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

Spring 2012 Issue

ASIl Insights

ASIL Insights

The Internet, Human Rights, and U.S. Foreign Policy: The Global Online Freedom Act of 2012

The Airbus-Boeing Subsidy Dispute: With Both Parties in Violation, Is There an End in Sight?

The WTO Appellate Body Outlaws Discrimination in U.S. Flavored Cigarette Ban

The Reargument Order in Kiobel v. Royal Dutch Petroleum and Its Potential Implications for Transnational Human Rights Cases

No More Zeroing?: The United States Changes its Antidumping Policy to Comply with the WTO 


Mohamad v. Palestinian Authority (U.S. Apr. 18, 2012)

Click here for decision (approximately 12 pages)

Relying on the plain meaning of the term “individual” provided in the Torture Victim Protection Act (“TVPA), the U.S. Supreme Court ruled that the statute imposes liability on natural persons only and does not impose liability on organizations.

The petitioners sued the Palestinian Authority under the TVPA for the death of their relative, a naturalized U.S. citizen who was arrested, tortured, and killed by Palestinian Authority intelligence officers on his visit to the West Bank. The district court dismissed the case relying on the language of the TVPA, which provides a cause of action against “[a]n individual” for acts of torture and extrajudicial killing committed under authority or color of law of any foreign nation. The Court of Appeals for the District of Columbia affirmed the district court’s findings. The petitioners then filed a petition for a writ of certiorari.

The Supreme Court declined the petitioners’ invitation to read the term “individual” broadly, concluding instead: “The text of the TVPA convinces us that Congress did not extend liability to organizations, sovereign or not. There are no doubt valid arguments for such an extension. But Congress has seen fit to proceed in more modest steps in the Act, and it is not the province of this Branch to do otherwise.”

U.S. Supreme Court Denies Cert in Bowoto et al. v. Chevron et al. (U.S. Apr. 23, 2012)

Click here for Court’s Order List (approximately 10 pages)

The U.S. Supreme Court denied the petition for certiorari in Bowoto et al. v. Chevron Corp. et al., a class action lawsuit charging Chevron/Texaco with gross violations of human rights in the Niger Delta region under the Torture Victim Protection Act (“TVPA”). The cert denial was expected since the Supreme Court ruled just a week earlier in Mohamad v. Palestinian Authority (see summary above) that only human beings, and not organizations and corporations, can be sued under the TVPA.

President Obama Announces Formation of the Atrocities Prevention Board (Apr. 23, 2012)

Click here for press release (approximately 1 page)

President Obama announced the formation of the Atrocities Prevention Board in aspeech given at the Holocaust Museum in Washington D.C. on April 23, 2012. He stated that the Board would meet for the first time that day at the White House. In August 2011, President Obama issued a Presidential Study Directive on Mass Atrocities. The Directive called for an Interagency Review, overseen by the National Security Advisor, and the creation of the Interagency Atrocities Prevention Board.

Zivotofsky v. Clinton, Secretary of State (U.S. Mar. 26, 2012)

Click here for decision (approximately 35 pages)

The U.S. Supreme Court has vacated and remanded to the lower court a case dealing with a provision of the Foreign Relations Authorization Act ("FRAA"), which allows an individual born in Jerusalem to list his or her place of birth as Israel on a consular report of birth abroad and on her passport. The Supreme Court ruled that the lower courts erred in dismissing this action on the basis of the political question doctrine, which allows federal courts to refuse to hear a case if they find it presents a political question. According to the Court, the actual issue here was whether the challenged FRAA provision should be given effect, or whether it should be struck down because it intrudes upon Presidential powers under the U.S. Constitution.

The plaintiffs, parents of a child born in Jerusalem, filed suit on his behalf against the U.S. Secretary of State because U.S. State Department officials refused the parents' request to add "Israel" after Jerusalem in the child's relevant documents. In rejecting the request, the U.S. State Department cited its policy that prohibits recording either "Israel" or "Jordan" as the place of birth for those born in Jerusalem.

At the heart of this case is a 2002 amendment to the FRAA that sought to override this State Department policy. In relevant part, the FRAA provision states: "For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen's legal guardian, record the place of birth as Israel."

The District Court dismissed the case, ruling that it presented a nonjusticiable political question on the political status of Jerusalem. The D.C. Circuit affirmed, elaborating that the U.S. Constitution gives the Executive "the exclusive power to recognize foreign sovereigns, and that the exercise of that power cannot be reviewed by the courts." 

According to the Supreme Court, the lower courts misunderstood the issue presented by the plaintiffs. All that was asked, the Court stated, was whether the plaintiffs' "interpretation of the statute is correct, and whether the statute is constitutional." This determination will require a "careful examination of the textual, structural, and historical evidence put forward by the parties regarding the nature of the statute and of the passport and recognition powers." 

Justice Breyer dissented, noting that the case should be dismissed under the political question doctrine: "The upshot is that this case is unusual both in its minimal need for judicial intervention and in its more serious risk that intervention will bring about 'embarrassment,' show lack of 'respect' for the other branches, and potentially disrupt sound foreign policy decisionmaking."

All Party Parliamentary Group on Extraordinary Rendition et al. v. U.S. Department of Defense et al. (D.C.C. Apr. 2, 2012)

Click here for document (approximately 16 pages); click here for UN Counter-Terrorism Expert Statement (approximately 1 page)

The U.S. District Court for the District of Columbia has dismissed a case brought by an elected member of the U.K. Parliament, a U.K. parliamentary group, and an American attorney challenging the refusal by the U.S. government to disclose certain documents to them pursuant to the Freedom of Information Act ("FOIA"). The Court ruled that because the plaintiffs are representatives or subdivisions of a foreign government entity, they were barred from obtaining U.S. government documents under FOIA, which exempts members of the intelligence community from disclosing information to foreign government entities.

The plaintiffs are Andrew Tyrie, a U.K. parliament member, the All Party Parliamentary Group on Extraordinary Renditions ("APPG") (chaired by Mr. Tyrie), and Joe Cyr, their U.S. legal representative. They requested, under FOIA, materials from several U.S. government agencies regarding the U.S. government's extraordinary rendition program and the United Kingdom's involvement in extraordinary renditions, secret detentions, and coercive interrogation of suspected terrorists. The U.S. government agencies--the Central Intelligence Agency, the Departments of Homeland Security, Justice, State, and Defense, the Federal Bureau of Investigation, and the National Security Agency--all rejected the request, basing their decision on the exception to FOIA. The plaintiffs brought this action to challenge their denial.

The Court first acknowledged FOIA's purpose to "pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Before 2002, this broad aim was restricted by the nature of documents requested, rather than the identity of those seeking disclosure. In 2002, however, FOIA was amended to include the "foreign government entity exemption," which is at the heart of this case. Acknowledging that the challenge was a matter of first impression, the Court went on to apply rules of statutory interpretation to determine the meaning of the statute.

The Court agreed with the U.S. government that Mr. Tyrie was a representative of the U.K. government, that APPG was a subdivision of a foreign government entity, and that Mr. Cyr was their U.S. representative. While the Court admitted that the "public at large" could have requested and obtained the documents in question without being subject to the FOIA exemption, it nonetheless concluded that it "is not authorized to follow the logic of the policy it would enact if it could rewrite the law from scratch." Instead, the Court had "to follow the logic of the statute as it is written."

The UN Special Rapporteur on human rights and counter-terrorism, Ben Emmerson, issued a statement critical of the U.S. decision. He said, according the Office of the High Commissioner for Human Rights press release, that "[t]he decision is disappointing because it flies in the face of the principles of best practice for the oversight of intelligence services compiled by the former Special Rapporteur on counter-terrorism and human rights at the express request of the UN Human Rights Council."

Inter-American Commission on Human Rights Admits First Guantanamo Case (March 30, 2012)

Click here for press release (approximately 1 page)

According to the Center for Constitutional Rights press release, the Inter-American Commission on Human Rights ("IACHR") has approved at its 144th regular session meeting the admissibility report in the case of Djamel Ameziane. Ameziane is an Algerian detainee who has been imprisoned at the U.S. Naval Station at Guantanamo Bay, Cuba, for ten years without charges or a trial. This is the first time the IACHR has decided to hear a Guantanamo detainee case.

U.S. - Korea Free Trade Agreement Enters Into Force (Mar. 15, 2012)

Click here for press release (approximately 1 page)

On March 15, 2012, the U.S.-Korea Free Trade Agreement entered into force. According to a U.S. Department of State press release, this marks “an historic milestone that will lead to even more trade and investment between our two countries.” The Agreement is meant to improve market access for U.S. products in Korea while increasing opportunities for Korean companies in the United States. 

While the Agreement was originally signed on June 30, 2007, the governments approved the Agreement only last year (U.S. Congress on October 12, 2011, and Korea’s National Assembly on November 22, 2011).

U.S. Attorney General Eric Holder's Speech on Targeted Killing of U.S. Citizens (Mar. 5, 2012)

Click here for document (approximately 5 pages)

On March 5, 2012, at Northwestern University School of Law, U.S. Attorney General Eric Holder delivered a long-awaited speech regarding the current Administration's position on targeted killing of U.S. citizens abroad. According to Holder, while "[t]he Constitution's guarantee of due process is ironclad, and it is essential," "as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war - even if that individual happens to be a U.S. citizen." Holder noted that current threats to U.S. security justified the "use [of] lethal force against a U.S. citizen abroad." Holder concluded that the United States "simply cannot afford to wait until deadly plans are carried out - and we will not." 

For the full transcript of the speech, please visit the U.S. Department of Justice website.

Kiobel et al. v. Royal Dutch Petroleum et al., Order for Rehearing (U.S. Mar. 5, 2012)

Click here for order (approximately 1 page)

The U.S. Supreme Court has ordered a rehearing in Kiobel et al. v. Royal Dutch Petroleum et al. The Court has asked the parties to file supplemental briefs addressing the following question: "Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States." 

Last week, the Court heard oral arguments in this contentious case, which many believe will finally clarify whether corporations can be sued under the Alien Tort Statute, which grants federal courts jurisdiction over torts committed against aliens in violation of the law of nations. 

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© 2012 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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