High Commission for Relief to Bosnia and Herzegovina (SHC). The Circuit Court affirms the lower court’s ruling that the FSIA immunized them from federal judicial jurisdiction.

In general, in a motion to dismiss for lack of subject matter jurisdiction under the FSIA, the Defendant must present a prima facie case that it is a foreign sovereign. Then the Plaintiff has the burden of showing that there is no immunity under one or more FSIA exceptions. The Court agrees with the district court that there is no subject matter jurisdiction over the claims against the Kingdom, the Four Princes in their official capacities, and the SHC. The Court also affirms the district court’s dismissal of the claims against the Four Princes (in their personal capacities) and the Saudi banker for lack of personal jurisdiction.

As for individual officials of a foreign government, the Second Circuit has not yet decided whether the FSIA protects them when they are acting in their official capacity. The Court, however, now decides to “... join our sister circuits in holding that an individual official of a foreign state acting in his official capacity is the ‘agency or instrumentality’ of the state, and is thereby protected by the FSIA.” [Slip Op. 22]

In the Court’s view, a claim against an agency of state power, including a state officer acting in his official capacity, can actually be equivalent to a claim against the state itself. The law recognizes that “the immunity of a principal does not amount to much without the extension of that immunity to its agents.” [Slip Op. 31]

Addressing the question of SHC’s status as an “agency or instrumentality” of Saudi Arabia, the Court finds that “[b]ased on this undisputed record, the Filler factors [see Filler v. Hanvit Bank, 378 F.3d 213, 217 (2d Cir. 2004)] indicate that the SHC is an organ of the Kingdom. The SHC was created for a national purpose (channeling humanitarian aid to Bosnian Muslims); the Kingdom actively supervises it; many SHC workers are Kingdom employees who remain on the Kingdom’s payroll; the SHC holds the ‘sole authority’ to collect and distribute charity to Bosnia; and it can be sued in administrative court in the Kingdom.” [Slip Op. 36]

As to the Plaintiffs’ claim that FSIA’s Torts Exception applies to the Defendants’ acts, the Court opines that, “[i]f acts of terrorism are considered torts for the purposes of the Torts Exception, then any claim that could be brought under the Terrorism Exception could also be brought under the Torts Exception. If this were so, the Terrorism Exception would be drained of all force because every potential case would be ‘otherwise covered by this chapter’— namely, the Torts Exception. So, claims based on terrorism must be brought under the Terrorism Exception, and not under any other FSIA exception.” [Slip Op. 48‑49]

The Plaintiffs also allege that Defendants were subject to the State Sponsor of Terrorism Exception to the FSIA. The Circuit Court, however, disagrees. It finds that, “[t]he State Department has never designated [Saudi Arabia] a state sponsor of terrorism. As a consequence, the Terrorism Exception is inapplicable here. No plaintiff argues otherwise. But to apply the Torts Exception where the conduct alleged amounts to terrorism within the meaning of the Terrorism Exception would evade and frustrate that key limitation on the Terrorism Exception.” [Slip Op. 45]

The Court further determines that the defendants were not subject to the “Commercial Activity” exception of the FSIA. The Court rejects the Plaintiffs’ argument that the Defendants’ charitable contributions are a form of money laundering, which in turn is commercial in nature. The Court explains that “[i]t does not matter that the Defendants made (and oversaw) donations to charities with a specific intent as to where those donations would end up. The alleged conduct itself— giving away money—is not a commercial activity.” [Slip Op. 50‑54]

Citation: In re Terrorist Attacks on September 11, 2001, 538 F.3d 71 (2nd Cir. 2008).

House of Lords rejects Islanders’ claim of right to return to Chagos. On October 22, a divided panel of the British House of Lords ruled against the Chagos Islanders who were trying to return to their homeland they lost when the U.K. leased the island of Diego Garcia to the United States for an air base. The base has assisted U.S. military operations ranging from Vietnam to Afghanistan. The Chagos archipelago constitutes 55 low‑lying islands spread over 21,000 square miles in the Indian ocean. Diego Garcia is the southernmost island making up three‑fourths of the total land area. The Chagos form a part of the British Indian Ocean Territory. In 1971, British authorities excluded anyone from visiting the Chagos Islands except by permit. They also evacuated the islanders, principally to Mauritius, between 1967 and 1973. The government says the operation involved only a thousand islanders while the islanders claim that the number was about 2,000 who were then abandoned to live under wretched conditions. Three Law Lords ruled that the British government had no legal duty to allow the islanders to return, while two Law Lords dissented. The decision reversed last year’s unanimous decision by the Court of Appeal (Civil Division) in the islanders’ favor. See 2007 International Law Update 150. The litigation focused on the islanders’ charge that the British government had reneged on a promise made in 2000 to let them go home. The majority opinion contended that the late foreign secretary’s statement that he was working on the issue did not amount to a clear and unambiguous promise. Though the Court’s split decision did give a victory to the government, Foreign Secretary David Miliband issued an apology for the manner in which the government had handled the evacuation and for the resulting hardships suffered by many islanders.

Citation: The New York Times (online) via Associated Press, London, filed Wednesday, October 22, 2008 at 9:49 a.m. ET; text of judgment: http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd081022/ banc‑1.htm.

U.S. Congress has approved nuclear agreement with India. The following is a partial quote of Secretary Rice’s statement on the subject. “Congressional approval ... of the U.S.‑India Agreement for Cooperation Concerning Peaceful Uses of Nuclear Energy (123 Agreement) reflects the transformation of our relations and a recognition of India’s emergence on the global stage. The Agreement bolsters our partnership with the world’s largest democracy and a growing economic power, and will provide economic and job opportunities for our economy. The initiative will help India’s population of more than one billion to meet its rapidly increasing energy needs in an environmentally responsible way while reducing the growth of carbon emissions. The approval of the U.S.‑India 123 Agreement will also enhance our global nonproliferation efforts. The Agreement reflects a common commitment to share both the benefits of the international system and also the burdens and responsibilities of maintaining, strengthening, and defending it. I am pleased that Congress has endorsed this opportunity to bring the United States and India closer together. I look forward to a new strategic partnership with India that will provide global leadership in the years ahead.” Citation: Statement #2008/822 by Secretary Condoleezza Rice, Washington, D.C., Thursday, October 2, 2008.

U.S. will no longer list North Korea as terrorism supporter. The U.S. Government has removed North Korea from its list of countries that assist in terrorism. A U.S. State Department official said that the two parties had reached a deal after North Korea agreed to provide full access to its controversial nuclear program. “Every element of verification that we sought has been included in this agreement,” the official said. The U.S. blacklisting has been a major factor leading to deadlock over North Korea’s nuclear disarmament. State Department spokesman Sean McCormack said that North Korea has agreed to resume its disablement of nuclear facilities. Although the two nations had concurred on this last year, North Korea recently threatened to restart its Yongbyon reactor. Under the latest accord, North Korea will allow nuclear experts to take samples and conduct forensic tests at all its declared nuclear facilities and undeclared sites, on mutual consent, the statement said. The North will also allow inspectors to verify that it has told the truth about transfers of nuclear technology to other nations and an alleged uranium program – which North Korea has always denied. There has so far been no comment on the deal from North Korea. Analysts say several previous arrangements have broken down over varying interpretations over what is required; it is unclear whether this latest agreement will succeed. Correspondents expect that some critics will no doubt question the timing of the agreement (i.e. just before a presidential election), since it does seem to grant the Bush administration a much‑needed foreign policy accomplishment in its final months. Additionally, Tokyo has raised objections to the accord because North Korea has failed to resolve issues arising out of its kidnapping of Japanese citizens in the 1970s and 1980s. Citation: B.B.C. NEWS (online), Saturday, October 11, 2008 at 17:39 UK.