cases of note
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Report of the United States of America Submitted to the UN High Commissioner for Human Rights in Conjunction with the Universal Periodic Review (August 2010)
Click here for document (approximately 29 pages)
The United States has submitted to the United
Nations Human Rights Council its report for the Council’s Universal Periodic
Review (UPR)—a review mechanism established by the UN General Assembly in 2006
to review and assess every four years the human rights records of the United
Nations’ 192 Member States. The self-evaluation emphasizes important
developments in the United States regarding the protection of human rights,
focusing specifically on the current administration’s efforts. The review also
mentions several areas that still need to be developed, including the current
anti-immigration law in Arizona.
Some have criticized the review as being too positive and self-praising. For
example, while the review mentions President Obama’s executive orders on
detention and interrogation of detainees, the review only briefly refers to
allegations of torture, illegal detention, and mistreatment of prisoners.
United States Court of Appeals for the Ninth Circuit
Cassirer v. Spain and Thyssen-Bornemisza Collection (August 12, 2010)
Click here for document (approximately 44 pages)
The U.S. Court of Appeals for the Ninth Circuit issued an
important ruling on a contentious issue related to the Foreign Sovereign
Immunities Act (FSIA), 28 U.S.C. § 1602, et
seq. The FSIA makes foreign
states immune from suits in U.S. courts, unless the foreign state’s conduct
falls within one of FSIA’s exceptions. The exception at issue here is found in
§ 1605(a)(3), which provides that a foreign state is not immune in any case
that deals with “property taken in violation of international law” (also known
as the “expropriation exception”). The question the court had to answer was
whether the illegal taking of a painting, originally confiscated by Nazis in
1939 and then legally sold to Spain and one of its foundations, meant that Spain, the current “owner” of the painting, could not invoke immunity under the FSIA. The
court ruled that Spain and its government entity were not immune, thus allowing
the case to go forward.
The claimant, an American citizen, alleges that his grandmother’s painting was
confiscated by the Nazi government in Germany. The painting changed many hands
before it eventually was bought by a government-funded foundation in Spain. The claimant filed suit to recover the painting or damages from Spain and the foundation. Spain and the foundation filed a motion to dismiss, claiming, inter alia, that both were
immune from suit under the FSIA. The lower court dismissed the motion, and the
court of appeals affirmed, holding that the FSIA does not specifically require
that the expropriation exception apply only to the state that took the
property, but any state that ends up with the property:
We agree with the district court that the plain language of the statute does not require that the foreign state against whom the claim is made be the entity which took the property in violation of international law. Section 1605(a)(3) simply excepts from immunity “a foreign state” in any case “in which rights in property taken in violation of international law are in issue” (emphasis added). The text is written in the passive voice, which “focuses on an event that occurs without respect to a specific actor.” Dean v. United States, 129 S. Ct. 1849, 1853 (2009).
The
dissent pointed out the potentially “important diplomatic implications” this
decision may have and criticized the majority for not considering the Congress’
intent and failing to consult with the Department of State and Department of
Justice. According to the dissent, the majority hastily concluded that the FSIA
was unambiguous and as a result failed to employ principles of statutory
construction.
The ruling allows the claimant to proceed in his
case against Spain and the foundation.
United States District Court for the District of Columbia
Al-Qurashi v. Obama (August 3, 2010)
Click here for document (approximately 50 pages)
The U.S. District Court for the District of
Columbia recently issued a partially-redacted memorandum opinion and order
denying petitioner Al-Quarashi’s motion to suppress certain statements by him
on grounds that they were involuntary and procured through coercion and
torture. The petitioner, a Yemeni national, alleges that during his detention
in Pakistan, he was coerced by Pakistani authorities to invent a story linking
him to an al-Qaeda training camp in Afghanistan.
Sabry Mohammad Ebrahim Al-Qurashi alleges that he is being unlawfully detained
in Guantanamo and that the facts supporting his detention—personal statements
that he attended an al-Qaeda training camp—were false and illegally obtained.
According to Al-Qurashi, Pakistani authorities promised him that the U.S. government would treat him well and release him if he confessed that he attended a training
camp; however, if he were to tell the “truth” about his reason for visiting Afghanistan, he would be tortured and detained indefinitely. To aid him in fabricating his
fictional link to al-Qaeda, Al-Qurashi claims that Pakistani authorities showed
him images of the military training facility, made him memorize names, routes,
and other information that would make him a seemingly valuable member of
al-Qaeda. Al-Qurashi claims that initially he refused to lie, but after being
severely beaten and threatened with more physical harm, he reluctantly agreed
to tell an American agent false stories.
The U.S. government argues, however, that it has a solid case, which rests
mostly on the same statements that the petitioner claims were illegally
obtained.
Judge Huvelle held that if the petitioner’s initial statements were voluntary,
then “the voluntariness of later statements . . . would be rendered
irrelevant.” On the contrary, if his initial statements were involuntary
because he was tortured, his subsequent statements “could arguably be tainted
by that initial torture, regardless whether he was further mistreated in . . .
other locations.” According to Judge Huvelle, the government’s claim denying
that the statements were obtained illegally was more reliable. She based her
decision on several factors, including the inconsistencies within the
petitioner’s account of the events, the petitioner’s inability to show proof of
torture, conflicting timelines in petitioner’s statements, and other details
that did not match up. As a result, Judge Huvelle concluded that the government
sustained its burden of proof that the “incriminating statements were made
voluntary and are therefore admissible.” This means that the case against
Al-Qurashi will proceed to trial.
United States Department of Defense Military Commissions
United States v. Khadr, Suppression Motion Ruling (August 17, 2010)
Click here for document (approximately 9 pages)
Military Judge Patrick J. Parrish, presiding over
the military commission against Omar Khadr for alleged war crimes, has denied
the accused’s suppression motions, finding that the U.S. government “met its
burden to show the admissibility of the statements and videotape by a
preponderance of the evidence.” In the nine-page decision, Judge Parrish gives
a brief description of Khadr’s claims that his incriminating statements were
made under torture and that the videotape is a “fruit of the poisonous tree,”
but ultimately rules that his allegations are unsubstantiated.
Khadr, a Canadian citizen currently being tried by a military commission, was
fifteen when he was first captured in a fight against American forces in Afghanistan. During the fight, Khadr allegedly threw a grenade that mortally wounded a U.S. soldier. A videotape depicting Khadr with an explosive device was later uncovered and
is one of the major pieces of evidence in the case against Khadr. Khadr has
asked that his incriminating statements and the videotape be suppressed as both
were obtained illegally through torture or threats of torture. Specifically,
Khadr argues that the videotape is “fruit of the poisonous tree,” meaning that
its inclusion should be prohibited because it was found directly from illegally
procured statements.
The U.S. government claims that Khadr was never tortured or mistreated. In
fact, the government states, U.S. medics saved his life. The U.S. government asserts that Khadr’s allegations of being threatened, being forced to wear
a hood during interrogations, being refused medical treatment, being frightened
by dogs, and being forced to endure stress positions and other cruel
environments were false and without proof. Finally, the U.S. government argues, the videotape was not found because of a statement made by Khadr
during the interrogations but confiscated as part of a separate search of the
premises where the initial fight took place.
Judge Parrish agreed with the government, ruling that “under the totality of
the circumstances, the statements offered against the accused are reliable,
possess sufficient probative value, were made voluntarily, [and] are not the
product of torture or mistreatment.”
United States Court of Appeals for the District of Columbia
Bennett v. Islamic Republic of Iran (September 10, 2010)
Click here for document (approximately 14 pages)
The U.S. Court of Appeals for the District of Columbia Circuit ruled that Iranian diplomatic and consular properties currently held by the United States are immune from attachment to satisfy a default judgment, even if the United States periodically rents one of the properties to third parties for non-diplomatic use.
Plaintiffs, parents of a U.S. citizen killed in a bombing later attributed to Iran’s support of Hamas, won a default judgment against Iran in excess of $12 million. They sought to satisfy this award by attaching several properties in Washington, D.C., including the former residence of the Iranian Ambassador. The U.S. government intervened and moved to quash the attachment procedure under the Terrorism Risk Insurance Act (TRIA), which permits the attachment of “blocked assets of state sponsors of terrorism to satisfy judgment for compensatory damages for acts of terrorism” unless such “property is subject to the Vienna Convention on Diplomatic Relations” and the property “is being used exclusively for diplomatic or consular purposes.” The parties agreed that the properties were once used for diplomatic purposes, but disagreed whether the subsequent U.S. rental of the ambassador’s residence for non-diplomatic use cancelled the general rule providing immunity.
The Court concluded that the plain reading of TRIA only requires that the court look at “the purpose for which the property is used, and not the way the property is used in service of that end.” As a result, the Court reasoned, since the U.S. government used the rent proceeds solely to maintain and repair the properties, thus “facilitat[ing] compliance with its treaty obligations under the Vienna Convention, the properties are not subject to attachment under TRIA.”
United States Court of Appeals for the District of Columbia
Al-Bihani v. Obama (August 29, 2010)
Click here for document (approximately 113 pages)
The U.S. Court of Appeals for the D.C. Circuit denied Ghaleb Nassar Al-Bihani’s petition for rehearing en banc of his habeas corpus request. Al-Bihani is currently detained in Guantanamo as a U.S. enemy combatant. In an earlier decision, the D.C. Circuit denied Al-Bihani’s habeas petition and ruled that the U.S. President’s war power of detention under the 2001 Authorization for Use of Military Force (AUMF) is not restricted by international law not incorporated into U.S. domestic law.
Unusual in a decision denying rehearing en banc, all judges issued statements appended to the order. Chief Judge Sentelle and Circuit Judges Ginsburg, Henderson, Rogers, Tatel, Garland, and Griffith concurred in the denial of rehearing, stating that the court need not address the role of international law-of-war principles in interpreting the AUMF.
Also concurring, Circuit Judge Kavanaugh explained why the U.S. judiciary does not enforce international law. International law norms, Kavanaugh stated, may become domestic U.S. law by incorporation in a statute or by ratification of a self-executing treaty. Judge Kavanaugh asserted that international law found only in non-self-executing treaties or customary international law is not part of U.S. domestic law. Al-Bihani cited several sources of international law to bolster his argument that supporters of al Qaeda or the Taliban can only be detained if they engage in “direct participation” in hostile acts. Kavanaugh noted that none of those sources are incorporated in U.S. domestic law, so the court cannot apply them to limit the President’s power. Alternatively, Kavanaugh stated that the 2009 Military Commissions Act repudiates some international conventions.
Kavanaugh also noted that the AUMF’s silence with respect to international law “strongly suggests that Congress did not intend to impose judicially enforceable international-law constraints on the President’s war-making authority.” He explained that: (1) because there is no federal common law, courts should not interpret federal statutes to conform to international law not incorporated in domestic law; (2) alternatively, Murray v. Charming Betsy, 6 U.S. 64 (1804)—canon providing that national laws should not be construed to conflict with international law—cannot restrict executive power because courts should defer to executive authority in foreign policy; and (3) alternatively, Charming Betsy should not restrict executive acts of war expressly authorized by Congress.
Indicating that Hamdi v. Rumsfeld, 542 U.S. 507 (2004), stands narrowly for the proposition that international law informs judicial interpretation of the AUMF “to authorize at least what the international laws of war permit, subject of course to separate prohibitions found in domestic U.S. law,” Kavanaugh rejected Al-Bihani’s broad reading of Hamdi to use international law to limit the President’s war powers under the AUMF. Kavanaugh finally stated that if his analysis of AUMF is wrong, the President still has power under Article II of the U.S. Constitution, unlimited by international law, to detain al Qaeda and Taliban members, even if the Executive Branch abandoned its Article II basis for detention in this case.
Senior Circuit Judge Williams disagreed with some of Kavanaugh’s points. Williams noted that U.S. courts can use customary international law and non-self-executing treaties for statutory interpretation of language, and that if international law can broaden statutory executive power, it can also contract it.
Circuit Judge Brown questioned the need for the plurality’s statement regarding international law, since the denial of the habeas petition was independently supported by an alternate holding. Brown took issue with Williams’s statement that Boumediene v. Bush, 128 S. Ct. 2229 (2008), gives the judiciary authority to monitor military conduct, and noted that the balance of power between the political branches of government ensures accountable wartime decisions without improperly reading the AUMF as restricted by international law.
For more information and detailed reasons by the judges, please refer to the link above.
United States Court of Appeals for the Ninth Circuit
Mohamed v. Jeppesen Dataplan (September 8, 2010)
Click here for document (approximately 50 pages)
The Ninth Circuit affirmed the lower court’s dismissal of claims against a third-party for its alleged role in assisting in the torture of five individuals in the CIA’s extraordinary rendition program, concluding that material information necessary to establish plaintiffs’ claims was covered by the state secrets doctrine. Acknowledging “the difficult balance state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security,” the court nonetheless ruled that the case had to be dismissed because the government proved that proceeding with the case would “lead to disclosures harmful to U.S. national security.”
Plaintiffs alleged that Jeppesen had a crucial role in the U.S. rendition program and should be held liable under the Alien Tort Statute (ATS) for forced disappearance and torture and other cruel, inhuman, or degrading treatment. According to plaintiffs, Jeppesen “knew or reasonably should have known that the flights [it scheduled and planned] involved the transportation of terror suspects pursuant to the extraordinary rendition program,” as “inferred from the fact that they allegedly ‘falsified flight plans submitted to European air traffic control authorities to avoid public scrutiny of CIA flights.’” Also, plaintiffs claimed, “a Jeppesen employee admitted actual knowledge that the company was performing extraordinary rendition flights for the U.S. government.” Before Jeppesen answered the complaint, the U.S. government intervened, asking the Court to dismiss the action on the basis of the state secrets doctrine.
In the United States, courts have the authority to either bar the disclosure of certain privileged evidence (see United States v. Reynolds, 345 U.S. 1 (1953)) or dismiss a case in its entirety (see Totten v. United States, 92 U.S. 105 (1876)) “to prevent disclosure of state secrets” that could harm the country’s national security. Courts rarely dismiss a case outright; however, in situations where state secrets are the foundation of a claim, or where “the very subject matter of the action is ‘a matter of state secret,’” the court will dismiss without reaching the question of evidence.
As is the case here, the outright dismissal of a case effectively bars plaintiffs from having their day in court. According to the dissent, “the [state secrets] doctrine is so dangerous as a means of hiding governmental misbehavior under the guise of national security, and so violative of common rights to due process, that courts should confine its application to the narrowest circumstances that still protect the government’s essential secrets.” Instead of outright dismissal, the dissent recommended that the case be remanded to the lower court in order to determine whether, applying the Reynolds privilege, the case could proceed without the state secrets.
United States District Court for the District of Columbia
In Re Application of Caratube Int’l Oil Co. LLP (August 11, 2010)
Click here for document (approximately 12 pages)
The U.S. District Court for the District of Columbia denied the petition by Caratube Int’l, a U.S. company currently a party to an ICSID arbitration against Kazakhstan, seeking discovery under 28 U.S.C. § 1782(a) (Section 1782 petition). The Court ruled that “by unilaterally filing this petition, Caratube has side-stepped the [International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration] guidelines, and has thus undermined the Tribunal’s control over the discovery process.”
In June 2008, Caratube commenced arbitration against Kazakhstan in the International Centre for Settlement of Investment Disputes (ICSID) to resolve a contract dispute. As part of its usual procedure, the ICSID tribunal adopted a schedule setting the deadline for production of evidence (April 16, 2010). Discovery disputes between the parties led the tribunal to issue an order on April 26, 2010, which also allotted an additional four weeks for disclosure of discoverable material. On April 28, Caratube filed the Section 1782 petition with the district court and informed the tribunal of its actions, asking for a six-month extension of the arbitration schedule. The tribunal “expressed displeasure with Caratube’s unilateral actions,” but declined to order Caratube to cease and desist. The tribunal did not determine whether any evidence obtained through the Section 1782 petition would be admitted into evidence.
The Court, in determining whether to grant Caratube’s petition, reviewed the Section 1782 procedural requirements, including: 1) whether the entity asking for the petition resides or is found in the District of Columbia; 2) whether the discovery is for use in a proceeding before a foreign tribunal; and 3) whether the application is made by an interested person or by a foreign or international tribunal. The Court answered all the questions in the affirmative, but nonetheless denied the petition, relying on several factors identified by the U.S. Supreme Court decision Intel Corp. v. Advance Micro Devices, Inc., 542 U.S. 241, 264 (2004). Most notably, the district court stressed its reluctance “to interfere with the parties’ bargained-for expectations concerning the arbitration process.” The court found that by commencing the arbitration in ICSID, Caratube agreed to follow the procedures and rules applied therein. Furthermore, the ICSID tribunal had its own discovery schedule, one that Caratube did not dispute. Finally, by commencing the discovery in the district court, Caratube went against the IBA guidelines, the same guidelines it had proposed at the outset of the arbitration. For these reasons, the Court concluded, the petition had to be denied.
NAFTA Investor-State Arbitrations
Chemtura Corp. v. Canada (August 2, 2010)
Click here for document (approximately 81 pages)
In Chemtura Corp. v. Canada, a North American
Free Trade Agreement (NAFTA) arbitration tribunal ruled that Canada did not violate its obligations under the treaty. The tribunal ordered that
Chemtura, a U.S. manufacturer of lindane-based pesticide used to treat canola
seeds, pay all the arbitration costs and also fifty per cent of Canada’s costs incurred in connection with the arbitration. Significantly, the tribunal
developed the definition of investment to include elements such as goodwill,
customers, or market share.
Chemtura, a U.S. manufacturer of the pesticide lindane, commenced the
arbitration against Canada alleging that Canada breached its obligations under
NAFTA Articles 1105 (minimum standard of treatment), 1103 (most favoured nation
(MFN) clause), and 1110 (expropriation) when Canada failed to conduct a fair
review of Chemtura’s lindane registration and when it subsequently canceled the
company’s lindane registration. Canada, however, argued that its registration
and review procedures were fair and that it had not acted unlawfully and
arbitrarily.
Regarding the minimum standard of treatment and the MFN clause, the tribunal
ruled that the review process afforded to Chemtura was reasonable, detailed,
and responded to all of Chemtura’s inquires. Furthermore, the subsequent ban of
the pesticide was not arbitrary, but was reasonable and based on widely
accepted data that demonstrated the risks associated with lindane.
Regarding Chemtura’s expropriation claim, the tribunal first had to determine
whether there was an investment, whether the investment was expropriated, and
whether any of the exceptions in Article 1110(1) apply. Article 1110(1) states:
1. No Party may directly or
indirectly nationalize or expropriate an investment of an investor of another
Party in its territory or take a measure tantamount to nationalization or
expropriation of such an investment (“expropriation”), except:
(a) for a public purpose;
(b) on a non-discriminatory basis;
(c) in accordance with due process of law and Article 1105(1); and
(d) on payment of compensation in accordance with paragraphs 2 through 6.
Notably, the tribunal first recognized that elements such as goodwill, customers, or market share “may be accessory to one of the forms of ‘investment’ within the meaning of Article 1139.” Once the court found that there was an investment, it had to determine whether it had been expropriated, in other words, whether the revoking of registration was a “substantial deprivation” of Chemtura’s investment. The tribunal concluded that Chemtura’s sales of the pesticide “were a relatively small part of the overall sales of Chemtura Canada at all relevant times.” Thus, the deprivation was not substantial. In addition, the tribunal also held that Canada’s banning of the pesticide was a “valid exercise of the State’s police powers and, as a result, does not constitute an expropriation.”
Ontario Superior Court of Justice
Mexico v. Cargill Inc. (August 26, 2010)
Click here for document (approximately 22 pages)
The Ontario Superior Court of Justice rejected Mexico’s application to set aside a 2009 arbitration award issued under Chapter Eleven of the North American Free Trade Agreement (NAFTA) in favor of Cargill, Inc., and exceeding $77 million. Mexico argued that the tribunal had exceeded its jurisdiction and that the original award should be set aside and substituted with a smaller sum (amounting to approximately one-half of the original award). The Court held that the tribunal’s reasoning and final award were reasonable, thus rejecting Mexico’s application in its entirety.
The dispute between the parties, as the Court notes, “is but one battle in a larger conflict between the United States and Mexico concerning their sugar industries.” Cargill, a producer of high fructose corn syrup (HFCS), commenced the original NAFTA arbitration, alleging that several of Mexico’s measures, which were in violation of numerous NAFTA Chapter 11 articles providing investment protection to investors, had led to substantial losses and damage to its investment. Mexico argued that the damages sought by Cargill related to “its operations in the United States and not for operations relating to its investment . . . in Mexico.” The NAFTA tribunal disagreed with Mexico and ruled that the issue was not one of jurisdiction, as Mexico had argued, but one of application and interpretation of the damages provision of the NAFTA. Specifically, according to the tribunal, the definition of investment is “broad and inclusive,” and “in determining . . . business income, particularly business income so closely associated with a physical asset in the host country and not mere trade in goods, is both an element of a larger investment and an investment in and of itself.” As a result, the tribunal concluded, Cargill should be compensated for its net lost profits for both its Mexican subsidiary’s lost sales to the Mexican market and Cargill’s lost sales to the subsidiary.
In its application to set aside the award, Mexico argued that the tribunal’s assessment of Cargill’s U.S.-related losses was outside of the tribunal’s jurisdiction. According to Mexico, the tribunal had “no jurisdiction to assess and award damages that it may have suffered in its capacity as a producer and exporter of HFCS.”
The Superior Court held that its approach in reviewing the original award “should be one of restraint and deference.” Applying this standard, it concluded that the original “tribunal was not unreasonable” in finding that the issue was the interpretation of the NAFTA damages provision, rather than jurisdiction.
United States Court of Appeals for the Fifth Circuit
Positive Software Solutions, Inc. v. New Century Mortgage Corporation (Sept. 13, 2010)
Click here for document (approximately 9 pages)
The U.S. Court of Appeals for the Fifth Circuit held that a judge does not possess inherent authority to impose sanctions against an arbitrator in an arbitration, even if the judge ordered the parties to arbitrate. The Court concluded that arbitration is “not an annex to litigation, but an alternative method of dispute resolution,” and the rules that apply to litigation do not translate in arbitral proceedings. The lower court’s decision to “treat[ ] arbitration as if it were an appendage to adjudication is a mistake that would undermine the very purpose of arbitration.”
The dispute between Positive Software Solutions (Positive Software) and New Century Mortgage Corp. (New Century) commenced in 2003, when Positive Software filed suit against New Century, alleging infringement of telemarketing software. The court ordered the case arbitrated; however, the arbitration award was vacated because the arbitrator failed to disclose a professional relationship with one of New Century’s attorneys. The Appeals Court reversed the vacatur and remanded. In the meantime, New Century went bankrupt. Positive Software and New Century then proceeded to settle the case, with New Century assigning all its work-product and attorney-client rights to Positive Software. Positive Software then asked the lower court to impose sanctions against New Century’s original attorney who did not disclose her relationship with the arbitrator. The lower court ordered the original attorney to pay Positive Software $10,000 in sanctions for her conduct during the arbitration. She appealed.
The Court of Appeals concluded that, while sanctions could be imposed under the Federal Rules of Civil Procedure by a court to “control the litigation” before it, arbitration was a separate adjudication process to which the sanctions regime did not apply. Thus, because the attorney’s misconduct “was neither before the district court nor in direct defiance of its orders, the conduct is beyond the reach of the court’s inherent authority to sanction.” To rule otherwise, the Court concluded, would lead to “serious tension with the Federal Arbitration Act” and the courts’ caselaw on inherent authority.
United States District Court for the District of Columbia
Mangouras v. Spain (Sept. 28, 2010)
Click here for document (approximately 25 pages)
The Grand Chamber of the European Court of Human Rights ruled that Spain did not violate Article 5 § 3 (conditional release) of the European Convention on Human Rights when it set the applicant’s bail at three million Euros. The Grand Chamber concluded that factors—such as the applicant’s age, profession, income, and previous convictions, which all pointed to a low risk of flight—were outweighed by the severity of the crime committed and the environmental damage caused.
The applicant, a Greek national and ship master on the ship Prestige, was arrested in Spain and detained for the economic and environmental damage caused when the ship Prestige suffered damage and started leaking into the Atlantic Ocean. The leakage, which “caused an economic disaster [with] effects on marine flora and fauna [that] lasted for several months and spread as far as the French coast,” was of such scale that the Spanish courts ordered the applicant immediately arrested after Spanish authorities rescued him and his crew. Once arrested, an investigative judge set his bail at three million Euros. The applicant appealed this amount as being too high and argued that the judge did not take into account his personal circumstances. After exhausting domestic remedies, the applicant filed an application with the European Court, which sided with the Spanish government:
[The Chamber] took the view that the seriousness of the environmental disaster justified the domestic courts’ concern to determine who had been responsible and that, accordingly, it had been reasonable for them to seek to ensure that the applicant would appear for trial by fixing a high level of bail. It considered that the domestic authorities had demonstrated that the amount required from the applicant by way of bail had been proportionate and that they had taken sufficient account of his personal circumstances, and in particular his status as an employee of the shipowner, which had taken out insurance to cover this type of risk. The Chamber therefore concluded that the amount of bail, although high, had not been disproportionate in view of the legal interest being protected, the seriousness of the offence in question and the disastrous environmental and economic consequences of the oil spill. Accordingly, it held that there had been no violation of Article 5 § 3 of the Convention.
After losing before the lower Chamber, the
applicant requested that the case be referred to the Grand Chamber.
The Grand Chamber, reviewing numerous international instruments, including the
United Nations Convention on the Law of the Sea, concluded that the lower
Chamber had not erred in its analysis and also found that there was no
violation of Article 5 § 3:
[T]he facts of the present case – concerning marine pollution on a seldom-seen scale causing huge environmental damage – are of an exceptional nature and have very significant implications in terms of both criminal and civil liability. In such circumstances it is hardly surprising that the judicial authorities should adjust the amount required by way of bail in line with the level of liability incurred, so as to ensure that the persons responsible have no incentive to evade justice and forfeit the security. In other words, the question must be asked whether, in the context of the present case, where large sums of money are at stake, a level of bail set solely by reference to the applicant’s assets would have been sufficient to ensure his attendance at the hearing, which remains the primary purpose of bail.
Interestingly, the Grand Chamber emphasized the “growing and legitimate concern both in Europe and internationally in relation to environmental offences,” which justified the authorities’ need “to identify those responsible, ensure that they appear for trial and, if appropriate, impose sanctions on them.”
Anti-Counterfeiting Trade Agreement (ACTA)
Click here for document (approximately 24 pages)
According to a press release by the Office of the U.S.
Trade Representative, the text of the Anti-Counterfeiting Trade Agreement
(ACTA) was made public on October 2, 2010, following the conclusion of the
negotiations in Tokyo, Japan.
U.S. Trade Representative Ron Kirk stated that “[t]his text reflects tremendous
progress in the fight against counterfeiting and piracy – a global crime wave
that robs workers in the United States and around the world of good-paying jobs
and exposes consumers to dangerous products.”
The ACTA negotiations started in 2006, when Europe, Japan, Switzerland, and the United States decided “to establish international standards for enforcing intellectual property rights in order to fight more efficiently the growing problem of counterfeiting and piracy.” Several parties have joined the original countries, including Australia, Canada, Jordan, Mexico, Morocco, New Zealand, Singapore, South Korea, and the United Arab Emirates. For more information on the ACTA and its legal implications for the United States and other negotiating partners, refer to a recent ASIL Insight on this topic.
United States Court of Appeals for the District of Columbia
Ameziane v. Obama (Oct. 6, 2010)
Click here for document (approximately 19 pages)
The United States Court of Appeals for the District of Columbia has overturned the lower court’s decision rejecting the U.S. government’s motion to protect from public disclosure certain information requested by a Guantánamo detainee, Djamel Ameziane. The Appeals Court concluded that the government sufficiently demonstrated “what kind of information requires protection and why,” and then precisely identified the information in Ameziane’s case. This two-part test, the Court stressed, is all the lower court should have applied, instead of “substituting” its “own policy judgment for those of the executive.”
Ameziane is an Algerian citizen detained at the U.S. Naval Base at Guantánamo Bay since 2002. He filed a petition for a writ of habeas corpus in 2005. The U.S. government, in turn, filed a motion to protect certain information. The district court denied this motion, ruling that the government “failed to make a ‘particularized showing’” and that the government’s request “had ‘nothing . . . to do with this case in particular.” The government then filed this appeal asking the Appeals Court for an emergency stay of the district court’s order.
UN Human Rights Council Universal Periodic Review (Nov. 1-Nov. 12, 2010)
Click here for background information and link to live webcast
The Universal Periodic Review (UPR), created in 2006 by General Assembly Resolution 60/251, is a process under the auspices of the Human Rights Council that reviews the human rights records of all 192 United Nations Member States once every four years. Each State is given the opportunity to report actions taken to improve the human rights situation in their country. For a live webcast of this year's hearings, including the first review of the United States under the new UPR process, please visit http://www.un.org/webcast/unhrc/index.asp.
Omar Khadr Pleads Guilty to All Charges (Oct. 25, 2010)
Click here for press release (approximately 1 page)
The Department of Defense has announced that Omar Khadr has pleaded guilty in a military commission to all charges against him, including murder in violation of the law of war, attempted murder in violation of the law of war, providing material support to terrorism, conspiracy, and spying. According to the press release, Khadr’s sentence will be determined at a hearing that began October 26, 2010.
Khadr was sentenced to forty years in prison by a panel of military officers. However, under Khadr’s plea agreement, he will serve no more than eight years in prison (one year in U.S. custody and the remainder in Canada). According to the U.S. Department of Defense press release, Khadr’s transfer to Canada is “[c]onsistent with the terms of Khadr’s plea agreement,” pursuant to which “the governments of Canada and the United States exchanged notes reflecting that both would support Khadr's transfer to Canadian custody to serve the remainder of his approved sentence after he serves one year in U.S. custody.”
U.S. Signs Child Protection Convention (Oct. 22, 2010)
Click here for press release (approximately 1 page)
The United States has signed the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.
This Convention is meant to “ensure international recognition and enforcement of custody and visitation orders, complements and reinforces the Hague Convention on the Civil Aspects of International Child Abduction, and contains provisions addressing cooperation on key issues such as runaway children and the cross-border placement of children in foster families or institutional care.”
International
Judicial Monitor