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

Summer 2012 Issue


International Centre for Settlement of Investment Disputes

Railroad Development Corp. (RDC) v. Guatemala (June 29, 2012)

Click here for document (approximately 109 pages)

Railroad Development Corp. (RDC) v. Guatemala, a Dominican Republic-Central America-United States Free Trade Agreement (“CAFTA”) arbitration before the International Centre for Settlement of Investment Disputes (“ICSID”), is the first CAFTA claim to reach the merits stage. The ICSID tribunal ordered Guatemala to pay the investor almost twelve million dollars in damages in a dispute between RDC and the Guatemalan government over RDC’s operation of Guatemala’s railway system.

In 2007, RDC, a privately-owned U.S. railway investment and management company, filed a request for arbitration against Guatemala under CAFTA on its own behalf and on behalf of Companía Desarrolladora Ferroviaria, S.A., a Guatemalan company that does business as Ferrovías Guatemala (“FVG”) and is majority-owned and controlled by RDC. RDC requested the ICSID tribunal to find 1) that the lesivo declaration (“a measure adopted by the executive branch where the government agrees to declare [a] . . . contract lesivo because it causes harm to the State, and instructs and authorizes the Attorney General to take measures to cease its obligatory character”) and Guatemala’s subsequent conduct constituted an indirect expropriation in violation of CAFTA Article 10.7.1; 2) that Guatemala violated the minimum standard of treatment of CAFTA Article 10.5 by failing to provide, in accordance with customary international law, fair and equitable treatment and full protection and security to RDC’s investments; and 3) that Guatemala violated the national treatment standard of CAFTA Article 10.3. RDC also requested the tribunal to order Guatemala to pay RDC $64,035,859 in damages, plus costs and attorneys’ fees incurred in prosecuting its CAFTA claims.

The facts of the case are as follows. In 1997, RDC won a government bid to operate Guatemala’s rails for fifty years. The dispute commenced when Guatemala’s executive branch declared RDC’s contract to be lesivo because, inter alia, RDC failed to deliver the promised rehabilitation of Guatemala’s railway system. RDC claimed that the lesivo declaration harmed its investment in violations of Article 10.3 (national treatment), Article 10.5 (minimum standard of treatment), and Article 10.7 (expropriation) of CAFTA.

The ICSID tribunal found that Guatemala breached the minimum standard of treatment under Article 10.5 of CAFTA as its conduct was “arbitrary, grossly unfair, [and] unjust,” and it ordered that Guatemala pay RDC damages for losses incurred as a result of the breach. The tribunal also ruled that once the award is paid, RDC should forfeit and renounce all its rights under the contracts and transfer to Guatemala RDC’s shares in FVG.

In Re People’s Mojahedin Org. of Iran (June 1, 2012)

Click here for document (approximately 12 pages)

The U.S. Court of Appeals for the District of Columbia has ordered the U.S. Secretary of State to make a decision within four months on the petition filed by the People’s Mojahedin Organization of Iran (“PMOI”) to be removed from the Foreign Terrorist Organization (“FTO”) list. If the Secretary fails to either deny or grant the petition, then the Court will grant the PMOI’s writ of mandamus to set aside the FTO designation.

A writ of mandamus is a common law writ “issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly” (see Black’s Law Dictionary). Courts rarely issue the writ, which the Court here also acknowledged: “The ‘issuance of the writ is an extraordinary remedy, reserved only for the most transparent violations of a clear duty to act.’”

At the heart of this case is the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which authorizes the Secretary of State to designate an entity an FTO if specific conditions are fulfilled. Once an entity is designated, its assets are frozen, its members are barred from entering the United States, and those who knowingly provide “material support or resources” to the FTO can be fined and/or imprisoned for up to fifteen years. Before 2004, the FTO designation lasted for two years; thereafter, the Secretary could either renew it or allow it to lapse. In 2004, the two-year limitation was removed, meaning that now designations do not lapse; instead, an FTO can file a petition for revocation with the Secretary to challenge the listing. The petition must include evidence showing that the relevant circumstances that led to the designation have sufficiently changed. The Secretary has 180 days to review the petition and approve or deny it on the basis of both classified and declassified information. If the petition is denied, the FTO can seek judicial review within thirty days of the denial.

In this case, the PMOI filed a petition for revocation in 2008 of its 2003 designation, including in its petition the necessary evidence to demonstrate that the circumstances within the organization that led to the original designation had dramatically changed. PMOI’s petition was denied in 2009, and PMOI timely petitioned the Court for review. The Court held that the procedures did not provide PMOI due process, and it directed the Secretary to provide PMOI access to unclassified documents on which she relied in her decision. However, since the July 2010 order, the Secretary has failed to provide PMOI with the additional documents. PMOI then petitioned the Court for the issuance of a writ of mandamus.

While the Court refused to immediately revoke the FTO designation “in light of the national security and foreign policy concerns,” it openly criticized the government’s slow progress in this case, finding “the Secretary’s delay in acting on PMOI’s petition for revocation . . . egregious.” The Court ordered the Secretary to either deny or grant PMOI’s petition not later than four months from the date of the opinion; and “if she fails to take action within that period, the petition for writ of mandamus setting aside the FTO designation will be granted.”

U.S. Court of Appeals for the Fourth Circuit

United States v. Dire (May 23, 2012)

Click here for document (approximately 57)

In a May 23, 2012 ruling, the U.S. Court of Appeals for the Fourth Circuit ruled that Somali pirates apprehended before boarding a ship they had intended to seize could still be lawfully convicted of piracy. The case concerned 18 U.S.C. § 1651, which provides that “[w]hoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.” The defendants, who were all found guilty of the crime, challenged the district court’s broad reading of the statute, which did not require the robbery element. Instead, the defendants argued that the crime of piracy “has been narrowly defined for purposes of § 1651 as robbery at sea, i.e., seizing or otherwise robbing a vessel,” an argument that had been upheld in United States v. Said, 757 F. Supp. 2d 554 (E.D. Va. 2010) (the Said decision was vacated and remanded on the same day that Dire was issued). Since they only boarded the vessel involuntarily after being seized and never took possession of property, they challenged their convictions and the mandatory life sentence. The Court of Appeals upheld the district court’s ruling that customary international law is both evolving and a definite, knowable standard. The Court assessed this standard by reviewing international consensus, based in large part on foreign sources of law and widely accepted treaties regardless of their ratification by the United States (including a reference to the United Nations Convention on the Law of the Sea (“UNCLOS”)).

On April 1, 2010, the USS Nicholas, a U.S. battleship disguised as a merchant ship, was attacked by Somali pirates on the high seas in the Indian Ocean. The attack began when defendants opened fire with AK-47 machine guns, while rocket-propelled grenade launchers and a ladder for their planned attempt to board the ship were also present in their skiffs. When their initial shots were returned, the pirates attempted to flee but were apprehended. Defendants were indicted on several counts, most notably for piracy, which carries a mandatory life sentence.

The District Court denied defendants’ motion to dismiss the piracy charge, ruling instead that based on precedent in United States v. Hasan, 747 F. Supp. 2d 599, 602 (E.D. Va. 2010), the law of nations now recognizes that the crime of piracy encompasses “inter alia, acts of violence committed on the high seas for private ends.” At the conclusion of trial, the jury found the defendants guilty on all counts. Defendants were sentenced to life plus eighty years. They appealed, contending that their attack on the USS Nicholas did not constitute piracy.

The Fourth Circuit upheld the lower court’s finding that the relevant provision recognized an evolving standard of customary international law. The Court expressly rejected conflicting precedent in Said, where the opposite conclusion was reached. The Said court had dismissed the piracy count where no taking of property was alleged, based on the premise that when § 1651 was enacted, the law of nations then defined piracy to require the element of robbery. The Court of Appeals acknowledged that at that time the law of nations limited the crime of piracy to require the element of robbery. However, it added that

interpretation of our law would render it incongruous with the modern law of nations and prevent us from exercising universal jurisdiction in piracy cases . . . . At bottom, then, the defendants’ position is irreconcilable with the noncontroversial notion that Congress intended in § 1651 to define piracy as a universal jurisdiction crime. In these circumstances, we are constrained to agree with the district court that § 1651 incorporates a definition of piracy that changes with advancements in the law of nations.

The Court also conducted a thorough analysis to arrive at the conclusion that the modern evolution of the definition of piracy under customary international law no longer specifically required robbery, stating, “We also agree with the district court that the definition of piracy under the law of nations . . . ha[s] for decades encompassed their violent conduct. That definition, spelled out in the UNCLOS, as well as the High Seas Convention before it, has only been reaffirmed in recent years as nations around the world have banded together to combat the escalating scourge of piracy.”

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 a speech 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.

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.”

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, 2011)

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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