Appendix — Macharia v. United States

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APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT DATED JULY 11, 2003

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 13, 2003 Decided July 11, 2003

No. 02-5252

MERANIA Murincu MAcuaRIA, ET AL.,

APPELLANTS,

V.

UNITED STATES OF AMERICA,

APPELLEE.

Before: GinsBurG, Chief Judge, and Rocers and Tarte,

Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TaTEL, Circuit Judge: Appellants, a prospective class of

more than 5,000 Kenyan citizens and businesses injured in

the 1998 bombing of the United States Embassy in Nairobi,

Kenya, sued the United States under the Federal Tort Claims

Act alleging that the government negligently failed to secure

the Embassy and to warn of a potential terrorist attack.

Following limited jurisdictional discovery, the district court

dismissed the complaint, finding that the discretionary

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Appendix A

function, foreign country, and independent contractor

exceptions to the Federal Tort Claims Act’s waiver of

sovereign immunity bar appellants’ claims. We affirm in all

respects. if

I.

At approximately 10:30 on the morning of August 7,

1998, an explosives-laden truck dispatched by the al Qaeda

terrorist network approached the entrance to the rear parking

lot of the United States Embassy in Nairobi, Kenya.

An embassy guard, a Kenyan employed by UIIS, a security

company working under contract with the State Department,

refused to open the Embassy gate. Blocked from entering

| the compound, one of the two terrorists began shooting while

the other threw a flash grenade at another guard. Unarmed

| and unable to notify the Embassy’s detachment of United

| States Marines either by telephone or radio, the guards ran

for cover. Although apparently still off-premises, the terrorists

detonated their explosives, causing massive internal damage

to the Embassy, killing forty-four Embassy employees and

approximately 200 Kenyan citizens, injuring some 4,000

individuals, and causing the collapse of an adjacent building.

Approximately nine minutes later, another al Qaeda terrorist

detonated an explosives-laden truck some thirty-five feet

from the outer wall of the United States Embassy in Dar Es

Salaam, Tanzania. That attack killed twelve people and

injured eighty-five.

Appellants, all Kenyan citizens and businesses injured

in the Nairobi bombing, filed suit against the United States

in the U.S. District Court for the District of Columbia alleging a

3a

Appendix A

that government actions and inactions led to the bombing

and exacerbated appellants’ injuries. Brought under the

Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq.,

counts I and II of the complaint allege that the United States

Embassy was inherently dangerous; that State Department

employees knew or should have known about a likely attack

on the Embassy and that despite this knowledge they failed

to warn their superiors, the Embassy, and Kenyan citizens;

that the State Department failed to provide properly trained

security personnel to the Embassy and to take necessary

security precautions to prevent an attack; and that as a result

of these shortcomings, the Embassy had become a private

and public nuisance. Counts I and II also seek to hold

the United States liable for the negligence of the UIIS

guards. Count III alleges that the government’s security

failures violated customary international law, the Kenyan

Constitution, and the International Covenant on Civil and

Political Rights (ICCPR). Count IV seeks formation of a

constructive trust to hold any assets or funds seized by the

United States from Osama bin Laden and al Qaeda for the

benefit of plaintiffs and prospective class members.

Invoking the discretionary function and foreign country

exceptions to the FTCA’s limited waiver of sovereign

immunity, 28 U.S.C. § 2680(a), (k), the government moved

to dismiss. Before ruling on the government’s motion, the

district court allowed plaintiffs three months of jurisdictional

discovery. See Macharia v. United States, No. 99-3274

(D.D.C. Mar. 26, 2001). During discovery, the government

objected to plaintiffs’ efforts to obtain information from any

agency other than the State Department. The government also

objected to any discovery on the merits. A magistrate judge

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Appendix A

Sustained both objections, and the district court denied

plaintiffs’ motion for reconsideration. See Macharia v. United

States, No. 99-3274 (D.D.C. Dec. 17, 2001).

Following completion of jurisdictional discovery, the

district court dismisséd the complaint. Macharia v: United

States, 238 F. Supp. 2d 13 (D.D.C. 2002). Rather than “apply

the heightened requirements of [Federal Rule of Civil

Procedure] 12(b)(6) and treat all factual allegations—

including those related to jurisdiction—in the complaint as

true,” id. at 21 (internal quotation marks omitted), the court

treated the government’s jurisdictional arguments as a

“factual challenge,” id. at 20, under Federal Rule of Civil

Procedure 12(b)(1), and required plaintiffs to “demonstrate”

“through testimony and affidavits” that the “case is properly

before the court,” id. at 21. Observing that plaintiffs “were

afforded three months of discovery on the jurisdictional

question,” id., the court rejected plaintiffs’ contention that it

“should not dismiss the action pursuant to Rule 12(b)(1)

because [they] have not had the opportunity to conduct

sufficient jurisdictional discovery in this case,” id. With

respect to most allegations contained in counts I and II, the

court found that “[t]he decisions made by [the United States]

regarding the security of the Embassy and warnings of

possible threats are clearly discretionary in nature and

grounded in policy and therefore[ ] do not fall within the

FTCA’s waiver of sovereign immunity.” Jd. at 26. The district

court dismissed all claims based on the alleged negligence

of the UIIS guards under the foreign country and independent

contractor exceptions to the FTCA. Jd. at 26-28. As to count

Ill, the court held that sovereign immunity bars plaintiffs’

Kenyan Constitution and ICCPR claims, and that plaintiffs

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Appendix A

had failed to allege a claim under customary international

law. Jd. at 28-31. Having dismissed plaintiffs’ substantive

claims, the district court dismissed count IV, explaining that

“a constructive trust is not an independent cause of action.”

Id. at 31.

Plaintiffs now challenge the district court’s discovery

rulings and its dismissal of their complaint. Our review of

the district court’s dismissal of the complaint pursuant to

Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) is de

novo, see Stokes v. Cross, 327 F.3d 1210, 1214 (D.C. Cir.

2003); we review the district court’s discovery rulings for

abuse of discretion, see Goodman Holdings v. Rafidain Bank,

26 F.3d 1143, 1147 (D.C. Cir. 1994).

Il.

The FTCA authorizes district courts to hear suits for

money damages against the United States “for injury or loss

of property, or personal injury or death caused by the

negligent or wrongful act or omission of any employee of

the Government ... if a private person .. . would be liable

to the claimant in accordance with the law of the place where

the act or omission occurred.” 28 U.S.C. § 1346(b)(1).

The Act’s waiver of sovereign immunity has various

exceptions, however. We agree with the district court that

three of those exceptions—discretionary function, foreign

country, and independent coniractor—bar appellants’ claims

under counts I and II.

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Appendix A

Discretionary Function Exception

The FTCA’s discretionary function exception bars claims -

“based upon the exercise or performance or the failure to

exercise or perform a discretionary function or duty on the

part of a federal agency or an employee of the Government,

whether or not the discretion involved be abused.” 28 U.S.C.

§ 2680(a). In United States v. Gaubert, 499 U.S. 315, 322-

23 (1991), the Supreme Court established a two-part test for

determining whether the discretionary function exception

applies in a particular case. First, because “(t]he exception

covers only acts that are discretionary in nature, acts that

involve an element of judgment or choice,” id. at 322 (internal

quotation marks omitted), Gaubert’s first step requires that

we determine whether any “federal Statute, regulation, or

policy specifically prescribes a course of action for an

employee to follow,” id. If one does, “the employee has no

rightful option but to adhere to the directive.” Berkovitz v.

United States, 486 U.S. 531, 536 (1988). Under Gaubert’s

second step, which applies when there is no “federal statute,

regulation, or policy” and when the “challenged conduct

involves an element of judgment,” id., the court must decide

“whether th[e] judgment is of the kind that the discretionary

function exception was designed to shield,” id. “Because the

purpose of the exception is to prevent judicial ‘second-

guessing’ of legislative and administrative decisions

grounded in social, economic, and political policy through

the medium of an action in tort,” the Supreme Court

explained, “when properly construed, the exception protects

only governmental actions and decisions based on

considerations of public policy.” Gaubert, 499 U.S. at 323

(internal quotation marks and citations omitted).

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Appendix A

In this case, even after several months of discovery,

appellants failed to establish, as Gaubert’s first step requires,

the existence of a “federal statute, regulation, or policy” that

applies to any of the government’s allegedly negligent

conduct, including the government’s alleged failure to secure

the Embassy and to warn of a potential attack. This failure is

hardly surprising, for as the district court explained,

“determinations about what security precautions to adopt at

American embassies, and what security information to pass

on, and to whom this information should be given, do not

involve the mechanical application of set rules, but rather

the constant exercise of j udgment and discretion.” Macharia,

238 F. Supp. 2d at 23. Indeed, the Secretary of State has

authority to “develop and implement ... policies and

programs, including funding levels and standards, to provide

for the security of United States Government operations of a

diplomatic nature,” 22 U.S.C. § 4802(a)(1), and the “Physical

Security Standards” section of the State Department’s Foreign

Affairs Manual instructs “[p]roject managers and regional

security officers . . . [to] follow all standards to the maximum

extent possible,” Unitep States Dep’t oF STATE FOREIGN

AFFAIRS MANUAL, 12 FAM 314.1. The manual also directs

foreign service officers to engage in a process of

[r]isk management ... begin[ning] with an

assessment of the value of the assets, the degree

of a specific type of threat, and the extent of the

vulnerabilities. .. . A decision is then made as to

what level of risk can be accepted and which

countermeasures should be applied. Such a

decision involves a cost-benefit analysis, giving

decision makers the ability to weigh varying

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Appendix A

security risk levels against the cost of specific

countermeasures.

Id., 12 FAH-6 H-511.4-In short, embassy security is vested

in the discretion of State Department employees, from the

Secretary to the foreign service officers at various embassies.

See Macharia, 238 F. Supp. 2d at 23-24.

Conceding that they “did not rely on any documents” to

demonstrate that a “federal statute, regulation, or policy”

applied to the government’s conduct, Appellants’ Reply Br.

at 6, appellants contend that the discretionary function

exception is nevertheless inapplicable because the

government failed to follow an unwritten federal policy.

According to appellants, the Office of Diplomatic Security

(DS), the office within the State Department responsible for

embassy security, failed to file “trip reports” with the

Embassy’s Regional Security Officer following visits to the

Embassy in March and June 1998, even though “ ‘[a] team

trip report would have been a normal practice.’ ” Appellants’

Reply Br. at 6 {citing Williams Dep. at 125:19-20). DS’s

failure to file a trip report, appellants maintain, left the

Embassy with inadequate guidance about how to improve

security and to prevent al Qaeda’s attack.

Even assuming an unwritten practice can satisfy the

statute’s requirement, appellants have failed to establish that

DS had a mandatory obligation to file a trip report. To the

contrary, although the record establishes that filing trip

reports was DS’s “procedure,” one witness testified that

“reality sometimes intercedes, and you do not have sufficient

time to do something as formal as. . . a trip report.” Flowers

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Appendix A

Dep. at 51:15-17. The same witness explained that filing a

trip report “would be ideal, but it could have been that the

people that were team leaders . . . were immediately sent on

other trips or to handle other pressing business. . . . If [the

diplomatic security agent] was called away before he had a

chance to write a trip report, it might be sometime before he

gets to it or it could be never if this flood of work doesn’t

give him the opportunity to do it.” /d. at 49:7-21. The record

thus establishes only that filing trip reports was preferred,

not that it was required, i.e., not that it amounted to a

mandatory policy.

Having failed to identify a relevant “federal statute,

regulation, or policy” under Gaubert’s first step, appellants

contend that the discretionary function exemption is

inapplicable under the second Step because the government’s

conduct was the product of simple negligence rather than

social, political, or economic considerations. Specifically,

appellants cite twenty-one irstances of alleged government

negligence, from its failure to fix a pin in the drop bar at the

Embassy’s rear parking lot to its failure to timely design a

training program for vehicle bomb recognition and prevention

that led to appellants’ injuries. See Appellants’ Br. at 25-26.

The district court helpfully distilled these allegations into

Six Categories:

1) a failure to provide guidance and advice on

improving security at the Embassy, 2) a failure to

provide security equipment to the Embassy,

3) a failure to train adequately Embassy personnel

and contractors to deal with various security

threats, 4) a failure to warn adequately Embassy

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Appendix A

personnel, and others, of potential terrorist threats,

5) an improper classification of the level of

security risk at the Embassy, or 6) falsely leading

Embassy personnel to believe that security

analyses had been conducted or would be

conducted.

Macharia, 238 F. Supp. 2d at 22. The district court concluded

that all six categories were barred by the second step of the

discretionary function test. Jd. As the district court explained,

“{djecisions regarding how much safety equipment should

be provided to a particular embassy, how much training

should be given to guards and embassy employees, and the

amount of security-related guidance that should be provided

necessarily entails balancing competing demands for funds

and resources.” Macharia, 238 F. Supp. 2d at 25. “Each

individual embassy’s need for security,” the district court

noted:

must be balanced against the need perceived at

other embassies, and the need for security must

be balanced against the need for alternative

projects that could consume scarce resources.

Moreover, each of Defendant’s decisions

regarding security involved balancing potential

inconvenience to State Department employees

against the perceived security gains that would

result from a safety measure.

Id. We have little to add to the district court’s fine analysis,

except to note that, as the government points out in its brief,

“decisions about foreign embassies, especially their location

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Appendix A

and structure, require agency officials to account for policy

objectives, and consult and negotiate with the host country—

actions that, by their very nature, affect foreign relations.”

Appellee’s Br. at 27.

Appellants insist that “[n]othing in the record supports

the notion that anyone at DS ‘decided’ to: make inaccurate

statements, fail to keep a promise, fail to send a report, fail

to send a report on time, overlook a broken pin or outdated

dropbar, or fail to correct misapprehensions.” Appellants’ Br.

at 30. Put another way, appellants maintain that Gaubert’s

second step requires evidence that decision makers actually

considered social, economic, or policy considerations. But

we rejected just this argument in Cope v. Scott, 45 F.3d 445,

449 (D.C. Cir. 1995) (citation omitted): “What matters is

not what the decisionmaker was thinking, but whether the

type of decision being challenged is grounded in social,

economic, or political policy. Evidence of the actual decision

may be helpful in understanding whether the ‘nature’ of the

decision implicated policy judgments, but the applicability

of the exemption does not turn on whether the challenged

decision involved such judgments.”

Appellants’ challenges to the district court’s discovery

orders require little discussion. They argue that the district

court improperly applied a factual attack standard under

Federal Rule of Civil Procedure 12(b)(1), which requires

plaintiffs to demonstrate through affidavits and other

testimony that the court has jurisdiction, instead of a facial

attack standard under Federal Rule of Civil Procedure

12(b)(6), where the court accepts the plaintiffs’ allegations

as true. See Gould Elecs., Inc. v. United States, 220 F.3d 169,

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Appendix A

178 (3d Cir. 2000). According to appellants, the district

court’s choice of a factual attack standard was error, since

the court allowed discovery only regarding physical security

and denied appellants a chance to conduct discovery on

“threat response.” Appellants’ Br. at 18. In support of this

allegation, appellants point out that the deponents offered

by the government declined to answer any questions on the

threat issue, but appellants ignore the fact that those

deponents were not asked to testify on that issue. Moreover,

as the government observes, “appellants refute their own

argument by citing documents on threat information that

appellee produced in discovery, to support their claim of

failure to disseminate threat information.” Appellee’s Br. at

42. The district court thus properly employed a factual attack

standard under Federal Rule of Civil Procedure 12(b)(1).

Nor do we detect any abuse of discretion in the district

court’s other discovery orders. The State Department’s

statutory responsibility for embassy security obviated the

need for discovery in other departments and agencies.

See 22 U.S.C. § 4802. Likewise, discovery on the merits

would have been entirely irrelevant to the jurisdictional issue

raised by the government’s motion to dismiss. See Jgnatiev

v. United States, 238 F.3d 464, 467 (D.C. Cir. 2001)

(remanding dismissal of FTCA claim for jurisdictional

discovery). .

Foreign Country and Independent Contractor Exceptions

Our conclusion regarding the discretionary function

exception leaves only appellants’ allegations of negligence

by Embassy guards. According to appellants, the Kenyans ~

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Appendix A

UIIS hired as Embassy guards lacked adequate training and

equipment, and negligently failed to identify and stop the

terrorists from detonating the bomb. We agree with the district

court that the independent contractor and foreign country

exceptions bar these claims.

The FTCA’s waiver of soverei gn immunity applies only

to tortious acts undertaken by “officers or employees of any

federal agency ... and persons acting on behalf of a federal

agency in an official capacity.” 28 U.S.C § 2671. The Act

defines “federal agency” as “the executive departments [,]

. Independent establishments of the United States, and

corporations primarily acting as instrumentalities or agencies

of the United States, but does not include any contractor with

the United States.” Jd. The Supreme Court has interpreted

this language, referred to as the “independent contractor

exception,” to mean that a contractor’s negligence may only

be imputed to the United States if the contractor’s “day-to-

day operations are supervised by the Federal Government.”

United States v. Orleans, 425 U.S. 807, 815 (1976). “A critical

element in distinguishing an agency from a contractor,” the

Court explained, “is the power of the Federal Government

‘to control the detailed physical performance of the

contractor.’ ” Jd. at 814 (quoting Logue v. United States, 412

U.S. 521, 528 (1973)).

Appellants contend that DS designed the Embassy’s

contracts for employing local guards, handled all payments

to UIIS, and regularly provided advice regarding the

contracts. See Appellants’ Br. at 33. They also contend that

the contract required UIIS to provide the State Department

with the names of the local guards it employed, to submit

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Appendix A

the names of all personnel to the Department for approval,

to ensure that guards wear uniforms approved by the

Department, and to conduct inventories as directed by the

Department. Jd. Far from demonstrating day-to-day State

Department supervision of the contractor, however, these

allegations establish only that “the contract set forth detailed

guidelines and regulations that the contractor was required

to conform with as it implemented its hiring, supervision

and training of Embassy local guards.” Macharia, 238

F. Supp. 2d at 28. As the Supreme Court held in Orleans, the

government may “fix specific and precise conditions to

implement federal objectives” without becoming liable for

an independent contractor’s negligence. Orleans, 425 U.S.

at 816.

To be sure, appellants presented evidence that

supervision of the UIIS contract amounted to a “full

time job for one [Assistant Regional Security Officer].”

Appellants’ Br. at 34. Although this may well constitute the

sort of day-to-day supervision falling outside the independent

contractor exception, Assistant Regional Security Officers

are located overseas—in this case, in Nairobi—and the

FTCA’s sovereign immunity waiver does not extend to acts

or omissions arising in territory subject to the sovereign

authority of another nation. See 28 U.S.C. § 2680(k);

see also United States v. Spelar, 338 U.S. 217, 221 (1949)

(purpose of foreign country exception is to avoid having

another country’s law define the scope of the federal

government’s tort liability). Moreover, to the extent that

appellants allege negligent supervision of local guards by

State Department employees located in the United States,

those allegations are, for the reasons given above, barred by

the discretionary function exception. See supra pp. 6-10.

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Appendix A

Il.

Having considered appellants’ remaining arguments and

finding no basis for questioning the district court’s

disposition, we affirm in all respects.

So ordered.

16a

APPENDIX B — ORDER GRANTING MOTION TO

DISMISS AND ACCOMPANYING MEMORANDUM OF

THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA ENTERED JULY 30, 2002

UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

Civil Action No. 99CV3274 (CKK)

MERINA M. MACHARIA, et al.,

Plaintiffs,

v.

UNITED STATES OF AMERICA,

Defendant.

MEMORANDUM OPINION

(July 30, 2002)

Presently pending before the Court is Defendant United

States’ Motion to Dismiss Plaintiffs’ Amended Complaint

for lack of subject matter jurisdiction pursuant to Federal

Rule of Civil Procedure 12(b)(1), and for failure to state a

claim upon which relief can be granted, pursuant to Federal

Rule of Civil Procedure 12(b)(6). Plaintiffs, representing a

prospective class of over five thousand Kenyan citizens and

businesses, bring this action in connection with the August

7, 1998, terrorist bombing of the United States Embassy in

Nairobi, Kenya (the “Embassy”). Plaintiffs allege that

Defendant’s negligence related to the security of the Embassy

17a

Appendix B

compounded Plaintiffs’ injuries and losses suffered as a result

of the bombing. Upon review of Defendant’s motion to

dismiss, memorandum of law and attached exhibits,

Plaintiffs’ opposition thereto, Defendant’s reply, and the

relevant law, the Court shall grant Defendant’s motion to

dismiss.

J. BACKGROUND

On August 7, 1998, a terrorist bomb exploded at the rear

entrance to the American Embassy in Nairobi, Kenya, killing

over two hundred people, injuring thousands more, and

damaging Kenyan businesses located near the Embassy.

Plaintiffs’ Amended Complaint (“Cplt.”) at 68. The bombing

injured those inside the Embassy compound, and led to the

_ collapse of the adjacent Ufundi Building. Jd. § 71.‘Additional

injuries occurred when glass windows shattered at the nearby

Co-op Bank Building. i is believed that the bombing

was carried out by the al Oaeda terrorist organization, led

by Osama bin Laden. Jd. J 69.

Plaintiffs complain that the “actions and inactions by

the United States of America, principally through the

Department of State, created circumstances which permitted

the Bombing and subsequently caused and exacerbated the

loss and injury sustained by Kenyan victims.” Jd. at 68.

Specifically, Plaintiffs allege in Count One that the Embassy

was inherently dangerous and that employees of the

Department of State (“DOS”) knew or should have known

that a terrorist attack against the Embassy was likely. Cplt.

1 82-94. Despite this knowledge, Plaintiffs argue, DOS

employees failed to alert their superiors, the Embassy, and

18a

Appendix B

Kenyan citizens that such dangers were imminent. Jd. {] 57,

91 Additionally, Plaintiffs assert that DOS employees failed

to provide sufficiently trained security personnel to the

Embassy and failed to take necessary security precautions to

prevent such an attack. Jd. {J 88- 89. Plaintiffs allege further

that the United States “made security and rescue related

decisions based on race and national origin.” Cplt. | 92.

Plaintiffs also allege that the United States is responsible,

based on the doctrine of respondent superior, for the

negligence of the independent contractor providing security

services at the Embassy. Jd. Jf 52, 75, 88. As a result of this

alleged failure to provide appropriate security, Plaintiffs claim

in Count Two that the Embassy was a public and private

nuisance that “deprived neighbors of the use and enjoyment

of their adjoining property.” Jd. J 95-98. In Count Three,

Plaintiffs maintain that the United States violated

international customary law, the Kenyan Constitution, and

the International Covenant on Civil and Political Rights

(“ICCPR”) by its alleged security failures. Jd. [| 99-106.

Plaintiffs, in Count Four, request relief in the form of a

constructive trust, to hold any assets or funds seized by the

United States from Osama bin Laden and al Qaeda for the

“use, benefit, and enjoyment of the plaintiffs and prospective

class members.” Cplt. J 109. Plaintiffs allege that this Court

possesses jurisdiction over the present action pursuant to the

Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671 et

seg., which operates as a limited waiver of the United States’

sovereign immunity. Cplt. at 68.

Defendant moves to dismiss Plaintiffs’ Complaint on the

grounds that it is not amenable to suit in this Court based on

the foreign country exception, 28 U.S.C. § 2680(k), and

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Appendix B

discretionary function exception, 28 U.S.C. § 2680(a), to the

FTCA’s waiver of sovereign immunity. Defendant’s

Memorandum of Law (“Def.Mem.”) at 14, 17. Defendant

contends first that Plaintiffs have failed to demonstrate that

any of the alleged negligent conduct complained of occurred

within the United States. Jd. at 14-17. Second, Defendant

argues that any actions that may have taken place within the

United States clearly fall within the discretionary exception

to the FTCA. Jd. at 17-30. Finally, Defendant asserts that

Plaintiffs fail to state a claim predicated on international and

Kenyan law and fail to state a claim for a constructive trust.

Id. at 2, 37-38.

II. DISCUSSION

A. Legal Standard

In reviewing a motion to dismiss for failure to State a

claim upon which relief may be granted pursuant to Federal

Rule of Civil Procedure 12(b)(6), a court will not grant the

motion “unless it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would

entitle him to relief.” Conley v, Gibson, 355 U.S. 41, 45-46

(1957). Accordingly, at this early stage in the proceedings,

the Court assumes the veracity of all factual allegations set

forth in Plaintiff’s Complaint. See Doe v. United States Dep t

of Justice, 753 F.2d 1092, 1102 (D.C.Cir. 1985). Moreover,

“[t]he complaint must be ‘liberally construed in favor of the

plaintiff,’ who must be granted the benefit of all inferences

that can be derived from the facts alleged.” Schuler v. United

States, 617 F.2d 605, 608 (D.C.Cir. 1979). Nonetheless, the

Court is not bound to accept the legal conclusions of the

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Appendix B

non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762

(D.C. Cir. 1997).

Before a federal court may hear a case, it must ascertain

whether it has jurisdiction over the underlying subject matter

of the action. Bender v. Williamsport Area School Dist.,

475 U.S. 534, 541 (1986) (“Federal courts are not courts of

general jurisdiction; they have only the power that is

authorized by Article III of the Constitution and the statutes

enacted by Congress pursuant thereto.”). Motions to dismiss

for lack of jurisdiction over the subject matter of the action

are proper under Federal Rule of Civil Procedure 12(b)(1).

In the Rule 12(b)(1) context, the plaintiff bears the burden

of proving jurisdiction. McNutt v. General Motors

Acceptance Corp., 298 U.S. 178, 182-183 (1936); Land v.

Dollar, 330 U.S. 731, 735 (1947). When a defendant brings

a challenge to the actual complaint itself, without relying on

matters outside the pleadings, the motion to dismiss is a

“facial challenge” to a complaint, because a district court is

not asked to review documents outside the pleadings.

See Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir.

1986), vacated on other grounds, 482 U.S. 64 (1987)

(materials aliunde pleadings can be considered on Rule

12(b)(1) motion); 2 James Wm. Moore et al., Moore's Federal

Practice, § 12.30[4], at 39 (3rd ed. 2002) (“A facial attack

questions the sufficiency of the pleading.”). On a motion to .

dismiss a case that presents such a “facial challenge,” a court

must accept all of the complaint’s well- pleaded factual

allegations as true and draw all reasonable inferences from

those allegations in the plaintiff’s favor. United Trans. Union

v. Gateway Western R. Co., 78 F.3d 1208 (7th Cir.1996)

(citing Rueth v. EPA, 13 F.3d 227, 229 (7th Cir. 1993)).

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Appendix B

However, in some instances, a court is required to look

beyond the pleadings and to inquire into facts that are

pertinent to the determination of whether it has subject matter

jurisdiction. Land, 330 U.S. at 735 n.4. Such a “factual

challenge” attacks the existence of subject matter jurisdiction

by looking beyond the pleadings and places the burden on

the plaintiff to prove that facts exist that establish a court’s

jurisdiction. See Federal Election Com. v. National Rifle

Assoc., 553 F. Supp. 1331, 1343 (D.D.C.1983) (“A ‘factual

attack,’ however, challenges the existence of subject matter

jurisdiction in fact, irrespective of the pleadings, and matters

outside the pleadings, such as testimony and affidavits, are

considered. Moreover, a ‘factual attack’ under Rule 12(b)(1)

may occur at any stage of the proceedings, and plaintiff bears

the burden of proof that jurisdiction does in fact exist.”’)

(internal citations omitted).

In this instance Defendant brings a factual challenge to

the existence of subject matter jurisdiction and thus, Plaintiff

bears the burden of presenting proof that jurisdiction properly

lies with this Court.

B. The Federal Tort Claims Act

Absent an express waiver of sovereign immunity,

a plaintiff may not sue the United States in federal court.

See FDIC v. Meyer, 510 U.S. 471 » 474 (1994); see also United

States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic

that the United States may not be sued without its consent

and that the existence of consent is a prerequisite for

jurisdiction.”). The Federal: Tort Claims Act (“FTCA”),

28 U.S.C. §§ 1346(b), 2671-80, creates an express limited

22a

Appendix B

waiver of the United States’ sovereign immunity, rendering

the federal government and its agencies liable for certain “tort

claims, in the same manner and to the same extent as a private

individual under like circumstances.” 28 U.S.C. § 2674(a).

While the FTCA creates the jurisdictional basis for tort claims

brought against the United States, the underlying claims are

determined according to local law.

In enacting the FTCA, Congress explicitly preserved the

federal government’s immunity from suit for claims “based

upon an act or omission of an employee of the Government,

exercising due care, in the execution of a statute or regulation,

whether or not such statute or regulation be valid, or based

upon the exercise or performance or the failure to exercise

or perform a discretionary function or duty on the part of a

federal agency or an employee of the Government, whether

or not the discretion involved be abused.” 28 U.S.C. § 2680(a)

| (“discretionary function exception”). A plaintiff must

further demonstrate that the complained of act or omission

| by the United States does not arise in a foreign country.

| See 28 U.S.C. § 2680(k) (“foreign country exception”). If a

claim falls within one of these FTCA exceptions, the Court

does not possess subject matter jurisdiction and must dismiss

the action.

| C. Defendant's motion to dismiss for lack of subject-

matter jurisdiction Fed. R. Civ. P. 12(b)(1).

y Defendant moves to dismiss Counts One and Two of

Plaintiffs’ Complaint pursuant to Federal Rule of Civil

Procedure 12(b)(1) based on the discretionary function and

the foreign country exceptions to the FTCA. At the outset,

es

23a

Appendix B

the Court must address Plaintiffs’ erroneous assertion that

Defendant’s motion to dismiss Plaintiffs’ complaint pursuant

to Federal Rule of Procedure 12(b)(1) must be treated as a

motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6). Plaintiffs’ Opposition to Defendant’s Motion to

Dismiss Complaint (“Pl.Opp’n”) at 4-6. Plaintiffs contend

that attacks as to jurisdiction pursuant to Rule 12(b)(1)

“should be limited to complaints which establish failure to

exhaust administrative remedies, or which establish that the

tort upon which the compiaint is based falls within one of

the explicit exceptions set out in 28 U.S.C. § 2680(h).””

Pl. Opp’n at 4. Plaintiffs argue that where, as here, a defendant

moves to dismiss a claim based upon the discretionary

function exception or the foreign country exception to the

FTCA, courts should apply the “heightened requirements of

Rule 12(b)(6)” and treat all factual allegations—including

those related to jurisdiction—in the complaint as true. /d.

Plaintiffs’ assertion has little merit. As discussed above,

when a court is required to look beyond the pleadings to

establish its jurisdiction, a plaintiff must through testimony

and affidavits, demonstrate that a case is properly before the

court. See Land, 330 U.S. 735. This Court must review the

allegations in Plaintiffs’ Complaint, and may review facts

outside of the pleadings, in order to determine whether

jurisdiction exists. In this instance, that means examining

facts related to where the alleged negligent actions took place,

1. 28 U.S.C. § 2680(h) creates an exception to the waiver of

immunity for “any claim arising out of assault, battery, false

imprisonment, false arrest, malicious prosecution, abuse of process,

libel, slander, misrepresentation, deceit, or interference with contract

rights.”

24a

Appendix B

at home or abroad, and whether Defendant’s actions were in

fact discretionary in nature. However, “we do so only to

determine whether the district court has jurisdiction over

those actions, not to prejudge the merits of the case. If the

district court has jurisdiction over the suit, the plaintiff must

still prove that the government’s actions were negligent in

order . . . to prevail.” Cope v. Scott, 45 F.3d 445, 448 (D.C.

Cir. 1995).

The cases cited by Plaintiffs do not indicate otherwise.

Plaintiffs primarily rely on Richardson v. United States,

193 F.3d 545 (D.C. Cir. 1999), for the contention that a

_ motion to dismiss based on the discretionary function must

satisfy the heightened requirements of Rule 12(b)(6). To the

contrary, that case directly found that “no one doubts that

(the plaintiff’s] original complaint would properly be

dismissed for lack of subject matter jurisdiction, because of

the discretionary function exception.” Richardson, 193 F.3d

at 547. The issue in Richardson dealt with whether the district

court had erred in denying a pro se plaintiff a chance to amend

his complaint in order to state a cognizable claim. Nowhere,

does the Richardson court indicate that, in applying the

discretionary function exception, a ccurt is unable to dismiss

a claim pursuant to Rule 12(b)(1) and in fact, recognized

that such dismissal was appropriate as to the plaintiff's

original complaint. Jd.

Further, Plaintiffs contend at the outset that this Court

should not dismiss the action pursuant to Rule 12(b)(1)

because Plaintiffs have not had the opportunity to conduct

sufficient jurisdictional discovery in this case. Pl. Opp’n at

8. Plaintiffs argue that Defendant has failed to produce certain

25a

Appendix B

requested documents that pertain to how the DOS identifies

terrorist threats and how the DOS makes decisions regarding

who to notify regarding such threats. Jd. Without this

information, Plaintiffs argue, “Defendant ... is precluded

from making a factual attack on the threat reaction claims in

this case.” Jd. at 8. ,

Plaintiffs argument is merely an attempt to re-litigate

matters already resolved by this Court and the Magistrate

Judge in this case. Plaintiffs were afforded three months of

discovery on the jurisdictional question, during which time

they had the opportunity to submit interrogatories, depose

witnesses, and request documents from the Defendant.

See December 17, 2001, Order; Civ. No. 99-3274(CKK) at

3, Plaintiffs were permitted to take Federal Rule of Civil

Procedure 30(b)(6) depositions of United States personnel?

regarding “how and where the Department made decisions

concerning security, local guards, training, and management

of threat information.” See October 3, 2001, Order Civ. No.

99-3274(AK) at 6. Magistrate Judge Alan Kay denied

Plaintiffs’ requests for additional discovery and resolved all

of Plaintiffs’ challenges concerning the sufficiency of

Defendant’s compliance with discovery requests. See Jd.

Magistrate Judge Kay subsequently clarified his Order of

October 3; explaining that Defendant was not required to

“produce responses which address both jurisdictional and

factual issues.” October 30, 2001, Order Civ. No. 99-

2. The Court notes that Plaintiffs also had an opportunity to

take five Rule 30(b)(5) depositions on the jurisdictional question in

a related action before this Court, dismissed on March 30, 2002,

Bicharge v. United States, Civ. Action No. 00-1636 (D.D.C. March

30, 2002).

26a

Appendix B-

3274(AK) at 2. Consequently, this Court concludes that

Plaintiffs have had ample opportunity to obtain information

from Defendants concerning the jurisdictiona: issue and

reiterates that “Plaintiffs are not entitled to further

jurisdictional discovery.” Dec. 17, 2001, Order at 3.

1. Discretionary Injunction Exception

The Court will begin its analysis with the discretionary

function exception. All of Plaintiffs’ claims contained in

Counts One and Two, save one, related to the negligence of

the independent contractor, and can be resolved pursuant to

this exception.’

Pursuant to the discretionary function exception, the

United States retains sovereign immunity for any acts taken

by a federal employee that are “based upon the exercise or

performance or the failure to exercise or perform a

3. Plaintiffs, in recognition of the foreign country exception,

have attempted to demonstrate that the injuries and property damage

suffered in Kenya were the result of negligent acts or omissions

committed within the United States. See Cplt. 44 40-62. This type of

claim is known as a “headquarters” claim. See Beattie v. United States,

756 F.2d 91 (D.C. Cir. 1984). However, headquarters claims are

“recognized by this Circuit . . . in such limited circumstances that in

general, ‘unless subject matter jurisdiction can be separately

established for those claims truly arising in a foreign country . . . it

is seldom worth [plaintiffs’] while to try to make a case live or die

on the basis of headquarters claims.’” MacCaskill v. United States,

834 F.Supp. 14, 17 (D.D.C.1993), aff'd without opinion 24 F.3d 1464

(D.C. Cir. 1994) (quoting Beattie, 756 F.2d at 97). The Court for the

purposes of its discussion of the discretionary function analysis will

assume that Plaintiffs have properly alleged a headquarters claim.

27a

Appendix B

discretionary function or duty.” 28 U.S.C. § 2680(a). This

exception applies to governmental acts that “involve an

element of judgment or choice.” United States v. Gaubert,

499 U.S. 315, 323 (1991) (quoting Berkovitz v. United States,

486 U.S. 531 (1988)). The purpose of the exception “is to

prevent judicial ‘second-guessing’ of legislative and

administrative decisions grounded in social, economic, and

political policy through the medium of an action in tort,”

Gaubert, 499 U.S. at 323 (internal citations omitted).

In determining the applicability of the discretionary function

exception, the Court undertakes a two part test. First, the

Court must determine whether a federal statute, regulation,

or policy specifically prescribes a government actor’s course

of action. Jd. at 322. In such a case, no discretion is employed

and the only remaining inquiry for the Court is whether the

employee did, or did not, do what was prescribed by the

applicable statute, regulation or policy. See Cope v. Scott,

45 F.2d 445, 448 (D.C. Cir. 1995). Second, if no specific

action is prescribed, the act is discretionary, and the court

must next determine whether the action was of the type

grounded in social, economic, or political policy. Sloan v.

U.S. Dep t of Housing & Urban Dev., 236 F.3d 756, 761 (D.C.

Cir. 2001) (citing Gaubert, 499 U:S. at 323). If an

“established governmental policy, as expressed or implied

by statute, regulation or agency guidelines, allows a

Government agent to exercise discretion, it must be presumed

that the agents’ acts are grounded in policy when exercising

that discretion.” Gaubert, 499 U.S. at 324-325. Once it is

established that the government actions in question are

discretionary in nature and grounded in an appropriate policy,

a court lacks subject matter jurisdiction over claims

predicated upon that discretionary action (or inaction).

28a

Appendix B

Plaintiffs contend that officials in the United States

committed twenty-one negligent acts that were either

non-discretionary or not subject to “policy judgment.”

Pl. Opp’n at 29-30. All of these allegedly negligent acts can

be categorized as either: 1) a failure to provide guidance and

advice on improving security at the Embassy, 2) a failure to

provide security equipment to the Embassy, 3) a failure to

train adequately Embassy personnel and contractors to deal

with various security threats, 4) a failure to warn adequately

Embassy personnel, and others, of potential terrorist threats,

5) an improper classification of the level of security risk at

the Embassy, or 6) falsely leading Embassy personnel to

believe that security analyses had been conducted or would

be conducted. Jd. The Court concludes that each of these

alleged actions fall within the discretionary function

exception to the FTCA.

a. Mandatory vs. Discretionary Conduct

None of the actions about which Plaintiffs complain

involve a failure to abide by the dictates of a statute, guideline

or regulation. Although Plaintiffs repeatedly assert that DOS

officials failed to fulfill “non- discretionary” duties, Pl. Opp’n

15, 22, Plaintiffs fail to identify any relevant statute,

guideline, or regulation that prescribed DOS employees’

course of action related to the security at the Embassy.

Plaintiffs cite documents that either are not guidelines

prescribing a specific course of action, or are guidelines that

do not apply to Plaintiffs’ specific claims. Plaintiffs’ failure

to identify a relevant guideline or regulation is not surprising

as determinations about what security precautions to adopt

at American embassies, and what security information to pass

29a

Appendix B

on, and to whom this information should be given, do not

involve the mechanical application of set rules, but rather

the constant exercise of judgment and discretion.

For instance, the United States Department of State Foreign

Affairs Manual, Diplomatic Security (“FAM”), Def. Mem;

Exhibit 2, instructs, in the “Physical Security Standards”

section, that “[p]roject managers and regional security

officers (RSO’s) should follow all standards to the maximum

extent possible.” Def. Mem; Exhibit 2, 12 FAM 314.1

(emphasis added).* This Manual further instructs that when

full implementation of outlined standards is “impossible or

inappropriate,” foreign service officers should engage in a

process.of “[r]isk management.” Jd. 12 FAM6H 511 .4. This

risk management “process begins with an assessment of the

value of the assets, the degree of a specific type of threat,

and the extent of the vulnerabilities... A decision is then

made as to what level of risk can be accepted and which

countermeasures should be applied. Such a decision involves

a cost-benefit analysis, giving decision makers the ability to

weigh varying security risk levels against the cost of specific

countermeasures.” Jd. Thus, as this document clearly

illustrates, the process of securing an embassy involves

subjective analysis, decisions, and a balancing of benefits; it

does not involve the mechanical application of guidelines or

rules.

4. In Cope, the plaintiff cited a Park Service manual that

established road safety standards “applicable only ‘to the extent

practicable.’ “ 45 F.3d at 450. In response, the Court of Appeals for

the District of Columbia Circuit observed that “this caveat means

that the standards are applicable only when no competing priorities

exist. Such flexibility is the essence of discretion.” 45 F.3d at 450

(emphasis added).

30a

Appendix B

In addition, Plaintiffs attempt to demonstrate that certain

DOS reports establish that the security measures taken prior

to the 1998 attack were “inadequate,” and contained

“identified deficiencies.” Pl]. Opp’n 20-21. However,

Plaintiffs arguments as to the inadequacy or deficiency of

the level of security that in hindsight would have been

desirable on the day of the bombing is merely an attempt to

argue the merits of the case, rather than evidence that

Defendant failed to comply with certain mandatory guidelines

and regulations.’ In sum, none of the actions or instances of

inaction that form the basis of Plaintiffs’ Complaint involve

a failure to perform nondiscretionary duties. Therefore, this

Court turns to the next step in the Gaubert analysis and must

determine whether DOS employees’ alleged actions and

inactions implicated social, political, or economic poncy

considerations. Cope, 45 F.3d at 448-49.

b. Political, Social, and Economic Policy

Considerations

Under the FTCA discretionary function exception, not

all discretionary conduct is exempted; only conduct that is

5. The Court must also note that Plaintiffs frequently cite to

inapplicable or irrelevant guidelines in order to attempt to demonstrate

that mandatory duties exist. For instance, Plaintiffs make a weak

attempt to suggest the existence of “certification requirements,” for

bomb detection equipment. Pl. Opp’n at 20. Yet the document cited

relates to the safety of X-ray devices used by embassy personnel. B.

6085. Similarly, Plaintiffs attempt to suggest that the building’s

windows did not meet DOS security standards. Pl. Opp’n at 21.

Yet the standards cited by Plaintiffs pertain only to newly acquired

or renovated embassy buildings. B. 7691, 9195. The Embassy in

Nairobi was not such a building. B. 3500.

3la

Appendix B

“susceptible to policy judgment and involve[s] an exercise

of political, social or economic judgment” is exempt. Cope

v. Scott, 45 F.3d 445 (D.C. Cir. 1995) (internal citations

omitted). Decision-making based on policy considerations

has been contrasted with “determinations involving the

‘application of objective scientific standards;’ “ the latter are

not protected by sovereign immunity even when they

involve the exercise of discretion. Sloan, 236 F.3d at 765.

However, when “balancing factors” is an integral part of

the decision-making Process, and particularly when this

involves considerations such as how to “allocat[e] funds

among significant project demands,” and how to weigh

inconvenience against “the risk of safety hazards,” decisions

are susceptible to policy judgment. Cope, 45 F.3d at 451;

see also United States v. S.A. Empresa de Viacao Aerea Rio

Grandense ( “Varig Airlines”), 467 U.S. 797, 820 (1984)

(finding that decisions that require the government to

“establish priorities for the accomplishments of its policy

objectives by balancing the objectives sought . . . against such

practical considerations as staffing and funding,” implicate

the discretionary function exception).

Moreover, “it is the nature of the conduct, rather than

the status of the actor,” that governs whether the conduct is

based on policy considerations. Varig Airlines, 467 U.S. at

813. Thus, the fact that security related decisions may not

have been taken by high level government officials is

irrelevant to the question of whether those decisions implicate

economic, social or political policies. Even “day-to-day

‘operational’ decisions” of a federal agency often implicate

policy considerations. Gaubert, 499 U.S. at 332; see also

32a

Appendix B

Sloan v. Dep t of Housing and Urban Development, 236 F.3d

756, 762 (D.C.Cir.2001) (“the discretionary function

exception ... does not apply ‘exclusively to policymaking

or planning functions,’ but rather extends as well to decisions

made at the operational level.”).

The conduct at issue in this case and the decisions

regarding what action to take related to security clearly are

“susceptible to policy analysis” and thus the discretionary

function exception is applicable. Plaintiffs attempt to argue

that decisions regarding whether or not to warn Embassy

employees and Kenyan citizens about a possible terrorist

threat and decisions regarding “how best to secure the

Embassy’s premises” did not implicate political, social or

economic policy considerations. Pl. Opp’nat 37-41. Plaintiffs

argue that Defendant’s actions related to tne alleged security

failures at the Embassy “could not evokesocial wisdom...

political practicality . .. or economic expediency ... Rather,

that conduct implicates negligence ... due care ... and

reasonableness, and fall well outside the confines of

discretionary functions.” P] Opp’n at 40, (quoting Declaration

of J. Jerome Bullock) (omissions in original). However,

Plaintiffs fail to counter Defendant’s specific arguments that

the decisions made by DOS and its empbyees in relation to

how best to secure the Nairobi Embassyimplicated specific

policy concerns.

Decisions regarding how much safety equipment should

be provided to a particular embassy, how much training

should be given to guards and embassy employees, and the

amount of security-related guidance that should be provided

necessarily entails balancing competing demands for funds

33a

Appendix B

and resources. Each individual embassy’s need for security

must be balanced against the need perceived at other

embassies, and the need for security must be balanced against

the need for alternative projects that could consume scarce

resources. Moreover, each of Defendant’s decisions regarding

security involved balancing potential inconvenience to State

Department employees against the perceived security gains

that would result from a safety measure.

Decisions regarding when and how to warn people of

potential terrorist threats similarly involve a balancing of

policy considerations. DOS employees must balance the cost

and inconvenience that a false warning might cause against

the risk that any given threat wil] materialize. Where such a

warning might influence the actions of officials of foreign

governments—as a warning about threats to a United States

embassy likely would-American officials must also consider

the effect that a warning, or the failure to give one, might

have on that foreign government and American relations with

it. Classification of the level of risk facing an embassy

involves choices about what types of threats the United States

considers most worrisome. It also involves determining how

much risk, and what types of risk, should be required before

an embassy is eligible for certain security measures. As risk

Classification makes a statement about conditions in the

country where the embassy is located, it could also influence

United States relations with that country, and therefore be

influenced by the footing on which the United States seeks

to maintain those relations.

It is exactly because such political, economic and social

policy considerations must be balanced that Congress granted

34a

Appendix B

the discretionary authority to the Secretary of State to

“develop and implement. . . policies and programs, including

funding levels and standards, to provide for the security of

the United States Government operations of a diplomatic

nature and foreign government operations of the diplomatic

nature in the United States.” 22 U.S.C. § 4801 (1990)

(Omnibus Diplomatic Security and Antiterrorism Act).

As the Act allows the Secretary to exercise discretion “it must

be presumed that the [Secretary’s] acts are grounded in policy

when exercising that discretion.” Gaubert, 499 U.S. at 324-

325. The decisions made by Defendant regarding the security

of the Embassy and warnings of possible threats are clearly

discretionary in nature and grounded in policy and therefore,

do not fall within the FTCA’s waiver of sovereign immunity.

2. Foreign Country Exception

The FTCA also prohibits suits against the United States

for acts or omissions arising in a territory subject to the

sovereignty of another nation. 28 U.S.C. § 2680(k); United

States v. Spelar, 338 U.S. 217, 219 (1949). Congress

exempted actions arising in foreign countries from the FTCA

because “it was unwilling to subject the United States to

liabilities depending upon the laws of a foreign power.”

Spelar, 338 U.S. at 221. As noted above, while jurisdiction

is determined by the FTCA, the underlying tort claims are

decided based on the local law where the act or omission

occurred.

The United States argues that the acts Plaintiffs complain

of occurred, for all practical purposes, in Kenya, and are

eT en anne ne

35a

Appendix B

therefore not actionable—even if negligent—due to the

foreign country exception to the F TCA’s waiver of immunity.

Def. Mem. at 14-15. With one exception, which the Court

addresses below, this Court need not address the question of

whether Plaintiffs are complaining of acts that took place in

Kenya, or acts that took place in the United States because,

as discussed in Part II.C.1 above, the discretionary function

exemption renders the United States immune from liability

for such alleged acts or omissions, However, the Court

discusses below Plaintiffs’ allegations regarding Defendant’s

liability for the acts and training of local guards as such claims

are not resolved by application of the discretionary function

exception.

Plaintiffs allege that the United States is responsible

under the doctrine of respondeat superior for the negligence

of local guards employed by a private contractor, United

Internal Investigative Services (“US”), retained to provide

Embassy security. Cplt. 19 52, 75, 88. Plaintiffs contend that

the local guards were not properly trained to respond to the

situation that arose on August 8, 1998, and that Defendant is

responsible for this failure to train and the negligent acts of

the local guards. Jd. UIIS contracted with the Embassy in

Nairobi agreeing to provide local guard services for the

Embassy. Def. Mem at 12, Exhibit 3 (UIIS Contract). UIIS’

responsibilities under the contract included providing “basic

training,° firearms qualifications, and annual recertification

training” for the local guards. Def. Mem, Exhibit 3 at 7498.

6. Basic training included training in terrorism and criminality,

training in mission emergency plans, and training in access control.

Def. Mem., Exhibit 3 at 7498-99.

36a

Appendix B

UIIS also hired managers responsible for security force

training and provided security training for Embassy

employees and the local guards. Jd. at 7551. UIIS provided

this training, and supervised the local guards in Nairobi,

Kenya.

The Court is precluded from entertaining Plaintiffs’

claims based on the actions of UIIS and the local guards it

supervised for two reasons. First, the United States is immune

from such claims of negligence pursuant to_the foreign

country exception. It is clear that “torts occurring on

American embassies ... which are located in foreign

countries are barred by the foreign country exception.”

Beattie 756 F.2d at 97. Thus, actions taken by local guards

on the day of the terrorist bombing clearly arose in a foreign

nation and cannot be the subject of a claim brought under

the FTCA. Second, the training, or lack thereof, that Plaintiffs

complain of, also took place in Kenya, and not in the United

States. Plaintiffs fail to demonstrate activities occurring

within the United States that act as a basis for claims based

on the failure to provide proper training to the local guards.

Moreover, the FTCA waiver of immunity does not cover

tortious acts or omissions committed by independent

contractors or their employees. See 28 U.S.C. § 1346

(sovereign immunity is waived only as to acts and omissions

of federal employees; independent contractors are not federal

employees); United States v. Orleans, 425 U.S. 807, 813

(1976). The FTCA waives sovereign immunity for tortious

actions undertaken by “officers or employees of any federal

agency . . . and persons acting on behalf of a federal agency

in an official capacity.” 28 U.S.C. § 2671. A federal agency

37a

Appendix B

is defined as “the executive departments ... independent

establishments of the United States, and corporations

primarily acting as instrumentalities or agencies of the United

States but does not include any contractor with the United

States.” Id. (emphasis added).

Plaintiffs contend that the United States supervised the

day to day operations of UIIS, and thus, under the “contro]

of physical conduct” test, UIIS was not a contractor with the

United States, but rather an employee. Pl. Opp’n at 24. The

crucial factor in distinguishing between a federal employee

and an independent contractor is whether the Federal

Government has the power to “control the detailed physical

performance of the contractor.” Orleans, 425 U.S. at 814-

815 (quoting Logue v. United States, 412 U.S. 521 (1973)).

Broad supervisory control, even on a daily basis, does not

suffice to demonstrate control over the physical performance

of the contractor. Orleans, 425 U.S. at 817 (finding that the

fact that an independent community agency was required to

comply with extensive government regulations did not create

an employment relationship); see also Gibson vy. United

States, 567 F.2d 1237 (3d Cir. 1977), cert denied, 436 US.

925 (1978) ( “The fact of broad, supervisory control, or even

the potential to exercise detailed control, cannot convert a

contractor into an agent, nor can it be the basis for imposing

vicarious liability on the United States.”). The United States

Supreme Court explained in Logue v. United States, 412 U.S.

521(1973), that guidance from the government or

requirements that a contractor comply with government

regulations, does not establish the type of control necessary

to form an employee—employer relationship under the

FTCA. The Court found that an employee—employer

382

Appendix B

relationship did not exist between the United States and a

local county jail although the jail was required to comply

with Bureau of Prisons’ rules and regulations prescribing

standards of treatment, and although the United States

reserved the right to inspect the jail. Logue, 412 U.S. 521.

Similarly, the Orleans Court concluded that although the

community action agencies at issue in that case were required

to “comply with extensive regulations, which include

employment policies and procedures, lobbying limitations,

accounting and inspection procedures, expenditure

limitations and programmatic limitations and applications

procedures,” the agencies were not “employees” under the

FTCA. Orleans, 425 U.S. at 817-18. The Orleans Court noted

that to find otherwise would “distort well established

concepts of master and servant relationsk:ps and extend the

meaning of the Federal Tort Claims Act beyond the intent of

Congress.” Jd. at 819.

In this instance, it is clear that the United States, while

retaining broad supervisory control over the local guards

pursuant to the contract with UIIS, did not maintain control

over the detailed physical performance of the contract. DOS

regulations clearly state that “day to day activities are to be

managed by and supervised by the contractor.” Def. Reply

Mem. at 18, Exhibit 9, 12 FAM 324.2(a). Plaintiffs assert

that Defendant controlled the activities of the contractor in

that the contract required the contractor to submit the names

and information for each employee hired in order for the

United States to undertake a security check of the potential

employee. Pl. Opp’n at 24-25; Def. Mem, Exh. 3 at 7494.

Additionally, the government contract set forth certain

standards of conduct that the UIIS was required to comply

39a

Appendix B

with, including requiring UIIS to “maintain Satisfactory

standards of employee competency” and to require certain

uniforms approved by the United States. Id. Further, UIIS

needed to ensure that local guards met the United States’

requirements for education, language proficiency and health.

Id. The contract also required UIIS to send the local guards

it hired to orientation, and to provide certain specific training,

including training in which the Embassy Regional Security

Officer (“RSO”) took part. Jd. at 7498. Review of the UIIS

contract, Def. Mem, Exh. 3, makes clear that Plaintiffs have

not demonstrated that Defendant retained control over the

detailed physical performance of the contractor, but rather,

that the contract set forth detailed guidelines and regulations

that the contractor was required to conform with as it

implemented its hiring, supervision and training of Embassy

local guards. As in Orleans, this type of general supervisory

control that requires the contractor to comply with regulations

and guidelines issued by the government, does not create the

type of employee—employer relationship envisioned under

the FTCA. The government may “fix specific and precise

conditions to implement federal objectives” within a contract

with an independent contractor. Orleans, 425 U.S. at 815-16

(finding that while the contractor was “responsible to the

United States for compliance with the specifications of the

contract, or by grant . . . [it was] largely free to select the

means of its implementation.”). Accordingly, the Court finds

that Plaintiffs have not demonstrated that Defendant is liable

for the acts of UIIS and the local guards under UIIS’ control.

Consequently, the Court lacks jurisdiction to entertain

Plaintiffs’ claims contained in Count One and Two of

40a

Appendix B

Plaintiffs’ Complaint and Defendant’s motion to dismiss as

to these counts must be granted.

D. Defendant’s Motion to Dismiss Plaintiffs

International Law Claims for Failure to State a

Claim and for Lack of Subject Matter Jurisdiction.

Count III of Plaintiffs’ Complaint attempts to state a

claim against the United States for violations of “principles

of international law . . . [and] Chapter V of the Constitution

of Kenya...” Cplt. J 100. Plaintiffs assert that the United

States’ action and inaction related to the 1998 bonbing

violate both customary international law’ and the

International Covenant on Civil and Political Rights,

XXX,1967 6 I.L.M. 368 (entered into force Mar. 23 1976,

entered into force for the United States Sept. 8, 1992).

Cplt. ¥ 105. Defendant moves to dismiss Count Three for

failure to state a claim and for lack of subject matter

jurisdiction. Def. Mem. at 18.

1. Kenyan Law and the Kenyan Constitution

Plaintiffs assert that the United States actions “interfered

with the Protection of Fundamental Rights and Freedoms of

the Individual, as set forth in Chapter V of the Constitution

of Kenya, at sections 70, 72, 74, 76, 80, 81 and 82(2).”

Cplt ¥ 100. As discussed at length above, the United States

is immune from suit in the federal courts absent an express

waiver of sovereign immunity. In this instance, Plaintiffs fail

7. Customary international law is defined as “customs and

usages among nations of the world” and it is part of the law of the

United States.

Ala

Appendix B

to identify any express waiver of immunity that would permit

such a suit against the United States based on the laws of

Kenya. Indeed, this is not surprising, as any waiver of

immunity with respect to suits brought under foreign law

would be inconsistent with the policy scheme embedded in

the FTCA; the foreign country exception was added to the

FTCA specifically to prevent plaintiffs from subjecting the

United States to suits brought pursuant to foreign laws.

See Spelar, 338 U.S. at 221 (noting that Congress exempted

actions arising in foreign countries from the FTCA because

“it was unwilling to subject the United States to liabilities

depending upon the laws of a foreign power.”). The United

States has not waived its immunity with respect to suits

brought under foreign law, thus, this Court lacks subject

matter jurisdiction over Plaintiffs’ claims brought under the

Kenyan Constitution or other laws of Kenya.

2. The International Covenant on Civil and

Political Rights

Plaintiffs assert that the United States’ actions before

and after the bombing of the U.S. Embassy in Nairobi violated

articles 3, 6, 7,9, 10, 17, and 26 of the International Covenant

on Civil and Political Rights (““ICCPR”). Cplt. ¥ 105.

As noted above, in order for the United States to be subject

to suit, there must be an express waiver of sovereign

immunity. There 1s no such waiver related to claims brought

pursuant to the ICCPR. When the Senate ratified the ICCPR

it did so with a declaration that articles 1 to 27 were not self-

executing. 138 Cong. Rec. $4784 (daily ed. Apr. 2, 1992).

A treaty that is not self executing requires further action by

Congress to incorporate ii into domestic law and without such

42a

Appendix B

action courts may not enforce such a treaty. See Buell v.

Mitchell, 274 F.3d 337, 372 (6th Cir.2001) (quoting

Restatement (Third) Of Foreign Relations Law § 111 (1987))

(“Courts in the United States are bound to give effect to

international law and to international agreements, except that

a ‘non-self-executing’ agreement will not be given effect as

law in the absence of necessary authority.”). Courts have

uniformly held that the ICCPR is not self-executing and that,

therefore, it does not give rise to a private right of action.

See, e.g., Igartua De La Rosa v. United States, 32 F.3d 8, 10

n.1 (1st Cir.1994) cert. denied, 514 U.S. 1049 (1995)

(“Articles 1 through 27 of the Covenant were not self-

executing, and could not therefore give rise to privately

enforceable rights under United States law”.); Ralk v. Lincoln

County, 81 F.Supp.2d 1372, 1380 (S.D. Ga. 2000) (neither

legislative nor executive branch intended ICCPR to be self-

executing and no private right of action was created);

White v. Paulsen, 997 F. Supp. 1380, 1387 (E.D. Wash. 1998)

(ICCPR not seif-executing treaty that gives rise to private

cause of action); Reaves v. Warden, 2002 U.S. Dist. LEXIS

6280 (M.D. Pa. March 22, 2002) (same); Weaver v. Torres,

2000 U.S. Dist. LEXIS 19529 (D. Md. November 15, 2000)

(dismissing the plaintiff’s claim under the ICCPR because it

does not create a private right of action). Accordingly,

Plaintiffs claim based on the ICCPR must be dismissed for

failure to state a claim and for lack of jurisdiction.

3. Alleged Violations of Customary International

Law

Plaintiffs assert that “the United States is required to

ensure the following rights which have achieved status as

43a

Appendix B

customary international law: avoidance of cruel, inhuman

or degrading treatment or punishment, avoidance of

prolonged arbitrary detention, and avoidance of systematic

racial discrimination.” Cplt. § 103. The Restatement (Third)

of Foreign Relations Law defines customary international

law as the “general and consistent practice of states followed

by them from a sense of legal obligation.” 1 Restatement

(Third) Of Foreign Relations Law § 102(2). Certain

customary international laws rise to the level of “jus cogens”

meaning they are norms that “are recognized by the

international community of states as peremptory [norms],

permitting no derogation.” Jd. at § 102. The Court of Appeals

for the District of Columbia Circuit has noted that not every

violation of international law, even if committed by the

United States, is actionable in a United States court.

Committee of United States Citizens Living in Nicaragua v.

Reagan, 859 F.2d 929, 936 (D.C. Cir. 1988). The Citizens

Living in Nicaragua court makes clear that violations of those

portions of customary international law that have not

achieved jus cogens status are clearly not actionable. Jd.

Plaintiffs have not sufficiently alleged a cause of action

under customary international law. Foremost, Plaintiffs have

failed to indicate what conduct by the United States violated

international law. {t appears from the Complaint that

Plaintiffs’ first allegation regarding “cruel, inhuman, or

degrading treatment or punishment,” Cplt. J 103, refers to

the United States’ failure to warn Kenyans of a threat whose

validity was in doubt, exclusion of Kenyans from areas

around the bombing where rescue and cleanup efforts were

ongoing, and a failure to provide the same assistance to

Kenyans as the United States provided to its own nationals.

44a

Appendix B

The suggestion that such actions rise to a violation of

international norms against cruel, inhuman, or degrading

punishment lacks merit.

Plaintiffs also allege that the United States violated a

customary international law norm against “prolonged

arbitrary detention.” Jd. This accusation clearly refers to the

fact that after the bombing, “Kenyans were denied access”

to certain areas, “and their movements and actions were

restricted by the United States.” Cplt. | 77. Assuming

arguendo that such action would qualify as “detention,”

Plaintiffs have still failed to allege that the action was

“prolonged,” or “arbitrary.” Finally, plaintiffs allege that the

United States violated customary international law norms

against “systematic racial discrimination” in its handling of

events in Kenya before and after the bombing. Jd. {| 103.

However, Plaintiffs fail to allege facts that would demonstrate

that the United States’ decisions regarding the provision of

medical assisteace to American nationals but not to Kenyans,

rose to the level of systematic discrimination.

In sum, Plaintiffs fail to allege even the basic elements

of a violation of the above mentioned international customs.

Accordingly, the Court will dismiss Plaintiff’s customary

international law claims pursuant to Federal Rule of Civil

Procedure 12(b)(6).

E. Constructive Trust/Permanent Injunction

Count Four of Plaintiffs’ Complaint requests that this

Court require the United States to hold any seized assets and

funds of Osama bin Laden and al Qaeda in a constructive

trust for the “use, benefit, and enjoyment of the plaintiffs

45a -

Appendix B

and prospective class members.” Cplt. | 109. “A constructive

trust is a remedy that a court devises after litigation,” United

States v. BCCI Holdings, 46 F.3d 1185, 1190 (D.C. Cir. 1995),

“to redress the injustice that would otherwise occur when

one person has fraudulently or wrongfully obtained the

property of another,” United States v. Taylor, 867 F.2d 700,

703 (D.C. Cir. 1989). 4s this Court discussed in Mwani v.

United States, Civ. Action No. 99-125 (Nov. 19, 1999),

a constructive trust is not an independent cause of action. As

this Court finds that dismissal of Counts One, Two and Three

are appropriate, there is no basis on which to award injunctive

relief or a constructive trust.

Political Question Doctrine

This Court, having concluded that it lacks subject matter

jurisdiction over Plaintiffs’ claims need not reach the issue

of whether the Political Question doctrine bars this Court’s

review of the claims.

III. CONCLUSION

Based on the foregoing, the Court finds that Plaintiffs

have failed to establish that this Court has subject matter

jurisdiction over the claims against the United States alleged

in Counts one and two of their complaint. Having failed tc

do so, the Court concludes that these Counts shall be

dismissed with respect to Defendant United States for lack

of subject matter jurisdiction pursuant to Federal Rule of

Civil Procedure 12(b)(1). The Court also finds that Plaintiffs

have failed to state a cognizable claim under international

law. Therefore, Plaintiffs’ Count Three shall be dismissed

46a

Appendix B

with respect to Defendant United States pursuant to Federal

Rule of Civil Procedure 12(b)(6). Finally, this Court finds

that the because 2 * equest for a constructive trust is not an

independent caus2 .. action, Count Four must also be

dismissed. Accordingly, Defendant’s motion to dismiss is

granted. An appropriate Order accompanies this

Memorandum Opinion.

Dated: July 29, 2002

s/ Colleen Kollar-Kotelly

Colleen Kollar-Kotelly

United States District Judge

47a

Appendix B

UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

Civil Action No. 99CV3274 (CKK)

MERINA M. MACHARIA, et al.,

Plaintiffs,

V.

UNITED STATES OF AMERICA,

Defendant.

ORDER

For the reasons set forth in the accompanying

Memorandum Opinion, it is, this 29 of July, 2002, hereby

ORDERED that Defendant the United States of

America’s motion to dismiss is GRANTED; and it is further

ORDERED that this case is DISMISSED

SO ORDERED.

s/ Colleen Kollar-Kotelly

Colleen Kollar-Kotelly

United States District Judge

48a

APPENDIX C — RELEVANT STATUTES

AND CONVENTIONS

UNITED STATES CODE ANNOTATED

TITLE 28. JUDICIARY AND JUDICIAL PROCEDURE

PART VI—PARTICULAR PROCEEDINGS

CHAPTER 171—TORT CLAIMS PRUCEDURE

28 U.S.C. § 267i

§ 2671. Definitions

As used in this chapter and sections 1346(b) and

2401(b) of this title, the term “Federal agency”

includes the executive departments, the judicial

and legislative branches, the military departments,

independent establishments of the United States,

and corporations primarily acting as instrument-

alities or agencies of the United States, but does

not include any contractor with the United States.

“Employee of the government” includes (1) officers

or employees of any federal agency, members of

the military or naval forces of the United States,

members of the National Guard while engaged in

training or duty under section 115, 316, 502, 503,

504, or 505 of title 32, and persons acting on

behalf of a federal agency in an official capacity,

temporarily or permanently in the service of the

United States, whether with or without

compensation, and (2) any officer or employee of

a Federal public defender organization, except

when such officer or employee performs

professional services in the course of providing

representation under section 3006A of title 18.

49a

Appendix C

“Acting within the scope of his office or

employment”, in the case of a member of the

military or naval forces of the United States or a

member of the National Guard as defined

in section 101(3) of title 32, means acting in line

of duty.

50a

Appendix C

28 U.S.C. § 2674

§ 2674. Liability of United States

The United States shall be liable, respecting the

provisions of this title relating to tort claims,

in the same manner and to the same extent as

a private individual under like circumstances,

but shall not be liable for interest prior to judgment

or for punitive damages.

If, however, in any case wherein death was caused,

the law of the place where the act or omission

complained of occurred provides, or has been

construed to provide, for damages only punitive

in nature, the United States shall be liable for

actual or compensator; damages, measured by the

pecuniary injuries resulting from such death to the

persons respectively, for whose benefit the action

was brought, in lieu thereof.

With respect to any claim unde~ this chapter,

the United States shall be entitled to assert any

defense based upon judicial or legislative

immunity which otherwise would have been

available to the employee of the United States

whose act or omission gave rise to the claim,

as well as any other defenses to which the

United States is entitled.

Sla

Appendix C

With respect to any claim to which this section

applies, the Tennessee Valley Authority shall be

entitled to assert any defense which otherwise

would have been available to the employee based

upon judicial or legislative immunity, which

otherwise would have been available to the

employee of the Tennessee Valley Authority whose

act or omission gave rise to the claim as well as

any other defenses to which the Tennessee Valley

Authority is entitled under this chapter.

52a

Appendix C

28 U.S.C.A. § 2680

§ 2680. Exceptions

The provisions of this chapter and section 1346(b)

of this title shall not apply to—

(a) Any claim based upon an act or

omission of an employee of the Government,

exercising due care, in the execution of a

statute or regulation, whether or not such

statute or regulation be valid, or based upon

the exercise or performance or the failure to

exercise or perform a discretionary function

or duty on the part of a federal agency or an

employee of the Government, whether or not

the discretion involved be abused.

(b) Any claim arising out of the loss,

miscarriage, or negligent transmission of

letters or postal matter.

(c) Any claim arising in respect of

the assessment or collection of any tax or

customs duty, or the detention of any goods,

merchandise, or other property by any

officer of customs or excise or any other

law enforcement officer, except that the

provisions of this chapter and section 1346(b)

of this title apply to any claim based on injury

‘ or loss of goods, merchandise, or other

53a

Appendix C

property, while in the possession of any

officer of customs or excise or any other law

enforcement officer, if—

(1) the property was seized for the

purpose of forfeiture under any provision

of Federal law providing for the forfeiture

of property other than as a sentence

imposed upon conviction of a criminal

offense;

(2) the interest of the claimant was

not forfeited;

(3) the interest of the claimant was

not remitted or mitigated (if the property

was subject to forfeiture); and

(4) the claimant was not convicted

of a crime for which the interest of the

claimant in the property was subject to

forfeiture under a Federal criminal

forfeiture law .. .'

(d) Any claim for which a remedy is

provided by sections 741-752, 781-790 of

Title 46, relating to claims or suits in

admiralty against the United States.

1. So in original. Second period probably should not appear.

54a

Appendix C

(e) Any claim arising out of an act or

omission of any employee of the Government

in administering the provisions of sections 1-

31 of Title 50, Appendix.

(f) Any claim for damages caused by the

smposition or establishment of a quarantine

by the United States.

[(g) Repealed. Sept. 26, 1950, c. 1049,

§ 13(5), 64 Stat. 1043.]

(h) Any claim arising out of assault,

battery, false imprisonment, false arrest,

malicious prosecution, abuse of process, libel,

slander, misrepresentation, deceit, or inter-

ference with contract rights: Provided,

That, with regard to acts or omissions of

investigative or law enforcement officers of

the United States Government, the provisions

of this chapter and section 1346(b) of this title

shall apply to any claim arising, on or after

the date of the enactment of this proviso,

out of assault, battery, false imprisonment,

false arrest, abuse of process, or malicious

prosecution. For the purpose of this subsection,

“investigative or law enforcement officer”

means any officer of the United States who

is empowered by law to execute searches,

to seize evidence, or to make arrests for

violations of Federal law.

55a

Appendix C

(i) Any claim for damages caused by the

fiscal operations of the Treasury or by the

regulation of the monetary system.

(j) Any claim arising out of the combatant

activities of the military or naval forces, or

the Coast Guard, during time of war.

(k) Any claim arising in a foreign

country.

(1) Any claim arising from the activities

of the Tennessee Valley Authority.

(m) Any claim arising from the activities

of the Panama Canal Company.

(n) Any claim arising from the activities

of a Federal land bank, a Federal intermediate

credit bank, or a bank for cooperatives.

56a

Appendix C

The United Nations

INTERNATIONAL COVENANT ON

CIVIL AND POLITICAL RIGHTS

PREAMBLE

The States Parties to the present Covenant,

Considering that, in accordance with the principles

proclaimed in the Charter of the United Nations, recognition

of the inherent dignity and of the equal and inalienable rights

of all members of the human family is the foundation of

freedom, justice and peace in the world,

Recognizing that these rights derive from the inherent dignity

of the human person,

Recognizing that, in accordance with the Universal

Declaration of Human Rights, the ideal of free human beings

enjoying civil and political freedom and freedom from fear

and want can only be achieved if conditions are created

whereby everyone may enjoy his civil and political nghts,

as well as his economic, social and cultural rights,

Considering the obligation of States under the Charter of the

United Nations to promote universal respect for, and

observance of, human rights and freedoms,

Realizing that the individual, having duties to other

individuals and to the community to which he belongs, is

under a responsibility to strive for the promotion and

observance of the rights recognized in the present Covenant,

Agree upon the following articles:

57a

Appendix C

PART I

Article 1

1

ae

All peoples have the night of self-determination. By virtue

of that right they freely determine their political status and

freely pursue their economic, social and cultural

development.

All peoples may, for their own ends, freely dispose of

their natural wealth and resources without prejudice to

any obligations arising out of international economic

co-operation, based upon the principle of mutual benefit,

and international law. In no case may a people be deprived

of its own means of subsistence.

The States Parties to he present Covenant, including those

having responsibility for the administration of Non-

Self- Governing and Trust Territories, shall promote the

realization of the right of self-determination, and shall

respect that right, in conformity with the provisions of the

Charter of the United Nations.

PART II

Article 2

1. Each State Party to the present Covenant undertakes to

respect and to ensure to all individuals within its territory

<3 and subject to its jurisdiction the rights recognized in the

present Covenant, without distinction of any kind, such as

race, colour, sex, language, religion, political or other

opinion, national or social origin, property, birth or other

status.

58a

Appendix C

2. Where not already provided for by existing legislative or

other measures, each State Party to the present Covenant

undertakes to take the necessary steps in accordance with

its constitutional processes and with the provisions of the

present Covenant, to adopt such legislative or other measures

as may be necessary to give effect to the rights recognized

in the present Covenant.

3. Each State Party to the present Covenant undertakes:

1. To ensure that any person whose rights or freedoms as

herein recognized are violated shall have an effective

remedy, notwithstanding that the violation has been

committed by persons acting in an official capacity; to

ensure that any person claiming such a remedy shall have

his rights thereto determined by competent judiciai,

administrative or legislative authorities, or by any other

competent authority provided for by the legal system of

the State, and to develop the possibilities of judicial

remedy,

2. To ensure that the competent authorities shall enforce

such remedies when granted.

Article 3

The States Parties to the present Covenant undertake to ensure

the equal right of men and women to the enjoyment of all

civil and political rights set forth in the present Covenant.

59a

Appendix C

Article 4

l.

In time of public emergency which threatens the life of

the nation and the existence of which is officially

proclaimed, the States Parties to the present Covenant

may take measures derogating from their obligations

under the present Covenant to the extent strictly required

by the exigencies of the situation, provided that such

measures are not inconsistent with their other obligations

under international law and do not involve discrimination

solely on the ground of race, colour, sex language,

religion or social origin.

No derogation from articles 6, 7, 8 (paragraphs 1 and

2),11, 15,16 and 18 may be made under this provision.

. Any State Party to the present Covenant availing itself

of the right of derogation shall immediately inform the

other States Parties to the present Covenant, through the

intermediary of the Secretary-General of the United

Nations, of the provisions from which it has derogated

and of the reasons by which it was actuated. A further

communication shall be made, through the same

intermediary, on the date on which it terminates such

derogation.

Article 5

a

Nothing in the present Covenant may be interpreted as

implying for any State, group or person any right to

engage in any activity or perform any act aimed at the

destruction of any of the rights and freedoms recognized

ae

ee a ——

60a

Appendix C

herein or at their limitation to a greater extent than is

provided for in the present Covenant.

There shall be no restriction upon or derogation from any

of the fundamental human rights recognized or existing

in any State Party to the present Covenant pursuant to

law, conventions, regulations or custom on the pretext

that the present Covenant does not recognize such rights

or that it recognizes them to a lesser extent.

PART III

Article 6

ie

Every human being has the inherent right to life. This

right shall be protected by law. No one shall be arbitrarily

deprived of his life.

In countries which have not abolished the death penalty,

sentence of death may be imposed only for the most

serious crimes in accordance with the law in force at the

time of the commission of the crime and not contrary to

the provisions of the present Covenant and to the

Convention on the Prevention and Punishment of the

Crime of Genocide. This penalty can only be carried out

pursuant to a final judgment rendered by a competent

court.

When deprivation of life constitutes the crime of

genocide, it is understood that nothing in this article shall

authorize any State Party to the present Covenant to

derogate in any way from any obligation assumed under

6la

Appendix C

the provisions of the Convention on the Prevention and

Punishment of the Crime of Genocide.

. Anyone sentenced to death shall have the right to seek

pardon or commutation of the sentence. Amnesty, pardon

or commutation of the sentence of death may be granted

in all cases.

. Sentence of death shall not be imposed for crimes

committed by persons below eighteen years of age and

shall not be carried out on pregnant women.

. Nothing in this article shall be invoked to delay or to

prevent the abolition of capital punishment by any State

Party to the present Covenant.

‘Article 7

No one shall be subjected to torture or to cruel, inhuman or

degrading treatment or punishment. In particular, no one shall

be subjected without his free consent to medical or scientific

experimentation.

Article 8

. Noone shall be held in slavery; slavery and the slave-trade

in all their forms shall be prohibited.

~

2. No one shall be held in servitude.

‘

1.

62a

Appendix C

No one shall be required to perform forced or

compulsory labour;

Paragraph 3(a) shall not be held to preclude, in

countries where imprisonment with hard labour may

be imposed as a punishment for a crime, the

performance of hard labour in pursuance of a sentence

to such punishment by a competent court;

For the purpose of this paragraph the term “forced or

compulsory labour” shall not include:

L.

~

Any work or service, not referred to in

subparagraph (b), normally required of a person

who is under detention in consequence of a lawful

order of a court, or of a person during conditional

release from such detention;

Any service of a military character and, in

countries where conscientious objection is

recognized, any national service required by law

of conscientious objectors;

. Any service exacted in cases of emergency or

calamity threatening the life or well-being of the

community;

Any work or service which forms part of normal

civil obligations.

63a

Appendix C

Article 9

1.

Everyone has the right to liberty and security of person.

No one shall be subjected to arbitrary arrest or detention.

No one shall be deprived of his liberty except on such

grounds and in accordance with such procedure as are

established by law.

Anyone who is arrested shall be informed, at the time of

arrest, of the reasons for his arrest and shall be promptly

informed of any charges against him.

Anyone arrested or detained on a criminal charge shall

be brought promptly before a judge or other officer

authorized by law to exercise judicial power and shall be

entitled to trial within a reasonable time or to release.

It shall not be the general rule that persons awaiting trial

shall be detained in custody, but release may be subject

to guarantees to appear for trial, at any other stage of the

judicial proceedings, and, should occasion arise, for

execution of the judgment.

Anyone who is deprived of his liberty by arrest or

detention shall be entitled to take proceedings before a

court, in order that that court may decide without delay

on the lawfulness of his detention and order his release

if the detention is not lawful.

. Anyone who has been the victim of unlawful arrest or

detention shall have an enforceable right to compensation.

64a

Appendix C

Article 10 \

1. All persons deprived of their liberty shall be treated with

humanity and with respect for the inherent dignity of the

human person.

1. Accused persons shall, save in exceptional

circumstances, be segregated from convicted persons

and shall be subject to separate treatment appropriate

to their status as unconvicted persons;

2. Accused juvenile persons shall be separated from

adults and brought as speedily as possible for

adjudication.

3. The penitentiary system shall comprise treatment of

prisoners the essential aim of which shall be their

reformation and social rehabilitation. Juvenile offenders

shall be segregated from adults and be accorded treatment

appropriate to their age and legal status.

Article 11

No one shall be imprisoned merely on the ground of inability to

fulfill a contractual obligation.

Article 12

1. Everyone lawfully within the territory ofa State shall, within

that territory, have the right to liberty of movement and

freedom to choose his residence.

65a

Appendix C

2. Everyone shall be free to leave any country, including his

own.

The above-mentioned rights shall not be subject to any

restrictions except those which are provided by law, are

necessary to protect national security, public order (ordre

public), public health or morals or the rights and freedoms

of others, and are consistent with the other rights recognized

in the present Covenant.

No one shall be arbitrarily deprived of the right to enter his

own country.

Article 13

An alien lawfully in ‘he territory of a State Party to the present

Covenant may expelled therefrom only in pursuance of a

decision reached in accordance with law and shall, except where

compelling reasons of national security otherwise require, be

allowed to submit the reasons against his expulsion and to have

his case reviewed by, and be represented for the purpose before,

the competent authority or a person or persons especially

designated by the competent authority.

Article 14

a.

All persons shall be equal before the courts and tribunals.

In the determination of any criminal charge against him,

or of his rights and obligations in a suit at law, everyone

shall be entitled to a fair and public hearing by a

competent, independent and impartial tribunal established

by law. The Press and the public may be excluded from

all or part of a trial for reasons of morals, public order

66a

Appendix C

(ordre public) or national security in a democratic society,

or when the interest of the private lives of the parties so

requirés, of to the extent.strictly necessary in the opinion

of the court in special circumstances where publicity

would prejudice the interests of justice; but any judgment

rendered in a criminal case or in a suit at law shall

he made public except where the interest of juvenile

persons otherwise requires or the proceedings concern

matrimonial disputes or the guardianship of children.

. Everyone charged with a criminal offence shall have the

right to be presumed innocent until proved guilty

according to law.

. Inthe determination of any criminal charge against him,

everyone shall be entitled to the following minimum

guarantees, in full equality:

1. To be informed promptly and in detail in a language

which he understands of the nature and cause of the

charge against him;

2. To have adequate time and facilities for the

preparation of his defence and to communicate with

counsel of his own choosing;

3. To be tried without undue delay;

4. To be tried in his presence, and to defend himself in

person or through legal assistance of his own

choosing; to be informed, if he does not have legal

assistance, of this right; and to have legal assistance

67a

Appendix C

assigned to him, in any case where the interests of

justice so require, — and without payment by him in

any such case if he does not have sufficient means to

pay for it;

5. To examine, or have examined, the witnesses against

him and to obtain the attendance and examination of

witnesses on his behalf under the same conditions as

witnesses against him;

6. To have the free assistance of an interpreter if he

cannot understand or speak the language used in court;

7. Not to be compeiled to testify against himself or to -

confess guilt.

4. In the case of juvenile persons, the procedure shall be

such as will take account of their age and the desirability

of promoting their rehabilitation.

5. Everyone convicted of a crime shall have the right to his

conviction and sentence being reviewed by a higher

tribunal according to law.

6. When a person has by a final decision been convicted of

a criminal offence and when subsequently his conviction

has been reversed or he has been pardoned on the ground

that a new or newly discovered fact shows conclusively

that there has been a miscarriage of justice, the person

who has suffered punishment as a result of such

conviction shall be compensated according to law, unless

it is proved that the non-disclosure of the unknown fact

in time is wholly or partly attributable to him.

68a

Appendix C

7. No one shall be liable to be tried or punished again for

an offence far which he has already been finally convicted

or acquitted in accordance with the law and penal

procedure of each country.

Article 15

* No one shall be held guilty of any criminal offence on

account of any act or omission which did not constitute a

criminal offence, under national or international law, at the

time when it was committed. Nor shall a heavier penalty be

imposed than the one that was applicable at the time when

the criminal offence was committed. if, subsequent to the

commission of the offence, provision is made by law for the

imposition of a lighter penalty, the offender shall benefi

thereby.

¢ Nothing in this article shall prejudice the trial and

punishment of any person for any act or omission which, at

the time when it was committed, was criminal according to

the general principles of law recognized by the community

of nations.

~

Article 16

Everyone shall have the right to recognition everywhere as a

person before the law.

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Appendix C

Article 17

l.

No one shall be subjected to arbitrary or unlawful

interference with his privacy, family, home or

correspondence, nor to unlawful attacks on his honour

and reputation.

Everyone has the right to the protection of the law against

such interference or attacks.

Article 18

1.

\

Everyone shall have the right to freedom of thought,

conscience and religion. This right shall include freedom

to have or to adopt a religion or belief of his choice, and

freedom, either individually or in community with others

and in public or private, to manifest his religion or belief

in worship, observance, practice and teaching.

No one shall be subject to coercion which would impair

his freedom to have or to adopt a religion or belief of his

choice.

Freedom to manifest one’s religion or beliefs may be

subject only to such limitations as are prescribed by law

and are necessary to protect public safety, order, health,

or morals or the fundamental rights and freedoms of

others.

The States Parties to the present Covenant undertake to

have respect for the liberty of parents and, when

applicable, legal guardians to ensure the religious and

moral education of their children in conformity with their

own convictions.

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Appendix C

Article 19

-

Everyone shall have the right to hold opinions without

interference.

Everyone shall have the right to freedom of expression;

this right shall include freedom to seek, receive and

impart information and ideas of all kinds, regardless of

frontiers, either orally, in writing or in print, in the form

of art, or through any other media of his choice.

The exercise of the rights provided for in paragraph 2

of this article carries with it special duties and

responsibilities. It may therefore be subject to certain

restrictions, but these shall only be such ws are provided

by law and are necessary:

1. For respect of the rights or reputations of others;

2. For the protection of national security or of public

order (ordre public), or of public health or morals.

Article 20

. Any propaganda for war shall be prohibited by law.

Any advocacy of national, racial or religious hatred that

constitutes incitement to discrimination, hostility or

violence shall be prohibited by law.

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Appendix C

Article 21

The right of peaceful assembly shall be recognized.

No restrictions may be placed on the exercise of this right

other than those imposed in conformity with the law and

which are necessary in a democratic society in the interests

of national security or public safety, public order (ordre

public), the protection of public health or morals or the

protection of the rights and freedoms of others.

Article 22

l.

Everyone shall have the right to freedom of association

with others, including the right to form and join trade

unions for the protection of his interests.

No restrictions may be placed on the exercise of this right

other than those which are prescribed by law and which

are necessary in a democratic society in the interests of

national security or public safety, public order (ordre

public), the protection of public health or morals or the

protection of the rights and freedoms of others. This

article shall not prevent the imposition of lawful

restrictions on members of the armed forces and of the

police in their exercise of this right.

Nothing in this article shall authorize States Parties to

the International Labour Organization Convention of

1948 concerning Freedom of Association and Protection

of the Right to Organize to take legislative measures

which would prejudice, or to apply the law in such a

manner as to prejudice, the guarantees provided for in

that Convention.

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Appendix C

Article 23

l.

The family is the natural and fundamental group unit of

society and is entitled to protection by society and the

State.

The right of men and women of marriageable age to marry

and to found a family shall be recognized.

No marriage shall be entered into without the free and

full consent of the intending spouses.

States Parties to the present Covenant shall take

appropriate steps to ensure equally of rights and

responsibilities of spouses as to marriage, during marriage

and at its dissolution. In the case of dissoluticn, provision

shall be made for the necessary protection of any children.

Article 24

i.

Every child shall have, without any discrimination as to

race, colour, sex, language, religion, national or social

origin, property or birth, the right to such measures of

protection as are required by his status as a minor, on the

part of his family, society and the State.

Every child shall be registered immediately after birth

and shall have a name.

3. Every child has the right to acquire a nationality.

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Appendix C

Article 25

Every citizen shall have the right and the opportunity, without

any of the distinctions mentioned in article 2 and without

unreasonable restrictions:

1. To take part in the conduct of public affairs, directly or

through freely chosen representatives;

2. To vote and to be elected at genuine periodic elections

which shall be by universal and equal suffrage and shall

be held by secret ballot, guaranteeing the free expression

of the will of the electors;

3. To have access, on general terms of equality, to public

service in his country.

Article 26

All persons are equal before the law and are entitled without

any discrimination to the equal protection of the law. In this

respect, the law shall prohibit any discrimination and

guarantee to all persons equal and effective protection against

discrimination on any ground such as race, colour, sex,

language, religion, political or other opinion, national or

social origin, property, birth or other status. .

Article 27

In those States in which ethnic, religious or linguistic

minorities exist, persons belonging to such minorities shall

not be denied the right, in community with the other members

of their group, to enjoy their own culture, to profess and

practice their own religion, or to use their own language.

74a

Appendix C

PART IV

Article 28

l.

There shall be established a Human Rights Committee

(hereafter referred to in the present Covenant as the

Committee). It shall consist of eighteen members and

shall carry out the functions hereinafter provided.

The Committee shall be composed of nationals of the

States Parties to the present Covenant who shall be

persons of high moral character and recognized

competence in the field of human rights, consideration

being given to the usefulness of the participation of some

persons having legal experience.

. The members of the Committee shall be elected and shall

serve in their personal capacity.

Article 29

1.

The members of the Committee shall be elected by secret

ballot from a list of persons possessing the qualifications

prescribed in article 28 and nominated for the purpose

by the States Parties to the present Covenant.

. Each State Party to the present Covenant may nominate

not more than two persons. These persons shall be

nationals of the nominating State.

3. A person shall be eligible for renomination.

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Appendix C

Article 30

“ei

The initial election shall be held no later than six months

after the date of the entry into force of the present

Covenant.

At least four months before the date of each election

to the Committee, other than an election to fill a

vacancy declared in accordance with article 34, the

Secretary-General of the United Nations shall address a

written invitation to the States Parties to the present

Covenant to submit their nominations for membership

of the Committee within three months.

The Secretary-General of the United Nations shall prepare

a list in alphabetical order of all the persons thus

nominated, with an indication of the States Parties which

have nominated them, and shall submit it to the States

Parties to the present Covenant no later than one month

before the date of each election.

Elections of the members of the Committee shall be held

at a meeting of the States Parties to the present Covenant

convened by the Secretary-General of the United Nations

at the Headquarters of the United Nations. At that

meeting, for which two thirds of the States Parties to the

present Covenant shall ccnstitute a quorum, the persons

elected to the Committee shall be those nominees who

obtain the largest number of votes and an absolute

majority of the votes of the representatives of States

Parties present and voting.

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Appendix C

Article 31

1.

The Committee may not ‘nclude more than one national

of the same State.

In the election of the committee, consideration shall

be given to equitable geographical distribution of

membership and to the representation of the different

forms of civilization and of the principal legal systems.

Article 32

l.

The members of the Committee shall be elected for a

term of four years. They shall be eligible for re-election

if renominated. However, the terms of nine of the

members elected at the first election shall expire at the

end of two years; immediately after the first election, the

names of these nine members shall be chosen by lot by

the chairman of the meeting referred to in article 30,

paragraph 4.

Elections at the expiry of office shall be held in

accordance with the preceding articles of this part of the

present Covenant.

Article 33

1.

If, in the unanimous opinion of the other members, a

member of the Committee has ceased to carry out his

functions for any cause other than absence of a temporary

character, the Chairman of the Committee shall notify

the Secretary-General of the United Nations, who shall

then declare the seat of that member to be vacant.

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Appendix C

2. In the event of the death or the resignation of a member

of the Committee, the Chairman shall immediately notify

the Secretary-General of the United Nations, who shall

declare the seat vacant from the date of death or the date

on which the resignation takes effect.

Article 34

1. When a vacancy is declared in accordance with article

33 and if the term of office of the member to be replaced

does not expire within six months of the declaration of

the vacancy, the Secretary-General of the United Nations

shall notify each of the States Parties to the present

Covenant, which may within two months submit

nominations in accordance with article 29 for the purpose

of filling the vacancy.

2. The Secretary-General of the United Nations shall prepare

a list in alphabetical order of the persons thus nominated

and shall submit it to the States Parties to the present

Covenant. The election to fill the vacancy shall then take

place in accordance with the relevant provisions of this

part of the present Covenant.

3. A member of the Committee elected to fill a vacancy

declared in accordance with article 33 shall hold office

for the remainder of the term of the member who vacated

the seat on the Committee under the provisions of that

article.

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Appendix C

Article 35

The members of the Committee shall, with the approval of

the General Assembly of the United Nations, receive

emoluments from United Nations resources on such terms

and conditions as the General Assembly may decide, having

regard to the importance of the Committee’s responsibilities.

Article 36

The Secretary-General of the United Nations shall provide

the necessary staff and facilities for the effective performance

of the functions of the Committee under the present

Covenant.

Article 37

1. The Secretary-General of the United Nations shall

convene the initial meeting of the Committee at the

Headquarters of the United Nations.

2. After its initial meeting, the Committee shall meet at such

time as shall be provided in its rules of procedure,

3. The Committee shall normally meet at the Headquarters

of the United Nations or at the United Nations Office at

Geneva.

79a

Appendix C

Article 38

Every member of the Committee shall, before taking up his

duties, make a solemn declaration in open committee that he

will perform his functions impartially and conscientiously.

Article 39

1. The Committee shall elect its officers for a term of two

years. They may be re-elected.

2. The Committee shall establish its own rules of procedure,

but these rules shall provide, inter alia, that:

‘

1. Twelve members shall constitute a quorum;

2. Decisions of the committee shall be made by a

majority vote of the members present.

Article 40

1. The States Parties to the present Covenant undertake to

submit reports on the measures they have adopted which

give effect to the rights recognized herein and on the

progress made in the enjoyment of those rights:

1. Within one year of the entry inte force of the present

Covenant for the States Parties concerned;

2. Thereafter whenever the Committee so requests.

80a

Appendix C

All reports shall be submitted to the Secretary-General

of the United Nations, who shall transmit them to the

Committee for consideration. Reports shall indicate

the factors and difficulties, if any, affecting the

implementation of the present Covenant.

. The Secretary-General of the United Nations may, after

consultation with the Committee, transmit to the

specialized agencies concerned copies of such parts of

the reports as may fall within their field of competence.

The Committee shall study the reports submitted by the

States Parties to the present Covenant, It shall transmit

its reports, and such general comments as it may consider

appropriate, to the States Parties. The Committee may

also transmit to the Economic and Social Council these

comments along with the copies of the reports it has

received from States Parties to the present Covenant.

. The States Parties to the present Covenant may submit

to the Committee observations on any comments that may

be made in accordance with paragraph 4 of this article.

Article 41

l.

A State Party to the present Covenant may at any time

declare under this article that it recognizes the competence

of the Committee to receive and consider communications

to the effect that a State Party claims that another State

Party is not fulfilling its obligations under the present

Covenant. Communications under this article may be

received and considered only if submitted by a State Party

8la

Appendix C

which has made a declaration recognizing in regard

to itself the competence of the Committee. No

communication shall be received by the Committee if it

concerns a State Party which has not made such a

declaration. Communications received under this article

shall be dealt with in accordance with the following

procedure:

1.

If a State Party to the present Covenant considers that

another State Party is not giving effect to the

provisions of the present Covenant, it may, by written

communication, bring the matter to the attention of

that State Party. Within three months after the receipt

of the communication, the receiving State shall afford

the State which sent the communication an

explanation or any other statement in writing

clarifying the matter, which should include, to the

extent possible and pertinent, reference to domestic

procedures and remedies taken, pending, or available

in the matter.

If the matter in not adjusted to the satisfaction of both

States Parties concerned within six months after

the receipt by the receiving State of the initial

communication, either State shall have the right to refer

the matter to the Committee, by notice given to the

Committee and to the other State.

The Committee shall deal with a matter referred to it

cy after it has ascertained that all available domestic

remedies have been invoked and exhausted in the mailer,

in conformity with the generally recognized principles -

82a

Appendix C

of international law. This shall not be the rule where the

application of the remedies is unreasonably prolonged.

. The Committee shall hold closed meetings when

examining communications under this article.

. Subject to the provisions of subparagraph (c), the

Committee shall make available its good offices to the

States Parties concerned with a view to a friendly

solution of the matter on the basis of respect for human

rights and fundamental freedoms as recognized in the

present Covenant.

. Inany matter referred to it, the Committee may call upon

the States Parties concerned, referred to in subparagraph

(b), to supply any relevant information.

. The States Parties concerned, referred to in subparagraph

(b), shall have the right to be represented when the matter

is being considered in the Committee and to make

submissions orally and/or in writing.

. The Committee shall, within twelve months after the

date of receipt of notice under subparagraph (b), submit

a report: |

1. Ifasolution within the terms of subparagraph (e) is

reached, the Committee shall confine its report to a

brief statement of the facts and of the solution

reached;

83a

Appendix C

2. Ifasolution within the terms of subparagraph (e) is

not reached, the Committee shall confine its report

to a brief statement of the facts the written

submissions and record of the oral submissions made

by the States Parties concerned shall be attached to

the report.

In every matter, the report shall be communicated

to the States Parties concerned.

2. The provisions of this article shall come into force

when ten States Parties to the present Covenant have

made declarations under paragraph 1 of this article. Such

declarations shall be deposited by the States Parties with

the Secretary-General of the United Nations, who shall

transmit copies thereof to the other States Parties. A

declaration may be withdrawn at any time by notification to

the Secretary-General. Such a withdrawal shall not prejudice

the consideration of any matter which is the subject of a

communication already transmitted under this article; no

further communication by any State Party shall be received

after the notification of withdrawal of the declaration has

been received by the Secretary-General, unless the State

Party concerned has made a new declaration.

Article 42

1. If a matter referred to the Committee in accordance

with article 41 is not resolved to the satisfaction of

the States Parties concerned, the Committee may, with

~

eater nena iii een itil inate A ee eens

84a.

Appendix C

the prior consent of the States Parties concerned,

appoint an ad hoc Conciliation Commission

(hereinafter referred to as the Commission). The good

offices of the Commission shall be made available to

the States Parties concerned with a view to an

amicable solution of the matter on the basis of respect

for the present Covenant;

2. The Commission shall consist of five persons

acceptable to the States Parties concerned. If the States

Parties concerned fail to reach agreement within three

months on all or part of the composition of the

Commission, the members of the Commission

concerning whom no agreement has been reached

shall be elected by secret ballot by a two-thirds

majority vote of the Committee from among its

members.

2. The members of|\the Commission shall serve in their

personal capacity. They shall not be nationals of the States

Parties concerned, or of a State not party to the present

Covenant, or of 4 State Party which has not made a

declaration under Article 41.

3. The Commission shall elect its own Chairman and adopt

its own rules of procedure.

4. The meetings of the Commission shall normally be held

at the Headquarters of the United Nations or at the United

Nations Office at Geneva. However, they may be held at

such other convénient places as the Commission may

determine in consultation with the Secretary-General of

the United Nations and the States Parties concerned.

5. The secretariat provided in accordance with article 36

85a

Appendix C

shall also service the commissions appointed under this

article.

6. The information received and collated by the Committee

shall be made available to the Commission and the

Commission may call upon the States Parties concerned

to supply any other relevant information.

7. When the Commission has fully considered the matter,

but in any event not later than twelve months after having

been seized of the matter, it shall submit to the Chairman

of the Committee a report for communication to the States

Parties concerned:

1.

If the Commission is unable to complete its

consideration of the matter within twelve months, it

shall confine its report to a brief statement of the status

of its consideration of the matter.

If an amicable solution to the matter on the basis of

respect for human rights as recognized in the present

Covenant is reached, the Commission shall confine

its report to a brief statement of the facts and of the

solution reached;

If a solution within the terms of subparagraph (b) is

not reached, the Commission’s report shall embody

its findings on all questions of fact relevant to the

issues between the States Parties concerned, and its

views on the possibilities of an amicable solution of

the matter. This report shall also contain the written

10.

86a

Appendix C

submissions and a record of the oral submissions

made by the States Parties concerned;

. If the Commission’s report is submitted under

subparagraph (e), the States Parties concerned shall,

within three months of the receipt of the report, notify

the Chairman of the Committee whether or not they

accept the contents of the report of the Commission.

The provisions of this article are without prejudice to

the responsibilities of the Committee under article 41.

The States Parties concerned shall share equally all the

expenses of the members of the Commission in

accordance with estimates to be provided by the

Secretary-General of the United Nations.

The Secretary-General of the United Nations shall be

empowered to pay the expenses of the members of the

Commission, if necessary, before reimbursement by the

States Parties concerned, in accordance with paragraph

9 of this article.

Article 43

The members of the Committee, and of the ad hoc

conciliation commissions which may be appointed under

article 42, shall be entitled to the facilities, privileges and

immunities of experts on mission forthe United Nations as

laid down in the relevant sections of the Convention on the

Privileges and Immunities of the United Nations.

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Appendix C

Article 44

The provisions for the implementation of the present

Covenant shall apply without prejudice to the procedures

prescribed in the field of human rights by or under the

constituent instruments and the conventions of the United

Nations and of the specialized agencies and shall not prevent

the States Parties to the present Covenant from having

recourse to other procedures for settling a dispute in

accordance with general or special international agreements

in force between them.

Article 45

The Committee shall submit to the General Assembly of the

United Nations, through the Economic and Social council,

an annual report on its activities.

PART V

Article 46

Nothing in the present Covenant shall be interpreted as

impairing the provisions of the Charter of the United Nations

and of the constitutions of the specialized agencies which

define the respective responsibilities of the various organs

of the United Nations and of specialized agencies in regard

to the matters dealt with in the present Covenant.

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Appendix C

Article 47

Nothing in the present Covenant shall be interpreted as

impairing the inherent right of all peoples to enjoy and utilize

fully and freely their natural wealth and resources.

PART VI

Article 48

e

The present Covenant is open for signature by any State

Member of the United Nations or member of any of its

specialized agencies, by any State Party to the Statute of

the International Court of Justice, and by any other State

which has been invited by the General Assembly of the

United Nations to become a party to the preset Covenant.

. The present Covenant is subject to ratification.

Instruments of ratification shall be deposited with the

Secretary-General of the United Nations.

The present Covenant shall be open to accession by any

State referred to in paragraph 1 of this article.

Accession shall be effected by the deposit of an

instrument of accession with ie Secretary-General of the

United Nations.

The Secretary-General of the United Nations shall inform

all States which have signed this Covenant or acceded to

it of the deposit of each instrument of ratification or

accession.

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Appendix C

Article 49

a

The present Covenant shall enter into force three months

after the date of the deposit with the Secretary-General

of the United Nations of the thirty-fifth instrument of

ratification or instrument of accession.

For each State ratifying the present Covenant or acceding

to it after the deposit of the thirty-fifth instrument of

ratification or instrument of accession, the present

Covenant shall enter into force three months after the

date of the deposit of its own instrument of ratification

or instrument of accession.

Article 50

The provisions of the present Covenant shall extend to all

parts of federal States without any limitations or exceptions.

Article 51

.

Any State Party to the present Covenant may propose an

amendment and file it with the Secretary-General of the

United Nations. The Secretary-General of the United

Nations shall thereupon communicate any proposed

amendments to the States Parties to the present Covenant

with a request that they notify him whether they favour a

conference of States Parties for the purpose of considering

and voting upon the proposals. In the event that at least

on third of the States Parties favours such a conference,

the Secretary-General shall convene the conference under

the auspices of the United Nations. Any amendment

90a

Appendix C

adopted by a majority of the States Parties present and

voting at the conference shall be submitted to the General

Assembly of the United Nations for approval.

Amendments shall come into force when they have

been approved by the General Assembly of the United

Nations and accepted by a two-thirds majority of the State

Parties to the present Covenant in accordance with their

respective constitutional processes.

. When amendments come into force, they shall be binding

on those States Parties which have accepted them, other

States Parties still being bound by the provisions of the

present Covenant and any earlier amendment which they

’ have accepted.

Article 52

Irrespective of the notifications made under article 48,

paragraph 5, the Secretary-General of the United Nations

shall inform all States referred to in paragraph 1 of the same

article of the following particulars:

l.

y &

Signatures, ratifications and accessions under article 48;

The date of the entry into force of the present Covenant

under article 49 and the date of the entry into force of

any amendments under article 51.

9la

Appendix C

' Article 53

1. The present Covenant, of which the Chinese, English,

French, Russian and Spanish texts are equally authentic,

shall be deposited in the archives of the United Nations.

2. The Secretary-General of the United Nations shall

transmit certified copies of the present Covenant to all

' States referred to in article 48.

(Signatures)

Document text from United Nations Gopher.

Created on July 7, 1994 / Last edited on January 25, 1997