International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Fall 2011 Issue

Significant Judicial Developments

U.S. Court of Appeals for the Fourth Circuit

Aziz et al. v. Alcolac, Inc. et al. (Sept. 19, 2011) 

Click here for document (approximately 24 pages)

In Aziz et al. v. Alcolac, Inc., the U.S. Court of Appeals for the Fourth Circuit held that corporations cannot be liable under the Torture Victim Protection Act ("TVPA"), and that the Alien Tort Statute ("ATS") imposes liability for aiding and abetting violations of international law but only if the conduct is purposeful.

The appellants, individuals of Kurdish descent who were either victims of mustard gas attacks or family members of deceased victims, filed a class action under the TVPA and the ATS alleging that Alcolac, Inc., a chemical manufacturer, sold thiodiglycol ("TDG") to Saddam Hussein's regime, which then used the substance to manufacture mustard gas to attack Kurds in northern Iraq during the late 1980s.

The district court granted Alcolac's motion to dismiss on the basis that 1) corporations are not subject to suit under the TVPA, and 2) appellants failed to plead facts sufficient to establish the required mens rea for aiding and abetting under the ATS.

The Court's discussion regarding the scope of TVPA liability was straightforward. The TVPA provides "a civil action for recovery of damages from an individual who engages in torture or extrajudicial killing" (emphasis added). The usage of the term "individual," as opposed to the broader term "person," was crucial to the Court's conclusion that Congress never intended that corporations be held liable under the statute: "We hold that the TVPA admits of no ambiguity and Congress's intent to exclude corporations from liability under the TVPA is readily ascertainable from a plain-text reading."

The Court's discussion of the mens rea requirement for aiding and abetting under the ATS was more comprehensive. Here, the Court reviewed other circuits' scrutiny of what type of liability was recognized under international law. Persuaded by both the Khulumani v. Barclay National Bank Ltd. and Presbyterian Church of Sudan v. Talisman Energy decisions, which relied on the Rome Statute of the International Criminal Court to determine the mens rea for aiding and abetting, i.e. purposefulness, the Court ruled that "for liability to attach under the ATS for aiding and abetting a violation of international law, a defendant must provide substantial assistance with the purpose of facilitating the alleged violation." Appellants had alleged that Alcolac should be held liable under the ATS for placing a dangerous substance into the stream of international commerce with the purpose of facilitating use of these chemicals in the manufacture of chemical weapons used against the Kurdish population in northern Iraq.  The Court rejected the appellants' claim, finding it failed to satisfy the liability requirement under the ATS.

Congress Approves Three Trade Agreements (Oct. 12, 2011)

Click here for press release (approximately 2 pages)

The U.S. Congress has approved three trade agreements with Colombia, Panama, and South Korea. Next, President Obama will sign the agreements into law.

According to a Reuters press release, President Obama has applauded Congress for its action: "'Tonight's vote, with bipartisan support, will significantly boost exports that bear the proud label 'Made in America,' support tens of thousands of good-paying American jobs and protect labor rights, the environment and intellectual property.'"

Reuters reports that while many have hailed the agreements as beneficial to the ailing U.S. economy, others have warned that the agreements will "harm U.S. employment."

ACTA Signed by Eight Countries (Oct. 1, 2011)

Click here for press release (approximately 1 page)

According to a press release, on October 1, 2011, the United States, Australia, Canada, Japan, Morocco, New Zealand, Singapore, and South Korea signed the Anti-Counterfeiting Trade Agreement ("ACTA"). The Agreement has been controversial both because of its content and the manner by which it has been concluded by the United States. For more information on the ACTA, see a recent ASIL Insight by Oona A. Hathaway and Amy Kapczynski.

Report on International Criminal Court Judicial Nominations 2011 (Oct. 26, 2011)

Click here for document (approximately 6 pages)

The Independent Panel on International Criminal Court ("ICC") Judicial Elections, established by the Coalition for the International Criminal Court in December 2010, has issued its report on the 2011 ICC judicial nominees. The Panel's report was issued in anticipation of the upcoming election of six new ICC judges by the Assembly of States Parties to the Rome Statute.

Pursuant to its mandate, the Panel was required to "independently assess whether each judicial candidate fulfils the qualifications prescribed by Article 36 of the Rome Statute."  

According to the Panel, fifteen of the nineteen candidates fulfill the requirements for judicial candidates of Article 36 of the Statute. In accordance to its Terms of Reference, the Panel only provided an explanation in cases where a candidate was found to be "not qualified" for the position.

General Assembly and the Security Council Elect Four Judges to the International Court of Justice (Nov. 10, 2011)

Click here for press release (approximately 1 page)

According to a UN press release, the UN General Assembly and the Security Council have elected four judges to serve on the International Court of Justice ("ICJ"), the principal judicial organ of the United Nations. The following judges were elected to nine-year terms starting on February 2, 2012: Giorgio Gaja (Italy), Hisashi Owada (Japan), Peter Tomka (Slovakia), and Xue Hanqin (China). Judges Owada, Tomka, and Xue are already serving on the Court; however, their terms were due to expire in February 2012. 

For more information on the ICJ nominating and voting procedure, visit a recent ASIL Insight by Natalya Scimeca.

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© 2011 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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