International Judicial Monitor
Published by the American Society of International Law and the International Judicial Academy
April 2008 Issue

cases of note

UK House of Lords: R (on the application of Al-Jedda) (FC) v. Secretary of State for Defence (December 12, 2007)

Click here for document. (Approximately 69 pages)

A national of both Britain and Iraq, Mr. Al-Jedda, detained by UK security forces in Iraq since 2004 on suspicion of being a terrorist, challenged a 2007 Court of Appeals decision against him that his detention violated his right under Article 5(1)(liberty and security) of the European Convention on Human Rights (Convention) as applicable to the United Kingdom through its 1998 Human Rights Act (HRA). He sought to be released and a declaration that his detention was unlawful. The House of Lords decided to dismiss the appeal, with a majority agreeing that the UN did not exercise effective control over the UK forces in Iraq, and Lord Rodger dissenting on this point.

Relying upon the decision of the European Court of Human Rights (ECtHR) in Behrami v. France, Saramati v. France, Germany and Norway¸ (May 2, 2007) see 46 ILM 743 (2007), counsel for the Secretary of State argued that the actions of the British forces in detaining Al-Jedda were attributable to the United Nations under international law. They contended further that the British forces were under an obligation pursuant to UN Security Council Resolution (SCR) 1546, and Articles 25 and 103 of the UN Charter, to detain Al-Jedda, and this duty superseded any duty pursuant to Article 5(1) under the Convention. Behrami and Saramati involved two joined cases, the latter discussing a man that French troops detained in Kosovo. The ECtHR held that it lacked the competence under the Convention to examine states’ contributions in Kosovo in fulfillment of their duties pursuant to SCR 1244 and a majority of the court thus held the applications to it inadmissible.

Lord Bingham of Cornhill enunciated the issues before the Court as being: 1) whether the detention of Al-Jedda was attributable to the UN and outside the scope of the ECtHR; 2) whether the UN SCRs and Articles 25 and 103 of UN Charter qualified Al-Jedda’s Convention rights so as not to violate Article 5(1); and 3) whether English common law or Iraqi law applied to Al-Jedda’s detention. He held that the first issue should be decided in favor of the appellant and against the Secretary of State. He did not find Behrami controlling and opined that the situation in Kosovo was very different than that in Iraq because the Multi National Force (MNF) in Iraq was not established at the behest of UN, and was not a subsidiary part of UN, unlike the UN Mission in Kosovo (UNMIK). On the second issue Lord Craighead suggests a balancing approach which would permit the UK to lawfully detain individuals pursuant to the authority in UN SCR 1546 where “imperative reasons of security exist,” but also to ensure that detainees’ Article 5 rights are infringed to the least extent possible. With respect to the third issue, he held that Al-Jedda's claim should be governed by the law of Iraq, as that is where the tort against him, the detention, occurred.

By contrast to Lord Bingham, Lord Rodger of Earlsferry held that Al-Jedda’s detention was attributable to the UN rather than the UK. He compared UN SCR 1244 which had governed the troops in Kosovso, with UN SCR 1546 which governed the MNF in Iraq. He reasoned that SCR 1546 explicitly authorized the MNF to intern people; and actually provided the Security Council more, not less, control over the MFN than did SCR 1244. He would therefore not permit Mr. Al-Jedda to bring suit in English courts under the HRA and would dismiss his appeal.

Baroness Hale of Richmond, Lord Carswell, and Lord Brown of Eaton-under-Heywood, generally concurred with Lord Bingham and would dismiss the appeal. Baroness Hale cited the recent House of Lords decision R (Al-Skeini) v. Secretary of State for Defence (2007), see 46 ILM 778 (2007) holding that Convention obligations are owed to those whom the UK detains in Iraq. Further, she concurred with Lord Brown of Eaton-under-Heywood that the role of the UN in Kosovo and Iraq was “completely different,” and in the latter it was concerned with the protection of human rights and compliance with humanitarian law, rather than restoring peace and security. She emphasized that individuals charged with the most serious crimes are the most in need of protection of the rule of law. Lord Carswell opined that while the United Kingdom may lawfully, for critical security reasons, intern individuals pursuant to SCR 1546, it must do so in such a way to minimize infringing upon detainee’s rights pursuant to Article 5(1) of the Convention.

Federal Court of Canada: Canadian Council for Refugees v. The Queen (November 29, 2007)

Click here for document. (Approximately 121 pages)

The Federal Court of Canada (Court) held that the United States does not meet the prerequisites for Canada to enter into a “Safe Third Country” Agreement (STCA) because it fails to comply with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture (CAT). Further, the Court held that Canada has also failed to conduct the parliamentary-mandated periodic reviews that the STCA requires to ensure that the U.S. met its Refugee Convention and CAT obligations.

The Canadian Council for Refugees (CCR), the Canadian Council of Churches (CCC), Amnesty International (AI), and John Doe, a Columbian refugee in the U.S., brought suit challenging the STCA between the U.S. and Canada. They alleged that the STCA was invalid because the U.S. failed to meet its obligations of complying with Article 33 of the Refugee Convention regarding the non-refoulement (return) provisions of the Refugee Convention and the CAT. The STCA precludes, with some exceptions, a foreign national from a “designated country” who attempts to enter Canada from claiming refugee status. Canada and the U.S. signed the STCA in 2002 and it entered into force December 29, 2004. Regulations incorporated the STCA into domestic Canadian law in the Immigration Refugee Protection Act (IRPA). Article 4(1) of the STCA requires the country of last presence to investigate the refugee status claim of any person arriving at a land border port of entry (not sea or air) who makes such a claim. The STCA operated so that when someone traveled through the U.S. to reach Canada by land and attempted to claim refugee status, Canadian authorities had to return the individual to the U.S. without considering his claim.

The Court articulated the central issue as being whether the regulation designating the U.S. as a safe third country was ultra vires Parliament’s power to create it. Section 102 of the IRPA conditioned entry into a STCA upon the government determining that the other nation met the requirements of the Refugee Convention and the CAT. The Court applied a standard of review of reasonableness to find that because the U.S. did not comply with international law, the government had no power to designate the country as safe for the purposes of the STCA. In its discussion of the U.S. failure to comply with the non-refoulement provisions of the Refugee Convention and the CAT, the Court found particularly persuasive the U.S. legislative requirement that asylum applications must be filed within one year after arrival in the U.S. or be time-barred. In Canada delay is never determinative of an asylum claim. The Court thus held that this requirement is not consistent with the Refugee Convention and CAT. The Court was also troubled by the expansion that the USA PATRIOT Act made to the definition of “terrorist activities” with the result that duress or coercion may no longer be considered a defense to engaging in material support of terrorists for the purpose of asylum claims. It contrasted the absolute prohibition against removal to torture contained in both Article 3 of the CAT and Canadian law with the practice in the U.S. where it is not an absolute bar for deportation.

In its examination of applicants’ claim that the government failed to conduct periodic reviews to determine whether the U.S. met its Refugee Convention and CAT obligations as a necessary condition for the STCA, the Court noted that while the legislation does not mention a specific timeframe for the reviews, it does indicate that they should be “continuous” and “regular.” The Court held that the fact that the government failed to conduct a single review in two years violates this provision.

United States Court of Appeals: Pielage v. McConnell (11th Cir. February 15, 2008)

Click here for document. (Approximately 16 pages)

In a case interpreting the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), the Federal Circuit Court of Appeals for the Eleventh Circuit (Court) affirmed the District Court’s dismissal of the suit pursuant to Federal Rule of Civil Procedure 12(b)(6) because it held that there was no “retention” or “wrongful retention” pursuant to Article 3 of the Convention.

Mariette Pielage of the Netherlands and James Vincent McConnell III of the United States met and became engaged in Alabama in the spring of 2004. In December 2004 Pielage became pregnant with McConnell’s child. She returned to the Netherlands in May 2005 to renew a visitor’s visa. While she was there, McConnell began dating another woman in Alabama and he instructed Pielage to remain in the Netherlands, cancelled her return plane ticket, and called off the engagement. Pielage gave birth to the baby Josha in the United States in September 2005. McConnell then applied for a paternity test and an order to establish custody, visitation, and child support. A DNA test proved McConnell to be the father. In September 2006 an Alabama Circuit Court granted McConnell’s ne exeat motion, which prohibited Pielage from taking the baby out of the court’s jurisdiction until the child custody issue was resolved.

In December 2006 Pielage brought suit in the District Court for the Southern District of Alabama alleging that the ne exeat order comprised an “unlawful retention” (the convention uses the terminology “wrongful removal or retention”) and violated the Hague Convention as implemented by the International Child Abduction Remedies Act (ICARA) 42 U.S.C. §11601-11 because it interfered with her custodial right to return the child to his habitual residence in the Netherlands. The District Court assumed that the Netherlands was Josha’s habitual residence but held in favor of McConnell that the ne exeat order did not constitute a wrongful removal or retention under the ICARA because Pielage had custody of Josha since his birth and after the order was entered.

Both the U.S. and the Netherlands are parties to the Hague Convention. Article 3 of the Convention defines what constitutes “wrongful” removal or retention. The Eleventh Circuit noted that this was an unusual Hague Convention and ICARA case because it does not involve the typical scenario of a non-custodial parent removing the child from a custodial parent or failing to return the child after visitation. Like the District Court, it assumed that the Netherlands is the child’s habitual residence.

In its analysis, the Court examined first, whether there had been any removal or retention; and if so, whether the removal or retention was unlawful. It opined that not every retention can be viewed as violative of a parent’s custody right because otherwise the term “wrongful” in the Convention would be surplusage. The Court examined the Explanatory Report on the 1980 Hague Child Abduction Convention which indicated that that the Convention is meant to address those situations where the child is removed from the family and social environments in which he has developed. Here, from the time of his birth until the District Court entered the ne exeat order, a period of about a year, Josha spent ten months in Alabama and only two in the Netherlands. The Court thus held that because there had been no “retention” there was likewise no “wrongful retention” either.

ECHR Grand Chamber: Advisory Opinion on certain legal questions concerning the lists of candidates submitted with a view to the election of judges to the European Court of Human Rights (February 12, 2008)

Click here for document. (Approximately 20 pages)

The European Court of Human Rights Grand Chamber (Court) issued its first advisory opinion on the merits February 12, 2008. Acting pursuant to Article 47 (advisory opinions) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention), the Court addressed the question whether a list of candidates to serve on the Court which otherwise satisfies the requirements of Article 21 of the Convention (criteria for office) may nonetheless be rejected because it does not include female candidates. The Court held that while guaranteeing a “certain mix in the composition of the candidates” for the Court is valid, some exceptions must nevertheless be permitted to ensure that contracting states are able to select national candidates who are able to meet the other requirements of Article 21. Because these exceptions have not yet been defined, the Court called for them to be defined as soon as possible.

The request for the advisory opinion arose out of an exchange between René van der Linden, Parliamentary Assembly (PA) President, and Malta. Van der Linden notified Malta in January 2007 that its failure to include women on its July 2006 slate of Court candidates contravened PA Resolution 1366 (2004), as modified in Resolution 1426 (2005). Malta responded that it complied with the Article 21 Convention requirements for judicial candidates when it submitted its list, and in any case the Convention does not specify that gender is one of the selection criteria.

The Chair of the Ministers’ Deputies of the Council of Europe requested the Court to provide an advisory opinion on two issues: 1) whether the PA may reject a list of candidates for the Court despite meeting the requirements of Article 21 because it does not include female candidates; and 2) whether resolutions 1366 and 1426 are in breach of the PA duty to examine candidates based upon the criteria in Article 21 of the Convention.

In its analysis the Court examined PA Resolutions 1366 and 1426 which specify that the PA will not consider lists of candidates which do not include at least one candidate of each sex. It analyzed the UN Convention on the Elimination of Discrimination against Women (CEDAW) Articles 4, 7, and 8 providing that states parties must take measures to eliminate discrimination against women and ensure their participation in the work of international organizations. It reviewed Council of Europe Regulations Article 12 (staff), and Article 22 (appointments) specifying that where candidates for the Court are of equal merit, preference should be given to the candidate of the sex which is underrepresented. It also examined the practice of other international tribunals such as the International Court of Justice and the International Tribunal for the Law of the Sea and found that only the International Criminal Court and African Court on Human and People’s Right possess non-binding rules attempting to balance gender in court composition.

Article 21 §1 requires judicial candidates for the Court to be of high moral character and hold the qualifications for appointment to high judicial office or be “juriconsults of recognized significance.” The Court stated that while Contracting Parties may go beyond the requirements of Article 21§1 in developing a list of candidates, they have nonetheless decided not to include additional qualifications in Article 21. The Court thus held that the PA cannot reject lists of candidates where Contracting Parties have complied with the requirements of Article 21. The Court held that it was unnecessary for it to answer the second question put to it.

United States Court of Appeals: Vietnam Ass'n for Victims of Agent Orange v. Dow Chemical Co. (2d Cir. February 22, 2008)

Click here for document. (Approximately 35 pages)

The Federal Court of Appeals for the Second Circuit (Court) affirmed the holding of the District Court dismissing the Plaintiffs' Alien Tort Statute suit on the grounds that they failed to demonstrate a violation of international law. It also affirmed the District Court's dismissal of Plaintiffs' domestic tort claims as being barred by the Government Contractor defense.

Plaintiffs, a group of Vietnamese nationals, brought suit September 14, 2004, against U.S. corporations under the Alien Torts Statute, 28 U.S.C.§1350, domestic tort, and Vietnamese law for injuries they sustained after being exposed to Agent Orange and other herbicides that the defendants manufactured and the U.S. military used during the Vietnam war. The plaintiffs alleged that the U.S. military violated international law by using the chemicals in South Vietnam from 1962 to 1970 and that the defendants either aided and abetted the military by providing it with Agent Orange, or alternatively, were liable in their corporate capacities. Plaintiffs sought monetary damages and injunctive relief. Defendants moved to dismiss the suit November 2, 2004, under Federal Rule of Civil Procedure (FRCP)12(b)(6) for failure to state a claim upon which relief could be granted. They asserted that Plaintiffs' cause of action failed to meet the standards that the United States Supreme Court articulated in Sosa v. Alvarez-Machain, 452 U.S. 692 (2004) of asserting a well-defined and universally-accepted rule of international law. Defendants also claimed that the Plaintiffs lacked standing, their suit was nonjusticiable under the political question doctrine, and that the government contractor defense also prevented their claims. Defendants also moved for partial summary judgment under FRCP 56 to dismiss Plaintiff's claims as being time barred by statute of limitations. The United States government submitted a Statement of Interest (SOI) January 12, 2005, in support of the Defendants. The District Court issued its opinion and order, as amended March 28, 2005 see In re Agent Orange Prod. Liab. Litig., 373 F.Supp. 2d 7 (E.D.N.Y. 2005). The District Court rejected the Defendants' argument that Plaintiffs' claims were nonjusticiable and held that the Plaintiffs' claims were not subject to statutes of limitation or the contractor defense, it nonetheless granted Defendants' 12(b)(6) motion on the grounds that Plaintiffs' failed to meet the Sosa standards for demonstrating violations of international law. The Plaintiffs appealed contending that Defendants violated customary international law norms against the use of "poisoned weapons" and the infliction of unnecessary suffering.

In affirming the dismissal of Plaintiffs' claims, the Second Circuit examined the 1925 Geneva Protocol for the Prohibition of the Use in Asphyxiating Poisonous or Other Gases and of Bacteriological Methods of Warfare (Protocol), which entered into force for the U.S. February 8, 1928; and found that the Protocol did not constitute binding customary international law during the war in Vietnam. It found compelling a lack of mens rea on the part of the U.S. military to injure the Vietnamese people. It reasoned that the U.S. military used Agency Orange as a defoliant to prevent U.S. troops from being ambushed, rather than intentionally as a "weapon of war against human populations."

International Centre for the Settlement of Investment Disputes (ICSID): Tokios Tokeles and Ukraine (Award) (July 26, 2007)

Click here for document. (Approximately 80 pages)

The Arbitral Tribunal dismissed all of the investor’s claims alleging the breach of the 1994 Bilateral Investment Treaty (BIT) for the Promotion and Reciprocal Protection of Investments between the Republic of Lithuania and Ukraine. The claimant asserted that the Ukrainian government’s actions amounted to a wrongful “expropriation” of his propriety rights and breached Ukraine’s obligation to accord fair and equitable treatment to his investment. Furthermore, in support of the Treaty-based claims, these violations were claimed to have constituted a breach of Ukrainian law by “failing to protect the Claimant’s business investments” and interfering in his activities. The Tribunal disagreed finding no violation of the BIT or Ukrainian law. Instead it ordered that each side should bear its own costs and expenses and contribute one half of the Costs of Proceedings.

The Claimant Tokios Tokeles, a Lithuanian corporation owed by Ukrainian nationals, sought damages of nearly USD 65 million for alleged interference with the business of its subsidiary ‘Taki spravy’ (TS). Tokios Tokeles established TS in the Ukraine as a publishing enterprise. The Claimant alleged that TS became the target of a series of measures taken against its management and personnel by state agencies, such as the Kiev tax administration, which interference with TS’ business activities in breach of the Lithuania-Ukraine BIT. The Claimant further contended that these interferences, pursued under the guise of tax investigations, were in reality politically motivated and taken as retaliation for TS’s publication of campaign materials supporting the political opposition. The respondent government of Ukraine maintained that its actions were part of a number of legitimate investigations of fictitious enterprises that allegedly had breached Ukraine economic laws and with which TS had been associated with in the past.

In its majority opinion, the Tribunal decided that Ukraine had not violated the BIT. It further dismissed the respondent’s repeated challenge to its jurisdiction. The Claimant revived this challenge partly in reliance on new facts, which he failed to disclose at an earlier stage of the proceedings. (See “the Decision on Jurisdiction.”)

The Tribunal held that the Claimant did not satisfy the burden of proof to establish a breach of Article 5 of the Treaty prohibiting expropriation without compensation. The Claimant had argued that the subsidiary had been deprived of a “reasonably to-be-expected economic benefit” and thus of a “substantial part of the value of its investment” which would constitute de-facto expropriation. Principally, the Claimant failed to show that the state agencies impaired the claimant’s subsidiary’s ability to function. In addition, he was not able to demonstrate that the state agencies damaged the subsidiary’s reputation to such an extent that its customer relationships were affected. The majority also dismissed the claims alleging breach of Articles 2 and 3 of the Treaty because the Tribunal was not able to infer a denial of “fair and equitable treatment” or “full protection and security” based on the facts presented by the Claimant.

The Tribunal acknowledged Ukraine’s contention that the investigation of other allegedly fictitious enterprises led the tax authorities to extend the investigation to TS. It also expressed skepticism about the claimant’s assertion that the investigations were the sole result of a political vendetta and had no “credible alternative explanation other than a concerted, malicious and politically inspired campaign”. The Tribunal doubted, however, Ukraine s explanation of the repeated initiations and closings of criminal proceedings against the investors in the course of only a few months’ dealings between the two parties. It also found the amount of time and resources the government had devoted solely to the claimant’s subsidiary for allegedly being engaged in “middle-rank tax fraud” questionable, especially in light of the fact that the investigations had coincided with the publication of documents hostile to the current government.

In his dissent, Daniel Price held that based on the ample amount of evidence that the Claimant submitted, Ukraine had indeed violated Article 3 of the BIT by not affording Tokios Tokeles’ investment “fair and equitable” treatment.

These synopses were provided by Susan A. Notar, Managing Editor, International Legal Materials.

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