International Judicial Monitor
Published by the American Society of International Law and the International Judicial Academy
December 2006, Volume 1, Issue 5

cases of note

United States District Court for the Eastern District of Virginia (Alexandria Division): Khaled El-Masri v. George Tenet, et al. (May 12, 2006)

The document is available on Lexis.

The United States District Court for the Eastern District of Virginia dismissed the claims of Khaled El-Masri (the “plaintiff”) who claimed to have been “an innocent victim of the United States’ ‘extraordinary rendition’ program.” The plaintiff, inter alia, asserted that, after having been seized by authorities in the former Yugoslav Republic of Macedonia where he was kept in a hotel room for 23 days, he was blindfolded and dragged into an airplane which took him to Kabul, Afghanistan. There, plaintiff contended to have been beaten and placed in a small, cold cell, a prison cell he contends is run by the CIA and is known as the “Salt Pit.” He was released after four months of captivity.

In his complaint the plaintiff, a German citizen of Lebanese descent, named several defendants, inter alia, former Director of the CIA George Tenet, certain unknown agents of the CIA, and several corporations. He asserted three causes of action. The first cause of action is brought against George Tenet and the unknown CIA agents for violations of his Fifth Amendment right to due process. A claim under the Alien Tort Statute (“ATS”) brought against all defendants for the violation of the international legal prohibition of prolonged arbitrary detention. Finally, the plaintiff also brought an ATS claim for the violation of the international legal norms prohibiting cruel, inhuman, or degrading treatment. 

The issue before the Court was whether the United States’ assertion of the state secrets privilege barred the case from proceeding. In its analysis, the Court first noted that the state secrets privilege is an evidentiary privilege, which must be “formally asserted by the head of the Executive Branch agency with control over the state secrets at issue.” The Court then stated that it needed to determine whether the privilege claimed qualified as a state secret and answered that question in the affirmative. The Court made note of the fact that the state secrets privilege is an absolute privilege, which is not subject to a judicial balance of the various interests at stake. It then concluded that the privilege had been validly asserted, as “any admission or denial of the allegations” asserted by the plaintiff would “reveal the means methods employed pursuant to this clandestine program and such a revelation would present a grave risk of injury to national security. Finally, the Court determined that no special procedural mechanisms would be adequate to prevent disclosure of the state secrets because “the very subject of the litigation is itself a state secret.” The Court concluded that “while dismissal of the complaint deprives El-Masri of an American judicial forum for vindicating his claims, well established and controlling legal principles require that in the present circumstances, El-Masri’s private interests must give way to the national interest in preserving state secrets. The United States’ motion to dismiss must therefore be granted.”

The plaintiff has filed an appeal to this decision.

World Trade Organization (Appellate Body): United States – Final Dumping Determination on Softwood Lumber (Recourse to Article 21.5 of the DSU) (August 15, 2006)  

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The WTO Appellate Body Report [hereinafter “WTO AB Report”] consists of several parts. The first part summarizes the procedural history in the dispute.  The second part provides a summary of the findings of the Article 21.5 Panel’s decision on 3 April 2006 (WT/DS264/RW), which found that the United States Department of Commerce was entitled not to offset the non-dumped transactions against the dumped transactions when calculating the margin of dumping for each respondent foreign producer or exporter.  Consequently, the Panel rejected Canada's claim that the Department of Commerce’s use of zeroing in the [transaction-to-transaction] comparison methodology at issue is inconsistent with Article 2.4.2 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994  [hereinafter “Anti-Dumping Agreement”].  In addition, the Panel rejected Canada's claim that the United States has violated the fair comparison obligation provided for in the first sentence of Article 2.4 of the Anti-Dumping Agreement."  The third part of the WTO AB Report outlines the arguments of Canada, the United States, and other third parties, following Canada’s appeal of the Panel’s 3 April 2006 decision.  The final part provides a summary and explanation of the reasoning and findings of the Appellate Body in reversing the findings in paragraphs 5.66 and 6.1 of the Panel Report, that the Department of Commerce's Section 129 Determination is not inconsistent with Article 2.4.2 of the Anti-Dumping Agreement finding instead, that the use of zeroing by the U.S. is inconsistent with the United States' obligations under Article 2.4.2 of the Anti-Dumping Agreement.  The Appellate Body also reverses the finding, in paragraphs 5.78 and 6.1 of the Panel Report that the U.S. Department of Commerce’s Section 129 Determination is not inconsistent with Article 2.4 of the Anti-Dumping Agreement finding, that the use of zeroing is inconsistent with the "fair comparison" requirement in Article 2.4.  Consequently, the Appellate Body reverses the conclusion, in paragraph 6.2 of the Panel Report, that "the United States has implemented the recommendations and rulings of the Dispute Settlement Body (DSB) in US – Softwood Lumber V, to bring its measure into conformity with its obligations under the [Anti-Dumping] Agreement".  Therefore, the Appellate Body recommends that the DSB request the U.S. to bring its measure into conformity with its obligations under the Anti-Dumping Agreement.

United States Court of Appeals for the District of Columbia: Natural Resources Defense Council v. Environmental Protection Agency et al. (August 29, 2006)

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The Court of Appeals for the District of Columbia (“the Court”) denied the petition for review filed by the environmental group Natural Resources Defense Council (“NRDC”).

The United States is a signatory state to the Montreal Protocol on Substances that Deplete the Ozone Layer (“the Protocol”), which seeks to reduce and eliminate the use and production of certain substances harmful to the ozone layer. The U.S. Senate ratified the Protocol in 1988, and Congress incorporated its terms into domestic law through the Clean Air Act Amendments of 1990. Article 2 H(5) of the Protocol provided for the signatories to cease production and consumption of methyl bromide by the year 2005. However, the protocol also allowed for a “critical use” exemption, according to which the States signatories can “permit the level of production or consumption that is necessary to satisfy uses agreed by them to be critical uses.” Accordingly, Congress amended the Clean Air Act to require the Environmental Protection Agency (“the EPA”) to “promulgate rules for reductions in, and terminate the production, importation, and consumption of, methyl bromide under a schedule that is in accordance with, but not more stringent than, the phaseout schedule of the Montreal Protocol.” The Parties to the Protocol meet annually in order to decide the level of production to be permitted for critical uses. After the Parties deadlocked over the amount of critical-use exemptions, they called an extraordinary meeting, at which Decision Ex.I/3 was adopted. It noted that “each Party which has an agreed critical use should ensure that the criteria in paragraph 1 of decision IX/6 are applied when. . . authorizing the use of methyl bromide and that such procedures take into account available stocks.” Decision IX/6 provided that exemptions should only be permitted “when all technically and economically feasible steps have been taken to minimize the required use and when methyl bromide is not available from existing stocks.” The EPA then adopted a Final Rule in which it authorized the use of stocks as permitted by Decision Ex. I/3 and permitted non-critical users to draw upon existing stocks.

NRDC alleged that the EPA’s “Final Rule violated Decision IX/6 and Decision Ex.I/3 because EPA failed to disclose the full amount of existing stocks, failed to offset new production and consumption by the full amount of these stocks, and failed to reserve the stocks for critical uses, and because the total amount of methyl bromide critical use the Final Rule authorized is not the technically and economically feasible minimum.”

The Court noted that “side agreements reached after a treaty has been ratified are not the law of the land; they are enforceable not through the federal courts, but through international negotiations.” To that effect the Court also stated that the decisions were “international political commitments rather than judicially enforceable domestic law” and therefore held that even if the Final Rule violated the decisions, it did not violate domestic law.

The Presbyterian Church of Sudan v. Talisman Energy, Inc., (S.D. N.Y., Sept. 12, 2006)

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The United States District Court for the Southern District of New York granted the defendant's motion for summary judgment in an Alien Tort Claims Act suit, finding that the plaintiffs failed to present sufficient admissible evidence of violations of international law to be able to proceed to trial on their claims.

Despite the court’s granting of the motion for summary judgment, the case is nevertheless noteworthy as an example of a recent line of cases in which multi-national corporations are sued under the Alien Tort Claims Act (see for example,  Doe I. v. Exxon Mobil Corp., 393 F. Supp. 2d 20 (D.D.C. 2005). 

Plaintiffs, purporting to represent all of the non-Muslims Africans living near lands in Southern Sudan replete with oil reserves, residents of Sudan, brought a suit pursuant to the Alien Tort Claims Act (ATS), 28 U.S.C. 1350, against Talisman, Inc., a Canadian oil and gas exploration company, and the Republic of Sudan, for having conspired with the government, or aided the government in committing genocide, war crimes, and crimes against humanity.  Talisman moved for summary judgment.  The plaintiffs opposed the motion for summary judgment.   They argued that Talisman engaged in a conspiracy to forcibly remove the non-Muslim Africans from the lands with the oil reserves and are therefore liable for the other acts of the co-conspirators.  The District Court disagreed under the holding of the United States Supreme Court in Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2719, 159 L.Ed. 718 (2004).  In Sosa, the United States Supreme Court ruled that for an ATS claim to be cognizable, it must be “norm of international character accepted by the civilized world and defined with specificity comparable to the features of the 18th century paradigms” that Congress envisioned when it enacted the ATS.  The District Court noted that international law extends conspiratorial liability only to conspiracies to commit genocide and to the waging of aggressive war, and not to the crimes against humanity claims contemplated by the plaintiffs.  In doing so, the court disagreed with the Eleventh Circuit in Cabello v. Fernandez-Larios, 402 F.3d 1148 (11th Cir. 2005).  The court also held that the plaintiffs had not identified requisite evidence to raise a material question of fact the Talisman could be found liable for aiding and abetting the Sudanese government in the commission of genocide, crimes against humanity, or war crimes, because plaintiffs were unable to demonstrate that Talisman committed an act that could be deemed to constitute “substantial assistance” to the government in contravention of international law.  The court dismissed claims brought by the Nuer Community Development Services (NCDS) because NCDS is not an alien and therefore is not able to bring suit under the ATS. 

European Court of Human Rights, Case of the Moscow Branch of the Salvation Army v. Russia (October 5, 2006)

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The European Court of Human Rights (ECHR) held that the Moscow Branch of the Salvation Army (Moscow Branch) was a “victim" and the Russian Federation violated its rights to freedom of religion, of association, and discrimination as a religious minority pursuant to Articles 34, 9, and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) when it refused to re-register it as a religious association.  The ECHR awarded the Moscow Branch 10,000 euros (EUR) in damages.

 In October 1997 a new law on Freedom of Conscience and Religious Associations (“the Religious Act”) entered into force.  It required all religious associations that had acquired status as a legal entity to re-register by December 31, 2000.  In February 1999, the Moscow Branch submitted its application to the Moscow Justice Department.  In August 1999, the Moscow Justice Department denied the Salvation Army’s application to re-register because an insufficient number of founding members had been present at a meeting, no visas of foreign members had been provided, and the application branch of the Salvation Army was likely a representative office of a foreign religious organization in London.  In September 1999, the Salvation Army contested the denial of its registration in a Moscow District Court.  The Moscow Justice Department reiterated its previous reasons for the denial and added another:  that the Russian Federation Presidential decree No. 310 of March 1995 prohibits the formation of paramilitary organizations, and the Salvation Army was a “paramilitary organization,” because its members wear uniforms and perform service.  In July 2000, the District Court upheld the refusal to reregister the Salvation Army because it was a part of an international religious organization and not an independent religious organization, the Constitution of the Russian Federation banned paramilitary formations, and the Moscow branch did not disclose its objectives.  The Moscow City Court upheld this decision on appeal in November 2000.  In May 2001, the Moscow Justice Department moved to dissolve the Moscow Branch and a Moscow District Court granted the Action.  The Moscow Branch then challenged the dissolution in the Constitutional Court, which held in February 2002 that the re-registration of a religious organization could not be made contingent on requirements that did not exist at the time of the formation of the entity, in this case, 1992.

The Moscow Branch brought suit in the ECHR in May 2001 against the Russian Federation claiming that the Federation’s denial of its registration as a legal entity violated Article 34 of the Convention, making it a "victim" for the purposes of the Convention.   It alleged that the Federation’s denial of its registration negatively impacted its ability to practice and worship its religion in contravention of Articles 9 and 11 of the Convention.  Article 9 provides for freedom of thought, society, and religion.  In its analysis, the ECHR noted that these rights are to be constrained only for the “interests of public safety, the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”  Article 11 provides for the rights of freedom of assembly and of association.  The ECHR emphasized that it had previously held in numerous cases that the freedom of thought, religion, and conscience is one of the crucial foundations of a democratic society.  Citizens must be permitted to create a legal entity to work collaboratively.  While States have the right to reassure themselves that an organization’s goals comply with state legislation, this goal must be achieved while still complying with Convention obligations.  The ECHR emphasized that any restrictions upon freedom of association must be based upon a “pressing social need.”  It found that there had been an interference with the freedom of association of the Moscow Branch.  It found that the Government’s arguments that the Moscow Branch had a foreign origin were neither germane nor adequate to refuse to re-register it.  The ECHR also rejected the Government’s argument that the Salvation Army uniforms meant that it was a paramilitary organization stating, “[i]t could not be seriously maintained that the applicant branch advocated a violent change of constitutional foundations or thereby undermined the integrity or security of the State.”  Because branches other than that of the Moscow Branch were permitted to re-register, the ECHR also found that Russia had treated the Moscow branch inequitably.

House of Lords, Secretary for the Home Department v. K (FC), [2006] UKHL 46 (October 18, 2006).  

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At issue before the House of Lords was whether the appellants’ well-founded fear of being persecuted for membership in a “protected social group” entitled them to refugee status pursuant to Article 1(A)(2) of the 1951 Convention Relating to the Status of Refugees (the Convention) and the 1967 Protocol. 

The Convention defines a “refugee” as any person who “[o]wing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, outside the country of his nationality and is unable, or, owing to such fear, is unwilling to avail himself of the protection of that country. . . .”   All of the Law Lords held that the appellants did fall within respective “particular social groups” and would allow appellants to appeal. 

The first appellant is Iranian.  After the arrest and disappearance of her husband in 2001, Revolutionary guards appeared at her home and raped her.  She fled to the United Kingdom and claimed asylum.  The Secretary of State denied her asylum claim and appellant appealed this decision to an adjudicator who held that she had a well-founded fear of persecution.  The Secretary of State appealed this determination to an Immigration Appeal Tribunal that held that because the appellant’s husband had not been persecuted for a Refugee Convention reason, the members of his family could not also be viewed as being so persecuted.

The second appellant is from Sierra Leone.  She claimed asylum in March 2003, claiming that, if she returned to her home nation she would be subjected to female genital mutilation (FGM).  The Secretary of State granted her limited leave to enter but denied her claim of asylum because he did not view girls at risk of FGM as a social group under the Refugee Convention.  The second appellant appealed this determination to an Adjudicator, who held that the appellant’s fear to return to her home nation was because of her membership in a particular social group:   young, single Sierra Leonean women at risk of FGM.  The Secretary of State appealed this determination to an Immigration Appeal Tribunal and the decision was reversed.  The second appellant then appealed the challenged the Immigration Tribunal’s decision. 

In his opinion, the Lord Bingham of Cornhill noted that for refugees to obtain sanctuary under the Convention, they must fall within one of five categories:  1) race; 2) religion; 3) nationality; 4) political opinion; and 5) particular social group.  At issue in this case is the fifth category.  To help define what constitutes a “particular social group,” for the purposes of the Convention, Lord Bingham analyzed the UNHCR and EU Council Directive  2004/83/ED.   He emphasized that an individual is entitled to be treated as a refugee only where the persecutory treatment that the claimant fears is causally connected to a particular Convention category. 

While the Lords concurred in permitting both appellants to appeal, their analyses and definitions of “particular social group” differ.  Lord Bingham and Lord Rodger held that they would allow the first appellant’s appeal, finding that her membership in her husband’s family constituted a “particular social group,” for the purposes of the Convention.  Lord Bingham and Baroness Hale would allow the second appellant’s appeal on the ground that she is a member of the particular group of uncircumcised women in Sierra Leone.  Baroness Hale added that “[t]he answer in each case was so blindingly obvious that it must be a mystery to some why either of them had to reach this House,” and she focused specifically upon the persecution the appellants faced because of their gender.  Lord Craighead would avoid defining the second appellant in terms of whether she is likely to be persecuted, and instead focus on second appellant’s status as an uninitiated woman in Sierra Leone.  Lord Rodger would focus on both uninitiated and intact women forced to undergo FGM.

The synopses are from Susan A. Notar, Managing Editor, International Legal Materials and Elena Papangelopoulou.

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