Developments in international law, prepared by the Attorney Editor of International Legal Materials
The American Society of International Law November 29 , 2007
United States Court of Appeals for the Ninth Circuit: Al-Haramain Islamic Foundation, Inc. v. Bush (Nov. 16, 2007, 9th Cir.).
Click here for document. (Approximately 25 pages).
The Ninth Circuit Court of Appeals affirmed the holding of the District Court that the state secrets privilege did not bar the subject matter of the suit before it; but after conducting an in camera review of the document at issue, the Ninth Circuit reversed the District Court’s decision to allow counsel of the organization to reconstruct the substance of the document through their memory of it.
Al-Haramain Islamic Foundation, Inc. (Al-Haramain) is a Muslim organization that provides assistance to help build mosques and promotion educational programs in over 50 nations. The United Nations Security Council designated Al-Haramain as an entity affiliated with Al Qaeda. The U.S. Department of the Treasury, Office of Foreign Assets control froze Al-Haramain’s assets temporarily in February 2004 pending resolution whether the group would be deemed to be a “Specially Designated Global Terrorist,” (SDGT). During this designation proceeding in August 2004 the Treasury Department provided Al-Haramain’s counsel and two of its directors a number of documents, inadvertently including a top secret “Sealed Document.” Al-Haramain’s counsel copied the Sealed Document and distributed it to its directors. A reporter from the Washington Post also viewed the document during the course of performing research for a story. The Federal Bureau of Investigation subsequently recovered the Sealed Document from Al-Haramain’s counsel, but not from the directors in October 2004. After a New York Times newspaper story was released in December 2005, Al-Haramain alleges that it realized that the Sealed Document proved that it had been subject to warrantless surveillance. Thus, Al-Haramain brought suit in February 2006 in Federal District Court in Oregon alleging that the government’s warrantless surveillance violated its First, Fourth, and Sixth Amendment rights as well as the Foreign Intelligence Surveillance Act (FISA) 50 U.S.C. §§1801 et seq. and the International Covenant on Civil and Political Rights. The government moved to dismiss on the basis of the state secrets privilege.
The District Court dismissed the government’s motion, holding that the state secrets privilege did not bar the lawsuit altogether; its accidental disclosure did not affect its privileged status; but that Al-Haramain could file in camera affidavits regarding the contents of the Sealed Document based upon the memories of the counsel who had seen it. The District Court then sua sponte certified its order for an interlocutory appeal.
On appeal, the government asserted three principal reasons why the state secrets privilege required the suit to be dismissed: 1) the subject matter of the lawsuit is a state privilege; 2) Al-Haramain could not establish standing without the Sealed Document; and 3) Al-Haramain could not assert a prima facie case, and the government could not defend itself, without using state secrets.
The Ninth Circuit concurred with the District Court that the subject matter of the lawsuit, the government’s warrantless surveillance under the Terrorist Surveillance Program (TSP) is not protected by the state secrets privilege for two reasons. First, because President Bush has acknowledged publicly that he approved a surveillance program to monitor the communications of those suspected of having ties to Al Qaeda December 17, 2005, and General Hayden provided additional information about the program in a speech at the National Press Club January 23, 2006. Second, because Al-Haramain was deemed to be a SDGT in 2004. The Ninth Circuit emphasized that it was not persuaded by the holding of the Fourth Circuit in El-Masri, where the court upheld that government’s assertion of the state secrets privilege and dismissed the suit, because unlike that court, the Ninth Circuit does not necessarily think that the “subject matter” of a case is synonymous with the facts needed to litigate it.
The Ninth Circuit next conducts a three-prong analysis to respond to the government’s second and third arguments for dismissal of the suit: 1) whether the procedural requirements for invoking the state secrets privilege have been satisfied; 2) whether the information is privileged after conducting an independent review; and 3) how the matter should be decided if there is a successful claim of privilege. The Ninth Circuit held that the government properly asserted the privilege through claims by then-Director of National Intelligence John Negroponte, and Director of the National Security Agency Lieutenant General Keith B. Alexander. The Court reviewed the Sealed Document in camera and held that it was governed by the state secrets privilege. It held that the District Court erred when it allowed the Al-Haramain plaintiffs to file in camera affidavits regarding the information in the Sealed Document from their memories because this contravened relevant Supreme Court precedent United States v. Reynolds, 345 U.S. 1, 10 (1953). Reynolds permits a suit to proceed in only two ways after a court finds that information is subject to the state secrets doctrine: 1) if the plaintiffs can prove the “essential facts” of their claims without relying upon the material “touching upon” the state secrets; and 2) following procedures in the Foreign Intelligence Surveillance Act.
European Court of Human Rights Grand Chamber: Lindon, Otchakovsky-Laurens and July v. France (October 22, 2007)
Click here for document. (Approximately 50 pages).
By a vote of thirteen to four, the European Court of Human Rights (ECtHR) held that there was no violation of Article 10 (freedom of expression) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention). It held unanimously that there was no violation of Article 6 §1 (fair and public hearing within reasonable time by impartial tribunal) of the Convention.
The case arose out of the publication of novel. Mathieu Lindon wrote Le Procès de Jean-Marie Le Pen (Jean Marie Le Pen on Trial) that the company P.O.L. published in 1998. Paul Otchakovsky-Laurens is the chairman of the board of directors of P.O.L.
Lindon’s novel, which is based on actual events, recounts the story of Ronald Blistier, a militant on trial for the murder of a youth of North African origin. Lindon queries whether Le Pen is responsible for the murder that youths inflamed by his rhetoric carried out. After publication of the novel, Le Pen and other leaders of the Front National brought suit against Lindon and Laurens for defamation with respect to specific passages in the book in the Paris Criminal Court, which subsequently convicted Laurens of defamation and Lindon of complicity in the offense October 11, 1999. The court ordered them to each pay fines and damages to Le Pen and his colleagues. Lindon and Laurens appealed the conviction pursuant to Article 10 (freedom of expression) of the Convention. The Paris Court of Appeal upheld the convictions September 13, 2000, with respect to three of the four disputed passages and the imposition of fines. Lindon and Laurens then appealed to the Court of Cassation which dismissed their appeal November 27, 2001.
The French newspaper Libération published a petition November 16, 1999, in which 97 writers expressed their support for Lindon and Laurens and their view that the passages in Lindon’s book were not defamatory. The petition included actual passages of the book. Serge July was the publication director of Libération. As a result, Le Pen and leaders of the French National also sued July in the Paris tribunal de grande instance, and the court found him also guilty of defamation and ordered him to pay the same fines as Lindon and Laurens. July then appealed to the Paris Court of Appeals which upheld the conviction and rejected his defense of good faith because he knew that the court held the passages to be defamatory when he published them. July subsequently appealed to the Court of Cassation pursuant to Articles 10 and 6(1) of the Convention, and the Court rejected his appeal.
Lindon, Laurens, and July, brought suit against France at the ECtHR in 2002 asserting that there had been a violation of the Article 10(freedom of expression) rights. The ECtHR joined their applications. Lindon and Laurens contended that their convictions were penalties not prescribed by law within the court’s caselaw and in any event, unnecessary in a democratic society. France by contrast, did not dispute that it interfered with the applicant’s freedom of expression, but asserted that the conviction was prescribed by law, pursued a legitimate aim, and was necessary in a democratic society.
Because it was uncontested that the conviction interfered with the applicants’ freedom of expression, the ECtHR examined whether it was prescribed by law within Article 10. The Court found that the legal basis for the convictions were set forth clearly in the French Freedom of the Press Act of 1881. The Court also found it relevant that because of their professions, both Lindon and Laurens should have been aware of the laws regarding defamation, or sought legal advice if they were uncertain. The Court also found that the interference pursued the “legitimate aim” of protecting the reputation of Le Pen and the Front National. While the Court emphasized that freedom of expression constitutes one of the pillars of democratic society, it is nonetheless subject to exceptions. The Court examined whether France’s reasons for imposing the limits upon the applicants’ free speech were relevant and sufficient and proportionate to the legitimate aim pursued. It found that it was, and noted specifically the Court of Cassation’s reasoning that all writings, even novels, are capable of harming the honor or reputation of a person within the meaning of the 1881 Act, which is consistent with Article 10 of the Convention.
With respect to Serge July, the Court noted that because his conviction involved freedom of the press, it should be subject to a high degree of protection under Article 10. It nonetheless concurred with the French courts that the conviction for July was “relevant and sufficient”, echoing the French court’s reasoning that Libération published excerpts of the passages that the court had already held to be defamatory. For that reason the ECtHR held that the French court could reasonably find that the interference was necessary in a democratic society, within the meaning of Article 10, to protect the reputation and rights of Le Pen and the Front National.
The ECtHR likewise rejected July’s Article 6§1 claim that he had not been heard by an “impartial” tribunal at the Paris Court of Appeal when two of the three judges which ruled in his suit sat on the bench that had convicted Lindon and Laurens. The Court reasoned that there was no proof that the two judges in question had acted with bias or prejudice to July’s case, or that they had been offended by the petition that the newspaper published.
Summary of Working Group III Report: Mitigation of Climate Change (May 2007)
Click here for document. (Approximately 35 pages).
The United Nations Environment Programme (UNEP) and the World Meteorological Organization (WMO) established the Intergovernmental Panel on Climate Change (IPCC) in 1988. Membership is open to members of the UN and WMO. Its role is to evaluate on a “comprehensive, objective, open and transparent basis” the scientific, technical and socio-economic information relevant to understanding the “scientific basis of risk of human-induced climate change, its potential impacts and options for adaptation and mitigation.” It does not conduct research nor review climate related data but provides assessments based upon data in peer-reviewed literature from experts around the world. It seeks to present balanced reporting of viewpoints and be “policy relevant” but not “policy-prescriptive.” It has three working groups and a task force on National Greenhouse Gas Inventories. The three working groups focus on the following: 1) I—the scientific aspects of the climate system and climate change; 2) II—the vulnerability of socio-economic and natural systems to foster a changing climate, as well as its consequences; and 3) III-possible ways in which greenhouse gas emissions and other aspects of climate change can be mitigated. In addition to working group reports, the IPCC conducts assessments. It released the Fourth Assessment Report Summary for Policymakers (AR4) November 17, 2007.
The IPCC Working Group I issued the summary of its report: “Climate Change 2007 The Physical Science Basis,” in February 2007. It does not endeavor to review all of climate science developments since the issuance of the last FAR; but only those aspects deemed most important to policymakers. It explains developments in knowledge of the human and natural factors leading to climate change and builds upon earlier IPCC assessments. It notes that carbon dioxide is the most “important anthropogenic” greenhouse gas, and increases in atmospheric concentration of carbon dioxide dating from the pre-industrial era results from fossil fuel use. It emphasizes that the years 1995-2006 were among the hottest on record since 1850 and that mountain glaciers and snow cover have decreased on average in both hemispheres, which in turn has led to the rise in the level of sea water. Since the 1970s droughts have been longer and more severe in a greater number of areas.
The IPCC Working Group II issued the summary of its report “Climate Change 2007: Impacts, Adaptation and Vulnerability,” in April 2007. It will become chapter II of the FAR. The Working Group report notes that while the quality of data sets has improved since the Third Assessment in 2001, and the number of studies of observed trends in physical and biological environments and their connection with regional climate change has also increased, there is nevertheless still a geographic disparity of data and studies on observed changes, with a paucity from developing countries. Working Group II finds that: 1) observational evidence exists from all continents and most oceans that regional climate changes are having an impact upon numerous environments, particularly with respect to temperature increases. For example, there are more and larger glacial lakes; greater number of avalanches in permafrost areas; and alterations in Artic and Antarctic ecosystems including with respect to predators. Temperatures are increasing in lakes and rivers in numerous areas, with concomitant impacts upon water quality. Evidence is demonstrating earlier springs; bird migrations; and egg-laying; as well as shifts in vegetation poleward. Looking to the future, in North America, increased temperatures in western mountains are anticipated to cause future winter flooding and less water availability in the summers. Cities faced now with heat waves are expected to have more, hotter, and longer heat waves with the possibility of negative health consequences, particularly for the elderly.
The IPCC Working Group III issued its report “Mitigation of Climate Change,” in May 2007. It concentrates on recent literature on the scientific, technological, environmental, economic, and social features of mitigating climate change and reviews the market and economic potential for mitigation, as well as analyses of “top-down” and “bottom-up” mitigation models. Top-down models are those that examine the economy-wide possibility of mitigation options, while bottom-down emphasize specific policies and regulations and are often sectoral studies presenting an unchanged micro-economy. It lists a number of sectors: energy supply, transport, buildings, industry, agriculture, forestry/forests, and waste, and presents key mitigation practices for each. For example, in the energy supply sector the report recommends switching from the use of coal to gas and the use of nuclear, solar, geothermal and wind powers. In the transport sector it suggests the use of more fuel-efficient vehicles and hybrid vehicles, and shifts from road to public transportation.
In the Fourth Assessment Report Summary for Policymakers (AR4) the IPCC summarizes the most critical elements of the previous three reports that it issued earlier in 2007. Delegates from 130 nations reviewed and approved the AR4 before its issuance. The AR4 avers that there is an indisputable warming of the climate, that is manifest from melting of snow and ice, rising average sea levels, and increase in average air and ocean temperatures. It cites an increase of Global Greenhouse Gas Emissions because of human activities of 70% between 1970 and 2004. It indicates that anthropogenic warming could lead to sudden and permanent climate changes such as reductions in ice sheets leading to increases in ocean levels, changes in coastlines and flooding of low-lying areas.
Report of High-Level Roundtable Held at the Permanent Mission of Germany to the United Nations: How a Changing Climate Impacts Women (September 21, 2007)
Click here for document. (Approximately 25 pages).
The Council of Women World Leaders (CWWL), Women’s Environment and Development Organization (WEDO), and the Heinrich Böll Foundation North American held a discussion on the ways in which climate change impacts women at the Permanent Mission of Germany to the United Nations September 21, 2007. The roundtable was a precursor to the UN Secretary General’s High Level Climate Change meeting. Participants included over 60 governmental, UN, and NGO representatives. Among the featured speakers were: Mary Robinson, former President of Ireland, former UN High Commissioner on Human Rights, Chair, Council of Women World Leaders; Gro Harlem Brundtland, former Prime Minister of Norway, Secretary-General’s Special Envoy on Climate Change; Lorena Aguilar, Senior Gender Advisor, World Conservation Union (IUCN), Board member, Women’s Environment and Development Organization.
Discussants noted that while the UN Framework Convention on Climate Change (UNFCC) lacks references to gender, climate change is not “gender neutral.” Climate change and gender have a wider array of interstices including justice, human rights, and human security. Representatives from Honduras, Senegal, Suriname, Thailand, Uganda, and the United States (New Orleans) discussed their experiences demonstrating these connections. Participants at the roundtable called for gender-equality to be incorporated into climate change planning and decision-making, and national and global policies to include gender components of climate change and be guided by international human rights treaties such as the Convention on the Elimination of all Discrimination Against Women.
Part V of the report includes specific policy recommendations to address climate change and gender equality. For example, they urge UN Secretary-General Ban Ki Moon and governments to include gender equality in the negotiations on climate change at the UNFCCC COP-13 in Bali in December 2007. Because of the disproportionate impact of climate change upon underprivileged women, governments should identify protective measures related to floods, droughts, heat waves, and diseases. The report also calls for the world community to make the reduction of high levels of female mortality rates resulting from these calamities a priority. The roundtable called for the UNFCCC to create a gender strategy, devote resources to gender-specific climate change research and develop reporting tools that nations could implement to provide data to the UNFCCC.
Warsaw Declaration on Forests (November 5-7, 2007)
The Ministerial Conference on the Protection of Forests in Europe (MCPFE) is an organization comprised of 46 European countries, and the European Union. At its fifth Ministerial meeting in Warsaw, Poland November 5-7, 2007, 16 ministers with portfolios encompassing forests and forestry, as well as delegations from over 40 European nations, and the European Commission convened to discuss the best possible way in which to manage the forests of Europe sustainably. The Conference resulted in a Ministerial Declaration and two resolutions that 38 MCPFE signatories adopted for implementation in their home nations.
In the Warsaw Declaration, nations commit to ensuring that forests and their management play a key role in fighting the harmful consequences of climate change. They agree to promote the use of wood as a renewable energy resource. They concur that the sustainable administration of forests should also serve to improve and preserve water quality and quantity as well as offsetting the problems of floods, droughts, avalanches, soil erosion, and desertification. They further commit to promote research on the role of forests in mitigating the deleterious consequences of climate change, and will strive to promote cooperate with the United Nations Framework Convention on Climate Change (UNFCCC), and the United Nations Convention on Combating Desertification (UNCCD).
The Society will convene its 102nd annual meeting at a time of political change. Accordingly, with a theme of “The Politics of International Law,” the 2008 Annual Meeting will explore such issues as the relationship between politics and international law, the politics of international organizations, and how political change affects international law. Download the complete theme statement.
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