cases of note
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International Response to the Killing of Osama Bin Laden (May 2011)
Click here for Joint Statement by the UN Special Rapporteurs on Summary Executions and on Human Rights and Counter-terrorism (approximately 1 page); click here for President Obama’s remarks (approximately 2 pages); click here for White House press briefing (approximately 14 pages)
On May 2, 2011, U.S. Special Forces killed Osama Bin Laden in Pakistan. According to President Obama, the mission on Pakistani territory, carried out without Pakistani Government’s knowledge, approval, or involvement, had been planned for weeks. Conflicting reports regarding the operation following Bin Laden’s death have left many guessing about what exactly occurred and raising legal questions about the operation.
The first official public statement on the operation came from President Obama. Thereafter, several other official statements have been made, some contradicting President Obama’s remarks. The shifting narrative has raised a number of questions, such as the legality of the U.S. operation on Pakistani territory (see, e.g., a recent ASIL Insight discussing the U.S. position on such interventions). Others have questioned whether human rights principles were followed during the attack.
Two UN Special Rapporteurs have asked, in a Joint Statement issued on May 6, 2011, the United States to “disclose the supporting facts to allow an assessment in terms of international human rights law standards.” They stressed that “it will be particularly important to know if the planning of the mission allowed an effort to capture Bin Laden.” Furthermore, according to the Joint Statement,
[a]cts of terrorism are the antithesis of human rights, in particular the right to life. In certain exceptional cases, use of deadly force may be permissible as a measure of last resort in accordance with international standards on the use of force, in order to protect life, including in operations against terrorists. However, the norm should be that terrorists be dealt with as criminals, through legal processes of arrest, trial and judicially decided punishment.
The Special Rapporteurs emphasized that the manner in which states deal with terrorists is crucial for the development of international law: “Actions taken by States in combating terrorism, especially in high profile cases, set precedents for the way in which the right to life will be treated in future instances.”
Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Artic (May 12, 2011)
Click here for Agreement (approximately 18 pages); click here for Agreement information page
On May 12, 2011, Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden, and the United States—the Member States of the Arctic Council—signed the Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Artic. According to a U.S. Department of State press release, "the Agreement is the first legally-binding instrument negotiated under the auspices of the Arctic Council."
The Agreement is a necessary response to the increased ship-borne traffic in the Artic, and it is meant to facilitate and strengthen the coordination of life-saving search and rescue missions in an area of about thirteen million square miles.
U.S. State Department Legal Adviser Herold Koh on the Lawfulness of the U.S. Operation Against Osama bin Laden (May 19, 2011)
Click here for statement (approximately 2 pages)
U.S. State Department Legal Adviser Herold Koh has issued a statement on the lawfulness of the U.S. operation against Osama bin Laden. In a blog post on Opinio Juris, Koh argues that bin Laden's "unquestioned leadership position within al Qaeda and his clear continuing operational role" led to the conclusion that "he was the leader of an enemy force and a legitimate target in our armed conflict with al Qaeda." Koh added that "bin Laden continued to pose an imminent threat to the United States that engaged our right to use force, a threat that materials seized during the raid have only further documented. Under these circumstances, there is no question that he presented a lawful target for the use of lethal force." Koh also quoted a recent speech at the 105th ASIL Annual Meeting where he stressed the Administration's reliance on and application of international legal standards in armed conflict.
International Strategy for Cyberspace: Prosperity, Security, and Openness in a Networked World (May 2011)
Click here for document (approximately 25 pages); click here for Insight (approximately 6 pages)
The Obama Administration has released the International Strategy for Cyberspace: Prosperity, Security, and Openness in a Networked World. President Obama stated that this "is the first time that our Nation has laid out an approach that unifies our engagement with international partners on the full range of cyber issues."
Professor David Fidler recently wrote an ASIL Insight discussing the significance of the document and its broader international implications. He also noted several potential problems regarding the document. According to Professor Fidler, "[d]espite acknowledging the importance of existing international legal rules, the International Strategy never mentions two basic principles affected by its content--respect for sovereignty and non-intervention in the domestic affairs of other states."
DOD Announces Charges Sworn Against Five Detainees Allegedly Responsible for 9/11 Attacks (May 31, 2011)
Click here for press release (approximately 1 page)
The U.S. Department of Defense ("DOD") has announced that the office of military commissions has sworn charges against five Guantanamo Bay detainees, namely Khalid Sheikh Mohammed, Muhammad Salih Mubarak Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi. The five are charged with planning and executing the 9/11 attacks in New York, Washington, DC, and Pennsylvania that killed almost 3,000 people.
According to a DOD press release, pursuant to the Military Commissions Act of 2009, "the sworn charges will be forwarded to the Convening Authority, Bruce MacDonald. The convening authority will make an independent determination as to whether to refer some, all, or none of the charges for trial by military commission."
U.S. District Court for the District of Columbia
Kucinich v. Obama
(June 15, 2011)
Click here for complaint (approximately 36 pages); click here for U.S. government document on the Activities
in Libya (approximately 32 pages)
Dennis Kucinich, member of the U.S House of Representatives, along with nine other bi-partisan U.S. Representatives, has filed a complaint with the U.S. District Court for the District of Columbia against President Obama and Secretary of Defense, Robert Gates, alleging that the current U.S. use of force in Libya amounts to war, requiring the President to follow certain provisions of the U.S. Constitution.
Specifically, plaintiffs are asking the court to award injunctive and declaratory relief "to protect the Plaintiffs and the country from a stated policy of Defendant Barack Obama, President of the United States, whereby a president may unilaterally go to war in Libya and other countries without the declaration of war from Congress" as required by the U.S. Constitution. Plaintiffs also ask the court to declare that President Obama's decision to use force in Libya violated the War Powers Resolution and the NATO treaty, and that the UN Security Council Resolution cannot override the constitutional role of the U.S. Congress. Finally, they are seeking a declaration that the President is misusing funds appropriated by Congress for other use.
The complaint goes into much detail about the U.S. role in Libya, including President Obama's decision to order U.S. forces to attack armed forces in Libya on March 19, 2011, without prior congressional approval. The main focus is, however, whether or not the U.S. is currently at war with Libya. The plaintiffs believe that the "Libyan operations ordered by President Obama constitute 'war' for the purposes of the . . . Constitution," and since Congress never approved the war, President Obama is violating the U.S. Constitution.
Plaintiffs assert that they, members of Congress, have standing to "challenge a per se violation of Article I of the Constitution as well as the violation of statutory laws governing the commencement and funding of any undeclared war." They also claim that they have standing as taxpayers because taxpayer money is used to continue the war against Libya. (According to the complaint, the Libyan intervention has so far cost the United States $750 million dollars.) While conceding that recent case law limits their right to challenge the president, plaintiffs nonetheless argue that "the violations asserted herein fall within a narrow exception allowing judicial review."
Some have questioned whether the complaint will be successful, but, irrespective of its success, there are a growing number of prominent politicians and scholars opposing the continued U.S. intervention in Libya. The Obama administration, however, continues to assert its right to use force in Libya. Recently, the administration issued a report on the U.S. Activities in Libya detailing its limited role in the hostilities and emphasizing the need to continue its "important role in maintaining and expanding [an] international consensus" with respect to the situation in Libya. The report also addresses the alleged lack of financial transparency with respect to funds used for the operations in Libya, disclosing that the military and humanitarian operations in Libya, from March 19 to June 3, 2011, have cost the United States almost $714 million dollars, with a total projected cost amounting to about $1.1 billion through September 2011.
On June 24, 2011, the U.S. House of Representatives rejected a resolution to authorize the limited use of the U.S. Armed Forces in support of the NATO mission in Libya while also rejecting a resolution limiting the use of funds appropriated to the Department of Defense for U.S. Armed Forces in support of NATO. According to Slate Magazine, on June 28, 0211, the Senate Foreign Relations Committee will hear State Department Legal Advisor Harold H. Koh's view regarding U.S. military operations in Libya.
Claims Settlement Agreement Between the Government of The United States of America and the Government of the Republic of Iraq (September 2, 2010)
Click here for document (approximately 7 pages)
According to at U.S.
Department of State press release, efforts by the
United States and Iraq to settle longstanding claims of U.S. victims of the
Saddam Hussein regime were brought to a conclusion on June 21, 2011, in
accordance with the U.S.-Iraq Claims Settlement Agreement signed on September
2, 2010. The Settlement Agreement provides that Iraq will be immune from suit
in U.S. courts for claims by U.S. nationals arising out of the first Gulf War
and the 1987 attack on the USS Stark. In return, Iraq has agreed to pay four
hundred million dollars to U.S. victims who suffered injuries as prisoners of
war and hostages. The final step will be the establishment of a mechanism to
process applications for compensation of claims by eligible U.S. nationals.
The State
Department reports that "[t]he resolution of these claims is the product
of several years of hard work and careful negotiations between the governments
of the United States and Iraq. It represents a significant step in Iraq's
efforts to resolve outstanding claims arising from actions of the previous
regime."
Garcia v. Texas (July 7, 2011)
Click here for document (approximately 10 pages); click here for U.S. amicus brief (approximately 43 pages)
On July 7, 2011, Humberto Leal Garcia was executed by lethal injection in Texas after the Supreme Court of the United States denied his application for stay of execution and application for writ of habeas corpus.
Leal, a Mexican national, was convicted for the rape and murder of a 16-year-old girl. Relying on the International Court of Justice ("ICJ") decision in Avena and Other Mexican Nationals, Leal argued that the United States violated the Vienna Convention on Consular Relations for failing to notify him of his right to consular assistance, thus violating his due process rights. Leal asked the Supreme Court to stay his execution until January 2012 in anticipation of legislation that would implement the Avenadecision.
In Avena, the ICJ, reviewing an application filed by Mexico on behalf of fifty-one of its nationals awaiting execution in the United States, ruled that the United States had violated the Vienna Convention for failing to notify the Mexican nationals on death row of their consular rights. The ICJ ordered the United States to remedy the situation by giving each defendant a hearing to determine whether the violation amounted to harmless error.
In Medellin v. Texas (2008), the Supreme Court ruled that
neither the ICJ ruling in Avenanor the Bush
administration Memorandum directing states to implement the ICJ Avenadecision were enforceable federal law. The
Court in Medellin concluded that even though the Avena decision
constituted an international law obligation on the United States, "not all
international law obligations automatically constitute binding federal law
enforceable in United States courts." The Court stressed that the Optional
Protocol Concerning the Compulsory Settlement of Disputes to the Vienna
Convention, the United Nations Charter, and ICJ Statute are treaty sources that
do not "create[] binding federal law in the absence of implementing
legislation." And since no implementing legislation exists, "the Avena judgment
is not automatically binding domestic law."
In the
present case, Leal argued that a bill introduced by Senator Patrick Leahy, which would
implement Avena, could possibly
be finalized by January 2012. He therefore asked that his execution be stayed
until that time. The Supreme Court, with Justices Breyer, Ginsburg, Sotomayor,
and Kagan dissenting, disagreed: "It has now been seven years since the
ICJ ruling and three years since our decision in Medellín I, making a stay based on the bare
introduction of a bill in a single house of Congress even less justified. If a
statute implementing Avena had genuinely been a priority for the
political branches, it would have been enacted by now."
Two U.S. appeal courts have clarified their position regarding corporate liability under the Alien Tort Statute (“ATS”). The decisions are in stark contrast with Kiobel v. Royal Dutch Petroleum, wherein the Second Circuit held that corporations are not liable for abuses under the ATS. Both the U.S. Court of Appeals for the Seventh Circuit and the U.S. Court of Appeals for the District of Columbia concluded that the Second Circuit had erred in its reasoning and that corporations can in fact be liable under the ATS.
The ATS provides U.S. federal courts with jurisdiction over civil actions by an alien for torts committed in violation of the law of nations or a treaty of the United States.
U.S. Court of Appeals for the Seventh Circuit
Boimah Flomo, et al v. Firestone Natural Rubber Co., LLC (July 11, 2011)
Click here for document (approximately 24 pages)
In Boimah Flomo, et al v. Firestone Natural Rubber Co., LLC, twenty-three Liberian children brought suit in the United States against the Firestone Rubber Company under the Alien Tort Statute (“ATS”), claiming, intra alia, that Firestone used child labor on its Liberian rubber plantation in violation of customary international law.
The court’s decision stands in stark contrast to Kiobel v. Royal Dutch Petroleum, wherein the Second Circuit held that corporations are not liable for abuses under the ATS. The Court, after first noting that “[t]he factual premise of the majority opinion in the Kiobel case [wa]s incorrect,” concluded that corporations are not immune from suit in U.S. courts under the ATS. However, applying international law on child labor, the Court ruled that the plaintiffs’ claims were not adequately plead to find a violation of customary international law.
U.S. Court of Appeals for the District of Columbia Circuit
John Doe VIII v. Exxon Mobil Corp. (July 8, 2011)
Click here for document (approximately 151 pages)
A few days before Judge Posner wrote the decision in Boimah Flomo, et al v. Firestone Natural Rubber Co., LLC, another circuit reviewing an ATS claim came to the same conclusion with respect to corporate responsibility.
In John Doe VIII v. Exxon Mobil Corp., the plaintiffs, Indonesian villagers alleging that Indonesian security forces hired and supervised by Exxon had committed murder, torture, sexual assault, battery, and false imprisonment, appealed the dismissal of their case. The Court of Appeals, reviewing the history of ATS jurisprudence in general, and corporate responsibility in particular, concluded that “corporate liability is consistent with the purpose of the ATS, with the understanding of agency law 1789 and the present, and with sources of international law.” Like the Court in Boimah Flomo, et al v. Firestone Natural Rubber Co., LLC, the D.C. Circuit criticized as erroneous the analysis in Kiobeland what the D. C. Circuit considered its misapplication of Supreme Court precedent.
President Obama, Presidential Study Directive on Mass Atrocities (Aug. 4, 2011)
Click here for document (approximately 2 pages)
U.S. President Obama has issued a Presidential Study Directive on Mass Atrocities. The Directive calls for an Interagency Review, overseen by the National Security Advisor, and the creation of an Interagency Atrocities Prevention Board. According to President Obama, "[p]reventing mass atrocities and genocide is a core national security interest and a core moral responsibility of the United States." President Obama noted that the interagency review will be completed within one hundred days of the issuance of the Directive, enabling the Atrocities Prevention Board to start its work within 120 days from the date of the Presidential Study Directive.
President Obama first noted that governmental response to atrocities and genocide "too often arrives too late," making U.S. interventions costly and difficult as crisis situations escalate. Furthermore, both the security of the United States and its image are "affected when masses of civilians are slaughtered, refugees flow across borders, and murderers wreak havoc on regional stability and livelihoods." President Obama added that a U.S. response does not always have to come in the form of military intervention and that "[t]he actions that can be taken are many [and] range from economic to diplomatic interventions, and from non combat military actions to outright intervention." The final U.S. response, however, will require "a level of governmental organization that matches the methodical organization characteristic of mass killings." According to President Obama, there is currently no "comprehensive policy framework and a corresponding interagency mechanism for preventing and responding to mass atrocities and genocide," which has "left [the United States] ill prepared to engage early, proactively, and decisively to prevent threats from evolving into large scale civilian atrocities."
To mitigate this situation, President Obama has directed that an interagency Atrocities Prevention Board be created within 120 days from the date of the Presidential Study Directive. The Atrocities Prevention Board will "coordinate a . . . government approach to prevent[ ] mass atrocities and genocide." The interagency study "will develop and recommend the membership, mandate, structure, operational protocols, authorities, and support necessary for the Atrocities Prevention Board to coordinate and develop atrocity prevention and response policy."
Inter-American Commission on Human Rights
Report No. 80/11, Gonzales et al. v. United States (July 21, 2011)
Click here for Report (approximately 57 pages)
The Inter-American Commission on Human Rights has issued an important report, finding the United States in violation of several provisions of the American Declaration of the Rights and Duties of Man for failing to provide sufficient protection to three girls killed by their father in a domestic violence case. The Commission reasoned that the failure to protect victims of domestic violence, who are mostly women and children, amounts to discrimination. Specifically, the Commission reaffirmed its prior finding that "[g]ender-based violence is one of the most extreme and pervasive forms of discrimination, severely impairing and nullifying the enforcement of women's rights."
Petitioner Jessica Gonzales, the mother of the three slain girls (ages 7, 8 and 10), whose domestic case went all the way to the U.S. Supreme Court, filed an application before the Commission in 2005. She alleged that the U.S. government, specifically the police department of Castle Rock, Colorado, failed to provide her and her daughters with sufficient protection in a domestic violence dispute, which lead to the death of her children. The petitioner argued that the police failed to protect her and her children even though she had a permanent restraining order against her ex-husband, who was known to be unstable and violent. Her numerous attempts to reach the police on an evening when her ex-husband took the girls without permission were left unanswered, and she was even criticized for repeatedly calling the police department. The police officers in charge instead reassured her that her children would be unharmed as they were with "their father."
After several hours and numerous calls to the police on the night in question, the petitioner's ex-husband, who at this time had also legally purchased a gun despite his criminal record, appeared before the police department where he exchanged fire with the police and was killed. After the police secured the scene, it found the three minor girls shot dead in their father's car. According to the petitioner, the police never provided her with a report regarding the real cause for her daughters' deaths, despite her continued instance. After she failed to obtain any form of remedy from the government, the petitioner filed the current petition.
The petitioner alleged that the United States violated Articles I, II, V, VI, VII, IX, XVIII, and XXIV of the American Declaration by failing to exercise due diligence in protecting her and her daughters from acts of domestic violence perpetrated by her ex-husband even though she held a restraining order against him. She also claimed that the police failed to adequately respond to her repeated calls over several hours asking for help and informing the police that her estranged husband had taken their three minor daughters in violation of the restraining order. Finally, the petitioners argued that the State failed to duly investigate and explain the circumstances of the girls' death.
The United States argued, inter alia, that the American Declaration does not impose an affirmative duty on states parties, including the duty to exercise due diligence. Thus, there was no obligation under the instrument "to prevent the commission of individual crimes by private parties."
The Commission noted that both parties "recognize[d] the gravity and prevalence of the problem of domestic violence in the United States, at the time of the events and the present." Also relevant to the Commission's final report was the fact that domestic violence disproportionately affects women and children. And while the Commission recognized that current U.S. law provides some protection to victims of domestic violence--for example, restraining orders--such protection was ineffective if it was not effectively enforced by state agencies. After analyzing the current U.S. figures regarding domestic violence and relevant international legal instruments, including the American Declaration, the Commission concluded that the United States "failed to act with due diligence to protect [the petitioner and her daughters] from domestic violence, which violated the State's obligation not to discriminate and to provide for equal protection before the law under Article II of the American Declaration." Furthermore, the United States "failed to undertake reasonable measures to prevent the death of [the girls] in violation of their right to life under Article I of the American Declaration, in conjunction with their right to special protection as girl-children under Article VII of the American Declaration." Finally, the Commission also found that the United States "violated the right to judicial protection" of the petitioner and her next-of kin under Article XVIII of the American Declaration.
Ballistic Missile Defense Agreement Between the United States of America and Romania (Sept. 13, 2011)
Click here for U.S. Fact Sheet (approximately 2 pages); click here for U.S. Department of State press release (approximately 2 pages)
Romania and the United States have signed an agreement on the deployment of a ballistic missile defense system in Romania. Under the agreement, Romania will allow for the establishment and operation of a U.S. land-based SM-3 ballistic missile defense system on its territory. According to the accompanying Fact Sheet, "[t]he deployment to Romania is anticipated to occur in the 2015 timeframe as part of the second phase of the European Phased Adaptive Approach (EPAA)." The parties noted that the agreement will deepen their "bilateral strategic relationship" and that "cooperation in this area will make a substantial contribution to NATO's collective security and will be an integral part of a NATO missile defense capability."
In related news, according to the U.S. Department of State, the Ballistic Missile Defense Agreement between the United States and Poland, signed in 2008, entered into force on September 15, 2011.
Joint Statement Between the European Union and the United States on Efforts to Combat Illegal, Unreported and Unregulated (IUU) Fishing (Sept. 7, 2011)
Click here for Joint Statement (approximately 2 pages)
The European Union and the U.S. government have signed a joint statement on efforts to combat illegal, unreported, and unregulated ("IUU") fishing. Acknowledging their "key role" in commercial fishing, both parties agreed to voluntarily share information and cooperate on IUU fishing. This, they hope, "will maximize the effectiveness" of already existing measures to fight the serious problem.
According to EU News Brief, "[t]his statement is the first of its kind in the longstanding transatlantic partnership on fisheries management. It commits the EU and the U.S. to work together to adopt the most effective tools to combat illegal fishing."
Panel Report, United States--Measures Affecting the Production and Sale of Clove Cigarettes (Sept. 2, 2011)
Click here for Panel Report (approximately 172 pages)
A World Trade Organization ("WTO") Panel has issued its report in the dispute between Indonesia and the United States regarding the sale of clove cigarettes. Indonesia, one of the biggest producers of clove cigarettes, claimed that Section 907(a)(1)(A) of the Federal Food, Drug and Cosmetic Act ("FFDCA"), added to the FFDCA by Section 101(b) of the Family Smoking Prevention and Tobacco Control Act, which prohibits, inter alia, the production or sale in the United States of cigarettes containing certain additives, including clove, but permits the production and sale of other cigarettes, including cigarettes containing menthol, was inconsistent with Article III:4 of the General Agreement on Tariffs and Trade ("GATT 1994"), Article 2 of the Agreement on Technical Barriers to Trade ("TBT Agreement"), and several provisions of theAgreement on the Application of Sanitary and Phytosanitary Measures ("SPS Agreement"). According to Indonesia, the U.S. restriction on the sale of clove but not menthol cigarettes is discriminatory and more trade-restrictive than necessary to fulfill a legitimate objective. In addition, the implementation of the Act, Indonesia claimed, was inconsistent with several procedural requirements of the TBT Agreement.
After concluding that the Section in question was a "technical regulation," thus falling within the scope of the TBT Agreement, the Panel went on to determine whether the U.S. ban of clove cigarettes is inconsistent with the national treatment obligation in Article 2.1 of the TBT Agreement. The Panel concluded that the ban was in fact inconsistent with Article 2.1 because the Section afforded clove cigarettes "less favourable treatment" than that accorded to menthol-flavored cigarettes. According to the Panel, clove and menthol cigarettes are "like products" and therefore should not be treated differently.
Significantly, the Panel disagreed with Indonesia that the ban was unnecessary. The Panel concluded that Indonesia failed to demonstrate that the ban is more trade-restrictive than necessary to fulfill a legitimate objective as required by Article 2.2 of the TBT Agreement. The U.S. objective to reduce youth smoking was, the Panel stated, based on extensive scientific research.
Having found that the United States acted inconsistently with its obligations under the TBT Agreement, the Panel recommended that the Dispute Settlement Body request the United States to bring Section 907(a)(1)(A) into conformity with its obligations under the TBT Agreement.
Panel Report, United States--Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (Sept. 15, 2011)
Click here for Panel Report (approximately 295 pages); click here for summary and key findings (approximately 2 pages)
A World Trade Organization
("WTO") Panel has issued its report in the dispute between Mexico and
the United States regarding U.S. measures restricting the use of
"dolphin-safe" labels on tuna products. Mexico claimed that numerous
U.S. tuna labeling laws are inconsistent with several provisions of the Agreement on Technical Barriers to Trade ("TBT Agreement")
and the General Agreement on Tariffs and Trade ("GATT 1994")
because these laws discriminate against Mexican tuna products and are more
trade-restrictive than necessary to achieve a legitimate objective.
The Panel concluded
that the U.S. dolphin-safe labeling provisions do not discriminate against
Mexican tuna products. According to the Panel, Mexican tuna products are not
afforded "less favourable treatment" than tuna products produced
elsewhere. The Panel stressed that
what matters for the purposes of determining whether there is a violation of Article 2.1 is not only the existence of some adverse impact on some imported products, but whether the group of imported products is placed at a disadvantage, in this respect, compared to the groups of like domestic and imported products originating in any other country. [¶ 7.375]
The Panel added that
the impact of the US dolphin-safe provisions on different operators on the market and on tuna products of various origins depends on a number of factors that are not related to the nationality of the product, but to the fishing and purchasing practices, geographical location, relative integration of different segments of production, and economic and marketing choices. In this context, any particular adverse impact felt by Mexican tuna products on the US market is, in our view, primarily the result of "factors or circumstances unrelated to the foreign origin of the product", including the choices made by Mexico's own fishing fleet and canners. [¶ 7.378]
The Panel did side with Mexico regarding its second argument that the U.S. dolphin-safe labeling provisions are more trade-restrictive than necessary to fulfill legitimate U.S. objectives. According to the Panel, the claimed U.S. objectives--"ensuring that consumers are not misled or deceived" regarding the adverse effects of tuna fishing on dolphins and thus contributing to the protection of dolphins--could have been met using alternative, less trade-restrictive measures. The Panel concluded that,
[i]n light of our determinations above in relation to both objectives of the US dolphin-safe provisions, we find that these measures are more trade-restrictive than necessary to fulfil their legitimate objectives, taking account of the risks non-fulfilment would create. Consequently, the Panel finds that the US dolphin-safe provisions are inconsistent with Article 2.2 of the TBT Agreement. [¶ 7.620]
The Panel recommended that the United States, to the extent that it has acted inconsistently with the provisions of the TBT Agreement, bring its measures into conformity with its obligations under the TBT Agreement.
U.S. Court of Appeals for the Eleventh Circuit
Mamani v. Berzain (Aug. 29, 2011)
Click here for decision (approximately 19 pages)
The U.S. Court of Appeals for the Eleventh Circuit has dismissed a claim filed by Bolivian nationals on behalf of their killed relatives under the Alien Tort Statute ("ATS") and alleging that the former president and defense minister of Bolivia violated international law by committing extrajudicial killings, perpetrating crimes against humanity, and violating several other fundamental rights. The Court of Appeals concluded that the plaintiffs failed to allege sufficient facts showing that the deaths of their relatives were extrajudicial killings or that the defendants perpetrated crimes against humanity.
Plaintiffs' relatives were killed during severe civil unrest in Bolivia. According to the decision, "over two months, during the course of police and military operations to restore order, some people were killed and more were injured." The relatives of those killed sued the two former highest ranking officials in Bolivia claiming that they "knew or should have known of wrongful violence" and are therefore responsible for the deaths.
The Court of Appeals first noted its role as a "vigilant doorkeeper" in ATS cases--a concept first adopted in the Supreme Court decision Sosa v. Alvarez-Mechain (124 S. Ct. 2739 (2004)). Relying on Sosa, the Court of Appeals emphasized that U.S. courts should not practice "judicial innovation" in ATS cases but instead ensure that only violations based on "widely accepted interpretations of international law" be permitted to proceed to trial. According to the Court, plaintiffs here failed to demonstrate that the killings were within the meaning of established international law or that the defendants were responsible for the killings:
Plaintiffs allege no facts showing that the deaths in this case met the minimal requirement for extrajudicial killing--that is, that plaintiffs' decedents' deaths were "deliberate" in the sense of being undertaken with studied consideration and purpose. On the contrary: even reading the well-pleaded allegations of fact in the Complaint in plaintiffs' favor, each of the plaintiffs' decedents' deaths could plausibly have been the result of precipitate shootings during an ongoing civil uprising.
The Court reached the same conclusion with respect to the alleged crime against humanity claim. While "the toll . . . was fewer than 70 killed and about 400 injured," "given the mass demonstrations, as well as the threat to the capital city and to public safety, we cannot conclude that the scale of this loss of life and of these injuries is sufficiently widespread--or that wrongs were sufficiently systematic, as opposed to isolated events (even if a series of them)--to amount definitely to a crime against humanity under already established international law."
International
Judicial Monitor