Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law May 2, 2008
United States Supreme Court: Hall Street Assoc. v. Mattel, Inc. (March 25, 2008)
Click here for document. (Approximately 25 pages).
In a 6 to 3 decision, the Supreme Court held that the statutory grounds for vacating and modifying arbitration awards in the Federal Arbitration Act (FAA), 9 U.S.C. §§ 10,11 are exclusive and parties to a contract may not go beyond the statutory scope in the contract terms. Justice Souter wrote the majority opinion with which Chief Justice Roberts, and Justices Alito, Ginsburg, Thomas, and Scalia joined (with Scalia not joining footnote 7).
Hall Street Associates, L.L.C. served as a landlord to tenant Mattel, Inc. on land that had been used for manufacturing. The lease indemnified Hall Street for costs arising from the tenant’s (or its predecessors’) failure to follow environmental laws. When the Oregon Department of Environmental Quality (DEQ) tests showed high level of pollutants including trichloroethylene (TCE) in the well water on the property, Mattel and one of the predecessor tenants signed a consent order with the DEQ to clean it up. In 2001 Mattel notified Hall Street that it planned to terminate the lease and Hall Street sued, contesting the date Mattel planned to quit the property and claiming that the indemnity provision required Mattel to indemnify Hall Street for the cleanup of the site. Mattel prevailed in the Federal District Court on the termination issue, and when the parties were unable to resolve the indemnification issue through mediation, they agreed to arbitrate. The arbitration agreement included a standard of review allowing the District Court to modify, vacate, or correct any award where the arbitrator’s conclusions of law were erroneous. The arbitrator held in favor of Mattel because he distinguished between the provision of the lease requiring compliance with “environmental” laws with the Oregon Drinking Water Quality Act (Oregon Law) which he characterized as involving human health.
Hall Street moved for an order vacating, modifying or correcting the arbitral decision on the ground that the arbitrator erred by failing to treat the Oregon Law as an environmental law under the lease. The District Court concurred, vacated the award, and remanded to the arbitrator. The arbitrator amended his decision to favor Hall Street on the environmental law issue. Both parties then sought modification of the award at the District Court which upheld the arbitrator’s award and applied the standard of review set forth in the arbitration agreement. Both parties then appealed to the Court of Appeals for the Ninth Circuit where Mattel argued that the decision in Kyocera Corp. v. Prudential-Bache Trade Servs. Inc., 341 F.3d 987, 1000 (2003) governed. The Ninth Circuit concurred and held that under Kyocera the judicial review provisions of the arbitral agreement were unenforceable and severable. It remanded to the District Court to confirm the original arbitral award unless it should be vacated, modified, or corrected on other grounds permitted under FAA §§10, 11. The District Court held again for Hall Street and the Ninth Circuit reversed again. The Supreme Court then granted certiorari.
Section 2 of the FAA makes contracts to arbitrate “valid, irrevocable, and enforceable” if they involve “commerce.” Sections 9-11 of the FAA provides streamlined enforcement mechanisms of arbitral awards through a judicial order confirming an award, an order vacating it, or an order modifying or correcting it. The Court rejected Hall Street’s argument that “expandable judicial review” has been accepted practice since Wilko v. Swan, 346 U.S. 427 (1953); and the grounds set forth in §§10,11 were not exclusive. Hall Street asserted that “manifest disregard of the law” should be another grounds for vacating the award under §10. The Court opined that Wilko should not be read in this manner. The Court also examined the text of the FAA and held that its language did not support an interpretation to enforce a contract expanding judicial review after an arbitration. It thus vacated the judgment and remanded to the District Court to address issues that the parties’ had not raised below.
Justice Stevens filed a dissenting opinion in which Justice Kennedy joined. He opined that the majority’s decision conflicts with the main purpose of the FAA set forth in §2 to and the historical context from which it arose, mainly, courts’ antipathy to arbitration before passage of the FAA. He asserted that §§10 and 11 are “best understood as a shield meant to protect parties from hostile courts, not a sword with which to cut down parties’ ‘valid, irrevocable and enforceable’ agreements to arbitrate their disputes subject to judicial review for errors of law.”
Justice Breyer also filed a dissenting opinion. In his view, the FAA does not preclude a federal court from enforcing an arbitral award authorizing it to vacate an award that contained an arbitrator’s legal error. He nonetheless does not believe that additional proceedings are necessary in the case, and would remand to the District Court to enforce the arbitrator’s final award.
International Criminal Court: Arrest Warrant against Bosco Ntaganda Unsealed (April 28, 2008)
Pre-Trial Chamber I of the International Criminal Court unsealed the arrest warrant against Bosco Ntaganda on April 28, 2008. Ntaganda, also known as the “Terminator” served as the Deputy Chief of General Staff for Military Operations of the Forces Patriotiques pour la libération du Congo (FPLC) from July 2002 to December 2003. He is still at large. The Chamber originally sealed the August 2006 warrant against Ntaganda to prevent him from fleeing or impeding the investigation or the Court’s proceedings. The Court held ex parte hearings April 23, 2008 and determined that the circumstances that initially led it to seal the arrest warrant have changed. It cited several reasons for unsealing the warrant now including the fact that Ntaganda may already be aware of the arrest warrant against him; the Court has taken steps to protect witnesses in this case and the related cases of The Prosecution of Thomas Lubanga Dyilo and The Prosecution v. Germain Katanga and Mathieu Ngudjolo Chui; and unsealing the warrant may help officials in the Democratic Republic of Congo (DRC) to apprehend Ntaganda.
Pre-Trial Chamber I issued an arrest warrant against Ntaganda August 22, 2006 for using his authority as Deputy General Staff for Military Operations of the FPLC from July 2002 to December 2003 to enlist and conscript child soldiers younger than fifteen years of age and use them in hostilities in the DRC in violation of Article 25(3)(a) of the Rome Statute.
United States: Mora v. New York (2d Cir. April 24, 2008)
Click here for document. (Approximately 33 pages).
The United States Court of Appeals for the Second Circuit (Court) held that a state’s failure to notify a detained alien of his rights to consular notification and access pursuant to Article 36(1)(b) of the Vienna Convention on Consular Relations (Convention) does not create the basis for a suit under the Alien Tort Statute (ATS), 28 U.S.C. §1350, 42 U.S.C. §1983; or directly under the Convention. It thus affirmed the District Court’s dismissal of the complaint.
Plaintiff Ricardo A. De Los Santos Mora is a citizen of the Dominican Republic. Police arrested him in 1991 for attempted robbery. He claimed that he did not speak English and the police did not speak Spanish at the time of his arrest. He alleged that the defendants interrogated him without an interpreter and never informed him that he could contact his consulate. The court appointed him an attorney who also did not speak Spanish. The court sentenced him to six months incarceration and five years of probation. Mora filed a complaint December 5, 2005 against the New York City police department and the Queens District Attorney pursuant to the ATS, alleging that they violated Article 36 of the Convention by failing to notify him that he could contact his consulate. He sought damages of $1 million. The District Court dismissed December 30, 2005, holding that Article 36 does not create individual rights enforceable in domestic courts. Mora appealed contending that the consular notification requirement of Article 36 created individual rights that could be enforced through the ATS, 42 U.S.C. §1983; and an implied private right of action under the Convention.
In its decision the Court examined the recent United States Supreme Court decision Medellin v. Texas, 552 U.S. ---, 128 S.Ct. 1346 (2008); in which the Supreme Court assumed, without deciding, that Article 36 creates judicially enforceable individual rights. The Court also examined the split in the Federal Circuits on this issue. See Cornejo v. County of San Diego, 504 F.3d 853 (9th Cir. 2007) (46 I.L.M. 1160 (2007) holding that the Article 36 consular notification provision does not create judicially enforceable rights. See also Jogi v. Voges, 480 F.3d 822, (7th Cir. 2007) holding that Article 36 does create individually judicially enforceable rights.
The Court followed well-established rules of treaty interpretation and turned to the text of the treaty for guidance on this issue. It found the fact that the treaty is silent as to whether individuals may seek redress in domestic court for violations of Article 36(1)(b) compelling and interpreted this to mean that the drafters of the Convention did not mean for it to convey an individual right. The Court also accorded great weight to the amicus brief that the U.S. Departments of State and Justice submitted indicating that they sided with the defendants’ stance not to recognize an individual right to enforce a violation of Article 36(1)(b) of the Convention in domestic courts.
The Court also discussed the decisions of the International Court of Justice (ICJ) in Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 21); and LaGrand (F.R.G. v. U.S.), 2001 I.C.J. 466 (June 27); and noted that the U.S. Supreme Court has indicated that while domestic courts should give “respectful consideration” of international court’s interpretations of treaties, they are not bound by them. It thus found the ICJ decisions not to be dispositive in this case on either the issue of whether Article 36(1)(b) confers an individual right for a violation; or whether 42 U.S.C. §1983 does. The Court turned next to the travaux préparatoires of the Convention but found that they do not set forth clear guidance on this issue.
The Court also examined Mora’s claim that the alleged violation of Article 36(1)(b) for unlawful detention without being notified that he could contact his consulate was a tort in violation of the ATS, 28 U.S.C. §1350. The Court rejected this claim under the standard set forth in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) because it was not specific, nor universal enough. It thus affirmed the District Court’s dismissal of the complaint.
United States: Belbacha v. Bush (D.C. Cir. March 14, 2008)
Click here for document. (Approximately 12 pages).
The United States Court of Appeals for the District of Columbia remanded the case to the District Court to determine whether a preliminary injunction is necessary or appropriate to prevent a detainee at Guantanamo Bay from .being transferred to Algeria and possibly facing torture.
The case concerns Ahmed Belbacha, an Algerian national being detained at Guantanamo Bay, Cuba. He petitioned the District Court for a writ of habeas corpus in 2005 challenging his detention. With that petition pending in July 2007 he also sought an order preventing his transfer to Algeria on the grounds that the government was likely to torture him and he faced danger from an extremist group. The District Court refused to prevent the transfer citing the Military Commissions Act (MCA) Pub. L. No. 109-366 (see 45 ILM 1246 (2006)); and the decision of the Court of Appeals in Boumediene v. Bush, 476 F.3d 981 (2007), cert. granted, 127 S. Ct. 3078 (2007); upholding the constitutionality of 7(a)(1) which strips federal court’s jurisdiction over detainees’ habeas petitions. The Government argued that §7(a)(2) of the MCA, which prevents federal courts of jurisdiction to hear “any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien.” The Court held however, that the All Writs Act, 28 U.S.C. §1651, permits it to exercise its equitable remedial power to issue an injunction to preserve its jurisdiction. Citing Ellipso, Inc. v. Mann, 480 F.3d 1153 (D.C. Cir. 2007); the Court set forth the four factors it used to determine whether to issue a preliminary injunction: 1) whether the moving party has a substantial likelihood of success on the merits; 2) whether the movant faces irreparable harm without the preliminary injunction; 3) whether the injunction would substantially injure the opponent; and 4) whether the injunction furthers the public interest. While it opined that it was far from certain whether Belbacha would prevail on the merits of his habeas petition, nonetheless because of the possible peril he might face were he to be sent to Algeria, it would not say that his motion fails as a matter of law. It thus remanded the case to the District Court to determine, based upon an analysis of the four factors above, whether a preliminary injunction was “necessary or appropriate.”
Judge Randolph dissented noting that the majority has overly complicated the issue before it and it should rather have issued a writ under the All Writs Act to prevent Belbacha’s transfer to Algeria pending the decision of the Supreme Court in Boumediene v. Bush.
United States: Choe v. Torres (9th Cir. April 29, 2008)
Click here for document. (Approximately 10 pages).
The United States Court of Appeals for the Ninth Circuit (Court) affirmed the District Court’s order denying a petition of habeas corpus with respect to the charge that Man-Seok Choe a Korean citizen (Choe) bribed a Korean police officer Yoon Ki Jeon (Jeon). The Court reversed the District Court’s denial of habeas corpus with respect to another charge against Choe, that he bribed Myung Soo Hwang (Hwang), a member of the Korean National Assembly. It remanded to the District Court with instructions to strike a portion of the offense with which he was charged but to still deny the petition for habeas corpus.
Choe is a Korean citizen living in Los Angeles who traveled often to Korea during the 1990s to conduct business. On one such visit, he learned that he was being investigated. He fled Korea and returned to California. Korea requested Choe’s extradition and the U.S. took him into custody. A federal magistrate held that Choe could be extradited pursuant to the 1998 extradition treaty between the U.S. and Korea (Treaty) and certified two crimes for extradition. Choe then petitioned the District Court for a writ of habeas corpus, which the court denied. Choe appealed this decision to the Ninth Circuit Court of Appeals.
The extradition papers assert that Choe, acting on behalf of Alsthom Co, promised Hwang a large reward if Hwang used his authority to help Alsthom successfully obtain a contract to provide Korea with high speed train cars for the national transportation system. Alsthom won the bid and allegedly paid Choe $11 million, and Choe purportedly paid Hwang $400,000. When Korean officials opened an inquiry into Choe’s activities Choe allegedly bribed police officer Jeon in 1996 to have the investigation closed.
The Court examined Article 2 of the Treaty providing that a crime is extraditable if it is punishable under the laws of both nations, the “dual criminality” requirement. It rejected Choe’s argument that he should not be extradited because Article 2 of the Treaty requires the crimes in both nations to be “substantially analogous” and the Korean law under which he was charged was not substantially analogous to the U.S. law. The Court noted that both nations’ laws addressed the “same basic evil” of the corruption of public officials, and thus met the standard for “substantially analogous” under the standard set forth in Clarey v. Gregg, 138 F.3d 764 (9th Cir. 1998). The Court nonetheless reversed the District Court’s denial of habeas corpus with respect to this alleged offense holding that competent evidence was lacking to show that there was probable cause that he actually committed the particular acts for which extradition was requested under Article 8(3)(c) of the Treaty, bribing Hwang. It affirmed the District Court’s order denying habeas corpus with respect to the allegation of bribing officer Jeon, holding that there was probable cause for the Magistrate to conclude that he committed this crime because there was eye witness testimony to this fact and a bank statement supporting the bribe.
The Court rejected Choe’s argument that pursuant to Article 6 of the Treaty, he could not be extradited because prosecution of the crime of bribing a public official would be barred in the U.S. by the statute of limitations of five years. Choe allegedly bribed Jeon in 1996 and Korea did not request his extradition until 2005. Pursuant to U.S. law 18 U.S.C. §3290 the statute of limitations is not tolled if the accused flees from justice. Choe fled from Korea to California without his passport and without informing the Korean officials where he was going in 1999, within the period of the statute of limitations.
United Nations Human Rights Council Report of the Special Representative of the Secretary-General on the issue of Human Rights and Transnational Corporations and other business enterprises, John Ruggie (April 7, 2008)
Click here for document. (Approximately 27 pages).
The Human Rights Commission adopted a resolution April 20, 2005 in which it requested the United Nations Secretary-General to appoint a Special Representative on the issue of human rights and transnational corporations and other business enterprises. The mandate of the Special Representative encompasses identifying and clarifying standards of corporate responsibility with respect to human rights; examining states’ role in regulating and adjudicating corporations in the sphere of human rights; creating procedures and materials for states to conduct human rights impact assessments of global corporations; and developing a list of “best practices” of states, transnational corporations, and other businesses. Secretary-General Kofi Annan appointed John Ruggie to this post on July 28, 2005. Ruggie is Evron and Jeane Kirkpatrick Professor of International Affairs at the Harvard Kennedy School, and served as Assistant Secretary-General and Chief Advisor for strategic planning to United Nations Secretary-General Kofi Annan from 1997-2001. After being appointed Special Representative, Ruggie held 14 consultations on five continents, performed research, met with of law firms, non-governmental organizations, and individuals, and developed two reports to the Human Rights Commission and the Human Rights Council.
This report presents a framework to help direct those in the international business and human rights communities. It is based upon three premises: 1) States have a duty to protect against human rights abuses by third parties; 2) corporations have a duty to respect human rights; and 3) victims of human rights abuses need more effective access to remedies.
The report cites a need to address “governance gaps,” which it defines as being the disconnect between economic forces and actors and societies’ inability to manage their negative consequences. It notes that the legal framework governing transnational corporations has not kept up with the pace of their development. Further, some states in which transnational corporations operate are unable to enforce domestic laws against them even when the political will to do so is present. The report notes that in the 2006 report of the Special Representative, he found that the worst allegations of corporate-related human rights abuses occurred disproportionately in low-income nations in post-conflict or an ongoing conflict and where the rule of law was weak and corruption great.
The report dubs the framework “protect, respect, and remedy.” It calls for human rights treaty bodies to provide guidance and make recommendations to states regarding their duty to protect in relation to corporate actions. It calls for a revision and update to be made to the OECD Guidelines for Multinational Enterprises (2000) to provide greater detail and to keep pace with voluntary compliance standards that many corporations now have in place. It cites the “restraining effect” that UN Security Council resolutions have had by targeting certain companies in the Democratic Republic of the Congo, Sierra Leone, and Liberia, and that the Secretary-General has recently recommended that these sanctions be continued and ameliorated. The report counsels against developing a specific list of rights for which corporations must bear responsibility because corporations may have, or be viewed as having, an impact upon most internationally recognized human rights.
Committee of Permanent Representatives to the United Nations Environment Programme Decisions Adopted by the Tenth Special Session of the Governing Council/Global Ministerial Environment Forum and the Summary of the Presidents of the Discussions of Ministers and Heads of Delegation at the Tenth Special Session of the Council/Forum
Click here for document. (Approximately 10 pages).
The United Nations created the UN Environment Programme (UNEP) in 1972. It works with governments, the private sector, and civil society to protect natural resources worldwide, promote “best practices” and share knowledge and technology. It assists governments to anticipate and respond to disasters caused by environmental factors and assesses and mitigates the environmental consequences of armed conflict.
The UNEP Governing Council is comprised of 58 members that the General Assembly (GA) elects to four-year terms. It reports to the GA through the Economic and Social Council. In 1999 the GA supported a proposal to hold an annual global ministerial-level environmental forum (GMEF) for participants to assess emerging environmental policy issues. The GMEF met for the first time in May 2000 in Malmo, Sweden. The GMEF now meets each year in tandem with the UNEP’s Governing Council regular and special sessions.
Representatives from 138 UNEP member states met in Monaco February 20-22, 2008 to attend the tenth special session of the UNEP Governing Council (GC)/GMEF. The meeting resulted in a number of decisions. With respect to sustainable development of the Artic region it commended the Artic Council for its work and encouraged the UNEP to cooperate with the Artic Council and other appropriate regional and international organizations. It urged the governments of Artic states and interested parties to continue to apply the precautionary approach in Principle 15 of the Rio Declaration on Environment and Development regarding actions that could affect the Artic. The GC welcomed the UNEP “Medium-Term” strategy 2010-2013 and authorized the Executive Director to use it to development the strategic framework and budget as a way to coordinate the work across the UNEP divisions. It noted the significance of the findings of the Fourth Assessment Report of the Intergovernmental Panel on Climate Change and invited the UNEP to consider proposing an International Decade for addressing Climate Change for 2010-2020. It asked the Executive Director to facilitate and support states’ efforts to perform national assessments of climate change within the Bali strategic plan. It requested the Executive Director to provide it with a report at the next session a summary of the international environmental assessments, identifying possible lacunae or redundancies; as well as options for creating a scientifically-credible and policy-relevant international examination of environmental change as well as a cost-benefit analysis.
Public Submission to the Office of Trade and Labor Affairs under the Dominican Republic--Central American Free Trade Agreement (DR-CAFTA) Concerning the Failure of the Government of Guatemala to Effectively Enforce its Labor Laws and Comply with its Commitments Under the ILO Declaration on Fundamental Principles and Rights at Work (April 23, 2008)
Click here for document. (Approximately 25 pages).
The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the Union of Port Quetzal Company Workers (STEPQ), the Union of Izabel Banana Workers (SITRABI), the Union of International Frozen Products, Inc. Workers (SITRAINPROCSA), the Coalition of Avandia Workers, the Union of Fribo Company Workers (SITRAFRIBO), and the Federation of Food and Similar Industries Workers of Guatemala (FESTRAS) (petitioners), filed the first complaint of its kind with the United States Department of Labor’s Office of Trade and Labor Affairs (OTLA) April 23, 2008 pursuant to Chapters 16 (labor) and 20 (dispute settlement) of the Dominican Republic—Central American Free Trade Agreement (DR-CAFTA). The DR-CAFTA entered into force between the United States and Guatemala July 1, 2006. The complaint alleges violations of both Guatemala’s labor laws and the International Labor Organization’s (ILO) Declaration on Fundamental Principles and Rights at Work.
Specifically, petitioners assert that Guatemala failed to enforce labor laws regarding the right to free association of union members and failed to investigate death threats against union members and the assassination of a STEPQ’s General Secretary, Pedro Zamora. They allege that Guatemala failed to enforce union laws with respect to good faith bargaining, unlawful dismissal of union members in violation of Article 1 of the ILO Convention 98, and the terms of bargaining agreements. The petitioners request the U.S. to invoke the Cooperative Labor Consultations provision of Article 16.6 of DR-CAFTA and mandate that Guatemala take the steps necessary to comply with international and domestic labor laws. If the consultations with Guatemala are unsuccessful, the petitioners request the U.S. to invoke the dispute settlement mechanism and proceed with a formal dispute procedure until Guatemala ensures that international and domestic labor laws are recognized and enforced.
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