Developments in international law, prepared by the Attorney Editor of International Legal Materials
The American Society of International Law October 23, 2007.
International Court of Justice: Case Concerning Territorial and Maritime Dispute Between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) (October 8, 2007)
Click here for document. (Approximately 100 pages).
The International Court of Justice (Court) held unanimously that Honduras has sovereignty over four “cays” or small islands adjacent to the coasts of Honduras and Nicaragua. The Court diverged on its delimitation of the single maritime boundary. By a vote of fifteen to two it set a very specific geographical point (15 00’ 52”N and 83 05’ 58” W) for the starting point for the single maritime boundary dividing the territorial sea, continental shelf, and exclusive economic zones (EEZs). It further held by a vote of sixteen to one that the parties must negotiate in good faith to determine the course of the delimitation line.
Nicaragua and Honduras are former colonies of Spain that gained their independence in 1821 and the maritime boundary dispute between them dates to that era. Nicaragua brought suit against Honduras December 8, 1999 egarding a disputed maritime boundary between the nations in the Caribbean Sea. Nicaragua asked the Court to determine the boundary between the areas of territorial sea continental shelf and exclusive economic zone regarding Nicaragua and Honduras and to provide an opinion on the sovereignty of the islands lying north of the “15th parallel.” By contrast, Honduras requested that the Court corroborate the historic maritime boundary running between the two nations at the 15th parallel until the boundary of a third state is reached. Honduras asked the Court to declare Bobel Cay, South Cay, Savanna Cay and Port Royal Cay, as well as all other islands, rocks, banks, and reefs north of the 15th parallel, to belong to it, under the principle of uti possidetis juris, rather than Nicaragua. This principle provides deference toward territorial boundaries when independence from colonial rule is attained.
The Court addressed two principle issues in the case: 1) the sovereignty of the islands above the 15th parallel; and 2) the delimitation of the maritime boundary.
All of the islands in dispute lie outside the territorial sea of both Nicaragua and Honduras. They are deemed “islands” for the purpose of Article 121 of the UN Convention on the Law of the Sea (UNCLOS), to which both nations are parties, because they remain above water at high tide. The Court stated that it is “beyond doubt” that the uti possidetis juris principle applies to the dispute because both Nicaragua and Honduras are former colonies of Spain; but the court did not apply the principle to determine which nation owns the islands because nothing clearly showed that the islands were under the control of either Nicaragua or Honduras upon or after colonial independence. Instead, to determine the effectivités, the conduct of administrative authorities as proof f the effective exercise of territorial jurisdiction during the colonial period, the Court found legal significance in immigration activities, criminal prosecutions, and regulation of fishing that Honduras performed in relation to the islands. It thus determined that Honduras evinced an intent to act as sovereign over the islands, while Nicaragua demonstrated no corresponding intent.
Both parties requested the court to create a single maritime boundary delimiting their territorial seas, EEZs, and continental shelves. The court found neither an uti possidetis juris presumption that Honduras held title to the continental shelf and EEZ north of the 15th parallel, nor a tacit agreement between the parties creating the boundary. The Court therefore delimited the maritime boundary itself using a “bisector” method, “a line formed by bisecting the angle created by the linear approximations of coastlines.”
Khulumani v. Barclay National Bank, Ltd., Ntsebeza v. Daimler Chrysler Corp. (October 12, 2007, 2d Cir.)
Click here for document. (Approximately 147 pages).
The Second Circuit Court of Appeals affirmed the District Court for the Southern District of New York’s dismissal of the plaintiffs’ Torture Victim Protection Act (TVPA), 28 U.S.C. §1350 note, claims. It vacated in part the District Court’s decision dismissing the plaintiffs’ Alien Tort Statute (ATS) 28 U.S.C. §1350 claims, holding that in the Second Circuit a plaintiff may plead aiding and abetting liability under the ATS. It also vacated the denial of plaintiffs’ motions to amend, and remanded for further proceedings consistent with its judgment. Judges Katzmann and Hall filed separate concurring opinions. Judge Korman filed a separate opinion concurring in part and dissenting in part with the per curiam opinion.
Three classes of plaintiffs brought suit pursuant to the ATS against fifty corporate defendants claiming that the corporations collaborated with the government of South Africa to maintain the racially restrictive system known as “apartheid.” One group, the Khulmani plaintiffs, brought suit against twenty-three domestic and foreign corporations accusing the apartheid government of violating international law and committing extrajudicial killing, torture, sexual assaults, and arbitrary detention. Two other groups, the Ntsebeza and Digwamaje plaintiffs, brought their class action cases on behalf of victims of the apartheid regime for human rights violations. The Digwamaje plaintiffs also brought causes of action pursuant to the TVPA, and the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§1961 et seq.
Upon the request of the Ntsebeza plaintiffs, the New York Judicial Panel on Multidistrict litigation ordered all of the cases consolidated and transferred to the District Court for the Southern District of New York. A majority of the defendants moved to dismiss the case in July 2003. Penuell Mpapa Maduna, South African Minister of Justice and Constitutional Development, submitted an ex parte declaration in July 2003 that his government viewed the suit as interfering with matters in its sovereign interest, and it requested the court to dismiss the case. Upon the sua sponte request of the district court, the U.S. Department of State issued a “Statement of Interest” (SOI) that adjudication of the case posed the risk of causing “serious adverse consequences” for significant U.S. interests.
The District Court held that the plaintiffs failed to establish subject matter jurisdiction under either the ATS or RICO, and failed to state a claim under the TVPA. (See In re S. African Apartheid Litig., 346 F.Supp. 2d 538, 542 (S.D.N.Y. 2004)). The plaintiffs appealed (except the Digwamaje plaintiffs did not appeal the denial of their RICO claim). The District Court also denied the March 2005 motion of the Ntsebeza and Digwamje plaintiffs to file an amended complaint.
All members of the Second Circuit panel affirmed the district court’s dismissal of the Digwamaje plaintiff’s TVPA claims, holding that the plaintiffs were unable to demonstrate a connection between the defendants providing state aid for the apartheid regime, or to the conduct of South African state officials.
The Second Circuit held that the plaintiffs may plead a theory of aiding and abetting under the ATS, and thus vacated the District Court’s dismissal of those claims, as well as the District Court’s order denying the plaintiffs’ motion to amend their complaints. Noting that the District Court refused to address the defendants’ argument that the ATS claims constituted non-justiciable political questions, the Court remanded to the District Court to consider them.
In his concurrence, Judge Katzmann examines the seminal Supreme Court decision Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) and opines that a defendant’s individual responsibility for aiding and abetting a violation of international law has attained the necessary universally-recognized status to fall within the Sosa ambit. Under Sosa, for a court to exercise jurisdiction, the suit must involve an alien, suing for a tort, in violation of the law of nations and a norm of international character accepted by the civilized world and defined with a specificity comparable to those that the Supreme Court has already recognized: piracy, violation of safe conducts; and infringement of the rights of ambassadors. For evidence that aiding and abetting has attained the necessary universal and specific qualities under Sosa Judge Katzmann cites the London Charter creating the International Military Tribunal at Nuremberg, the statutes for the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), and a number of treaties including the UN Convention against Torture.
In his concurrence, Judge Hall turns to federal common law rather than international law to find that liability for aiding and abetting is actionable under the ATS. He advocated the use of §876(b) of the Restatement (Second) of Torts to determine whether a defendant may be liable for aiding and abetting a violation of international law.
Judge Korman concurs in part and dissents in part from the per curiam decision. In his dissent he enumerates a number of reasons why the court should not adjudicate the claims. He asserts that the plaintiffs’ cases are actually reparations cases, rather than tort cases, and fail to state cognizable causes of action. Judge Korman argues that the Court should defer to the State Department SOI, and the South African request not to adjudicate the cases, and that the failure to defer to such requests may be likened to “judicial imperialism.” In his view, customary international law has not yet recognized corporate liability, and he cites international comity as another reason not to adjudicate the suit.
United States: Corrie v. Caterpillar (September 17, 2007. 9th Cir.)
Click here for document. (Approximately 12 pages).
The U.S. Court of Appeals for the Ninth Circuit affirmed the decision of the district court dismissing the plaintiff’s Alien Tort Statute suit on political question grounds.
Plaintiffs brought suit in Federal district court alleging that their family members were killed or harmed when Israeli Defense Forces (IDF) razed houses in the Palestinian Territories with bulldozers that Caterpillar, Inc., a United States corporation, manufactured. The United States government funded the IDF purchase of the bulldozers through the Foreign Military Financing program (FMF). Pursuant to the FMF, foreign nations contract with American defense corporations and apply to the Defense Security Corporation Agency for funding approval. The plaintiffs allege that Caterpillar knew that the IDF would use the bulldozers to destroy the homes in violation of international law. The plaintiffs asserted that the district court had jurisdiction pursuant to the Alien Tort Statute (ATS), 28 U.S.C. §1350. The plaintiffs sought compensatory and punitive damages, declaratory relief, and an injunction prohibiting Caterpillar from providing bulldozers to the IDF as long as the violations of international law continue. Caterpillar moved to dismiss under Rule 12(b)(6) for failure to state a claim, citing the act of state and political question doctrines. The district court granted Caterpillar’s motion holding that the act of state and political question doctrines prevented it from hearing the merits of the case. The plaintiffs appealed.
In its analysis the Ninth Circuit first examined whether the limits of the political question doctrine upon federal courts are jurisdictional or only prudential. It held that the political question doctrine is jurisdictional in nature and divests a court of subject matter jurisdiction. It found that the key factor in the case was that the U.S. funded the sales of the Caterpillar bulldozers to the IDF through a Congressionally-enacted program. It applied the Baker v. Carr, 369 U.S. 186, 211 (1962), tests for determining whether a political question exists so that courts should defer to the executive branch. The court found that allowing the case to proceed would require the judicial branch to question the foreign policy decision of the executive branch to grant military aid to Israel, and thus the court held that the case involved a non-justiciable political question and dismissed the case.
United States: Cornejo v. San Diego (September 24, 2007, 9th Cir.)
Click here for document. (Approximately 30 pages).
The United States Court of Appeals for the Ninth Circuit held that Article 36 of the Vienna Convention on Consular Relations does not create judicially enforceable private rights pursuant to 42 U.S.C. §1983.
Ezequiel Nunez Cornejo, a Mexican national, and others similarly situated, claimed that when San Diego sheriff deputies arrested them, they failed to notify them of their right to contact consular officials pursuant to Article 36 of the Vienna Convention on Consular Relations (Vienna Convention). They brought suit against San Diego city and county as well as the deputy sheriffs, seeking damages, a declaration that this failure to notify them violated their individual rights under the U.S. Constitution and the California Penal Code; and an order mandating compliance with the Vienna Convention. The County, city, and deputy sheriffs moved to dismiss for failure to state a claim. The district court granted the motion, holding that Cornejo failed to state a claim for a violation of 42 U.S.C. §1983 because Article 36 of the Vienna Convention does not provide a private right of action. Cornejo appealed. The Ninth Circuit affirmed the district court’s holding.
The Ninth Circuit examined the issue of first impression to it: whether Congress meant to create private rights and remedies that individual foreign nationals could enforce in American courts though §1983 when it gave its advice and consent to the Vienna Convention. It noted that generally, with a limited number of exceptions, courts refuse to infer individual rights from international treaties. It discussed that the primary purpose of the notification provision of Article 36 allows states, rather than individuals, to implement their treaty obligations. It thus held that Article 36 does not unambiguously provide Cornejo with a private right.
The dissent opined that the majority mischaracterized the issue before it and that it should have been articulated as whether Article 36 was meant to provide individual rights that would be presumptively enforceable under 42 U.S.C. §1983. After examining the standard that the Supreme Court enunciated in Gonzaga University v. Doe, 536 U.S. 273 (2002), the dissent noted that all that is required to create a presumption of a remedy pursuant to §1983 is for a statute to bestow an individual right, not a privately enforceable one. The dissent argued that the majority interpreted Gonzaga to require an intent to confer a privately enforceable individual right rather than merely showing that a statute confers an individual right. The dissent thus contented that Article 36 does indeed confer individual rights.
European Court of Human Rights: Copland v. The United Kingdom (April 3, 2007)
Click here for document. (Approximately 10 pages).
The European Court of Human Rights (ECtHR) held that there had been a violation of the applicant’s Article 8 (respect for private and family life) right under the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention). Because the ECtHR resolved the matter pursuant to Article 8, it did not reach the applicant’s other basis for the suit, Article 13 (effective remedy). The ECtHR ordered the government to pay 3,000 Euros in non-pecuniary damages; and 6,000 Euros in costs and expenses.
Carmarthenshire College, a state-administered institution, employed Ms. Lynette Copland in 1991 as personal assistant to the College Principal. In 1995 she began working for the Deputy Principal (DP). The DP monitored Ms. Copland’s telephone, email, and Internet use, ostensibly to check for excessive personal use of the college equipment. The parties disputed the length of time that the monitoring occurred. While Ms. Copland claimed that it lasted eighteen months the government contended that it lasted only a couple of months and ended in November 1999. Ms. Copland became aware of the monitoring in November 1999. She brought suit against the United Kingdom alleging that this monitoring violated her Article 8 and Article 13 Convention rights. The UK Human Rights Act of 1998 prohibited public authorities from acting in a way that was incompatible with the Convention, unless legislation required them to do so.
ECtHR precedent in Amann v. Switzerland (2000); and Halford v. United Kingdom (1997); treats telephone calls from work as prima facie included in “private life” and “correspondence” pursuant to Article 8 (1). The ECtHR thus found that emails and monitoring of Internet use should be similarly protected. Because the college gave Ms. Copland no warning that her calls could be subject to monitoring, the ECtHR found that she had a reasonable expectation of privacy for her phone calls, email, and Internet use at work. The court found it irrelevant that the college had retained the data without disclosing it to a third party or using it against Ms. Copland in disciplinary actions; and found that the gathering and maintenance of this data interfered with Ms. Copland’s respect for her private life and correspondence under Article 8 of the Convention. The ECtHR further found that there was no domestic law in place at the time regulating the monitoring of employees at their places of work, and that therefore the monitoring could not take place “in accordance with the law” under Article 8.
Bismullah v. Gates, Parhat v. Gates (July 20, 2007, D.C. Cir.)
Click here for document. (Approximately 30 pages).
In an opinion by Chief Judge Douglas Ginsburg, the U.S. Court of Appeals for the D.C. Circuit held that it must have access to all of the information available to a Combatant Status Review Tribunal (CSRT) to be able to conduct a meaningful review of a CSRT determination that an alien detained at Guantanamo Bay, Cuba is an “enemy combatant.” The opinion addresses the procedural motions the parties filed regarding the court’s review of the merits of the detainees’ petitions challenging the CSRT determinations.
The petitioners are eight detainees at Guantanamo Bay, Cuba who sought review of CSRT determinations that they are “enemy combatants.” The case involves two joined petitions, that of Haji Bismullah, captured in Afghanistan in 2003, and Huzaifa Parhat and six other Uighurs, captured in Pakistan in December 2001. Both the detainees and the Government requested the court to enter protective orders to address access to and treatment of classified information. The detainees also asked the court to compel discovery and to appoint a special master. Additionally, the Government asked the court to treat the seven joint petitioners in Parhat v. Gates, separately.
The Secretary of Defense outlined the parameters for the conduct of CSRTs in a memo to the Secretary of the Navy in July 2004. The Secretary of the Navy subsequently created specific procedures in 2004 that CSRTs must follow to determine whether detainees at Guantanamo Bay, Cuba, are an “enemy combatants.” Pursuant to those Navy guidelines, CSRTs are comprised of three “neutral commissioned officers” who must decide whether a detainee supported the Taliban, Al Qaida, or associated forces, or engaged in hostilities against the U.S. or its coalition partners. The CSRT makes this decision after reviewing whether a preponderance of the evidence supports the finding that a detainee meets the criteria to be called an “enemy combatant.” A rebuttable presumption exists that the Government’s evidence is genuine and accurate. A military officer, the Recorder, must present both inculpatory and exculpatory evidence to the Tribunal. Detainees’ personal representatives may review the information that the Recorder plans to show the Tribunal, but they may not share classified information with detainees.
The parties disputed the record they wanted the Court of Appeals to review. The detainees argued that the court should review all evidence reasonably available to the government, in addition to that which the Recorder, personal representative, and detainee presented to the CSRT. By contrast, the Government argued that the record should be limited to the information the Recorder presented.
The Court of Appeals emphasized that the Detainee Treatment Act (Pub. L. 109-148) (2005) requires it to examine whether the CSRT’s conclusion was supported by a preponderance of the evidence. The court opined that it could not ascertain whether a preponderance of the evidence justifies the CSRT’s status determinations without seeing all of the evidence available to the Government.
The court ordered all cases involving the Guantanamo detainees to adopt the presumption that the counsel for the detainees possesses a “need to know” the classified information regarding their client’s cases. The court held that notwithstanding this presumption, the government could withhold certain highly sensitive information from the detainees’ counsel, but not the court. The court granted the Government’s motion for a protective order to include a provision creating a “Privilege Team” to inspect mail and redact anything unrelated to the detainees’ captures and CSRT proceedings. The court denied petitioners’ motions to compel discovery, and for the appointment of a special master.
Canada notified the World Trade Organization October 4, 2007 that it will permit Apotex, Inc. to produce the patented pharmaceutical TriAvir, an antiretroviral drug, and export it to Rwanda. Rwanda notified the WTO July 17 that it plans to import the drug.
Canada is the first nation to apply the August 30, 2003 WTO General Counsel decision which is designed to facilitate the import of generic drugs for nations that are unable to produce them. It is often dubbed the “paragraph 6 system” because it puts into practice paragraph 6 of the 2001 Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement.
Canada followed paragraph 2(c) of the General Counsel decision, which requires the exporting member to notify the Council for TRIPS of the grant of the license, the name and address of the licensee, the products and quantities for which the license has been granted, the countries to which the products will be provided, and the duration of the license.
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