2009 International Law Update, Volume 15, Number 12 (December)

2009 International Law Update, Volume 15, Number 12 (December)

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

CRIMINAL LAW (JURISDICTION)

In reviewing mandamus petition of indicted foreign national residing in Kuwait, Seventh Circuit orders district court to rule on motions to dismiss that challenge both international reach of substantive U.S. criminal statutes and whether foreign national’s contacts with U.S. are sufficient bases for criminal prosecution in U.S. court

In 2001, the U.S. Army contracted with Kellogg Brown & Root (KBR), a U.S. company, to provide, inter alia, fuel tankers and related services at the Kuwait airport. Jeff Alex Mazon, KBR’s procurement manager, apparently struck a special deal with one Ali Hijazi (Petitioner) to provide those services at an inflated price. Petitioner allegedly paid Mazon $1 million in return.

Five years later, a federal grand jury indicted Petitioner and Mazon in Illinois. Mazon eventually pled guilty. Petitioner did not appear, but his counsel filed two motion to dismiss which the district court held in abeyance until the court could arraign Petitioner. Apart from an unrelated trip in 1993, Petitioner has not traveled to the U.S. or had any other meaningful contacts with the U.S. In fact, it is possible that he did not even know that the funds at issue were U.S. government funds.

But Petitioner failed to show up for his arraignment. The U.S. does not have an extradition treaty with Kuwait. Petitioner is a Lebanese citizen who lives in Kuwait. The Kuwaiti government has declined to surrender him.

In 2008, Petitioner filed this petition for a writ of mandamus in the U.S. Court of Appeals for the Seventh Circuit. The Court grants Petitioner’s petition. It then explains its reasoning.

“Despite the breadth and importance of the issues implicated by Petitioner’s motions to dismiss the indictment, the question before us is a narrow one: is he entitled to a ruling at this time, or must he voluntarily travel to the United States and present himself for arraignment before the court takes his motions under advisement? ...”

“This court is authorized to issue a writ of mandamus pursuant to 28 U.S.C. § 1651(a), the All Writs Act. [See also FED. R.APP. P. 21]. This writ is available in the federal courts only in extraordinary circumstances, either ‘to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.’ ... Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35 ... (1980) ...”

“The Supreme Court’s most recent treatment of this topic appears in Cheney v. United States Dist. Court, 542 U.S. 367 (2004). Noting that ‘the writ is one of the most potent weapons in the judicial arsenal’ the Court laid out the three conditions that must be satisfied before it may issue:”

“‘First, the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires—a condition designed to ensure that the writ will not be used as a substitute for the regular appeals process. Second, the petitioner must satisfy the burden of showing that [his] right to issuance of the writ is clear and indisputable. Third, even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.’ ... ” [406‑7].

As for the first factor, standard procedures cannot resolve the underlying criminal case. The U.S. cannot compel Petitioner to travel to the U.S., and the Kuwaiti government has refused to cooperate in his surrender.

Furthermore, the U.S. cannot hold a criminal trial in absentia. See Crosby v. United States, 506 U.S. 255 (1993). But Crosby does not prohibit what Petitioner is asking for in his motions to dismiss—a pre‑appearance adjudication of whether the criminal statutes in question apply extraterritorially to his alleged conduct abroad. Thus, Petitioner is asking for relief that lies within the power of the district court.

As for the second factor, the Court finds that Petitioner’s right to issuance of the writ is clear and undisputable. “ ... Petitioner is attempting to raise fundamental questions about the legislative reach of the Major Fraud Act and the Wire Fraud Act. Whether we think of this as an issue relating to legislative jurisdiction, ... , or as something going to the court’s very power to act, there is no doubt that the question of how far a statute reaches out to address conduct undertaken outside the United States, in whole or in part, is a fundamental one. ...”

“The Supreme Court’s decision in F. Hoffmann‑La Roche Ltd. v. Empagran, 542 U.S. 155 ... (2004), emphasizes the importance and delicacy of the general issue that we face here: ‘... [T]his Court ordinarily construes ambiguous statutes to avoid unreasonable interference with the sovereign authority of other nations. ... This rule of construction reflects principles of customary international law—law that (we must assume) Congress ordinarily seeks to follow. See Restatement (Third) of the Foreign Relations Law of the United States §§ 403(1), 403(2) (1986) (hereinafter Restatement) (limiting (sic) the unreasonable exercise of prescriptive jurisdiction with respect to a person or activity having connections with another State) ...’”

“This rule of statutory construction cautions courts to assume that legislators take account of the legitimate sovereign interests of other nations when they write American laws. It thereby helps the potentially conflicting laws of different nations work together in harmony—a harmony particularly needed in today’s highly interdependent commercial world.”

“ ... Many other decisions from the Supreme Court also reflect the presumption (rebuttable to be sure) against extraterritorial effect. While we have no problem with the proposition that the district court was entitled to a reasonable time within which to rule on Petitioner’s motion, the fact is that the court has now twice announced in orders that it is deliberately not ruling, and in neither instance did the court hint that it had not had enough time to consider the motion.”

“Its reasons ... relate instead to Petitioner’s decision not to come to Illinois and [on] its concept of mutuality. What is important is that a ruling on this motion is necessary before the prosecution can proceed, and that there is no prospect of such a ruling ever taking place under the approach the district court has taken.”

“Finally, mandamus is appropriate in this case. It raises issues about the reach of U.S. law, and it has not been determined yet whether Petitioner’s contacts with the U.S. are sufficient for prosecution. The court orders that the district court rule on Petitioner’s motions to dismiss.” [408‑9].

Citation: In re Ali Hijazi, 589 F.3d. 401 (7th Cir. 2009).

EXTRADITION (FROM U.S.)

In matter of first impression, Second Circuit decides in request from Bosnia for extradition of U.S. citizen that arrest warrant issued by foreign court that no longer has jurisdiction because of statutory amendments cannot be basis for extradition

Muhamed Sacirbey (a.k.a. Muhamed Sacirbegovic) (Applicant) was born in Sarajevo, Yugoslavia when it was under the dictatorship of Josip Broz (Tito). His family fled Yugoslavia and eventually settled in the U.S. Applicant became a naturalized U.S. citizen, qualified as a lawyer, and later worked in the financial industry. In 1992, the Republic of Bosnia and Herzegovina (Bosnia) declared its independence from Yugoslavia. The Bosnian President appointed Applicant as Bosnia’s first ambassador to the United Nations.

Meanwhile, a bitter conflict had broken out in Bosnia in 1995. The government designated Applicant as the Bosnian Foreign Minister; he represented Bosnia at negotiations leading to the Dayton Peace Accords that ended the conflict. In 2000, Applicant resigned from his ambassadorial position.

An investigation of Applicant’s activities during his ambassadorship allegedly revealed that he had embezzled more than $600,000, and that $1.8 million had disappeared from an account over which Applicant had signature authority. Applicant claims that this is nothing more than a political vendetta.

Nevertheless, the Cantonal Court in Sarajevo issued a Decision for Detention and an International Arrest Warrant for Applicant. In 2002, Bosnia formally requested his extradition from the U.S., pursuant to an extradition treaty between the U.S. and Serbia dating back to 1902. See Treaty for Mutual Extradition of Fugitives from Justice, U.S. ‑ Serbia, art. 1, March 7, 1902 [32 Stat. 1890; T.S. 406; 12 Bevans 1238.] Bosnia is allegedly the successor state to the Kingdom of Serbia. “Embezzlement by public officers” is one of its extraditable offenses (Article II). The Treaty, however, does not require the parties to extradite their respective citizens (Article V).

The U.S. Department of State may permit international extradition of U.S. citizens who otherwise are within the scope of the relevant extradition treaty. See 18 U.S.C. § 3196. Here, the U.S. Department of State apparently used this discretion to authorize Applicant’s rendition.

In 2003, the U.S. Department of Justice filed a ‘Complaint for Arrest with a View Towards Extradition’ of Applicant in a New York federal court. The authorities arrested Applicant and detained him for more than a year.

A Magistrate Judge granted the extradition request in 2005. The District Court denied Applicant’s later petition for a writ of habeas corpus. This appeal ensued. Over a dissent, a panel of the U.S. Court of Appeals for the Second Circuit reverses because the Bosnian court that issued the arrest warrant no longer has either jurisdiction or authority to enforce it domestically.

When reviewing the denial of a habeas petition, the court can consider only “(1) whether the judge below had jurisdiction; (2) whether the offense charged is extraditable under the relevant treaty; and (3) whether the evidence presented by the Government established probable cause to extradite.” Cheung v. United States, 213 F.3d 82, 88 (2d Cir. 2000). Here, the Court focuses on whether the offense is extraditable under the applicable Treaty.

“Article I of the Treaty sets forth a foundational principle that the states parties ‘mutually agree to deliver up persons who[] hav[e] been charged with or convicted of any of the crimes and offenses’ ..., which are supplied in Article II. ... Most important to the instant case, Article III of the Treaty imposes a requirement that when ‘[a] fugitive is merely charged with crime, a duly authenticated copy of the warrant of arrest in the country where the crime has been committed, and of the depositions or other evidence upon which such warrant was issued, shall be produced.’ 17 Treaty art. III ...”

“In other words, the ‘warrant of arrest’ is a formal legal instrument that is required by the Treaty to show that a person has been charged with an extraditable crime. ... Accordingly, we interpret these provisions to mean that the proof required under the Treaty to establish that an individual has been ‘charged’ with a crime is a valid arrest warrant and the evidence submitted in order to obtain that warrant. Any other reading would ignore the express terms of Article III. ...”

“Under this construction of the Treaty, Bosnia can satisfy the requirement that Applicant be ‘charged’ with a crime only if it can provide, inter alia, a valid warrant for his arrest. Bosnia seeks the extradition of Applicant pursuant to an ‘international arrest warrant’ issued by the Cantonal Court in Sarajevo.”

“However, as the District Court found, the Cantonal Court currently lacks jurisdiction over the investigation of Applicant’s alleged crimes and ‘no longer ha[s] any power to enforce’ the arrest warrant. ... Such a warrant—one issued by a court lacking jurisdiction to enforce it—has been described in another context by the Supreme Court as a ‘dead letter.’ United States v. Verdugo‑Urquidez, 494 U.S. 259, 274 ... (1990) (rejecting an argument that a warrant issued by a magistrate in the United States would have force in Mexico) ...”

“The arrest warrant for Applicant was never re‑issued—or otherwise ratified—by a Bosnian court with jurisdiction over this case. ... Accordingly, the existence of this arrest warrant—issued by a court ousted of jurisdiction and no longer able to enforce it—cannot satisfy the Treaty’s requirement that Bosnia demonstrate [that there was] a ‘charge’ by producing a valid arrest warrant.” [66‑7]

The Second Circuit finds that there is only a criminal investigation ongoing in Bosnia, while the Treaty requires a valid arrest warrant. In the absence of a valid warrant, Bosnia has not charged Applicant with an extraditable offense according to the Treaty. The Court therefore grants his habeas petition.

Citation: Sacirbey v. Guccione, 589 F.3d 52 (2d Cir. 2009).

EXTRADITION (TO U.S.)

In reviewing British citizen’s liability for extradition to U.S. on fraud charges of concealing antitrust violations, U.K. Supreme Court decides that Article 8 of European Convention on Human Rights requiring evaluation of its impact on disruption of Applicant’s family life did not apply to preclude rendition of Applicant to U.S. for trial

In 2004, the United States government asked the United Kingdom to extradite Ian Norris (Respondent), a British citizen, to stand trial on a federal grand jury indictment containing four counts. Respondent is a former CEO of a prominent international maker of carbon products.

The first charge was that the Respondent had conspired with other producers of carbon products to run a price fixing agreement or cartel in several countries including the United States. Counts 2 to 4 alleged a conspiracy to obstruct justice by tampering with witnesses and by causing a person to alter, destroy, mutilate or conceal various documents with intent to make them unavailable for use in an official proceeding.

The following year, British authorities arrested the Respondent in England and the U.S. filed extradition proceedings in the Court of Queen’s Bench (QB). The QB held that the offenses described in the extradition request constituted extraditable crimes for the purposes of the treaty between the U.S. and the U.K. [see Extradition Treaty Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland, U.S.‑U.K, Mar. 31, 2003, S. TREATY DOC. NO, 108‑23; as amended Dec. 16, 2004; in force April 26, 2007]. Respondent appealed.

The main issues raised by his appeal relate to the proper approach that the English courts should take where Respondent contends that extradition will interfere with his rights to respect for his private and family life under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms [312 U.N.T.S. 221; E.T.S. 5; plus modifying Protocols]; from Barry E. Carter, 2010 Selected Documents of International Law at 512 [Convention].

Article 8 provides that: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well‑being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The QB dismissed the Respondent’s appeal against that decision. A panel of the Supreme Court of the United Kingdom, however, granted leave to appeal to the full Court. It agreed that the price‑fixing conduct would not, if committed in England and Wales at the relevant time, have constituted an offense known to English law and so was not capable of constituting an extraditable offence. The Supreme Court remitted the determination of the remaining issues raised by Respondent back to the lower court.

At that hearing, Respondent contended that the ill‑health of both him and his wife, who were then aged 65 and 64 respectively, their mutual dependency based on a long and close marriage, and the effect that his extradition would have on his wife’s depressive illness, made the interference with their family rights under Article 8 of the Convention disproportionate to the public interest in his extradition for charges subsidiary to the main cartel charge.

The QB rejected that submission and, pursuant to the 2003 Extradition Act, sent the case to the Home Secretary, who ordered the Respondent’s extradition. The Divisional Court dismissed the Respondent’s appeal against those decisions. The case again came before the full Supreme Court. That Court again dismisses Respondent’s appeal.

The Court held that there could be no absolute rule that any interference with Article 8 rights as a result of extradition would be enough. There was a compelling public interest in extradition as part of the process for ensuring the prevention of disorder and crime. Since the probability of some degree of interference with family life was inherent in the process of international extradition, the results of this interference with those rights had to be highly serious before they could outweigh the public interest in giving effect to requests for extradition. It would have to make the extradition of the individual disproportionate. When considering the proportionality of a particular extradition, the judge could take into account the relative gravity of the offense and the effect of extradition on members of the extraditee’s family.

The charges of obstructing justice were of themselves offenses of major gravity. Moreover, the effects of extradition on the Respondent’s close family ties [the severity of which had increased by reason of the delay brought about by his asserting his legal rights in regard to the price‑fixing charge,] were not so excessive as to render that extradition out of proportion to the public interest in crime prevention. Accordingly, the U.K. Supreme Court dismisses Respondent’s appeal.

[The following are selected passages from the Court’s thorough lead opinion by Lord Phillips of Worth Matravers PSC with which all members of the Court concurred].

“The Extradition Act of 2003 created a new extradition regime intended to simplify the process. The new regime transferred considerations that were formerly for the discretion of the Secretary of State to the courts; these include the compatibility of a particular extradition with Convention rights. ...”

“The Act defines the eligible territories. Category 1 consists of members of the European Union which operate the European Arrest Warrant. Category 2 territories are those designated by the U.K. Secretary of State. ...The United States is one of these.”

“Under both procedures, the appropriate judge has to carry out an extradition hearing at which he considers whether there exists any of the prescribed statutory bars to extradition. [such as] compatibility with Convention rights. If yes, an order for extradition must follow. If no, the person must be discharged. General provision is made in both for circumstances that may well involve interferences with Convention rights.”

“Public international law does not impose a general duty upon countries to accede to requests for extradition. Obligations to extradite arise out of bilateral treaties. [See above] None the less, a number of Conventions have been concluded that impose on states an obligation to extradite or prosecute in respect of certain offences or which limit the grounds upon which a state can refuse to extradite. These reflect increasing international cooperation in the fight against crime.” [576].

“The relevant [bilateral] treaty in the present case is the Extradition Treaty of 1972 (Cmnd 6723) between the United Kingdom and the United States. [T]his applies in the case of any extradition proceedings in which the extradition documents were submitted before 26 April 2007. On that date a new treaty, the Extradition Treaty of 2003 (Cm 5821) came into force. The extradition documents in this case were submitted in January 2005.”

“The 1972 Treaty imposes, subject to specified exceptions, mutual obligations to extradite in respect of offences which carry a sentence of at least 12 months’ imprisonment in each jurisdiction. Article V(2) of the 1972 Treaty provides that extradition may be refused on any ground which is specified by the law of the requested party. Thus the United Kingdom will not be in breach of its treaty obligations if, by reason of the 2003 Act, extradition is refused on human rights grounds.”

“Between the contending parties, ‘[t]he following matters are common ground: (I) In this case, as in most extradition cases, extradition of [Respondent] from this country will interfere [to some extent] with his exercise in this country of his right to respect for his private and family life. (ii) This interference will be in accordance with the law. (iii) The critical issue in this case is whether this interference is ‘necessary in a democratic society for the prevention of disorder or crime’. (iv) Resolving this issue involves a test of proportionality. The interference must fulfill a ‘pressing social need’. It must also be proportionate to the ‘legitimate aim’ relied upon to justify the interference.”

“The Government contends that the legitimate aim, or pressing social need, is the honouring of extradition arrangements (an important aspect of the prevention of [international] crime), that this aim weighs heavily in the scales and that the circumstances in which interference with Article 8 rights will not be proportionate to it will be exceptional.”

“[Counsel] for Respondent does not challenge this assertion. He accepts that it will only be in exceptional circumstances that extradition will be refused on the ground that it involves a disproportionate interference with Article 8 rights. He submits, however, that this fact cannot be translated into a legal principle. The court cannot impose on a person challenging extradition a threshold requirement of demonstrating that his case is exceptional. He submits that this is what the Divisional Court did. “ [577].

“The primary issue of principle is whether the court can properly require a person resisting extradition on Article 8 grounds to demonstrate exceptional circumstances. Respondent contends that the Divisional Court erred in doing just this. His argument is precisely expressed in the following two paragraphs of his written case:”

“Hence the question which they certified as being of general public importance: is the public interest in honouring extradition treaties such as to require, in any extradition case, that an appellant must show striking and unusual facts or reach a high threshold if his Article 8 claim is to succeed The effect is to create a strong presumption against the application of Article 8 in extradition cases, and to require exceptional circumstances before any objection to extradition on Article 8 grounds can succeed, a proposition which has been rejected by the House of Lords, following a substantial body of case law in the European Court of Human Rights [ECHR].”          “In cases of this type, [t]he correct approach is to balance the public interest in the extradition of this particular accused against the damage which would be done to the private or family life of this particular accused and his family. The court must ask how much damage will really be done to the orderly functioning of the system of extradition, or the prevention of disorder or crime, by declining to extradite Respondent in this case. And whether that damage is so great as to outweigh the devastating impact that extradition would have upon the rest of his and his wife’s life together. These questions must, moreover, be answered with an eye to the fact that the test imposed by Article 8(2) is not whether his extradition is on balance desirable, but whether it is necessary in a democratic society.

“A number of subsidiary issues of principle in relation to the application of the test of proportionality in an extradition case became apparent in the course of argument.” [590].

“I agree that there can be no absolute rule that any interference with Article 8 rights as a consequence of extradition will be proportionate. The public interest in extradition none the less weighs very heavily indeed. In Wellington [2009] AC 335, the majority of the House of Lords held that the public interest in extradition carries special weight where Article 3 is engaged in a foreign case. I am in no doubt that the same is true when considering the interference that extradition will cause in a domestic case to Article 8 rights enjoyed within the jurisdiction of the requested state. It is certainly not right to equate extradition with expulsion or deportation in this context.”

“It is of critical importance in the prevention of disorder and crime that those reasonably suspected of crime are prosecuted and, if found guilty, duly sentenced. Extradition is part of the process for ensuring that this occurs, on a basis of international reciprocity. It is instructive to consider the approach of the Convention to dealing with criminals or suspected criminals in the domestic context. Article 5 includes in the exceptions to the right to liberty (I) the arrest of a suspect, (ii) his detention, where necessary, pending trial, and (iii) his detention while serving his sentence if convicted.”

“Such detention will necessarily interfere drastically with family and private life. In theory a question of proportionality could arise under [Convention] Article 8(2) . In practice, it is only in the most exceptional circumstances that a defendant would consider even asserting his Article 8 rights by way of challenge to remand in custody or imprisonment: Normally it is treated as axiomatic that the interference with Article 8 rights consequent upon detention is proportionate.”

The Court recalls that Article 8(2) permits interference with an individual’s right to respect for his private and family life in certain circumstances. The Court considers that the bringing of criminal proceedings and the imposition of a punishment following conviction fall within these exceptions since they are in accordance with the law and pursue legitimate aims, namely, public safety, the prevention of disorder and crime and protection of the rights and freedoms of others. The court therefore concludes that the prosecution and imprisonment of the Applicant does not raise any issues under Article 8 of the Convention.

“There is an analogy between the coercion involved in extradition and the coercion involved in remanding in custody a prisoner reasonably suspected of wishing to abscond. In either case the coercion is necessary to ensure that the suspect stands his trial. Each is likely to involve a serious interference with Article 8 rights. The dislocation of family life that will frequently follow extradition will not necessarily be more significant, or even as significant, as the dislocation of family life of the defendant who is remanded in custody.”

“It seems to me that, until recently, it has also been treated as axiomatic that the dislocation to family life that normally follows extradition as a matter of course is proportionate. This perhaps explains why we have been referred to no reported case, whether at Strasbourg or in this jurisdiction, where extradition has been refused because of the interference that it would cause to family life.”

“The reality is that only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves. That, no doubt, is what the commission had in mind ... when it stated that it was only in exceptional circumstances that extradition would be an unjustified or disproportionate interference with the right to respect for family life. I can see no reason why the district judge should not, when considering a challenge to extradition founded on Article 8 , explain his rejection of such a challenge, where appropriate, by remarking that there was nothing out of the ordinary or exceptional in the consequences that extradition would have for the family life of the person resisting extradition.”

’Exceptional circumstances’ is a phrase that says little about the nature of the circumstances. Instead of saying that interference with Article 8 rights can only outweigh the importance of extradition in exceptional circumstances. it is more accurate and more helpful, to say that the consequences of interference with Article 8 rights must be exceptionally serious before this can outweigh the importance of extradition. A judge should not be criticised if, as part of his process of reasoning, he considers how, if at all, the nature and extent of the impact of extradition on family life would differ from the normal consequences of extradition.”

“After considering the Strasbourg jurisprudence, the House [of Lords] concluded that, when considering interference with Article 8, the family unit had to be considered as a whole, and each family member had to be regarded as a victim. I consider that this is equally the position in the context of extradition.”

“Indeed, in trying to envisage a situation in which interference with Article 8 might prevent extradition, I have concluded that the effect of extradition on innocent members of the extraditee’s family might well be a particularly cogent consideration. If extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member, this combination of circumstances might well lead a judge to discharge the extraditee under ... the 2003 Act.”

“Extradition proceedings should not become the occasion for a debate about the most convenient forum for criminal proceedings. Rarely, if ever, on an issue of proportionality, could the possibility of bringing criminal proceedings in this jurisdiction be capable of tipping the scales against extradition in accordance with this country’s treaty obligations. Unless the judge reaches the conclusion that the scales are finely balanced, he should not enter into an inquiry as to the possibility of prosecution in this country.”

“Human rights are in issue and it is for this court to reach its own decision as to whether Applicant’s extradition would be compatible with his article 8 rights.” [594].

“... The gravamen of the case of obstructing justice appears in the following passages of the judgment ... in the earlier proceedings—based on a deposition of Lucy P. McClain, a trial attorney for the antitrust division of the U.S. Department of Justice:”

“‘[Applicant] instructed, through a task force he set up for the purpose, all Morgan entities involved in the price fixing conspiracy to remove, conceal or destroy any documentary material, in particular Morgan’s sales files in Europe, evidencing Morgan’s involvement in the conspiracy. He also instructed the retention and concealment of certain documents to enable Morgan to continue monitoring the working of the conspiracy.”

“‘In about November 1999, [Applicant] met several of the co‑conspirators in England to discuss the United States authorities’ investigation into their conspiratorial dealings and meetings, and to devise a false explanation, other than price fixing, to be put to the authorities for the meetings. As Ms. McClain put it in her affidavit: [Applicant] and his subordinates discussed ways in which they could conceal the true purpose of the price‑fixing meetings when asked about them. They decided to falsely characterise their meetings with competitors as discussions of legitimate joint ventures rather than disclose the fact that they were price fixing meetings.’”

“‘[Applicant] expressed his concern that the United States investigators would not believe Morgan’s false explanation that the meetings were held to discuss joint ventures, in part because Morgan had no contemporaneous notes of the meetings to support its joint venture explanation. [Applicant] then directed his subordinates to create false summaries of the price fixing meetings that they would use as a guide or script in answering any future questions about what had occurred at their meetings. ” In view of this showing, all members of this Court agree that it should dismiss the appeal

The courts below also considered whether it was pertinent in cases of this kind to take into account the feasibility of prosecuting Applicant for his U.S. violations in the courts of the United Kingdom. This prompted this brief judicial note. “Per curiam. Rarely, if ever, on an issue of proportionality, could the possibility of bringing criminal proceedings in the United Kingdom be capable of tipping the scales against extradition in accordance with its treaty obligations. Unless the judge reaches the conclusion that the scales are finely balanced, he should not enter into an inquiry as to the possibility of prosecution in the United Kingdom.”

Citation: Norris v. United States, [2010] U.K.S.C. 9; [2010] 2 W.L.R. 572 (2010).

INTERNATIONAL ORGANIZATIONS (IMMUNITIES OF)

In federal civil rights and RICO action plus state law claim of indecent battery, two United Nations employees sued that body and several key officials but were dismissed under international immunity conventions and affirmed by Second Circuit whose disposition also required dismissal of state law claim of indecent assault for lack of supplemental jurisdiction

Except as noted, the facts are not contested. Cynthia Brzak (Plaintiff) is an American citizen who worked in Geneva for the United Nations High Commissioner for Refugees (UNHCR). Nasr Ishak (secondary plaintiff) is a dual citizen of France and Egypt. She also worked for the UNHCR in Geneva.

Defendant Kofi Annan was formerly the UN Secretary‑General with his office in New York City. Defendant Ruud Lubbers was the UN High Commissioner for Refugees (UNHCR), and Defendant Wendy Chamberlin was his deputy. Both had Geneva assignments.

In this federal civil rights suit, Plaintiff also contends that during a meeting of UNHCR staff members in Geneva in 2003, Lubbers improperly grabbed her body in an indecent—but unspecified—manner.

On Ishak’s advice, Plaintiff filed an internal complaint against Lubbers with the UN’s Office of Internal Oversight Services (OIOS). The OIOS issued a report confirming Plaintiff’s complaint and recommending that the UN discipline Lubbers. Plaintiff alleges that Defendant Annan disregarded the finding and eventually cleared Lubbers. Plaintiff then appealed through the UN’s internal complaint adjustment process.

Both Plaintiffs allege that, as a result of Plaintiff Brzak’s complaint, and Ishak’s help in pursuing it, UN officials and employees retaliated against them. For example, they alleged that these officials unfairly distorted Plaintiff’s work assignments and denied Ishak some merited promotions.

The Plaintiffs sued the UN and the individual Defendants in the Southern District of New York. They alleged sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., plus violations of the Racketeer Influenced and Corrupt Organizations Act (RICO). They also changed various state common law torts—to be brought into federal court under its supplemental jurisdiction.

The UN formally returned the complaint to the American ambassador to the UN and moved to dismiss on the grounds of immunity, a motion supported by the local U.S. Attorney’s Office. [ Brzak, 551 F. Supp.2d at 316; see Letter of United States Attorney for the Southern District of New York, Plaintiff v. UN, 06‑Civ.‑03432, 2007 WL 4846084 (S.D.N.Y., Oct. 2, 2007).]

The district court granted the motion. The Judge concluded that the controlling law derived from the Convention on Privileges and Immunities of the United Nations, Feb. 13, 1946, entered into force with respect to the United States Apr. 29, 1970; [21 U.S.T. 1418; T.I.A.S. 6900; 1 U.N.T.S. 16] (the CPIUN), and that it granted the UN absolute immunity, which it had not waived, and dismissed the complaint against it.

With regard to the individual Defendants, the Judge concluded that the CPIUN granted them the same form of functional immunity that former diplomats enjoy under international law. This functional immunity, the judge held, applied to employment‑related suits.

This appeal followed and in a March 2, 2010 opinion, the U.S. Court of Appeals for the Second Circuit affirms. This court then explains its ruling.

“As the District Court correctly concluded, the [President of the] United States has ratified the CPIUN which extends absolute immunity to the UN. Specifically, the CPIUN provides that ‘[t]he UN ... shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity.’ Id. art. II, § 2. If the CPIUN applies, then [Plaintiffs’] claims fail. The answer to this question turns on whether the CPIUN is self‑executing.”

“The parties do not dispute that the CPIUN is binding on the United States as a matter of international law. However, they disagree about whether American courts must recognize the immunity [as domestically binding law.] Cf. Medellin v. Texas, 552 U.S. 491, 504, 506 ... (2008) (acknowledging that an International Court of Justice opinion is binding on the United States as a matter of international law, while holding that the same opinion lacks domestic legal effect).”

“Plaintiffs contend that the CPIUN should not be enforced by American courts because it is not self‑executing, and consequently cannot be enforced absent additional legislation which was never passed. See Medellin, supra at 505. Whether a treaty is self‑executing depends on whether ‘the treaty contains stipulations which ... require no legislation to make them operative;’ if so, ‘they have the force and effect of a [domestic] legislative enactment. Id. at 505‑06 (quoting Whitney v. Robertson, 124 U.S. 190 ... (1888)).”

“In determining whether a treaty is self‑executing, we look to the text, the negotiation and drafting history, and the post‑ratification understanding of the signatory nations. Medellin, supra at 506‑07. Additionally, the executive branch’s interpretation of a treaty ‘is entitled to great weight.’ Id. at 513 (quoting Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184‑85 ...(1982)). Based on these criteria, we have little difficulty concluding that the CPIUN is self‑executing.”

“CPIUN Section 34 states ‘[i]t is understood that, when an instrument of accession is deposited on behalf of any Member, the Member will be in a position under its own law to give effect to the terms of this convention.’ When the United States acceded to the CPIUN in 1970—by the President’s ratification, with the advice and consent of the Senate—it was affirming that it was ‘in a position under its own law to give effect’ to the CPIUN’s terms at that time.”

“This means that the treaty became [domestically] effective at ratification and, therefore, is self‑executing. ‘[T]he label self‑executing usually is applied to any treaty that, according to its terms, takes effect upon ratification. Mora v. New York, 524 F.3d 183, 193 n. 16 (2d Cir. 2008) ...” [(quoting United States v. Li, 206 F.3d 56, 67 (1st Cir.2000) (en banc) (Selya & Boudin, JJ., concurring)).] [111]

“The ratification history of the CPIUN reinforces this conclusion. During testimony before the Senate Foreign Relations Committee as it considered whether to recommend that the Senate ratify (sic) the CPIUN, the Legal Advisor to the State Department stated that: ‘It is clear from the language of the convention ... that the convention is self‑executing and [that] no implementing legislation is necessary.’ S. Exec. Rep. No. 91‑17, App. at 16 (Statement of John R. Stevenson, Legal Advisor, Department of State); see also id. at 13 (‘I would like to have the record reflect[ ] that we regard the convention as self‑executing.’). The Foreign Relations Committee’s report on the CPIUN also expressed the view that ‘the convention is self‑executing and will require no implementing legislation.’ Id. at 5.”

“Finally, the executive branch continues to assert that the CPIUN is self‑executing. See Letter of U.S. Attorney for the Southern District of New York, Brzak v. UN, ... 2007 WL 4846083 (S.D.N.Y., Oct. 2, 2007). These views, as we have seen, are entitled to ‘great weight.’ Medellin, supra at 513 ...; Mora, supra at 204. Consequently, we hold that the CPIUN is self‑executing and applies in American courts without implementing legislation.”

“As the CPIUN makes clear, the UN enjoys absolute immunity from suit unless ‘it has expressly waived its immunity.’ Id. art. II, § 2. Although the Plaintiffs argue that purported inadequacies with the UN’s internal dispute resolution mechanism indicate a waiver of immunity, crediting this argument would read the word ‘expressly’ out of the CPIUN. The UN has not waived its immunity. [See Letter from Nicolas Michel, UN Under‑Secretary‑General for Legal Affairs, to Alejandro D. Wolff, Deputy Permanent Representative of the United States of America to the UN (May 15, 2006); Letter from Nicolas Michel, UN Under‑Secretary‑General for Legal Affairs, to John R. Bolton, Permanent Representative of the United States, to the UN (Oct. 19, 2006).] Consequently, the UN enjoys absolute immunity and the district court’s decision to dismiss the claims against the UN was correct.”

“Our conclusion is further confirmed by the International Organizations Immunities Act of 1945, 22 U.S.C. § 288a(b) (the IOIA). [It] provides that international organizations designated by the President should receive the ‘same immunity from suit and every form of judicial process as is enjoyed by foreign governments.’ The UN has been so designated. See Exec. Ord. No. 9698, 11 Fed. Reg. 1809 (Feb. 19, 1946).”

“The Plaintiffs [also] argue that designated international organizations no longer have absolute immunity in all cases, because, since that act was passed, Congress has passed the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602‑11(FSIA), which strips foreign sovereigns of their immunity in certain [specified] circumstances.”

“Plaintiffs argue that it is this narrower definition of sovereign immunity that now defines what sort of immunity the IOIA applies to international organizations. Although this argument has been rejected by at least one other Court of Appeals, see Atkinson v. Inter‑American Dev. Bank, 156 F.3d 1335, 1340‑42 (D.C. Cir. 1998), we need not resolve whether Plaintiffs’ argument is correct for at least two reasons.”

“The first is that, whatever immunities are possessed by other international organizations, the CPIUN unequivocally grants the UN absolute immunity without exception. The second is that the Plaintiffs have not presented any argument, either at the district level or to us, which would suggest that one of FSIA’s exceptions to immunity would apply. Therefore, even under the Plaintiffs’ interpretation of the IOIA, the UN would still be immune from suit.” [112].

“The Plaintiffs also sued three former UN officials. The CPIUN also addresses their immunity: ‘The Secretary‑General and all Assistant Secretaries‑General shall be accorded ... the privileges and immunities ... accorded to diplomatic envoys, in accordance with international law.’ Id. Art. v, § 19. As we have determined above that the CPIUN is a self‑executing treaty, this provision is binding on American courts. International law provides extensive protection for diplomatic envoys. See The Vienna Convention on Diplomatic Relations, Apr. 18, 1961, entered into force with respect to the United States Dec. 13, 1972; [23 U.S. T. 3227; T. I. A. S. 7502; 500 U. N. T. S. 95] (the VCDR). Although current diplomatic envoys enjoy absolute immunity from civil and criminal process, see id. art. 31, former diplomatic envoys retain immunity only ‘with respect to acts performed by such a person in the exercise of his [or her] functions’ as a diplomatic envoy. Id. Art. 39, ¶ 2.”

“As the Plaintiffs have sued former UN officials, each of whom held a rank of Assistant Secretary‑General or higher, it is this functional immunity, which the CPIUN incorporates by reference, that is relevant. The Diplomatic Relations Act of 1978, 22 U.S. C. § 254d, makes pellucid that American courts must dismiss a suit against anyone who is entitled to immunity under either the VCDR or other laws ‘extending diplomatic privileges and immunities.’ As CPIUN § 19 is such a law, the remaining question is whether the Plaintiffs’ allegations against the individual Defendants involve acts that the Defendants performed in the exercise of their UN functions.”

“When a court attempts to determine whether a defendant is seeking immunity ‘with respect to acts performed by such a person in the exercise of his functions,’ VCDR art. 39, ¶ 2, the court must do so without judging whether the underlying conduct actually occurred, or whether it was wrongful. Of the Plaintiffs’ seven claims, all except the fourth make allegations with respect to acts that the Defendants performed in exercise of their official functions, namely, their management of the office in which the Plaintiffs worked.

[The first two claims allege that defendants discriminated against Plaintiff in the conditions of her employment and retaliated against her, both in violation of Title VII. The fifth claim alleges that the defendants retaliated against Ishak in violation of Title VII as well. These allegations involve personnel management decisions falling within the ambit of the defendants’ professional responsibilities. Plaintiff’s third claim, for intentional infliction of emotional distress, also relates to the management of the office, because it challenges the defendants’ conduct in investigating Plaintiff’s claims, and charges retaliation through changes of her work assignments. The sixth and seventh claims, which allege violations of RICO, also relate to Annan’s and Lubbers’ roles as UN officials.] [113].

“The only remaining claim is the fourth, in which Plaintiff alleges [that] Lubbers committed the state law tort of battery [i.e. by some unspecified form of sexual grabbing [Plaintiff].] We have said that if a Plaintiff’s federal claims are dismissed before trial, ‘the state claims should be dismissed as well. Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 250 (2d Cir. 2008) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 ... (1966)). Because Plaintiff’s federal claims were dismissed on jurisdictional grounds at the very beginning of the case, there was no colorable basis for the district court to exercise supplemental jurisdiction over her state law claim.”

“We thus affirm the district court’s dismissal without reaching Plaintiff’s argument that the claim involves conduct outside the scope of the Defendant’s immunity. Plaintiff is free to re‑file her battery claim in the state courts. If she does so, the state court would need to adjudicate in the first instance the Defendant’s claim of immunity.” [114].

Citation: Brzak v. United Nations, 597 F.3d 107 (2nd Cir. 2010).

JURISDICTION (MARITIME)

In lawsuit between only Mexican parties arising out of Mexican vessel’s allision with Mexican drilling rig, Fifth Circuit affirms exercise of U.S. jurisdiction over case since there apparently are no discernible boundaries to exercise of U.S. federal jurisdiction over maritime torts

In 2004, the supply vessel M/V ISLA AZTECA (owned by Maritimas Mexicanas, S.A. de C.V., also known as “MarMex”) allided with a stationary drilling unit, the MODU/TOTONACA (owned by Perforaciones Exploracion y Produccion, also known as “Protexa”). All parties are Mexican. The incident took place about 45 miles off the coast of Mexico, and thus within Mexico’s exclusive economic zone (EEZ). Under the U. N. Convention on the Law of the Sea (UNCLOS), Mexico has certain “sovereign rights” within the EEZ. See UNCLOS Article 56 [December 10, 1982, 1833 U.N.T.S. 397.]

Marmex filed a “limitation action” in Mexico pursuant to the Convention on Limitation of Liability for Maritime Claims (1976 Convention) [November 19, 1976, 1456 U.N.T.S. 221] as codified in the Mexican Law of Navigation. In maritime law, a limitation action limits a vessel owner’s liability to some measure of the value of the vessel. The owner usually posts a bond in that amount. The U.S. is not a party to the 1976 Convention, but instead has its own Limitation of Liability Act, 46 U.S. § 30501 (2006). Protexa has not filed a claim in the Mexican limitation proceeding.

Protexa and its insurance underwriters, however, did file a lawsuit against MarMex in a Texas federal court. MarMex moved to dismiss based on lack of subject matter jurisdiction because (1) the allision took place in Mexico’s EEZ, (2) forum non conveniens, and (3) international comity. The court denied MarMex’s motion, and bifurcated the trial between liability and damages.

The district court found MarMex liable for the allision. MarMex now appeals several of the district court’s rulings in favor of Protexa.

The U.S. Court of Appeals for the Fifth Circuit, in a per curiam opinion, affirms and remands to permit the trial on damages to proceed.

The Court explains why it rejects MarMex’s jurisdictional argument. “[T]he weight of authority, including the precedent of the Supreme Court, supports the view that there are no clear territorial limits to federal maritime tort jurisdiction. See, e.g., Panama R. Co. v. Napier Shipping Co., 166 U.S. 280, 285 (1897) (‘[T]he law is entirely well settled . . . that torts originating within the waters of a foreign power may be the subject of a suit in a domestic [U.S.] court.’) ...”

“Consequently, we find MarMex’s reliance on [Victory Carriers, Inc. v. Law, 404 U.S. 202 (1971)] to be unfounded. The statement in Victory Carriers appearing to limit jurisdiction to the navigable waters of the United States is dicta. Victory Carriers concerned whether jurisdiction under [28 U.S.C. § 1333(1) (‘[t]he district courts shall have original jurisdiction . . . of . . . [a]ny civil case of admiralty or maritime jurisdiction . . . .’)] reached an accident that occurred on a pier in Alabama, and did not address whether jurisdiction reaches the high seas or waters under the control of a foreign state.”

“MarMex also argues that, even if these cases are controlling, there can be no admiralty jurisdiction over maritime collisions unless the parties or their dispute have some clear link to the United States. While the strength of a case’s ties to the United States are [sic] clearly relevant for a forum non conveniens or choice‑of‑law analysis, it does not impact whether a court has admiralty jurisdiction under section 1333(1). See Neely v. Club Med Mgmt. Servs., Inc., 63 F.3d 166, 177‑78 (3d Cir. 1995) ... Consequently, we are confident there is subject matter jurisdiction over the allision of the TOTONACA and the ISLA AZTECA.” [Slip op. 4‑5]

Citation: Perforaciones Exploracion y Produccion v. Maritimas Mexicanas, S.A. de C.V., No.08‑41021; 2009 WL 46666959 (5th Cir. December 9, 2009)(unpublished opinion)..

TERRORIST SURVEILLANCE

Second Circuit rules that Government Agencies may issue “Glomar” responses—neither denying nor confirming the existence of records—in response to FOIA requests seeking information about intelligence programs such as Terrorist Surveillance Program

Several attorneys for Guantanamo Bay detainees filed Freedom of Information Act (FOIA) requests, directed at the National Security Agency (NSA) and the U.S. Department of Justice (DOJ). The attorneys were trying to ascertain whether the government agencies had intercepted their client’s communications. The request at issue in this case is for “records obtained or relating to ongoing or completed warrantless electronic surveillance or physical searches regarding, referencing or concerning any of the plaintiffs.”

Both Agencies responded with so‑called Glomar responses, which neither deny nor confirm the existence of such records. The attorneys’ communications with their clients may have been intercepted according to the secret Terrorist Surveillance Program (TSP). Dissatisfied with the responses, the attorneys filed a lawsuit against the NSA and DOJ, alleging that they have “a statutory right to the records that they seek, and that there is no legal basis for the defendants’ refusal to disclose them ...” The Defendants sought partial summary judgment on the Glomar issue.

The district court granted the Government Agencies’ motion for summary judgment, and this appeal resulted. The U.S. Court of Appeals for the Second Circuit affirms. The issue of whether a Government Agency may invoke the Glomar doctrine in response to a FOIA request for records obtained under the TSP is a matter of first impression in this Court.”

The Court holds, in particular, that a Government Agency may validly provide a Glomar response to a FOIA request, particularly where the information had been obtained pursuant to a “publicly acknowledged” intelligence program such as the TSP.

The Court first explains that the NSA has been authorized in the September 11, 2001 aftermath to intercept international communications of people with known links to Al Qaeda and related terrorist organizations. To intercept such communications, (1) one party to the communication must be located outside the U.S., and (2) there must be a reasonable basis for concluding that one party was a member of Al Qaeda, affiliated with Al Qaeda, or a member of an affiliated organization. This secret TSP ended in 2007, and such surveillance is now subject to the Foreign Intelligence Surveillance Act of 1978 (FISA).

As for the Glomar doctrine, it “originated in a FOIA case concerning records pertaining to the Hughes Glomar Explorer, an oceanic research vessel. See Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976). In Phillippi, the CIA claimed that the ‘existence or nonexistence of the requested records was itself a classified fact exempt from disclosure under... FOIA.’ ... This principle—that an agency may, pursuant to FOIA’s statutory exemptions, refuse to confirm or deny the existence of certain records in response to a FOIA request—has since become known as the Glomar doctrine. [...]”

“We now join our sister Circuits in holding that ‘an agency may refuse to confirm or deny the existence of records where to answer the FOIA inquiry would cause harm cognizable under a[ ] FOIA exception.’ Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982). To properly employ the Glomar response to a FOIA request, an agency must ‘tether’ its refusal to respond ... to one of the nine FOIA exemptions—in other words, ‘a government agency may ... refuse to confirm or deny the existence of certain records ... if the FOIA exemption would itself preclude the acknowledgment of such documents.’ ...” [Slip op. 8‑10]

Applying the Glomar doctrine to this case, the Court rejects the Plaintiffs’ argument that “Glomar may be invoked ‘only to preserve the secrecy of a covert intelligence program or secret intelligence sources and methods,’ ... , and that the NSA inappropriately provided a Glomar response in this case because the TSP is no longer a secret program in light of the government’s public acknowledgment of its existence and purpose following its controversial disclosure by the news media and ensuing public controversy. Whether the Glomar doctrine may be invoked in response to a FOIA request for records obtained under the TSP is also an issue of first impression for our Court.”

“We now hold that, as a general rule, (1) an agency may provide a Glomar response to FOIA requests for information gathered under a program whose existence has been publicly revealed, and may do so specifically with respect to information gathered under the TSP, and (2) that such a response will be reviewed in the same manner as any other Glomar response to a FOIA request. The government’s decision to make public the existence of the TSP does not alter the rationale for allowing an agency to provide a Glomar response ‑ namely, to prevent the sort of harm that a FOIA exemption is designed to prevent [...].”

“Here, although the public is aware that the TSP exists, the government has found it necessary to keep undisclosed the details of the program’s operations and scope—the subject of plaintiffs’ FOIA request in this case. The fact that the public is aware of the program’s existence does not mean that the public is entitled to have information regarding the operation of the program, its targets, the information it has yielded, or other highly sensitive national security information that the government has continued to classify. Indeed, the fact that the TSP’s existence has been made public reinforces the government’s continuing stance that it is necessary to keep confidential the details of the program’s operations and scope. [...].”

“We hold, in particular, that an agency may invoke the Glomar doctrine with respect to the TSP, at least with respect to those aspects of the program that have not been the subject of such disclosures.” [Slip op. 11‑14]

Citation: Wilner v. National Security Agency, 592 F.3d 60 (2d Cir. 2009).

WORLD TRADE ORGANIZATION

WTO Appellate Body rules favorably on most aspects of decision in favor of U.S. in U.S.‑China copyright dispute

On December 21, 2009, the Appellate Body of the World Trade Organization (WTO) issued its report (ABR) regarding the U.S.‑China dispute over “Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products” (DS363). The products at issue include movies for theater release, DVDs, music, books and journals. The ABR largely upholds the prior, very lengthy Dispute Settlement Report of August 2009, which sided with the U.S. on most issues. See 2009 International Law Update 95.

The dispute first came before the WTO in 2007. The U.S. asked for consultations with China about (1) certain Chinese measures that restrict trading rights as to imported movies for theater release, audio‑visual home entertainment products (videos/DVDs), sound recordings and publications (books, magazines, newspapers, electronic publications); and (2) certain Chinese measures that restrict market access for foreign suppliers. Because the consultations were unsuccessful, the DSB set up a Panel in November 2007. The DSB Report was almost 500 pages long.

The Appellate Body now:

(1) upholds the Panel’s conclusions, in [paragraph 8.1.2(c)(ii), (iii), (vi), and (vii) of] the Panel Report, that Article 30 of the Film Regulation and Article 16 of the Film Enterprise Rule are inconsistent with China’s trading rights commitments [in ¶¶ 1.2 and 5.1 of China’s Accession Protocol and paragraphs 83(d) and 84(a) and (b) of China’s Accession Working Party Report;]

(2) upholds the Panel’s conclusions, [in paragraph 8.1.2(d)(I) and (v) of the Panel Report727], that Article 5 of the 2001 Audiovisual Products Regulation and Article 7 of the Audiovisual Products Importation Rule are inconsistent with China’s obligation, in [paragraph 1.2 of ]China’s Accession Protocol [and paragraph 84(b) of China’s]

(3) finds that, by virtue of [the introductory clause of paragraph 5.1 of] China’s Accession Protocol, China may, in this dispute, invoke Article XX(a) of the GATT 1994 to justify provisions found to be inconsistent with China’s trading rights commitments under its Accession Protocol and Working Party Report;

(4) upholds the Panel’s conclusion, [in paragraph 8.2.(a)(I) of the Panel Report,] that China has not shown that the relevant provisions are “necessary” to protect public morals, within the meaning of Article XX(a) of the GATT 1994. As a result, China has not established that these provisions are justified under Article XX(a).

(5) upholds the Panel’s conclusion, [in paragraph 8.2.3(b)(I) of the Panel Report], that the provisions of China’s measures prohibiting foreign‑invested entities from engaging in the distribution of sound recordings in electronic form are inconsistent with Article XVII of the GATS.

The Appellate Body recommends that China bring the measures at issue into compliance with China’s Accession Protocol, China’s Accession Working Party Report, the GATS, and the GATT 1994.

Citation: China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (DS363). The report is available at www.wto.org; U.S. Trade Representative press release of 21 December 2009, available at www.ustr.gov.

U.S. and EU resolve long‑standing banana dispute. On December 16, 2009, the U.S. Trade Representative announced that the U.S. and the European Union have resolved the longstanding banana dispute. The Agreement to settle the issues has been initialed. In the Agreement, the EU commits not to re‑introduce measures that discriminate among banana distributors, and to have a non‑discriminatory, tariff‑only system for the importation of bananas. Once fully ratified, the Agreement will resolve the parties’ WTO dispute, “EC ‑ Regime for the Importation, Sale and Distribution of Bananas” (WT/DS27). The Agreement complements the EU agreement with several banana‑supplying Latin American countries, the Geneva Agreement on Trade in Bananas, which was initialed the same day. The Agreements are still subject to the various parties’ domestic ratification procedures. Citation: U.S. Trade Representative press release of 16 December 2009, available at www.ustr.gov; the U.S.‑EU Agreement on bananas is available at www.ustr.gov/webfm_send/1566.

Egyptian Supreme Court supports appointment of women judges to administrative courts. Over conservative opposition, Egypt’s Constitutional Court recently gave substantial support to the right of women judges to sit on the bench in the state’s administrative courts. According to the Egyptian state media, the ruling at least partially settles a dispute within the State Council, the top administrative court, as to the extent to which the government should continue appointing female judges. When the Council voted overwhelmingly against female judges, this stirred the debate within the country over women holding senior government posts, especially in the judiciary. Women’s groups picketed the State Council following the decision. A political moderate on the issue, however, reportedly heads the court’s supervisory body. It overruled the Assembly, thus supporting the consideration of women candidates for the job. The Prime Minister then asked the Constitutional Court to resolve the standoff. The high court’s ruling said that all citizens are equal before the law, and upheld the power of the State Council’s supervisory body to resolve the issue. Nasser Amin, an Egyptian legal expert, suggests, however, that the ruling fell short of settling the issue once and for all. Thus debates within the administrative courts would probably continue between the conservatives and the liberals. “This is a good example of the liberal‑conservative split within all institutions of the Egyptian state,” Mr. Amin said. “The Constitutional Court could have put an end to it by ruling flat out that discriminating against women in public office is unconstitutional and has to stop.” The President had appointed the first female judge to the Constitutional Court in 2003 and by 2007 the government had seated 31 other female judges According to the AP, Egypt is not unaware of the women’s emancipation movement in the Middle East, being itself the spawning ground for several historic activists for women’s rights. Nevertheless, Egypt has allegedly fallen behind other Arab countries like Tunisia in appointing female judges. Citation: The Associated Press, Cairo, Egypt, filed on Monday, March 15, 2010 at 11:00:47 GMT.

U.S. and EU conclude short‑term agreement to transfer financial data to U.S. to assist it in tracking terrorist financial transactions. The Council of the European Union (EU) has authorized the signing of the “Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program.” The purpose of the Agreement is for providers of international financial payment messaging services to make such data available to the U.S. Department of the Treasury. With this information, law enforcement will investigate and prosecute terrorist financing (Article 1). The U.S. may also make specific requests for information pursuant to Article 4 of the 20003 Agreement on Mutual Legal Assistance between the European Union and the United States of America. The Agreement will apply provisionally beginning on February 1, 2010, and expire on October 31, 2010. As soon as the Treaty of Lisbon enters into force, the parties intend to conclude a long‑term agreement on these matters. Citation: Decision 2010/16/CFSP/JHA, 2010 Official Journal of the European Union (L 8) 9, January 13, 2010. The text of the Agreement is attached to this Decision.