2009 International Law Update, Volume 15, Number 4 (April)

2009 International Law Update, Volume 15, Number 4 (April)

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

ALIEN TORT CLAIMS ACT

In ATCA action against Boeing subsidiary company by terrorism suspects who were allegedly abducted and flown to Morocco at behest of U.S. Central Intelligence Agency (CIA), Ninth Circuit reverses dismissal of complaint based on State Secret doctrine because pleadings alone fail to show that this lawsuit necessarily has to involve such material

The Plaintiffs alleged in their lawsuit that the U.S. Central Intelligence Agency (CIA) ran an "extraordinary rendition program" to seize suspected foreign terrorists and to transfer them to other countries for detention and often harsh interrogation by U.S. or foreign officials. This program has allegedly allowed U.S. officials indirectly to use severe interrogation methods that U.S. and international law forbid.

For example, some authority arrested Plaintiff Mohamed, an Ethiopian citizen and resident of the United Kingdom, in Pakistan, and shifted him off to Morocco. There he claimed that Moroccan officials tortured him; they allegedly broke his bones and cut his entire body with a scalpel. Eighteen months later the Moroccans transferred him to American custody. Eventually, he ended up at Guantanamo Bay, where he spent almost five years in custody.

Plaintiffs sued Jeppesen Dataplan, Inc.(Defendant), a subsidiary of the Boeing Company, based on the Alien Tort Claims Act, 28 U.S.C. Section 1350 (ATCA). They allege that Defendant played a crucial role in the Plaintiffs' abductions and detentions by arranging the airplane flights and providing logistical support. The U.S. intervened in the case, however, and asserted a State Secrets privilege.

The district court agreed and dismissed the case. In particular it held that "The invocation of states secret privilege is a categorical bar to a lawsuit under the following circumstances: (1) if the very subject matter of the action is a state secret; (2) if the invocation of the privilege deprives a plaintiff of evidence necessary to prove a prima facie case; and (3) if the invocation of the privilege deprives a defendant of information necessary to raise a valid defense."

"Moreover, 'at the core of Plaintiffs' case against Defendant Jeppesen are 'allegations' of covert U.S. military or CIA operations in foreign countries against foreign nationals clearly a subject matter which is a state secret.' Holding that 'the very subject matter of this case is a state secret,' the district court expressly declined to reach whether invocation of the privilege would deprive Plaintiffs of evidence necessary to establish a prima facie case or Jeppesen of evidence necessary to mount a valid defense." [999‑1000].

Plaintiffs noted a timely appeal, arguing that the district court misapplied the state secrets doctrine. The U.S. Court of Appeals for the Ninth Circuit agrees and reverses and remands the case.

The Court finds that this case does not involve a state secret because it is not predicated on the existence of a secret agreement between Plaintiffs and the Executive. Also, the Court's limited inquiry under Federal Rule of Civil Procedure 12(b)(6) assesses the sufficiency of the complaint as pled and precludes the prospective consideration of hypothetical evidence.

"Two parallel strands of the state secrets doctrine have emerged from its relatively thin history. Totten v. United States, 92 U.S. 105 (1875), perhaps the earliest case to turn on state secrets in any posture, stands for the proposition that an American court must dismiss a suit on the pleadings showing that it is predicated on the existence and content of a secret espionage agreement between a plaintiff and the U.S. government because the 'very subject matter' of the suit is secret.

In that case, William Lloyd's estate sued the U.S. government to recover compensation for contractual services that Lloyd had allegedly rendered as a Northern spy during the Civil War. ... The estate claimed that Lloyd had performed on the contract, but failed to receive full payment for his services. "[Upholding the dismissal of ] the case on the pleadings, the U.S. Supreme Court observed that the secrecy of the parties' relationship was a 'condition of the engagement' and '[b]oth employer and agent must have understood that the lips of the other were to be for ever sealed respecting the relation of either to the matter.' Id."

"This condition of secrecy, the Court reasoned, is 'implied in all secret employments of the government in time of war, or upon matters affecting our foreign relations.' Id. 'The publicity produced by an action' to enforce the conditions of any such agreement, moreover, 'would itself be a breach of a contract of that kind, and thus defeat a recovery.' Id. Because 'the existence of a contract of that kind is itself a fact not to be disclosed,' id. at 107, 'the very subject matter of the action ... [is] a matter of state secret,' and the action must therefore be 'dismissed on the pleadings without ever reaching the question of evidence,' citing Totten."

"In contrast with the Totten bar, [in United States v. Reynolds, 345 U.S. 1, 11 n. 26 (1953) involving the crash of a military aircraft bearing secret equipment near Norcross, Georgia] the evidentiary privilege upheld prevents only discovery of secret evidence when disclosure would threaten national security. See Reynolds, supra at 1. Application of the Reynolds privilege involves a 'formula of compromise' in which the court must weigh 'the circumstances of the case' and the interests of the plaintiff against the 'danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.' Id. at 9‑10."

"While the court should 'defer to the Executive on matters of foreign policy and national security' in making this determination, ... '[j]udicial control over the evidence in a case cannot be abdicated to the caprice of executive officers,' Reynolds, supra at 9‑10. The court must therefore undertake an independent evaluation of the claim of privilege to ensure the privilege properly applies. Once the court determines a claim of privilege is legitimate, however, 'even the most compelling [personal] necessity cannot overcome' it. Reynolds, supra at 11."

"Successful invocation of the Reynolds privilege does not necessarily require dismissal of the entire suit. Instead, invocation of the privilege requires ''simply that the evidence is unavailable, as though a witness had died [or a document had been destroyed], and the case will proceed accordingly, with no consequences save those resulting from the loss of [that] evidence.'' ... Within the Reynolds framework, the 'litigation can proceed,' therefore, so long as (1) 'the plaintiffs can prove 'the essential facts' of their claims `without resort to [privileged evidence],'' id. ..., and (2) invocation of the privilege does not deprive 'the defendant of information that would otherwise give the defendant a valid defense,' ..." [1000‑01]

Further, the Court notes that the Reynolds framework takes separation‑of‑powers concerns into account. It does uphold the President's secrecy interests, but does not completely immunize the CIA or similar organizations from judicial scrutiny. Principles such as the Separation of Powers and Judicial Review suggest a narrow construction of the blunt Totten doctrine, and a broad construction of the more flexible Reynolds privilege. Therefore, if a lawsuit is not predicated on the existence of a secret agreement between a plaintiff and the government, Totten does not apply, thus the subject matter of this lawsuit as such is not a state secret.

Finally, the Government argues that Plaintiffs cannot possibly prove their case without introducing privileged evidence. The Court can neither agree or disagrees. There is no way an appellate court can prospectively evaluate hypothetical, future claims of privilege that no party has raised and the district court has not considered.

Citation: Mohamed v. Jeppesen Dataplan, Inc., 563 F.3d 996 (9th Cir. 2009).

EXTRADITION

In case where former Panamanian strongman, General Manuel Noriega, who had been designated as prisoner of war challenged his extradition to France following his release from U.S. Prison on Drug related charges, Eleventh Circuit finds that extradition would not violate Third Geneva Convention, and that Noriega could not invoke Convention as source of rights in habeas proceedings

This case involves a challenge to the extradition of former Panamanian strongman General Manuel Antonio Noriega (Appellant) to France, after his scheduled release on parole. In 1988, a Florida federal court convicted the Appellant of several drug related crimes. The U.S. had planned to parole Appellant on September 9, 2007.

Upon France's request, the United States petitioned for the extradition of Appellant to France on July 17, 2007 in the Southern District of Florida. Appellant, previously designated as a prisoner of war (POW), incorrectly petitioned for a writ of habeas corpus based on 28 U.S.C. 2255, on July 23, 2007, alleging that the extradition violated his rights under the Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949 [ 6 U.S. T. 3316; T. I. A. S. 3364; 75 U.N. T. S. 135; in force for U.S. Feb. 2, 1956] (Convention). The District Court, however, reviewed the Petition on the merits because of the immanency of the extradition hearing and the expectation that Appellant would refile the habeas petition correctly under 28 U.S.C. 2241.

The District Court found that the U.S. had satisfied its obligations under the Convention. The court held an extradition hearing on August 28, 2007, and issued a Certificate of Extraditability the following day. Appellant formally filed a habeas petition pursuant to  2241 on September 5, 2007. It claimed that the United States had not complied with the Convention by satisfying itself of France's willingness and ability to treat Appellant as a POW pursuant to the Convention.

The district court dismissed the petition for lack of jurisdiction. The court noted, however, that it would have denied the petition on the merits, for the U.S. had shown that France would afford Appellant the same POW benefits as the U.S. would. Appellant again filed a habeas petition on October 26, 2007. The District Court adopted the findings of its previous rulings and found that the Convention did not bar Appellant's extradition.

This appeal followed. The U.S. Court of Appeals for the Eleventh Circuit affirms. It holds that Appellant cannot invoke the Convention as a source of rights in a habeas petition under the Military Commissions Act  5, Pub.L. No. 109‑366,  5(a), 120 Stat. 2600, 2631, note following 28 U.S.C.  2241 (2006) (MCA), and that the extradition would not violate the Convention.

The Court then provides the framework for its analysis. "The United States' authority to extradite Noriega comes from the United States' extradition treaty with France. The federal extradition statute generally permits extradition when based on a treaty or convention. See 18 U.S.C.  3184. Article 1 of the extradition treaty between the United States and France, states that '[t]he Contracting States agree to extradite to each other, pursuant to the provisions of this Treaty, persons whom the competent authorities in the Requesting State have charged with, or found guilty of, an extraditable offense.' Extradition Treaty, with agreed minute; [2179 U.N.T.S. 341, in force Feb. 1, 2002] U.S.‑ France., art. 1, S. Treaty Doc. No. 105‑13 (2002)."

"The Treaty further defines an extraditable offense as one 'punished under the laws in both States by deprivation of liberty for a maximum of at least one year or by a more severe penalty.' Id. at Art. 2(1). The offense of which Noriega has been convicted in absentia in France, which corresponds to money laundering in the United States, undoubtedly falls within the purview of the treaty. ..."

"There is no right to appeal extradition certification determinations, ..., and collateral review of an extradition determination by means of a petition for writ of habeas corpus is generally limited to determining 'whether the magistrate had jurisdiction, whether the offense charged is within the treaty and, ... whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty.'' ... The issue of whether the treaty of extradition has no force because another treaty or law prevents its operation is no less a fundamental one than is treaty coverage of the offense charged, and is within the class of reviewable challenges to extradition. ... Noriega has failed to assert any applicable law which would prevent his extradition to France under the Extradition Treaty." [1294‑5]

The Court does not find it necessary to consider the issue of whether the Geneva Conventions are self‑executing, since a subsequent federal statute supersedes prior inconsistent treaty provisions. The Court therefore holds that Section 5 of the [MCA], which prevents any person from invoking the Geneva Conventions in any habeas corpus or other civil action to which the United States or its agent is a party as a source of rights, supersedes the domestic effect of these Conventions.

Appellant argues that although [MCA]  5 may preclude him from invoking the Third Geneva Convention as a source of individual rights in a judicial proceeding, he nonetheless has the right to enforce the provisions of the Convention against the Secretary of State, the Bureau of Prisons, or the Department of Justice. Appellant therefore argues that, instead of sending him to France, Article 118 of the Convention requires the U.S. to repatriate him immediately as a POW to his home state of Panama.

The Circuit Court concludes that Appellant was in fact invoking the Convention as a source of rights in a civil action. The plain language of Section 5 of the [MCA] prevents such a claim and therefore Appellant has failed to state a claim upon which relief can be granted.

The Court further holds that, even if  5 of the [MCA] did not preclude Appellant's invocation of the Convention, it would not preclude his extradition to France. Article 12 of the Convention provides that "[p]risoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention." [1298]

The Court finds that the United States has complied with the terms of Article 12; it also rules that the mere absence of the term "extradition" from Article 12 fails to establish that the Article goes so far as to bar such a proceeding. It notes that the Fourth Geneva Convention's Article 45, which covers the "transfer" of civilians and parallels Article 12 of the Third Convention, states that the article does not preclude extradition.

Citation: Noriega v. Pastrana, 564 F.3d 1290 (11th Cir., 2009).

FORUM NON CONVENIENS

Canadian metal companies filed suits over insurance coverage of potential CERCLA damages arising out of alleged pollution of Columbia River in Washington State on same date in courts of Washington and British Columbia but Washington court first asserted jurisdiction over its case; under these circumstances Supreme Court of Canada holds that such prior assertion did not alone control question of which was more convenient forum and that the BC court's proper multifactored analysis under Canada's Court Jurisdiction and Proceedings Transfer Act did control and led to British Columbia court as more convenient forum

Teck Cominco Metals Ltd. (Teck) ran several mining and smelting operations in British Columbia (BC). It gave notice to its insurers of legal claims or potential claims related to environmental damage arising from the pollution activities of a predecessor company, Cominco. The largest claim arises from the discharge of waste material known as slag into the Columbia River that flows by Teck's smelter in Trail. ("Slag" is essentially a scum or dross that forms on the surface of a molten metal). Allegedly, the discharge accumulated in Washington State along the Upper Columbia River and in Lake Roosevelt.

In a federal environmental action filed against Teck's predecessor company in 2004, numerous private citizens and the State of Washington sought to hold Teck liable under a U.S. statute, namely, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) for environmental property damage allegedly caused by the contamination.

Teck sued various insurers in a Washington federal court seeking a declaratory judgment confirming its right to insurance coverage under its insurance policies for any damages arising from a likely CERCLA sanction. On the same date, the insurers also filed suit in the British Columbia (BC) courts seeking declaratory orders regarding the existence, or the extent, of their obligation to defend or indemnify Teck.

The U.S. District Court denied the insurers' motions to dismiss Teck's claims against them on the basis of forum non conveniens [FNC]. Teck then sought orders in the BC court to stay the BC litigation over coverage. The chambers judge declined to stay the BC coverage action.

Taking into account all the factors in  11 of Canada's Court Jurisdiction and Proceedings Transfer Act (CJPTA), the BC chambers judge found that BC was the jurisdiction with the closest connection to Teck and to the subject matter of the coverage action; in its view, the solitary fact that the U.S. court was the first tribunal to assert jurisdiction was not controlling.

In dismissing Teck's appeal, the BCCA found that the BC chambers judge had properly considered and weighed the factors in  11(2) of the CJPTA. The BCCA agreed with the chambers judge that the principle of comity did not require deference to the first court to assert jurisdiction. Teck finally appealed to the Supreme Court of Canada. That Court unanimously dismisses the appeal. It then explains its reasoning.

"Teck submits that where a foreign court has assumed jurisdiction in parallel proceedings, the usual multifactored test under  11 of the CJPTA must give way to a 'comity‑based' test that respects the foreign court's decision to take jurisdiction."

"In favour of this approach, Teck argues that there is a distinction between a situation where it is submitted that a foreign court would be the appropriate forum, and the situation where a foreign court has in fact asserted jurisdiction. A foreign court can be said to have asserted jurisdiction when it has been asked to decline its jurisdiction over the matter and has refused to do so, holding that it is the appropriate forum to hear the dispute."

"Teck argues that where a foreign court has asserted jurisdiction on the basis of factors similar to those found in 11 of the CJPTA,  11 does not apply and the court may decline jurisdiction simply on the basis that the foreign court has asserted jurisdiction, and that comity requires that the domestic court recognize that prior assertion of jurisdiction."

"An alternative, slightly softer version of this argument is that assertion of jurisdiction by the foreign court is a factor of overwhelming significance in the determination of whether the local forum is appropriate (forum conveniens) and that, since the U.S. District Court has positively asserted jurisdiction, the British Columbia courts are effectively bound to stay the parallel actions in British Columbia." [17‑19].

“The first argument is that  11 of the CJPTA does not apply where a foreign court has asserted jurisdiction. I cannot agree. The CJPTA creates a comprehensive regime that applies to all cases where a stay of proceedings is sought on the ground that the action should be pursued in a different jurisdiction (forum non conveniens) [FNC]. It requires that, in every case, including cases where a foreign judge has asserted jurisdiction in parallel proceedings, all the relevant factors listed in  11 be considered in order to determine if a stay of proceedings is warranted. This includes the desirability of avoiding multiplicity of legal proceedings. But the prior assertion of jurisdiction by a foreign court does not oust the  11 inquiry."

"Section 11 of the CJPTA was intended to codify the [FNC] test, not to supplement it. The CJPTA is the product of the Uniform Law Conference of Canada. In its introductory comments, the Conference identified the main purposes of the proposed Act, which included bringing 'Canadian jurisdictional rules into line with the principles laid down by the Supreme Court of Canada. Section 11 of the CJPTA thus constitutes a complete [Canadian] codification of the common law test for [FNC]. It admits of no exceptions."

"Teck submits that the usual multifactored test under 11 of the CJPTA must give way to a 'comity‑based' test when a foreign court positively asserts jurisdiction. To the extent this argument implies that the usual test does not give due comity to foreign courts, it must be rejected. Section 11 of the CJPTA is itself a comity‑based approach. As will be discussed, comity is not necessarily served by an automatic deferral to the first court that asserts jurisdiction. It follows that Teck's argument, that  11 does not apply where a foreign court has already asserted jurisdiction over the matter, cannot succeed."

"Alternatively, it is argued that, if  11 applies, the assertion of jurisdiction by the foreign court is an overriding and determinative factor in the  11 analysis. This argument also must be rejected."

"First, had actual assertion of jurisdiction by a foreign court been seen as a factor that should override all others, one would have expected the legislature to have stated this expressly [in the CJPTA]. Rather, avoidance of multiplicity of proceedings is simply listed along with other factors. This suggests that the existence of foreign proceedings is only one factor, among many, to be considered in a [FNC] analysis."

Second, the authorities are against this contention. ... [One of the main cases] relied on by Teck is Ingenium Technologies Corp. v. McGraw‑Hill Cos. , 2005 BCCA 358, 49 B.C.L.R. (4th) 120 (B.C.C.A.). In Ingenium, the [BCCA] reviewed the chambers judge's decision not to stay the [BC] action in the face of a positive assertion of jurisdiction by the U.S. District Court [in New York] over parallel proceedings [there]. The Court of Appeal found that the chambers judge was correct in concluding that 'the existence of parallel proceedings does not trump all other factors'."

"However, the court went on to allow the appeal on the basis that the chambers judge erred in attaching no significance to the fact the U.S. Court had positively asserted jurisdiction in her analysis. I do not consider that Ingenium laid down a new test for the determination of [FNC] in cases where a foreign court has assumed jurisdiction in parallel proceedings." [ 21‑26].

"Finally, policy considerations do not support making a foreign court's prior assertion of jurisdiction an overriding and determinative factor in the [FNC] analysis. To adopt this approach would he to encourage a first‑to‑file system, where each party would rush to commence proceedings in the jurisdiction which it thinks will be most favourable to it and try to delay the proceedings in the other jurisdiction in order to secure a prior assertion in their preferred jurisdiction."

"Technicalities, such as how long it takes a particular judge to assert jurisdiction, might be determinative of the outcome. In short, considerations that have little or nothing to do with where an action is most conveniently or appropriately heard, would carry the day. Such a result is undesirable and inconsistent with the language and purpose of  11, discussed above."

"Also, the extent to which approaches to the exercise of jurisdiction differ on an international level also weighs in favour of rejecting Teck's approach. A distinction should be made between situations that involve a uniform and shared approach to the exercise of jurisdiction (e.g. inter‑provincial conflicts) and those, such as the present, that do not. In the latter, blind acceptance of a foreign court's prior assertion of jurisdiction carries with it the risk of declining jurisdiction in favour of a jurisdiction that is not more appropriate. A holistic approach, in which the avoidance of a multiplicity of proceedings is one factor among others to be considered, better serves the purpose of fair resolution of the [FNC] issue with due comity to foreign courts."

"For the foregoing reasons, I conclude that 11 of the CJPTA applies to the motions before the British Columbia courts to decline jurisdiction, and that the prior assertion of jurisdiction by the U.S. District Court is merely one factor to be considered, among others."

"As set out earlier, the chambers judge dismissed Teck's motions to stay the BC Coverage Action. In arriving at this conclusion, the chambers judge carefully considered all of the factors mandated for consideration by  11(2) of the CJPTA, namely: the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum ( 11(2)(a)); the law to be applied to issues in the proceeding ( 11(2)(b)); the desirability of avoiding multiplicity of legal proceedings ( 11(2)(c)); the desirability of avoiding conflicting decisions in different courts ( 11(2)(d)); the enforcement of an eventual judgment ( 11(2)(e)); and the fair and efficient working of the Canadian legal system as a whole ( 11(2)(f))."

"Before this Court, Teck argued that the chambers judge erred in disregarding the fact that the insurance coverage sought was in relation to damages claimed in Washington State [litigation.] Teck submits that the U.S. District Court's assertion of jurisdiction should be respected because the issues in the environmental action brought by Washington residents under U.S. legislation may impact on the issue of insurance coverage in this action."

"The difficulty with this submission is that the chambers judge carefully considered these arguments and the totality of the evidence before him. Having done so, he determined that the central issues in the coverage actions (disclosure, risk assessment, and policy interpretation) weighed in favour of British Columbia, and that the only coverage issues properly the substance of the U.S. Environmental Action are inconsequential."

"He was alive to the fact that the environmental damage had occurred in Washington State, but held that that fact alone did not lead to the conclusion that foreign law should apply to the coverage action. On the contrary, he concluded that it would be unreasonable to apply Washington law because, inter alia, Teck's alleged wrongful actions occurred solely [at their plants] in Canada, the proceedings involved other British Columbia sites with no connection to Washington State, and the Washington residents are not beneficiaries to the Policies."

"The chambers judge was also alive to the concern that on a [FNC] application, the court should strive to avoid a situation where two jurisdictions may be dealing with the same subject matter. While finding the U.S. District Court's prior assertion of jurisdiction to be a factor of high importance, he concluded that it could not prevail in view of the fact British Columbia was the forum most closely connected with Teck and the Policies, and that Washington State, a jurisdiction with at best a tenuous connection to the parties and the Policies, was not an appropriate forum."

"I see no error in the reasons or the conclusion of the chambers judge. He considered all the relevant factors under 11 of the CJPTA. Those factors support his decision to refuse to stay the B.C. Coverage Action." [ 29‑37].

Citation: Lloyd's Underwriters v. Teck Cominco Metals, Ltd., 2009 CarswellBC 358; 2009 S.C.C. 11 (Sup. Ct. Can. 2009).

MILITARY BASES IN FOREIGN TERRITORY

Where U.S. government closed base on English soil that would cause dismissal of 200 local employees without prior consultation with their representative workers' organization as to reasons for closing, United Kingdom Employment Appeals Tribunal rules that U.S. had breached U.K.'s Trade Union and Labour Relations (Consolidation) Act 1992

Mrs. S. Nolan (Plaintiff ) was working at a U.S. Army Base at Hythe Hampshire (the Base). The Base was repairing watercraft and other equipment. The U.S. army referred to the Base as a Reserved Storage Activity (RSA). It employed 200 local civilians whom the LNEC represented. They were all to be laid off.

Since at least early 2004, the U.S. government (Defendant) had been considering whether to close the Base. After a 2006 audit report, it became clear that Defendant had already decided to terminate operations there. The U.S. Secretary of the Army decided to close the Base and the U.S. Secretary of Defense approved his choice.

As it was obliged to do, on May 9, 2006, the Defendant notified the U.K. Ministry of Defence that Defendant was terminating operations at the Base and that the Defendant's facilities at Hythe would revert to the U.K. on September 30, 2006.

Mrs. S. Nolan (Plaintiff ) brought proceedings against the Defendant in an English Employment Tribunal (ET). She claimed that Defendant had breached its obligations under Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) to timely consult the Local National Executive Council (LNEC) about the proposed layoffs of about 200 civilian staff whom it represented.

The hearing on liability took place on June 11, 2007 and the ET entered judgment on February 6, 2008. It ruled that the Defendant had violated its obligations to consult in accordance with Section 188.

The ET held that: (1) that Consultation did not begin until June 5, 2006; that there appeared to have been no impediment to starting the consultation process right after Defendant had notified the U.K. Government on May 9, 2006 that the Base was to close; that in fact the date of notification to Her Majesty's Government (HMG) fell a substantial time after the Defendant had determined to close its RSA base; (2) that the Defendant had failed to consult staff representatives about the reasons for the Base closure and had told LNEC that the RSA would close and that there could be no consultation on that subject. The ET ruled against the Defendant and it appealed to the Employment Appeal Tribunal (EAT). At no time did Defendant claim sovereign immunity under either U.S. or U.K. law [i.e. the State Immunity Act].

The Defendant stated that this appeal gives rise to the following principal international issue: whether the ET erred in law in holding that a foreign sovereign government has an obligation, in advance of a decision to close a military base, to consult with, and provide information to, the local civilian workforce about the reasons for its closure. The Employment Appeal Tribunal dismisses Defendant's appeal.

"Without disrespect to the sophisticated and imaginative arguments advanced by [Defendant] in support of the proposition that Section 188 should be construed in the light of the jus imperii nature of the decision, the reasons for which the ET held that there should have been consultation with employee representatives, we are not persuaded by them."

"... [T]he principle that underpins the doctrine of state immunity both at common law and under customary international law is that courts will not scrutinise or interfere with decisions that are jus imperii, namely, that are of a sovereign nature. The principle thus affects the jurisdiction of the courts to scrutinise or interfere with such decisions. No authority or learned article was placed before us which establishes or even suggests that the jus imperii nature of an act affects not the jurisdiction of the courts in relation to that act but the construction of a statute or approach to a rule of law of which is engaged by that act." [76, 77].

"The absurdity relied upon by [Defendant] in its construction argument is the prospect of a failure by a foreign state to consult about reasons for the closure of a military base being made the subject of scrutiny by an ET in a claim for breach of Section 188."

"We agree that consultation with employee representatives in advance of a decision to close a military base would be likely to give rise to justified concern about security. Further, we accept that a requirement to consult 'with a view to reaching agreement on reasons for closure would sit uneasily with decision making at the highest level of a foreign government and which engages high level military, political and economic considerations."

"Further it may have been possible for the [Defendant] to establish a defence under Section 188(7) that there were special circumstances rendering compliance with Section 188(2)(a) not reasonably practicable. The [Defendant, however], having submitted to the jurisdiction of the ET did not avail itself of the statutory defence."

"A construction of Section 188 to impose no requirement for consultation with employee representatives about the reasons for a jus imperii decision is not necessary in order to avoid absurdity. Any absurdity involved in subjecting such a decision to scrutiny in the ET could have been avoided by claiming state immunity. The law of state immunity applies alongside all other domestic statutes including employment legislation. The U.K. State Immunity Act (SIA) and the common law of state immunity exist alongside TULRC. ... [A] special construction of Section 188 is not necessary to avoid the absurdity of a jus imperii decision being subject to scrutiny in the ET. The U.S. had two 'escape routes' available to it. It chose not to use them."

". . .[T]he Council Directive 98/59 provides a floor   not a ceiling of rights. The U.K. has chosen to implement the Directive by not excluding from the right to be consulted on redundancy, representatives of workers employed by public administrative bodies or by establishments governed by public law referred to in Article 1(2)(b). Indeed many of the cases on Section 188 have been brought by unions representing workers in public authorities. The inclusion of such workers within the scope of the domestic legislation illustrates that Section 188 cannot be said to be confined to consultation of the reasons for commercial decisions leading to the closure of a workplace."

"In our judgment, the domestic statutory framework does not require or permit a restrictive construction of Section 188 in circumstances where redundancies result from a jus imperii decision. The fact that there is express provision for the exemption of Crown employees from the scope of Section 188 illustrates that, but for such a provision, redundancy decisions relating to such employees would be subject to its provisions."

"There was no suggestion in [the precedents] that there could be different constructions of the statute considered in that case depending upon the status of the body or the quality of act subject to a rating system which was the subject of the litigation. In our judgment, there is no principle of law which would require or permit a different construction of a statute to be adopted in a case where it was to be applied to an act engaging jus imperii from that which was of general application. No authority was brought to our attention which suggested otherwise."

"In U.K. Coal Mining, [2008] I.C.R. 163, the EAT considered the nature and extent of the obligation imposed by Section 188(2)(a) to consult about ways of avoiding dismissals. The EAT . . . held at page 184 paragraph 87: 'But the obligation to consult over avoiding the proposed redundancies inevitably involves engaging with the reasons for the dismissals, and that in turn requires consultation over the reasons for the closure."

"Strictly, of course, it is the proposed dismissals that are the subject of consultation, and not the closure itself. Accordingly, if an employer planned a closure but believed that redundancies would nonetheless be avoided, there would be no need to consult over the closure decision itself, at least not pursuant to the obligations under the 1992 Act. In the context of a closure, that is likely to be a very exceptional case. Where closure and dismissals are inextricably interlinked, the duty to consult over the reasons arises.'"

"[Defendant] did not suggest that U.K. Coal was wrongly decided although [Defendant] sought to distinguish it on the basis that it applies to commercial decisions   not to decisions which involve public policy. We do not agree that such a distinction can be drawn. There is no warrant in Section 188 for drawing such a distinction: the obligation to consult applies to both public sector and private sector employees. Redundancies in the public sector may well result from decisions taken for political and other non commercial reasons. These reasons are not excluded from the consultation requirements of Section 188."

"The fact that there was reference to consultation over economic decisions in the Information and Consultation of Employees Regulations 2004 in U.K. Coal as support for a conclusion that Section 188 imposes an obligation in certain circumstances to consult over the reason for a decision which will lead to redundancies does not restrict the application of the interpretation of Section 188 in that case to decisions taken for economic reasons.

"The effect of the judgment in U.K. Coal is that the statutory obligation to consult about ways of avoiding dismissals in circumstances of the closure of a workplace is to be construed as including the obligation to consult about the reasons for the closure. ..." [ 79‑90]. In our judgment, the ET did not err in holding that the U.S., having submitted to the jurisdiction of the ET was in breach of its obligation to consult with employee representatives about the reasons for the closure of the Base." [ 91]

Citation: United States v. Nolan, 2009 WL 1321758 (EAT); (2009) 153 S.J.L.B. 32 (Emp. App. Trib. May 15, 2009).

SOVEREIGN IMMUNITY (ATTACHMENT OF ASSETS)

Where Plaintiff holding $312 million default judgment against Iran out of D.C. District Court sought to attach Iranian assets in U.S. in form of $2.8 million judgment on merits under Terrorism Risk Insurance Act of 2002 in California federal court in favor of Iran against U.S. defense contractor, U.S. Supreme Court holds that California judgment at issue is not a "blocked asset"

In 1997, the International Court of Arbitration awarded the Iranian Ministry of Defense (hereinafter "Iran") $2.8 million to resolve a dispute with Cubic Defense Systems, Inc., a California company. The dispute between Iran and Cubic Defense Systems, Inc., a California corporation, arose over a 1977 contract where Cubic would provide Iran with an air combat training system (ACTS). Eventually, Cubic sold the ACTS system to Canada in 1982 and failed to account to Iran for its share of proceeds.

Iran had filed two complaints with the Iran‑U.S. Claims Tribunal in 1982. In Case No. B61, Iran claimed that the U.S. had unlawfully prevented the transfer of the ACTS and other military equipment to Iran. In Case B66, Iran claimed that Cubic had breached its contract. The U.S. responded that the Tribunal should set off the $2.8 million represented by the Cubic Judgment against any future award.

Iran later requested arbitration before the International Court of Arbitration (ICA) of the International Chamber of Commerce. The ICA awarded Iran $2.8 million against Cubic. Cubic refused to pay the award, and Iran sought enforcement in a California District Court. The District Court ordered Cubic to pay the award plus interest (Cubic Judgment).

Mr. Dariush Elahi (present Petitioner) had sued Iran in the year 2000 in District Court in Washington, D.C., for causing the death of his brother and had obtained a default judgment of about $312 million. Petitioner then sought to attach the Cubic Judgment. Iran argued, however, that Petitioner could not attach the Cubic Judgment under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C.  1602‑1611. The California Court held that Iran was not immune from suit, and the Ninth Circuit affirmed.

In 2007, the U.S. Supreme Court vacated and remanded because the Ninth Circuit had not properly determined whether the Iranian Ministry of Defense was a "foreign state or an agency or instrumentality of a foreign state" under the FSIA. See 2007 International Law Update 93.

Upon remand, two additional issues arose. First, Plaintiff had signed a declaration giving up some, but not all, of his rights to pursue the remainder of his $312 million default judgment against Defendant. Second, Plaintiff contended that he has the right to attach the Cubic Judgment under the Terrorism Risk Insurance Act of 2002 (Pub. L. 107‑297, 116 Stat. 2322) (TRIA), Section 201; it permits holders of terrorism‑related judgments against Iran to attach "blocked" Iranian assets. The Ninth Circuit ruled that the relevant asset was Iran's pre‑1981 interest in the ACTS itself.

The U.S. Supreme Court again reverses the Ninth Circuit in a 6 to 2 vote. Because Iran is a sovereign nation, the Court holds that Petitioner cannot attach the Cubic Judgment unless there is an applicable statutory exception to sovereign immunity. Here, the only possible exception is Section 201(a) of TRIA. It authorizes holders of judgments against Iran (such as Petitioner) to attach Iranian assets that the U.S. has "blocked."

But the Cubic Judgment was not in a "blocked" status at the time of the Ninth Circuit's decision. The relevant asset here is not Iran's interest in the ACTS but the judgment enforcing an arbitration award. The U.S. Treasury Department issued an order in 1981 unblocking transactions where Iran's interest arose after January 19, 1981. Here, Iran's interest arose on December 7, 1998, when the District Court confirmed the arbitration award. Iran's interest in the property underlying the judgment arose when Cubic completed its sale of the ACTS in 1982. Thus, whether Iran's "interest in property" is considered to be its interest in the Cubic Judgment itself or in its underlying interest in the [ACTS] sales proceeds, the Treasury Department's general unblocking order applied.

"None of the parties here, however, supports the Ninth Circuit's determination. And neither do we. The basic reason we cannot accept the Ninth Circuit's rationale is that we do not believe Cubic's [ACTS] is the asset here in question. Petitioner does not seek to attach that system. Cubic sent the system itself to Canada, where, as far as we know, it remains. Rather, Petitioner seeks to attach a judgment enforcing an arbitration award based upon Cubic's failure to account to Iran for Iran's share of the proceeds of that system's sale. And neither the Cubic Judgment nor the sale proceeds that it represents were blocked assets at the time the Court of Appeals issued its decision."

"In 1981, the Treasury Department issued an order that authorized '[t]ransactions involving property in which Iran . . . has an interest' where '[t]he interest in the property. . . arises after January 19, 1981.' 31 CFR 535.579(a)(1) ... As the Court of Appeals itself pointed out, Iran's interest in the Cubic Judgment arose 'on December 7, 1998, when the district court confirmed the [arbitration] award. Since it arose more than 17 years 'after January 19, 1981,' the Cubic Judgment falls within the terms of Treasury's order. And that fact, in our view, is sufficient to treat the Judgment as unblocked."

"Iran's interest in the property that underlies the Cubic Judgment also arose after January 19, 1981. As the ICA held, Cubic and Iran entered into their initial contract before 1981. But they later agreed to discontinue (but not to terminate) the contract. Arbitration Award G‑15, G‑21. They agreed that Cubic would try to sell the [ACTS] elsewhere. Id., C.9.15, at G‑14. And they further agreed that they would take 'final decisions' about who owed what to whom 'only . . . once the result of Cubic's attempt to resell the System' was 'known.' Id., B.10.7, at G‑17."

"Cubic completed its sale of the [ACTS] (to Canada) in October 1982. Id.,  B.12.14, at G‑22. And the arbitrators referred to October 1982 as 'the date the Parties had in mind when they agreed to await the outcome of Cubic's resale attempts.' Ibid. Only then was Cubic 'in a position to reasonably, comprehensively and precisely account for the reuse of components originally manufactured for Iran and for any modification costs.' Ibid. For those reasons, and in light of the arbitrators' findings, we must conclude that October 1982 is the time when Iran's claim to proceeds arose."

"The upshot is that, whether we consider Iran's 'interest in property' as its interest in the Cubic Judgment itself or [in] its underlying interest in the proceeds of the Canadian sale, the interest falls within the terms of the Treasury Department's general license authorizing '[t]ransactions involving property in which Iran . . . has an interest' where '[t]he interest in the property . . . arises after January 19, 1981.' 31 CFR 535.579(a). And, as we said, that fact is sufficient for present purposes to treat the asset as having been unblocked at the time the Ninth Circuit issued the decision below. Furthermore, such assets were not 'blocked' because, under Executive Order No. 12281, property owned by Iran had to be transferred 'as directed ... by the Government of Iran.'" [Slip op. 11‑13]

Second, Petitioner had waived his right to attach the Cubic Judgment. Section 2002 of the Victims of Trafficking and Violence Protection Act of 2000 (VPA)[Pub.L. No. 106‑386,  2002, 114 Stat. 1464, 1541] offers compensation to individuals holding terrorism‑related judgments against Iran. Recipients must relinquish "all rights to ... attach property that is at issue in claims against the United States before an international tribunal." Section 2002(a)(2)(D). Petitioner received $2.3 million from the U.S. Government under the VPA as partial compensation for his judgment against Iran and signed a waiver. The question is whether the Cubic Judgment is "at issue" in Case No. B61. The U.S. and Iran do not dispute the validity or ownership of the Cubic Judgment. Thus, Case No. B61 will not suspend or modify the Cubic Judgment.

"But that does not end the matter. The question is whether, for purposes of the VPA, a judgment can nevertheless be 'at issue' before the Tribunal even when it will not be suspended or modified by the Tribunal and when it is not claimed by Iran from the United States. Here, a significant dispute about the Cubic Judgment still remains, namely a dispute about whether it can be used by the Tribunal as a setoff. And in our view, that dispute is sufficient to put the Judgment 'at issue' in the case."

"For one thing, we do not doubt that the setoff matter is 'under dispute' or 'in question' in Case No. B61, and those words typically define the term 'at issue.' ... In the event that the Tribunal finds the United States liable in Case No. B61, the total sum awarded to Iran by the Tribunal will depend on whether the Judgment is used as a setoff. And whether the Judgment can be so used depends, in turn, on whether the United States is right that an attached judgment should be set off or whether Iran is right that it should not be a matter in question before the Tribunal. In that sense, the Judgment is 'under dispute.' We recognize that the dispute is over the use of the Judgment, not the validity of the Judgment. But we do not see how that fact matters." . . .

"Further, the language of the statute suggests that Congress meant the words 'at issue' to carry [their] ordinary meaning. Petitioner essentially distinguishes between property that is the subject of a claim (a claim, for example, that the United States took or harmed particular property belonging to Iran) and property that might otherwise affect a Tribunal judgment (say, through its use as a setoff). And he argues that the statutory phrase 'at issue' covers only the first kind of dispute, not the second."

"But the statute does not limit the property that is 'at issue in a claim' to property that is the subject of a claim. To the contrary, the statute says that judgment creditors such as Petitioner must 'relinquis[h] all rights to execute against or attach property [1] that is at issue in claims against the United States before an international tribunal [or] [2] that is the subject of awards rendered by such tribunal.' VPA 2002(a)(2)(D), 114 Stat. 1542 ..." [Slip op. 18‑19] Thus, the bottom line is that the Cubic Judgment falls within the terms of Petitioner's waiver. The Cubic Judgment is "property" and the Tribunal Case No. B61 is a claim against the U.S. before an international tribunal.

Citation: Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Elahi, No. 07‑615 (U.S.S.C. April 21, 2009).

United States signs agreement for Scientific and Technological Cooperation with Switzerland and EU extends term of similar existing agreement. On April 1, 2009, representatives of the U.S. and Switzerland signed their first Scientific and Technological Cooperation Agreement in Washington, D.C. It creates the basis for cooperation in basic and applied research. It provides for joint programs, workshops, conferences, as well as for the exchange of scientific and technological information. Both countries agree to facilitate the visas for visiting researchers. In a related matter, the EU Council decided to approve a 5‑year extension of the Agreement for scientific and technological cooperation between the European Community and the Government of the United States of America. The Agreement had entered into force initially in October 1998, and can be extended for 5‑year periods. The Council Decision amends the sectors for cooperative activities in Article 4 of the Agreement, which include environment (climate research), biotechnology, engineering and materials sciences. Citation: [1] U.S. Department of State, Bureau of Public Affairs, press release of April 1, 2009 [U.S.‑Swiss Agreement]; Swiss State Secretariat for Education and Research, press release of April 2, 2009 [in German], available at www.sbf.admin.ch. [U.S.‑Swiss Agreement]; [2] 2009 O.J. of the European Communities (L 90) 20, 2 April 2009 [extension of U.S. and EU agreement].

United Nations tribunal at The Hague finds two Serb defendants guilty of especially heinous war crimes. A United Nations war crimes court, Judge Robinson presiding, found two Bosnian Serb cousins guilty for a "callous" 1992 rampage of slaughter in Visegrad. It included, inter alia, locking at least 119 Muslims in two houses and burning them alive. He sentenced Milan Lukic to life in prison and Sredoje Lukic, a former local policeman, to 30 years. Judge Robinson said that Milan Lukic was the ringleader in both incidents, helping to herd victims into the two houses, starting the fires and shooting those who tried to escape the flames. Milan Lukic led a paramilitary group known as both the "White Eagles" and the "Avengers." It specialized in terrorizing Muslims in Visegrad. The judgment also found that Sredoje Lukic, his cousin had aided and abetted in one of the blazes. Robinson, a veteran judge at the Hague tribunal which has been prosecuting Balkan war crimes for 15 years, appeared shaken in describing the Visegrad savageries. "In the all‑too‑long, sad and wretched history of man's inhumanity to man, the Pionirska street and Bikavac fires must rank high," the judge declared. Authorities had arrested Milan Lukic in Argentina during August 2005 and extradited him for trial in The Hague. His cousin, Sredoje, surrendered to Bosnian Serb authorities and ended up at The Hague court a few weeks later. Citation: The Associated Press (online); The Hague, Netherlands, Monday, July 20, 2009, updated at 12:27 p.m. ET.

United States and China sign Memorandum of Understanding on dealing with demands of global warming and pollution. Climate change, energy security and environmental protection are among the most serious challenges facing the United States and China as highly industrialized economies. The two nations focused on these issues at the first U.S. China Strategic and Economic Dialogue (S&ED) held July 27 and 28 in Washington, D.C. Discussions during the S&ED underscored the extent to which our countries are interconnected and proved that cooperation between the United States and China is crucial in dealing with these challenges. The two countries produced a Memorandum of Understanding (MOU) that (1) raises the priority of dealing with climate change in our bilateral relationship, (2) recommits the United States and China to a reach a successful international agreement and (3) expands cooperation to accelerate the transition to a sustainable, low‑carbon global economy. This MOU sets in motion an ongoing dialogue between the United States and China on what both countries are doing and can do to reduce emissions and to advance international climate negotiations looking toward the UN climate change conference in Copenhagen this coming December. The MOU also builds the foundation for expanded cooperation in combating adverse climate changes and in upgrading energy efficiencies, renewable energy, smart grid technologies, electric vehicles, carbon capture and sequestration, as well as joint research and development, clean air and water, and the protection of natural resources. Citation: Press Release # 2009/790; U.S. State Department, Bureau of Public Affairs, Office of Spokesman, Washington, D.C., Tuesday, July 28, 2009, 18:13:18 ‑0500.

U.N. Contact Group on Piracy in seas off Somalia issues statement on dealing with pirates and protecting shipping lanes. The Contact Group on Piracy Off the Coast of Somalia (CGPCS) met at U.N. Headquarters in New York on January 14, 2009, and agreed on the following statement. [What follows are representative excerpts from the complete Statement] "Pursuant to U.N. Security Council Resolution 1851, the CGPCS was established on January 14, 2009 to facilitate discussion and coordination of actions among states and organizations to suppress piracy off the coast of Somalia. The CGPCS will report its progress periodically to the U.N. Security Council. Participating in the meeting were representatives from the following 24 nations: Australia, China, Denmark, Djibouti, Egypt, France, Germany, Greece, India, Italy, Japan, Kenya, Republic of Korea, The Netherlands, Oman, Russia, Saudi Arabia, Somalia TFG, Spain, Turkey, United Arab Emirates, United Kingdom, United States, and Yemen, as well as the African Union, the European Union, the North Atlantic Treaty Organization (NATO), the UN Secretariat, and the International Maritime Organization. . . . The [CGPCS] notes with deep concern that piracy off the coast of Somalia grew significantly in 2008, and that attacks on shipping vessels can be expected to increase without enhanced international efforts. In 2008, over 100 attacks, including over 40 successful seizures, resulted in hundreds of persons taken hostage. The pirates have been demanding million‑dollar ransoms for release of the hostages, ships and cargoes. Piracy disrupts critical humanitarian aid deliveries to Somalia, increases shipping insurance premiums along one of the world's most traveled routes to near‑prohibitive levels, damages littoral economies by forcing the diversion of vessels around the Cape of Good Hope, and raises the prospect of an environmental disaster as ships fall prey to hostile intent. Piracy is a symptom of a wider lack of security and rule of law in Somalia and continues to constitute a threat to regional stability. As important, piracy is symptomatic of the overall situation in Somalia including the prevalence of illegal fishing and toxic waste dumping off the coast of Somalia, which adversely affects the Somali economy and marine environment. As such, piracy issues must be kept in mind as one element of a larger challenge, and international support for initiatives such as the international Contact Group on Somalia must be encouraged as well as support for the [CPGCS]. The CGPCS considers its activities as part of wider international efforts to secure peace and stability in Somalia. . . . The [CGPCS] recognizes the importance of apprehending and prosecuting suspected pirates. The CGPCS calls on state parties to implement their obligations under relevant treaties and applicable international law, including in particular the UN Convention on the Law of the Sea with respect to suppressing piracy, establishing jurisdiction, and accepting delivery of suspected pirates, and to discuss, as appropriate, the applicability of other international instruments including the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention), and the UN Convention Against Transnational Organized Crime. . . . The CGPCS offers participation to any nation or international organization making a tangible contribution to the counter‑piracy effort, or any country significantly affected by piracy off the coast of Somalia. As such, [it] extends invitations to Belgium, Norway, Portugal, Sweden, and the Arab League." Citation: Media Note 2009/51, Office of Spokesman, U.S. State Department, Washington, D.C.; Wednesday, January 14, 2009.