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Constitutional Challenge to Terror Exception
Generally, sovereignty shields states from litigation. There are exceptions, however. In the United States, the Foreign Sovereign Immunities Act lays down the general principles and exceptions under which lawsuits against sovereign states can be filed with courts in the United States.
In James Owens et al. v. Repubic of the Sudan et al., docket no. 06-5079, the United States Court of Appeals for the District of Columbia explains the constitutionality of 28 USC §1605(a)(7), which contains an exception to sovereign immunity: Nations found to be sponsors of terrorism by the Secretary of State may not invoke their immunity in litigation.
Sudan contests the constitutionality of 28 USC §1605(a)(7) on grounds that it violates the separation of powers. The court does not follow Sudan's logic that Congress unconstitutionally delegated its power to define the jurisdiction of the federal courts to the Executive.
Instead, the court explains on July 11, 2008, Congress assigned the Executive the authority to make a factfinding upon which jurisdiction partially rests and provided sufficient guidance to the Secretary of State to make the finding of the facts upon which the jurisdiction of federal courts over sovereign states depends. Therefore, 28 USC §1605(a)(7) meets the requirements of the intelligible principle standard of review, supra at 16. -- Michael J. Warning, International Fellow with Berliner, Corcoran & Rowe, LLP, Washington, DC.
Mon, / / Embassy Law Link
ICJ Clarifies Avena
On July 16, 2008, the International Court of Justice provided the United States with a clarification to take all measures necessary to ensure that five Mexican nationals are not executed pending its final judgment in The Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America). Its order is timely as Jose Medellin, one of the Mexicans concerned in the case, is scheduled to be executed on August 5, 2008 in Texas. According to the Houston Chronicle, Texas governor, Rick Perry, intends to execute Avena despite the World Court order. -- Christina E. Mason, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington.
Thu, / / Embassy Law Link
Al-Bashir ICC Prosecution
The International Criminal Court published a press release on the Al-Bashir prosecution on July 14, 2008. The application against the President of Sudan was filed by the ICC prosecution and will be reviewed by the Pre-Trial Chamber. In controlling a counter-insurgency in Darfur, the president is alleged to have used genocidal means outside of the means available to sovereign nations to protect their territory. President Al-Bashir is the first sitting president to face such ICC charges, Times Online adds. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Mon, / / Embassy Law Link
Iraq Complaint Justiciable
On June 24, 2008, the United States Court of Appeals for the District of Columbia Circuit remanded the matter of Robert Simon et al. v. Republic of Iraq et al., docket number 06-7175, to the district court for further proceedings.
Relying on an exception in the Foreign Sovereign Immunities Act, FSIA, the plaintiffs sued Iraq, the Iraqi intelligence service and Saddam Hussein alleging they had been tortured and taken hostage during the Gulf War. Although foreign sovereigns are normally protected from lawsuits, the exception in the FSIA, 28 USC §1605(a)(7), allows for lawsuits against state sponsors of terrorism. The district court dismissed the lawsuit, however, on the basis that the actions were untimely, coming two years after the ten year limitation.
On appeal, Iraq newly contended that the §1083 of the National Defense Authorization Act for Fiscal Year 2008, NDAA, which revised the terrorism exception by repealing §1605(a)(7) of Title 28 and adding §1605A of Title 28, required dismissal of the cases. The new section mostly strengthened plaintiffs' ability to seek damages from state sponsors of terrorism, though §1083(d) allowed the President to waive §1083 with respect to Iraq, which he promptly did in order to protect its reconstruction.
Based on the text and structure of the NDAA, circuit judge Ginsberg wrote that the appeals court concluded that the courts retained jurisdiction over cases pending pursuant to former §1605(a)(7) when the Congress enacted the NDAA. The court found the actions to be timely and liable to be tried in court and, therefore, reversed the district court's dismissal. -- Genevieve Cohoon, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington.
Thu, / / Embassy Law Link
Garnishment Dispute in Supreme Court
In today's session, the United States Supreme Court granted certiorari in Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Elahi, docket number 07-615. For a prior discussion, see Attachment of Award and Blocked Assets. The issue accepted on June 23, 2008 is whether an award received by a foreign sovereign may be garnished by a third party that won an award against the sovereign. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Mon, / / Embassy Law Link
Philippine FSIA Case on the Docket
On The Docket maintains a list of Supreme Court cases that address the Foreign Sovereign Immunities Act. The newest decision is Philippines v. Pimental, 553 US ___ (2008). -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Wed, / / Embassy Law Link
Embassies' Business Outreach
On June 12, 2008, the US-ASEAN Business Council facilitated the business outreach efforts of American embassies in South-East Asia. Under its auspices, four U.S. ambassadors joined with 10 foreign ambassadors to meet with business representatives at the Willard Hotel in Washington, DC. Secretary of Commerce, Carlos Gutierrez, present the keynote speech.
Gutierrez argued that protectionism does not protect and called for focused efforts on free trade agreements with ASEAN nations. The Council has long supported such FTAs and serves as the secrectariat of the US-Malaysia FTA Business Coalition.
The American ambassadors stressed the educational aspects of their tour. In San Diego and Houston, they learned from business about approaches in intellectual property law and energy where embassies and business have opportunities for enhanced cooperation. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sat, / / Embassy Law Link
Cultural Heritage Lost to Russia
On June 13, 2008, the United States Court of Appeals for the District of Columbia Circuit reviewed a lower court partial victory for the release of cultural property from Russia.
The dispute Agudas Chasidei Chabad of United States v. Russian Federation et al., docket number 07-7002, involves the application of the FSIA to Russia and her agencies, the act of state doctrine and the forum non convenience principle. The cultural heritage at issue comprises Russian Chabad libraries and archives taken by Russia after tortuous escapes from Russian revolutionaries and German invaders.
Now that the D.C. Circuit in Washington, DC has confirmed the jurisdiction of American courts claimed by the plaintiffs, the plaintiffs may proceed with their claims in the district court. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Fri, / / Embassy Law Link
Breach of Radius or Convention
In US - UK Diplomats Conduct Appalling, an unattributed comment chides diplomats from the United States and the United Kingdom for breaching a travel restriction. The June 8, 2008 comment in the Sunday News of Zimbabwe reports that the alleged violation caused party members to endanger the lives of the diplomats, police had to step in to protect the diplomats, and the diplomats protested their treatment by police as harassment.
The commenter characterized the confrontation:
While Zimbabwe is a signatory to the Vienna Convention on the treatment of diplomats, it is still a sovereign nation with a functioning Government and not a banana republic.It calls for swift remedial action against perceived childish antics and cheap publicity seeking stunts by diplomats. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sun, / / Embassy Law Link
Human Rights Exception to Immunity
Reminscent of the proposed FSIA exception for barbarism in Washington, DC, litigation, the highest Italian court reportedly issued rulings containing an exception to sovereign immunity for human rights violations. The court authorized the attachment of a Germany-owned villa at Lake Como and other cultural institutions in a dispute between Germany and Italian and Greek victims of the Third Reich, Netzeitung.de reports on June 6, 2008.
According to the article, Kulturinstitut muss für Nazi-Terror büssen, Germany understands that it had compensated Italian victims, while plaintiffs believe they fell through cracks in the ever-expanding German compensation system which most recently included the Foundation Remembrance, Responsibility and Future. La Repubblica quotes the court as follows:
La Repubblica federale di Germania - si legge nell'ordinanza n.14201 - non ha il diritto di essere riconosciuta, nella presente controversia, immune dalla giurisdizione civile del giudice italiano, anche in ragione del fatto che la condotta illecita si e' verificata anche in Italia …The decisions are apparently not yet available on the web site of the Corte Suprema di Cassazione. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
and
…l'ordinamento internazionale gia' consente di esercitare nei confronti dello Stato straniero in caso di violazioni ad esso addebitabili, di obbligazioni negoziali, resti, invece, esclusa a fronte di ben piu' gravi violazioni, quali quelle costituenti crimini addirittura contro l'umanita' e che segnano anche il punto di rottura dell'esercizio tollerabile della sovranita' …
Fri, / / Embassy Law Link
