cases of note
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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
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
The plaintiff has filed an appeal to this decision.
World
Trade Organization (Appellate Body):
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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
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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
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
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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.
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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
The Moscow Branch brought suit in the ECHR in May 2001
against the
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
The second appellant is from
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
The synopses are from Susan A. Notar, Managing Editor, International Legal Materials and Elena Papangelopoulou.