Problem II:

     Questions regarding the scope of presidential power to enter into international agreements arose with respect to the conclusion of a status of forces agreement (SOFA) between the United States and Iraq. The United States typically concludes SOFAs with states where U.S. forces are deployed, and these agreements typically grant U.S. forces the right to enter and move about the country, exempt U.S. forces from host state taxes, and exempt U.S. personnel from local jurisdiction in whole or in part. The U.S. currently has such agreements with more than 115 states; some, such as the SOFA with NATO, have been ratified as Article II treaties, while others have been concluded as sole executive agreements.

     Critics of the Iraq SOFA argued that the agreement went beyond the scope of traditional SOFAs, including provisions that grant authority over military operations to a join U.S.-Iraq Committee and a specification of timetables for military operations and withdrawals, and therefore that the agreement needed congressional consent. The Administration successfully resisted calls for congressional approval, insisting that it had independent constitutional authority to enter into the agreement. For congressional testimony outlining the terms of the debate, click here.

Problem III:

Sanchez-Llamas

     In June 2006, the United States Supreme Court issued Sanchez-Llamas v. Oregon, an opinion addressing whether a Vienna Convention violation requires suppression of evidence at trial and whether an article 36 claim can be forfeited under state procedural default rules in light of the LaGrand and Avena decisions. Excerpts from the Court's opinion can be found here.

Medellin

     Sanchez-Llamas was not one of the 51 Mexican nationals covered by the Avena decision; Jose Medellin was. Relying upon Avena and President Bush's February 2005 memorandum stating that the United States would, "in accordance with general principles of comity," provide review and reconsideration in state courts to the individuals covered by Avena, Medellin sought a hearing in Texas state courts. This request was pending when the U.S. Supreme Court decided Sanchez-Llamas. In November 2006, the Texas Court of Criminal Appeals rejected Medellin's petition. Excerpts from the plurality's opinion can be found here.

     Medellin appealed the state court decision denying his petition to the United States Supreme Court, which issued an opinion on March 28, 2008. In a 6 to 3 ruling, the Court held that ICJ judgments are not binding upon courts in the United States, and that President Bush's executive order that Texas courts give effect to the Avena judgment does not independently require state courts to provide review and reconsideration of the claims of the Mexican citizens named in Avena. An edited version of the opinion can be found here; the full opinion is available here.

     On June 5, 2008, Mexico filed a “Request for interpretation of the [ Avena] Judgment” and a request for the indication of provisional measures. Mexico alleged that its citizens’ requests for “review and reconsideration … ha[d] repeatedly been denied” and that Medellin’s execution was imminent. Article 60 of the ICJ Statue permits states to seek an interpretation of a judgment when a “dispute as to the meaning or scope” of a judgment exists.

     On July 16, 2008, the Court, by a vote of seven to five, issued provisional measures stating that the United States “shall take all measures necessary to ensure that [named Mexican individuals] are not executed pending judgment” on Mexico’s request for interpretation. The dissenting judges argued that the parties did not disagree over the meaning or scope of the Avena judgment, and therefore that provisional measures were not warranted. A copy of the Court’s provisional measures order can be found here; a copy of Judge Burgenthal’s dissent can be found here.

     On January 19, 2009, the Court issued its judgment in this matter. It found that Mexico's request involved a dispute over the domestic effects of ICJ judgments, but that this question was not within the "meaning or scope" of the Court's March 2004 judgment in Avena, and therefore does not fall within the terms an Article 60 proceeding. The Court nevertheless observed that

considerations of domestic law which have so far hindered the implementation of the obligation incumbent upon the United States, cannot relieve it of its obligation. A choice of means was allowed to the United States in the implementation of its obligation and, failing success within a reasonable period of time through the means chosen, it must rapidly turn to alternative and effective means of attaining that result.

The Court unanimously found that the United States breached the obligations incumbent upon it under the order indicating provisional measures, and reaffirmed, by a vote of eleven to one, the continuing binding character of US obligations under the Avena judgment. A copy of the January 19 judgment can be found here.

Domestic Effect of Decisions by Treaty Bodies

     From time to time, U.S. courts are asked to consider the domestic legal effect of decisions taken by a treaty bodies.   One recent instance arose out of aunanimous March 2004 decision by parties to the Montreal Protocol on Substances that Deplete the Ozone Layer regarding limitations on the use of methyl bromide.   Thereafter, the U.S. EPA issued a rule on use of methyl bromide.  An environmental NGO challenged the rule as inconsistent with the decision taken by the treaty parties.  The D.C. Circuit Court of Appeals wrote that the plaintiff’s claim that decisions taken under the treaty are law enforceable in U.S. courts raised significant constitutional problems: If the decisions are law -- enforceable in federal court like statutes or legislative rules -­ then Congress either has delegated lawmaking authority to an international body or authorized amendments to a treaty without presidential signature or Senate ratification . . . .  The court found it unnecessary to resolve these constitutional questions, however, as it characterized decisions by treaty parties as creating an ongoing political commitment and therefore determined that the decisions were not binding in domestic courts. NRDC v. EPA, 464 F. 3d 1 (D.C. Cir. 2006). The opinion can be found here.

Problem V:

     Following the Sosa decision, courts have decided a number of ATS lawsuits. Many of the actions involve claims against corporate defendants. Some of the most prominent of these cases include:

     In re South African Apartheid Litigation. This action involves claims that several multinational corporations aided and abetted the crimes of South Africa’s apartheid regime. Defendants include automobile companies, such as Ford and General Motors,, that allegedly engaged in workplace discrimination that mimicked and enhanced apartheid and manufactured military vehicles for the South African security forces, and technology defendants, such as IBM and Fujitsu, that provided computer hardware and software that enabled the South African government to carry out apartheid policies. The cases poses difficult issues regarding the scope of “aiding and abetting liability” under the ATS and has attracted substantial diplomatic and scholarly attention. For example, South African President Thabo Mbeki stated that “we consider it completely unacceptable that matters that are central to the future of our country should be adjudicated in foreign courts which bear no responsibility for the well-being of our country . . .” In April 2009, defendant’s motion to dismiss was granted in part and denied in part; the court’s opinion is available here.

     Sarei v. Rio Tinto. This case was filed by residents of Bougainville, Papua New Guinea (PNG), alleging that various war crimes, crimes against humanity, racial discrimination and environmental torts arose out of defendant’s mining operations on Bougainville. Plaintiffs claim that Rio Tinto is liable not only for its actions that helped spark a civil war in PNG, but also vicariously for those of the PNG government, acting as defendant’s agent or partner. The district court determined that plaintiffs set out cognizable claims under the ATS, but dismissed the complaint as presenting a nonjusticiable political question. Sarei v Rio Tinto, 221 F. Supp. 2d 1116 (C.D. Cal. 2002). On appeal, a three judge panel affirmed in part and reversed in part. The panel held that the district court erred in dismissing the complaint on political question grounds, and remanded for consideration of other issues. Sarei v. Rio Tinto, 487 F.3d 1193 (9 th Cir. 2007). The Ninth Circuit then ordered that the case be heard en banc. The en banc panel remanded to the district court to determine whether, as a prudential matter, the complaint should be dismissed for failure to exhaust local remedies. Sarei v. Rio Tinto, 550 F.3d 882 (9 th Cir. 2008). Two judges would have held that the ATS requires an exhaustion analysis; two would have dismissed for lack of subject matter jurisdiction; and four would have found that the ATS does not include an exhaustion requirement. The various en banc opinions can be found here.

     Wiwa v. Royal Dutch Shell. This action alleged that defendants were complicit in human rights abuses against the Ogoni people in Nigeria, including summary execution, crimes against humanity, torture, inhumane treatment, arbitrary arrest and wrongful death. The district court originally dismissed the action on forum non conveniens grounds, but the Second Circuit reversed. A subsequent motion to dismiss was denied, and the parties engaged in lengthy discovery. On June 8, 2009, shortly before trial was scheduled to start, the parties settled. The settelement provided a total of $15.5 million to compensate plaintiffs and establish a trust fund for the benefit of the Ogoni people. A copy of the settlement agreement can be found here.

     Bowoto v. Chevron. This action arises out of a violent incident on a Shell platform located nine miles offshore of Nigeria in spring 1998. A group of Nigerian citizens seized the platform. After a standoff of several days, Chevron sought the assistance of Nigerian security forces, whose attempts to remove the protestors led to two deaths and multiple arrests. Plaintiffs alleged that the security forces engaged in torture and other cruel, inhuman and degrading treatment, and that Chevron was vicariously liable for these violations. The case went to trial in October and November, 2008. After hearing more than two weeks of trial testimony, the jury found in favor of defendants. The Bowoto case is one of only two ATS cases against corporate defendants to reach a jury.

     Al Shimari v CACI. This action involves claims by individuals held in custody at Abu Ghraib prision against private contractors who were responsible for interrogation and translation services. The court found that claims against government contractors are too novel to satisfy the Sosa test for ATS jurisdiction, but permitted other claims to proceed. A copy of the opinion can be found here.

     lbazzaz v. Blackwater. This action involves claims filed on behalf of two Iraqi men who were killed when Blackwater employees opened fire on a crowd of Iraqi civilians in and around Al Watahba Square in Baghdad in September 2007. A motion to dismiss is pending.