Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law March 26, 2007
United Nations Convention and Optional Protocol on the Rights of Persons with Disabilities (Adopted by the General Assembly 13 December 2006).
Click here for document. (Approximately 38 pages).
On 13 December 2006 the United Nations General Assembly adopted the Convention on the Rights of Persons with Disabilities and the Optional Protocol to the Convention. The Convention and Protocol will be open for signature at the United Nations Headquarters beginning 30 March 2007.
In the Convention’s preamble, it takes cognizance that “disability” is an evolving concept resulting from an interaction between persons with “impairments” and attitudinal and environmental barriers that limit their full and effective participation in society equally with others. It further emphasizes that discrimination against any one on the basis of disability is a violation of the inherent dignity and worth of the person. Women and girls with disabilities are at particular risk, both in and outside the home, of violence, injury or abuse, neglect, maltreatment and exploitation. The majority of persons with disabilities live in poverty.
Article I of the Convention sets forth its purpose: “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.” It defines “disability” to include long-term physical, mental, intellectual, and sensory impairments.
Article 4 sets forth the general obligations of states parties. States parties must adopt legislative and other measures to implement the rights specified in the Convention; take steps to abolish discriminatory laws, and practices that discriminate against disabled persons; conduct research and develop goods and services, equipment and facilities to serve people with disabilities; and provide information about assistive devices and services. The Convention prohibits discrimination against persons with disabilities in a wide array of sectors including education, work, living independently, mobility, health, and participation in political and public life.
Article 34 creates a Committee on the Rights of Persons with Disabilities The Committee will consist initially of twelve experts who will review reports submitted by states on efforts to fulfill their duties under the Convention. Then Committee in turn will be required to submit reports to the General Assembly and the Economic and Social Council and make recommendations.
The Convention prohibits reservations that are incompatible with its object and purpose.
The Optional Protocol to the Convention requires states parties to recognize the competence of the Committee to receive and review claims from individuals claiming to have been victims of a violation of the Convention; and it prohibits the Committee from receiving anonymous or redundant communications.
European Court of Human Rights (EHCR): Salah Sheekh v. The Netherlands (11 January 2007)
Click here for document. (Approximately 48 pages).
The ECHR held that the expulsion from the Netherlands of a minority from the Ashraf clan back to Somalia would be a violation of Article 3 of the Convention.
Abdirizaq Salah Sheekh is a Somali national living in Amsterdam. He requested asylum upon entry to the Netherlands at Schiphol airport 13 May 2003. He fled from Somalia where, as a member of the Ashraf minority, his family was subject to persecution by the Abgal majority in his village. He father and brother were killed, his sister raped, and his mother beaten. He was taken to an asylum detention center and held. The Minister for Immigration and Integration (Minister voor Immigratie en Integratie) denied him asylum 25 June 2003 finding that the bases Sheekh alleged for his request were insufficient. The Minister further found that it did not appear as though there was a risk of the applicant being subjected to treatment in violation of article 3 of the Convention (“[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment.”) upon his return to Somalia, and the death of his brother in 2002 and the rapes of his sister in 1998 and 2002 occurred too long ago for Sheekh to obtain asylum under the traumatized asylum seeker policy (traumatabeleid). The Minister held that Sheekh was not stateless because he held Somali nationality and thus was ineligible for a “no-fault” residence permit. Sheekh appealed the denial of his asylum 26 June 2003. The Regional Court of The Hague concurred with the Minister, and held that what Sheekh had experienced was because of the general instability of Somalia rather than being directed at Sheekh personally, and that Sheekh could return to Somalia and live in an era that was relatively safe.
Sheek filed an application with the ECHR 15 January 2004 complaining that if he was expelled to Somalia he faced the risk of his Article 3 rights being violated. He also requested that he not be deported pending the proceedings, this was granted and he was released from custody. The Netherlands informed the ECHR that Sheekh was eligible for a residence permit on the grounds of “categorical protection policy” on 7 July 2005. Sheekh subsequently filed a new asylum petition which was granted 10 March 2006. While the Netherlands argued that the matter had been resolved because it granted Sheekh a residence permit, the Court did not concur. It similarly dismissed the Netherlands’s argument that Sheekh failed to exhaust domestic remedies.
While the ECHR recognized the right of Contracting States to control the entry, residence, and expulsion of aliens, it noted that that Contracting states must nevertheless respect Article 3 in their decision whether to expel someone. When someone faces a real risk of being subjected to treatment contrary to Article 3, there is an obligation not to expel the person to that country. To make this determination, the ECHR will assess all of the information before it, or obtain material proprio motu. In this case, the court examined country reports from a variety of sources including UNHCR. The court opined that Sheekh, as a member of the Ashraf minority, would be unlikely to obtain protection from another clan, even in one of the “relatively safe” areas of Somalia.
El Masri v. United States (2 March, 2007, 4th Cir.)
Khaled El-Masri appealed the district court’s dismissal of his civil action in El-Masri v. Tenet, 437 F. Supp. 530, 541 (E.D. Va. 2006), alleging that it misapplied the state secrets doctrine and erred by dismissing his complaint. The Court of Appeals for the Fourth circuit upheld the dismissal of the suit.
El Masri brought suit against George Tenet, former Director of Central Intelligence Agency (CIA), three corporations, and ten CIA employees in December 2005 alleging unlawful detention and maltreatment in a practice that became known as “extraordinary rendition.” El-Masri alleged that while traveling in Macedonia in December 2003, Macedonian police detained him for twenty-three days and handed him over to CIA operatives. These operatives took him to a CIA detention facility near Kabul Afghanistan where he was held until May 28, 2004. Next, he was taken to Albania and released and eventually returned to Germany, his home nation. He claimed that while detained he was beaten, drugged, bound, held in unsanitary conditions, interrogated, and prevented from contacting anyone including the German government and his family. El-Masri brought three causes of actions: 1) he alleged that Tenet and the CIA employees violated his fifth Amendment right to due process by subjecting him to treatment that shocked the conscience and deprived him of legal process; 2) he brought an Alien Tort Claims (ATC) Act suit against the defendants for violating the international legal norm against prolonged arbitrary detention; and 3) he brought ATC claims against the defendants for violating international norms prohibiting cruel, inhuman, and degrading treatment. The U.S. filed a statement of interest in the case March 8, 2006 and asserted the states secret privilege. The U.S. claimed that El-Masri’s complaint should be dismissed because it could result in disclosure of information that would be harmful to the national security interests of the United States.
In its decision to affirm the district court’s dismissal of El-Masri’s complaint, the Fourth Circuit applied a three-prong analysis to resolve the issue before it. It examined: 1) whether the procedural requirements for invoke the privilege have been met; 2) whether the information sought to be safeguarded qualified as privileged under the doctrine; and 3) if the information is deemed to be privileged, how the matter should proceed. The court found that the procedural requirements for invoking the privilege had been met. It found that there was a “reasonable danger” that letting the case to proceed would expose military secrets and would compromise national security interests. Further, the court noted that it is bound to dismiss a case where circumstances demonstrate that privileged data is so crucial to the case that an effort to proceed may reveal the information. The court emphasized that for El-Masri’s case to proceed, the defendants would not be able to defend themselves without resorting to privileged evidence.
Brazil v. American Tobacco Co., (23 February 2007, Del.)
Click here for document. (Approximately 20 pages).
The Republic of Panama and Sao Paulo, Brazil, brought suit in Delaware against manufacturers of tobacco products (“tobacco defendants”) attempting to recoup the costs of medical expenses that they allegedly incurred to treat the health problems of Brazilian smokers. They claimed that the tobacco defendants misled both them and the smokers about the health risks of smoking, which prevented them from taking steps to reduce smoking and smoking-related diseases. They sued in both Panamian and U.S. court, in the Delaware Superior Court asserting claims of breach of voluntary undertaking, unjust enrichment, fraud, and civil conspiracy. A number of tobacco defendants moved to dismiss for failing to state a claim upon which relief can be granted pursuant to rule (12)(b)(6). The Delaware Superior Court dismissed July 13, 2006 because Brazil failed to establish a proximate cause as a matter of law. The Superior court also held that Brazil lacked standing to bring suit on behalf of its citizens as parens patriae. Brazil appealed both grounds. It argued that the court erred in denying it parens patriae standing because 1) it is illogical to treat American states and foreign nations differently with respect to standing and the former are permitted parens patriae standing while the latter are not; and 2) the court failed to weigh decisions by other jurisdictions that permit such standing to foreign nations.
The Delaware Supreme Court rejected the case law upon which Brazil based its parens patriae arguments, and held that the Superior Court correctly decided that Brazil lacked such standing. It continued to discuss that in any event, the issue of parens patriae standing was not relevant to the outcome of the case before it, because even if they possessed such standing they would still have to allege sufficient facts to establish a prima facie tort on behalf of the citizens on whose behalf they brought suit..
Brazil also appealed the dismissal for failure to state a claim upon which relief can be granted. The Delaware Supreme Court emphasized that Brazil acted as an insurer or third-party medical care provider and could have brought suit on behalf of Brazilian citizens as subrogees, but chose not to do so. Had Brazil chosen this route, the court emphasized, it would have survived a 12(b)(6) motion to dismiss. In this case however, Brazil seeks to bar defendants of defenses of which they could otherwise avail themselves. The court opined that it would be unfair and unwise policy to permit the Foreign Governments to bring claims upon which their citizens would be unable to recover if they had brought them in their own stead. In addition, any calculation of damages would be highly speculative and difficult to divide up. The Delaware Supreme Court therefore held that while the Superior court reached the correct result, the better rationale is that the tobacco defendants owed no legal duty to the Foreign Governments separate and apart from that owed to their citizens.
International Centre for Settlement of Investment Disputes: Biwater Gauff (Tanzania) Ltd. v. Tanzania: Procedural Order No. 5 (February 2, 2007)
Click here for document. (Approximately 22 pages).
On November 27, 2006, five non-governmental organizations (the "Petitioners") filed a petition for amicus curiae status. The arbitral tribunal in its procedural order of February 2, 2007 (the "Order") granted Petitioners the opportunity to file a written submission in the proceedings pursuant to the new Rule 37(2) of the revised ICSID arbitration rules and subject to certain procedural safeguards. The tribunal denied Petitioners' application for access to the documents filed by the parties in the arbitration pending a further ruling. It also denied Petitioners' request to attend and participate in the oral hearings.
The Tribunal states that under the ICSID arbitration rules, it must address the participation by non-parties on an ad hoc basis rather than by grating an overall amicus curiae status. It goes on to examine the conditions in rule 37(2), (a), (b) and (c) to determine whether to allow Petitioners to file a written submission. It concludes that a written submission by Petitioners (i) appears to have the reasonable potential to assist the Tribunal in bringing a perspective , particular knowledge and insight different from the parties and (ii) would address matters within the scope of the dispute, and that each Petitioner has a sufficient interest in the proceedings because there is a public interest in the arbitration. Based on the requirements of Rule 37(2), as well as concerns expressed in relevant cases, the Tribunal imposes procedural safeguards to ensure that the amici submission will not be unduly burdensome or disruptive to the proceedings or the parties.
The Tribunal further concludes that the broad policy issues that Petitioners intend to address do not require them to have access--for the time being--to documents from the arbitration. The Tribunal states that it will revisit the issue after the next hearing. It also denies Petitioners' request to be present at, and partcipate in, oral hearings because one of the parties objects to such presence, and Rule 37(2) of the amended ICSID Arbitration Rules does not allow the Tribunal to grant the request if either party objects.
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