P1: GDZ 0521750717pre
CB951-Murphy
0 521 75071 7
August 7, 2005
12:2
This page intentionally left blank
P1: GDZ ...
191 downloads
1308 Views
4MB Size
Report
This content was uploaded by our users and we assume good faith they have the permission to share this book. If you own the copyright to this book and it is wrongfully on our website, we offer a simple DMCA procedure to remove your content from our site. Start by pressing the button below!
Report copyright / DMCA form
P1: GDZ 0521750717pre
CB951-Murphy
0 521 75071 7
August 7, 2005
12:2
This page intentionally left blank
P1: GDZ 0521750717pre
CB951-Murphy
0 521 75071 7
August 7, 2005
12:2
United States Practice in International Law Volume 2: 2002–2004 Sean D. Murphy’s wide-ranging and in-depth survey of U.S. practice in international law in the period 2002–2004 draws upon the statements and actions of the executive, legislative, and judicial branches of the U.S. government to examine its involvement across a range of areas. These areas include diplomatic and consular relations, jurisdiction and immunities, state responsibility and liability, international organizations, international economic law, human rights, and international criminal law. Like its award-winning predecessor volume covering 1999–2001, this summary of the most salient issues during 2002–2004 (ranging from the treatment of detainees during the Afghan conflict in the spring of 2002 to the invasion and occupation of Iraq in 2003–2004) is a central source of information about U.S. practice in international law. The volume contains extracts from hard-to-find documents, generous citations to relevant sources, tables of cases and treaties, and a detailed index. Revealing international law in the making, this essential tool for researchers and practitioners is the second in a series of books capturing the international law practice of a global player. Sean D. Murphy is Professor of Law at the George Washington University. Before joining the Law School faculty in 1998, Professor Murphy served as legal counselor at the U.S. Embassy in The Hague, arguing several cases before the International Court of Justice and representing the U.S. government in matters before the International Criminal Tribunal for the Former Yugoslavia, the Permanent Court of Arbitration, and The Hague Conference on Private International Law. He also served as U.S. agent to the Iran–U.S. Claims Tribunal, arguing cases on behalf of the U.S. government and providing advice to U.S. nationals appearing before that tribunal. From 1987 to 1995, Professor Murphy was an attorney/adviser at the U.S. Department of State, handling environmental, politico-military, and claims matters. Awarded the American Journal of International Law 1994 D´eak Prize for best scholarship by a younger author, Professor Murphy has published numerous articles on international law. His book Humanitarian Intervention: The United Nations in an Evolving World Order won the American Society of International Law 1997 Certificate for Preeminent Contribution to Creative Scholarship. He is a member of the Board of Editors of the American Journal of International Law.
i
P1: GDZ 0521750717pre
CB951-Murphy
0 521 75071 7
August 7, 2005
12:2
ii
P1: GDZ 0521750717pre
CB951-Murphy
0 521 75071 7
August 7, 2005
12:2
United States Practice in International Law Volume 2: 2002–2004
Sean D. Murphy George Washington University Law School Washington, D.C.
iii
CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521750714 © Sean D. Murphy 2005 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format eBook (EBL) ISBN-13 978-0-511-34453-4 ISBN-10 0-511-34453-8 eBook (EBL) hardback ISBN-13 978-0-521-75071-4 hardback ISBN-10 0-521-75071-7
Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.
P1: GDZ 0521750717pre
CB951-Murphy
0 521 75071 7
August 7, 2005
12:2
Summary of Contents Foreword by Judge Stephen M. Schwebel
page xii
Acknowledgments
xiii
Table of Periodical Abbreviations
xiv
Table of Cases
xvi
Table of U.S. Statutes
xxi
Table of Treaties
xxiii
I.
General International and U.S. Foreign Relations Law ...................................................... 1
II.
State Diplomatic and Consular Relations ........................................................................ 18
III.
State Jurisdiction and Immunities .................................................................................... 41
IV.
State Responsibility and Liability ..................................................................................... 86
V.
International Organizations ........................................................................................... 102
VI.
International Oceans, Environment, Health, and Aviation Law .................................... 119
VII. International Economic Law .......................................................................................... 152 VIII. International Human Rights .......................................................................................... 192 IX.
International Criminal Law ........................................................................................... 235
X.
Use of Force and Arms Control ...................................................................................... 320
XI.
Settlement of Disputes ................................................................................................... 369
XII. Private International Law ............................................................................................... 383 Annex
398
Index
403
v
P1: GDZ 0521750717pre
CB951-Murphy
0 521 75071 7
August 7, 2005
12:2
Contents Foreword by Judge Stephen M. Schwebel Acknowledgments Table of Periodical Abbreviations Table of Cases Table of U.S. Statutes Table of Treaties
page xii xiii xiv xvi xxi xxiii
I. General International and U.S. Foreign Relations Law ............................................................ 1 Overview U.S. Influence on International Law President Bush 2004 Speech to UN General Assembly
International and Foreign Relations Law Influences on the United States Interpretation of Constitution in Light of Foreign and International Law Interpretation of Treaty in Light of Foreign Court Decisions Interpretation of Foreign Law When Applying U.S. Statutes Customary International Law as a Part of U.S. Law Federal Foreign Relations Law Preemption of State Law
1 1 1
3 3 8 10 11 14
II. State Diplomatic and Consular Relations ............................................................................. 18 Overview Recognition of States and Governments Recognition of the Name “Republic of Macedonia” Recognition of New Afghan Government Recognition of New Iraqi Government Congressional Effort to Move U.S. Embassy to Jerusalem
Persona Non Grata U.S. Expulsion of Iraqi Diplomat U.S. Expulsion of Cuban Diplomats
Consular Affairs Effects of German LaGrand Case in U.S. Courts Mexican Avena Case Before the ICJ Effects of Avena Case in U.S. Courts Service of Process on Foreign Officials in United States
18 18 18 19 20 20
21 21 22
23 23 27 33 38
III. State Jurisdiction and Immunities ....................................................................................... 41 Overview Jurisdiction Extraterritorial Application of U.S. Criminal Statutes Extraterritorial Application of U.S. Environmental Statutes
Foreign Sovereign Immunities Act Background Application of FSIA to Pre-FSIA Events Corporations as Agencies of Foreign Sovereigns vi
41 41 41 44
49 49 49 51
P1: GDZ 0521750717pre
CB951-Murphy
0 521 75071 7
August 7, 2005
12:2
Contents Waiver of Immunity Commercial Activity Exception Expropriation Exception Tortious Activity Exception Arbitration Exception Terrorist State Exception Immunity of Foreign State Assets from Attachment or Execution
Immunity as Head of State Immunity as Head of State for Former Chinese President Jiang Zemin
Immunity of U.S. For Acts Abroad U.S. Immunity for Security Measures at Embassy Abroad Supreme Court Rejection of “Headquarters Doctrine” Under FTCA
Act of State Doctrine License to Export as an Act of State
vii 53 55 57 57 58 59 77
78 78
81 81 83
85 85
IV. State Responsibility and Liability ........................................................................................ 86 Overview Rules of State Responsibility Retroactive Application of Treaty to Treaty-Based Claim U.S. Interpretation of Continuous Nationality Rule U.S. Interpretation of Exhaustion of Local Remedies Rule U.S. Interpretation of Denial of Justice Standard Customary International Law Does Not Prohibit Anticompetitive Behavior
Payment of Compensation Implementation of German Holocaust Claims Agreement
86 86 86 88 91 92 95
97 97
V. International Organizations ................................................................................................ 102 Overview United Nations U.S. Financial Support for the United Nations U.S. Funding for the UN Population Fund U.S. Personnel Contributions to UN Peacekeeping Operations Replacement of U.S.-Led Force in Haiti with UN Peacekeeping Mission U.S. Support for Multinational Intervention in Liberia Protection of UN and Humanitarian Personnel in Conflict Zones UN Resolution on Israeli Treatment of Palestinian President Host-Country Relations ICJ Judge Conducts Marriage Ceremony in United States
Specialized Agencies and Other International Organizations Specialized Agencies: U.S. Return to UNESCO U.S. Initiative to Oust OPCW Director-General
102 102 102 103 104 106 107 109 111 112 114
115 115 117
VI. International Oceans, Environment, Health, and Aviation Law ....................................... 119 Overview Law of the Sea Report of U.S. Commission on Ocean Policy Senate Consideration of Law of the Sea Convention U.S. Reaction to Russian Continental Shelf Claim Senate Consideration of MARPOL Protocol “Proliferation Security Initiative” for Searching Potential WMD Vessels
119 119 119 120 123 124 126
P1: GDZ 0521750717pre
CB951-Murphy
0 521 75071 7
August 7, 2005
viii
12:2
Contents Establishment of U.S. Antiterrorism Maritime Transportation System U.S. Concerns Regarding UNESCO Convention on Underwater Heritage
International Environmental Law Methyl Bromide Exemption to Ozone Depletion Regime U.S. Proposal for Reducing Greenhouse Gases U.S. Effort to Block Iceland’s Membership in Whaling Convention U.S.–Russia Polar Bear Agreement Exemption of U.S. Military from Migratory Bird Treaty Act Environmental Torts Do Not Violate Customary International Law
International Health Law U.S. Signing of Framework Convention on Tobacco Control “Revenue Rule” Barring Foreign Suits Concerning Cigarette Smuggling
Air and Space Law Ratification of the 1999 Montreal Convention on Aviation Liability
128 130
134 134 136 137 142 143 144
145 145 147
149 149
VII. International Economic Law ............................................................................................ 152 Overview International Finance and Tax U.S. “Millennium Challenge Account” for Foreign Aid U.S.–Japan Tax Treaty
Bilateral Trade 2002 Enactment of Trade-Promotion Authority U.S.–Chile Free Trade Agreement U.S.–Singapore Free Trade Agreement U.S.–Australia Free Trade Agreement U.S.–Morocco Free Trade Agreement U.S.–Bahrain Free Trade Agreement New U.S. “Model” Bilateral Investment Treaty Amendment of Treaty on Customs Procedures Bioterrorism Act’s Notice Requirements for Food Imports
NAFTA Chapter 11 Investor-State Disputes Chapter 19 Anti-dumping and Countervailing Duty Disputes Chapter 20 General Dispute Resolution
Regional Trade Adoption of Central American Free Trade Agreement Trade Developments Between the United States and Sub-Saharan Africa
World Trade Organization Overview U.S. Participation in Doha Round Negotiations Modification of WTO Rules on Protection of Pharmaceuticals U.S. Conformance with Shrimp-Turtle Decision U.S. Conformance with Steel Safeguards Decision U.S. Efforts to Conform to Foreign Sales Corporation Decision Failure to Conform with Decision on “Byrd Amendment”
152 153 153 155
157 157 158 161 161 162 162 163 165 166
167 167 175 176
178 178 179
180 180 181 183 185 186 189 190
VIII. International Human Rights .......................................................................................... 192 Overview New Treaties and Instruments Ratification of Protocols to Rights of the Child Convention U.S. View on Pursuing a Torture Convention Protocol Senate Consideration of CEDAW
192 192 192 194 195
P1: GDZ 0521750717pre
CB951-Murphy
0 521 75071 7
August 7, 2005
12:2
Contents Implementation of Human Rights Reporting on Human Rights U.S. Opposition to Measures Condemning Israel U.S. Declaration on Sudan Genocide Election of United States to UN Human Rights Commission Failure to Elect U.S. Candidate to Inter-American Human Rights Commission Resistance to Decisions of Inter-American Human Rights Commission
Alien Tort Claims Act and Torture Victim Protection Act Cases Background Forum Non Conveniens Statute of Limitations Exhaustion of Local Remedies Diplomatic Immunity Justice Department ATCA Position in Unocal Case ATCA Supporters Amicus Brief in Talisman Case Supreme Court ATCA Interpretation in Sosa Case Justice Department ATCA Position After Sosa Decision District Court ATCA Decisions After Sosa Decision Command Responsibility in the U.S. Human Rights Cases
Immigration U.S. Detention of Aliens After September 11 Attacks Detention of Illegal Immigrants Cannot Be Indefinite Removal of Alien Without Receiving Country’s Consent Canadian Deportation to United States of Death-Penalty Convict North Koreans Seeking Asylum at Diplomatic Compounds in China
ix 196 196 198 198 202 203 203
206 206 206 207 207 208 209 211 213 217 218 220
225 225 230 231 232 233
IX. International Criminal Law ............................................................................................... 235 Overview Law Enforcement Generally U.S./EU and U.S./UK Extradition Treaties Continuance of Extradition Treaty with Czech Republic MLATs with Various States and the European Union Adoption of UN Convention Against Corruption Senate Consideration of Other Multinational Treaties Hate-Speech Protocol to Cybercrime Convention U.S. Law in Support of Diamond Controls U.S. Law Against Sex Tourism Searching of Foreign Mail Inconsistent with International Law U.S. Reaction to Belgian Universal Jurisdiction Law
Law of War: Status of Guant´anamo Bay Detainees Decision Not to Regard Persons Detained in Afghanistan as POWs ICRC Reaction to the U.S. Decision Inter-American Human Rights Commission Reaction Ability of Detainees to Obtain Federal Habeas Corpus Review Reviews and Releases of Detainees at Guant´anamo Bay Plans for Trials of Detainees at Guant´anamo Bay
Law of War: Permissible Means for Interrogating Detainees Background Lack of Miranda Rights for Detainees Justice Department 2002 Opinion on What Constitutes Torture DOD-Approved Interrogation Techniques at Guant´anamo Bay “Migration” of Guant´anamo Bay Techniques to Iraq U.S. Abuse of Iraqi Detainees at Abu Ghraib Prison
235 235 235 237 237 238 240 244 245 247 248 249
252 252 260 261 263 268 270
276 276 277 278 279 282 283
P1: GDZ 0521750717pre
CB951-Murphy
0 521 75071 7
August 7, 2005
x
12:2
Contents U.S. Abuse of Other Detainees Justice Department Withdrawal and Replacement of 2002 Opinion Removal of Detainees from Occupied Iraq
286 287 289
Law of War: Treatment of U.S. Nationals As Unlawful Combatants
290
U.S. Nationals Detained as Unlawful Combatants U.S. Enemy Combatant Placed in Criminal Justice System (Lindh) U.S. Enemy Combatant Captured on Battlefield (Hamdi) U.S. Enemy Combatant Detained in United States (Padilla) Foreign Enemy Combatant Detained in United States (al-Marri)
290 291 292 297 301
International War Crimes Tribunals U.S. Pressure on Serbia to Transfer ICTY Indictees Testimony by U.S. General Before the ICTY ICTY Subpoena of Washington Post Journalist U.S. Intent Not to Become a Party to the Rome Statute American Servicemembers’ Protection Act U.S. Bilateral Agreements Relating to ICC Efforts to Obtain Immunity from ICC for U.S. Peacekeepers State Department Views on the Future for War Crimes Tribunals
302 302 303 305 306 307 309 312 317
X. Use of Force and Arms Control .......................................................................................... 320 Overview Use of Force Doctrine U.S. Adoption of New Doctrine on Use of Force U.S. Reaction to ICJ Judgment in Iran Oil Platforms Case
Military Attack on Iraq Efforts to Address Iraqi Compliance with UN Weapons Inspections Congressional Authorization for the Use of Force U.S. Effort to Obtain Security Council Authorization to Use Force Use of Military Force to Disarm Iraq The U.S. Legal Theory for the Intervention Conduct of Iraqi Forces During the War Conduct of U.S. Forces During the War Security Council Recognition of U.S. Postwar Role in Iraq Establishment of Coalition Occupation Laws Turmoil in Postwar Iraq Creation of an Interim Iraqi Government The Capture of Saddam Hussein The Search for Weapons of Mass Destruction Other Deployments in “Global War” on Terrorism
Arms Control Conclusion of U.S.–Russia Treaty on Strategic Offensive Reductions U. S. Resistance to Fifth CCW Protocol on Explosive Remnants of War Ratification of IAEA Additional Protocol Suit by Congressmen Regarding Withdrawal from ABM Treaty UN Security Council Resolution on Nonproliferation of WMD
320 320 320 323
327 327 331 333 340 342 344 345 346 348 350 351 355 356 358
359 359 360 363 365 366
XI. Settlement of Disputes ...................................................................................................... 369 Overview Negotiation Libyan Compensation for Pan Am Flight 103 Victims Libyan WMD Disarmament
369 369 369 372
P1: GDZ 0521750717pre
CB951-Murphy
0 521 75071 7
August 7, 2005
12:2
Contents
xi
Iran–U.S. Claims Tribunal
376
Avco Corporation v. Iran Sheibani v. United States Riahi v. Iran
376 377 377
International Court of Justice U.S. Position Regarding ICJ Israeli Barrier Advisory Opinion
378 378
XII. Private International Law ................................................................................................. 383 Overview Private Commerce UNCITRAL Convention on Assignment of Receivables Cape Town Convention on Financing of Mobile Equipment Interpretation of 1949 Convention on Road Traffic
New York Convention on Arbitral Awards Background Ability to Remove New York Convention Cases to Federal Court Enforcement of Agreement to Arbitrate or Arbitral Award Refusal to Enforce Based on Lack of Personal Jurisdiction Refusal to Enforce Based on Forum Non Conveniens Doctrine Ability to Determine the Validity of Underlying Contract to Arbitrate
Hague Convention on Child Abduction Background Interpretation of “Rights of Custody” Interpretation of “Habitual Residence” Obligation Not to Return Child if There is a Grave Risk
383 383 383 385 387
388 388 388 389 392 392 393
394 394 394 395 396
Annex Treaties Sent to the Senate by the President or Consented to by the Senate During 2002–2004
398
Index
403
P1: GDZ 0521750717pre
CB951-Murphy
0 521 75071 7
August 7, 2005
12:2
Foreword by Judge Stephen M. Schwebel It is not unusual in the most elevated circles of international law to hear envious grumblings about the exceptional influence on the development of customary international law of the United Kingdom and the United States. It is a fact that they have had and do have extraordinary influence in the fashioning of international law. That fact flows first of all from the power that the British Empire and the United States of America have exerted internationally for more than two hundred years. Elements of that power have been the international trade that their economies have promoted and the naval might that their governments have projected. Their influence derives as well from the nature of the British and American democratic polities, based as they are on law. Still another significant factor is that the academic and scholarly contributions of British and American international lawyers to the development of international law are unsurpassed. But still another element of the influence of these great English-speaking States on the content of customary international law is that their practice is published. For the practice of States to influence the development of international law, that practice must be known. “International custom, as evidence of a general practice accepted as law,” is generated not only by the actuality of that practice but by the dissemination of the evidence. In the publication of their practice, the United States and the United Kingdom have long been in the lead. In recent decades, other States, principally European, have followed their lead, an increasing trend devoutly to be wished and encouraged throughout the world. The processes of the progressive development and codification of international law by the United Nations (and earlier by the League of Nations) have brought to light the practice of large numbers of States on certain topics. At the same time, the U.S. government no longer devotes the resources to publication of its practice that it once did. The great Digests of International Law edited by Moore, Hackworth, and Whiteman and their predecessors are not being sustained, nor are the richly annotated annual volumes of U.S. practice so helpfully published in years after the appearance of Whiteman’s great Digest, edited with devotion by Marian Nash, being maintained. The Department of State Bulletin is no longer published, although annual collections of documents are being published since 2001. Thus it fell to the American Journal of International Law to fill the gap. That has been done with great success in the Journal ’s sections on the contemporary practice of the United States. This is the second volume of United States Practice in International Law that Professor Sean Murphy has drawn from the pages of the Journal and amplified and embellished with a fine sense of what is important and what otherwise might be overlooked. The first volume was received with great praise. The reception of this volume will be no less positive. Professor Murphy sets out U.S. practice – and reactions to that practice – in a comprehensive and balanced way. That practice is unmatched in its volume and its reach, for no other State is as pervasive an international actor as is the United States. Whether that practice matches U.S. preachment is another question. But for that practice to be appraised, it must be made available. To that important end, Professor Murphy’s renewed contribution is outstanding. Stephen M. Schwebel Washington, D.C. January 2005
xii
P1: GDZ 0521750717pre
CB951-Murphy
0 521 75071 7
August 7, 2005
12:2
Acknowledgments With international law increasingly playing an important role in U.S. law, and with the United States continuing to play a central role in the development of international law and institutions, it is impossible to capture in a single volume all U.S. practice in international law that arose during 2002– 2004. Nevertheless, like its predecessor volume covering 1999–2001, this volume seeks to capture the essential trends and themes of U.S. practice during this period, providing detailed discussion of the most significant events and recording information that may be inaccessible to practitioners and scholars. In some instances, events prior to this period were recounted when necessary as background, while others at the very end of the period were omitted since they had not yet run their course. Many of the materials contained herein were collected for publication in the American Journal of International Law, but I have supplemented, updated, and reorganized those materials so as to provide in a single volume a comprehensive and accessible window on this period. My thanks to Lori Damrosch, Bernie Oxman, Michael Reisman, and the late Jonathan Charney for their comments on much of this volume, and to my editors at Cambridge University Press, John Berger and Finola O’Sullivan, for their support and encouragement. I have been blessed with extraordinary research assistants at George Washington University, who all contributed greatly to this enterprise: Anna Conley, Brooke Marcus, Jered Matthysse, James Menz, and Janet Sarver. Anna Ascher and Stephen Scher earn credit for superb copy-editing. In the course of preparing these materials, I have repeatedly called upon the assistance of lawyers at the U.S. Department of State and elsewhere for hard-to-find materials and for comments and corrections on the text, for which I am very thankful. My colleagues at George Washington University Law School also have been generous in supporting this endeavor, especially Steve Charnovitz, Susan Karamanian, Michael Matheson, Peter Raven-Hansen, Dinah Shelton, Herb Somers, Andy Spanogle, Ralph Steinhardt, and Deans Roger Transgrud and Michael Young. While the many extracts of U.S. government documents obviously reflect that government’s position, comments summarizing and connecting materials were prepared by myself and do not necessarily reflect the views of the U.S. government. Indeed, no aspect of this publication has been subsidized or supervised by the U.S. government. Any errors, of course, are mine. This book is dedicated to the memory of Oscar Schachter, a pioneer in the field of international law and an inspiration to those who follow him. Sean D. Murphy Washington, D.C. December 2004
xiii
P1: GDZ 0521750717pre
CB951-Murphy
0 521 75071 7
August 7, 2005
12:2
Table of Periodical Abbreviations AJIL Am. U. Int’l L. Rev. Am. U. J. Int’l L. & Pol’y Amnesty Int’l Doc. BNA Int’l Env. Rep. Brook. J. Int’l L. C.F.R. COE Doc. Cong. Rec. Consol. T.S. CRS Ct. Int’l Trade Dall. DC Code Ann. Dep’t St. Bull. Europ. T.S. No. Eur. Parl. Assemb. F.2d F.3d F.R.D. F.Supp. F.Supp.2d Fed. Cir. Fed. Reg. GA Res. GAO Doc. GAOR Res. Supp. H.R. Con. Res. Harv. L. Rev. IAEA Doc. ICJ Doc. CR ICJ Rep. ICRC ICTY Doc. ILM IMO Res. Int’l & Comp. L.Q. Int’l Law. Int’l Rev. Red Cross Int’l Trade Rep.(BNA) Iran–U.S. Cl. Trib. Rep. J. Mar. L. & Com. LNTS Melb. J. Int’l L. Max Planck Y.B.U.N.L. N.Y. Rev. Books New Eng. J. Med. OECD Doc. xiv
American Journal of International Law American University International Law Review American University Journal of International Law and Policy Amnesty International Document Bureau of National Affairs International Environmental Reporter Brooklyn Journal of International Law Code of Federal Regulations Council of Europe Document Congressional Record Consolidated Treaty Series Congressional Research Service Court of International Trade Dallas Series 1790–1800 DC Code Annotated United States Department of State Bulletin European Treaty Series European Parliament Assembly Federal Reporter 1932–1992 Federal Reporter 1993–present Federal Rules Decisions Federal Supplement 1932–1960 Federal Supplement 1960–present Federal Circuit Federal Register United Nations General Assembly Resolution U.S. General Accounting Office Document General Assembly Official Records, Resolutions Supplement House of Representatives Concurrent Resolution Harvard Law Review International Atomic Energy Agency Document International Court of Justice Document, Provisional Verbatim Record International Court of Justice Report International Committee of the Red Cross International Criminal Tribunal for the Former Yugoslavia Document International Legal Materials International Maritime Organization Resolution International Law and Comparative Law Quarterly International Lawyer International Review of the Red Cross International Trade Reporter, Bureau of National Affairs Iran–United States Claims Tribunal Reporter Journal of Maritime Law & Commerce League of Nations Treaty Series Melbourne Journal of International Law Max Planck Yearbook of United Nations Law The New York Review of Books New England Journal of Medicine Organisation for Economic Co-operation and Development Document
P1: GDZ 0521750717pre
CB951-Murphy
0 521 75071 7
August 7, 2005
12:2
Table of Periodical Abbreviations OPCW Doc. P.3d Population & Dev. Rev. Pres. Determination Rev. Belge de Droit Int’l S. Con. Res. S.Ct. S. Treaty Doc. S.C.R. SC Res. Ser. Stat. TIAS Tul. J. Int’l & Comp. L. Tul. L. Rev. UN Doc. UN GAOR UN Law of the Sea Bull. UNSCOR UNTS U.S. U.S.C.C.A.N U.S.C. U.S.C.A. U.S. Const. UST USTR USUN Va. J. Int’l L. Weekly Comp. Pres. Doc. West Supp. WHA Res. WHO Doc. WL WTO Doc. Y.B. UNCITRAL Yale J. Int’l L.
xv
Organization for the Prohibition of Chemical Weapons Document Pacific Reporter, Third Series Population and Development Review Presidential Determination Revue Belge de Droit International Senate Concurrent Resolution Supreme Court Reporter Senate Treaty Document Supreme Court Reports, Canada United Nations Security Council Resolution Series United States Statutes at Large Treaties and Other International Agreements Series Tulane Journal of International and Comparative Law Tulane Law Review United Nations Document United Nations General Assembly Official Records United Nations Law of the Sea Bulletin United Nations Security Council Official Records United Nations Treaty Series United States Supreme Court Reports U.S. Code of Congressional and Administrative News United States Code United States Code Annotated United States Constitution United States Treaties and Other International Agreements United States Trade Representative United States Mission to the United Nations Virginia Journal of International Law Weekly Compilation of Presidential Documents West Reporter Supplement World Health Assembly Resolution World Health Organization Document Westlaw World Trade Organization Document Year Book of the United Nations Commission on International Trade Law Yale Journal of International Law
Note on Internet citations: All Internet citations are identified in < > brackets. All Internet addresses are accurate as of December 2004. “At” signals either the exact address of the document cited or signals a higher domain Internet page, which will lead the reader to the document. Undated documents are identified with “(n.d.).” Internet addresses are often unstable, such that over time the Internet addresses for the documents cited herein may change.
P1: GDZ 0521750717pre
CB951-Murphy
0 521 75071 7
August 7, 2005
12:2
Table of Cases Abrams v. Societe Nationale des Chemins de fer Francais, 51 Abramson v. Japan Airlines Co., 10 Acree v. Iraq, 73, 74, 75, 76 Acree v. Snow, 73, 74 ADF Group v. United States (NAFTA), 170, 171, 173 Aguinda v. Texaco, Inc., 206, 207 Ahrens v. Clark, 267 Air Crash at Taipei, In re, 119 Air France v. Saks, 9 Aircraft Indus. v. Avco Corp., 376 Akayesu; Prosecutor v. (ICTY), 220, 222 Al Bahlul; United States v., 275, 276 Al-Marri v. Bush, 301 Al-Marri v. Rumsfeld, 301 Al Odah v. United States, 206, 266, 267, 268 Al Qosi; United States v., 275 Aldana v. Fresh Del Monte Produce, Inc., 206, 220 Alejandre v. Cuba, 67 Aleksovski; Prosecutor v. (ICTY), 222 Alperin v. Vatican Bank, 97 Altmann v. Austria, 49, 56 Alvarez-Machain; United States v., 42, 83, 84, 213 Alvarez-Machain v. Sosa, 212 Alvarez-Machain v. United States, 83, 84, 212, 213 Amerada Hess Shipping Corp. v. Argentina, 212 American Insurance Association v. Garamendi, 16, 75, 99 American International Group v. Iran, 63 American Security and Trust Co. v. Hungary, 89 Anderman v. Austria, 17, 57 Anti-Dumping Act of 1916, United States (WTO), 181 Approval and Marketing of Biotech Products, EC (WTO), 181 Argentina v. Amerada Hess Shipping Corp., 45 Argentina v. Weltover, Inc., 55 Arrest Warrant of 11 April 2000 (I.C.J.) (Congo v. Belg.), 250 Assicurazioni Generali S.P.S. Holocaust Insurance Litigation, 17 Atkins v. Virginia, 6, 9 Attorney General of Canada v. R.J. Reynolds Tobacco Holdings, 147, 149 Austria v. Altmann, 50, 51 Avco Corp. v. Iran Aircraft Indus. (IUSCT), 376, 377 Avena and Other Mexican Nationals Case (I.C.J.)(Mex. v. U.S.), 18, 27, 28, 29, 30, 32, 33, 34, 35, 36 xvi
Baker v. Carr, 99 Banco Nacional de Cuba v. Sabbatino, 13, 85, 216 Bano v. Union Carbide Corp., 206 Beazley v. Johnson, 204 Beg v. Pakistan, 55 Beiser v. Weyler, 388 Belk v. United States, 60 Bell v. Virginia, 26 Benitez v. Wallis, 232 Best; United States v., 42 Bettis v. Iran, 60 Bierengu v. Ashcroft, 25, 206 Bird v. United States, 265 Blaskic; Prosecutor v. (ICTY), 222, 223 Blaxland v. Commonwealth Director of Public Prosecutions, 53, 54, 57 Bolchos v. Darrel, 212 Born Free USA v. Norton, 48 Bowers v. Hardwick, 4, 5 BP Chem. Ltd. v. Jiangsu Sopo Corp., 55 Braden v. Thirtieth Judicial Circuit Court of Ky., 267 Brdjanin; Prosecutor v. (ICTY), 305, 306 Breard Case (I.C.J.)(Para. v. U.S.), 28 Breard v. Greene, 23, 24, 25, 27, 28, 36, 38 Bridas v. Turkmenistan, 390, 391 Burnett v. Al Baraka Inv. & Dev. Corp., 57, 206 Burns; United States v., 5 Busby v. Alaska, 388 Campuzano v. Iran, 59 Canfor Corporation v. United States (NAFTA), 168 Carrillo; United States v., 34 Cases Against German Defendants Litig., In re, 97 Cauthern v. Tennessee, 37 Center for Biological Diversity v. National Science Foundation, 47 Center for Biological Diversity v. Pirie, 143 Center for Int’l Envtl. Law v. United States Trade Representative, 160 Certain Products from the EC, United States (WTO), 180 Certain Softwood Lumber Products from Canada (NAFTA), 175 Chevron U.S.A. v. Natural Resources Defense Council, 212, 291 Chew Heong v. United States, 63 China Minmetals Materials Import and Export Co. v. Chi Mei Corporation, 393
P1: GDZ 0521750717pre
CB951-Murphy
0 521 75071 7
August 7, 2005
12:2
Table of Cases Chubb & Son, Inc. v. Asiana Airlines, 149 Cicippio-Puelo v. Iran, 66, 75 Cicippio v. Iran, 66, 289 Clark; United States v., 248 Clark v. Suarez Martinez, 232 Coalition of Clergy v. Bush, 263, 265 Coker v. Georgia, 7, 8 Commonwealth v. See name of defendant Compagnie Noga D’Importation et D’Exportation S.A. v. Russia, 390 Connecticut Bank of Commerce v. Congo, 77 Continued Dumping and Subsidy Offset Act, United States (WTO), 190, 191 Cotton-Type Bed Linen from India, EC (WTO), 181 County of Riverside v. McLaughlin, 26 Coyle v. P.T. Garuda Indonesia, 53 Crawford v. Washington, 4 Croll v. Croll, 394, 395 Cronin v. Iran, 59 Cross-Border Trucking Services (NAFTA), 176 Cuban American Bar Assoc. v. Christopher, 265 Cunard S.S. Co. v. Mellon, 46 Curtiss-Wright Export Corp.; United States v., 293 Daliberti v. Iraq, 62, 289 Dames & Moore v. Regan, 17, 63, 74 Dammarell v. Iran, 59 Danaipour v. McLarey, 396, 397 Dann; United States v., 205–206 Deep Vein Thrombosis and Air Travel Group Litigation, 10 Delalic; Prosecutor v. (ICTY), 222, 223 Department of Transportation v. Public Citizen, 177 Deutsch v. Turner, 14, 15, 207 DKT Mem’l Fund v. Agency for Int’l Dev., 66 Doe, In re, 81 Doe v. Bush, 334 Doe v. Islamic Salvation Front, 206 Doe v. Qi, 205–206 Doe v. Saravia, 218 Doe v. Unocal Corp., 206, 209, 210, 211, 214, 217 Dole Food Co. v. Patrickson, 50, 51 Domingo, Estate of v. Philippines, 80 Domingues Case, 204 Duarte-Acero; United States v., 214 Dudgeon v. United Kingdom, 4 Eagle-Picher Indus., Inc. v. EPA, 63 Eastern Airlines, Inc. v. Floyd, 9 Ecuador v. Philip Morris Cos., 147 EEOC v. Arabian American Oil Co., 45 EIE Guam Corp. v. Long Term Credit Bank of Japan, 51 Eisenfeld v. Iran, 71 El Al Israeli Airlines, Ltd. v. Tsui Yuan Tseng, 9, 38
xvii
Elahi v. Iran, 62 Eldred v. Ashcroft, 6 Elettronica Sicula S.p.A. (ELSI)(I.C.J.) (U.S. v. Italy), 94 Elk Grove Unified Sch. Dist. v. Newdow, 196 Emuegbunam; United States v., 27, 37 Endo, Ex parte, 300 Enmund v. Florida, 7, 8 Environmental Def. Fund v. Massey, 44, 45, 46, 47 EOTT Energy Operating Ltd. v. Winterthus Swiss Ins., 53 Erie Railroad Co. v. Tompkins, 12, 13, 215, 216 Eskew v. Young, 388 Estate of. See name of decedent European Community v. Japan Tobacco, 147 European Community v. RJR Nabisco, Inc., 147 Exports of Wheat, Canada (WTO), 181 Fagot Rodriguez v. Costa Rica, 57 Fawcett v. McRoberts, 395 FDIC v. Meyer, 67 Feldman v. Mexico (NAFTA), 87, 171 Filartiga v. Pena-Irala, 13, 144, 210, 211, 212, 215, 216 Filetech v. France Telecom, 55 Firemen’s Fund v. Mexico (NAFTA), 171, 172, 176 Firgard v. United States, 82 First Am. Corp. v. Sheikh Zayed Bin Sultan Al-Nahyan, 79 First Merchants Collection Corp. v. Argentina, 85 First Nat’l City Bank v. Banco Para El Comercio Exterior de Cuba, 67 Fisher v. Texas, 36 Flatow v. Iran, 62, 67, 72 Flores v. Southern Peru Copper Corp., 144, 206, 215, 220 Foley Bros., Inc. v. Filardo, 45 Ford v. Garcia, 220, 222, 224 Foreign Sales Corporations Tax Treatment, United States (WTO), 189, 190 Forti v. Suarez-Mason, 219, 222 Foster v. Florida, 5 Foster v. Neilson, 37 Four Seasons Hotels & Resorts B.V. v. Consorcio Barr S.A., 390 Francisco v. Stolt Achievement MT, 389 Freudensprung v. Offshore Tech. Serv., 389, 392 Frigard v. United States, 82 Frisbie v. Collins, 42 Furnes v. Reeves, 395 GAMI Investments, Inc. v. Mexico (NAFTA), 174 Garb v. Poland, 55, 85 Gates v. Victor Fine Foods, 53 Genocide Convention Case, 139 Gerling Global Reinsurance Corp. of Am. v. Low, 15, 16
P1: GDZ 0521750717pre
CB951-Murphy
xviii
0 521 75071 7
August 7, 2005
12:2
Table of Cases
Gherebi v. Bush, 265, 266, 267, 268, 276 Giffen; United States v., 85 Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 392 Goldwater v. Carter, 367 Gonzalez v. Gutierrez, 394, 395 Grand Jury Proceedings, In re, 81 Grand Jury Subpoena Dated August 9, 2000, In re, 85 Gray Portland Cement and Clinker from Mexico (NAFTA), 176 Greenpeace USA v. Stone, 46 Grigson v. Creative Artists Agency, 391 Grutter v. Bollinger, 5 Gulf Res. Am., Inc. v. Congo, 53 Hamdan v. Rumsfeld, 276 Hamdi v. Rumsfeld, 293, 294, 295, 297, 299 Handel v. Artukovic, 99 Hegna v. Iran, 68, 70 Hegna v. O’Neill, 68 Hemp Industries Ass’n v. Drug Enforcement Admin., 168 Her Majesty’s Advocate v. Megrahi, 370 Hilao v. Estate of Marcos, 80, 221, 289 Hill v. Iraq, 72 Hilton v. Guyot, 100 Honduras v. Philip Morris Cos., 147 H.S.A. v. S.A., Cour de Cassation, 250 Husain v. Olympic Airways, 9 Hwang Geum Joo v. Japan, 54, 55, 56 Importation of Apples, Japan (WTO), 181 International Insurance Company v. Caja Nacional de Ahorro y Seguro, 52, 58 International Shoe Co. v. Washington, 65 Interpretation of the American Declaration, Advisory Opinion (Inter-Am. Court H.R.), 204, 261 Iran v. United States (IUSCT), 376 Israeli Wall (I.C.J.)(Advisory Opinion), 379, 380, 381, 382 I.T. Consultants, Inc. v. Pakistan, 55 Jama v. Immigration & Customs Enforcement, 232 Jama v. Immigration & Naturalization Service, 232 Jimenez-Nava; United States v., 36 Johnson v. Eisentrager, 263, 264, 265, 267 J.P. Morgan Chase Bank v. Traffic Stream (BVI) Infrastructure Ltd., 10 Judge; Commonwealth v., 233 Judge, Regina v., 233 Judge v. Minister of Citizenship & Immigration, 233 Kadic v. Karadzic, 39, 99, 144, 212 Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 53, 389
Kasternova v. United States, 237 Kato v. Ishihara, 55 Kayishema; Prosecutor v. (ICTY), 222 Keller v. Central Bank of Nigeria, 55 Kelly v. Syria Shell Petroleum Dev. B.V., 53 Kenex Limited v. United States (NAFTA), 168 Ker v. Illinois, 42 Kilburn v. Iran, 66 Kollias v. D&G Marine Maintenance, 46 Kolovrat v. Oregon, 38 Koru North America v. United States, 45 Kren v. Yugoslavia, 89 Kucinich v. Bush, 366, 367 Labs of Virginia, Inc.; United States v., 85 LaGrand Case (I.C.J.)(Ger. v. U.S.), 18, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 36, 38 Landgraf v. USI Film Prods., 49, 50, 51 Lawrence v. Texas, 4, 5, 9 Laws for Calculating Dumping Margins, United States (WTO), 181 Ledgerwood v. Iran, 60 Leutwyler v. Queen Rania Al Abdullah, 79 Li; United States v., 38 Lindh; United States v., 291 Lockerbie Aerial Incident Case (I.C.J.) (Libya v. U.K.), 370 Lockerbie Aerial Incident Case (I.C.J.) (Libya v. U.S.), 370 Loewen Group v. United States (NAFTA), 88, 90, 91, 94, 173 Macharia v. United States, 82, 83 Madej; People v., 25 Madej v. Schomig, 25, 26 MAG Portfolio Consul, GMBH, 391 Marchisella v. Japan, 57 Marcos, Estate of, Human Rights Litig., In re, 219 Martinez v. Ashcroft, 232 Martinez v. Smith, 232 Matta-Ballesteros; United States v., 214 Maxwell Communication Corp., In re, 100 McKeel v. Iran, 60 McLawrence v. Jamaica, 227 Medellin v. Dretke, 35, 36, 37 Medina v. Cockrell, 28 Megrahi v. Her Majesty’s Advocate, 370 Mehinovic v. Vuckovic, 206, 289 Metalclad Corp. v. Mexico (NAFTA), 159 Methanex v. United States (NAFTA), 168, 169, 170 Mexico v. Hoffman, 79 Military and Paramilitary Activities in and Against Nicaragua (Nic. v. U.S.), 254, 325 Milligan, Ex parte, 298 Milosevic; Prosecutor v. (ICTY), 303, 304 Ministry of Def. & Support for Armed Serv. of Iran v. Cubic Def. Sys. Inc., 77 Miranda v. Arizona, 26, 32, 277, 278
P1: GDZ 0521750717pre
CB951-Murphy
0 521 75071 7
August 7, 2005
12:2
Table of Cases Missouri v. Holland, 143 Mitchell; United States v., 47 Mitsubishi Materials Corp. v. Superior Court, 14, 17 Modinos v. Cyprus, 4 Mohammad v. Bin Tarraf, 206 Mondev Int’l v. United States (NAFTA), 87, 88, 94, 95, 159, 173 Monegasque de Reassurances S.A.M. v. Nak Naftogaz of Ukraine, 58, 392 Morrison v. Olson, 367 Mousa v. Iran, 71 Murphy v. Netherland, 37 Murray v. The Charming Betsy, 71 Natural Res. Def. Council v. Department of the Navy, 44, 45, 46 Natural Res. Def. Council v. Evans, 46, 47 Natural Res. Def. Council v. Nuclear Regulatory Commission, 45, 46 Nazi Era Cases Against German Defendants Litig., In re, 97 Neil; United States v., 42, 43 NEPA Coalition of Japan v. Aspin, 46 The Nereide, 13, 216 Newdow v. United States Congress, 196 Norris v. Ireland, 4 Northern Cameroons Case (I.C.J.)(Cam. v. U.K.), 87 Nuremberg Trial, 219 Oil Country Tubular Goods from Argentina, United States (WTO), 175 Oil Platforms Case (I.C.J.)(Iran v. U.S.), 323, 324, 325, 326, 328 Olympic Airways v. Husain, 8, 9 Padilla v. Bush, 297, 299, 301 Padilla v. Rumsfeld, 299, 300 Pakootas v. Teck Cominco Metals, 47 Palmer; United States v., 42 The Paquete Habana, 12, 13, 213, 216 Park v. Shin, 55 People v. See name of defendant Persinger v. Iran, 60 Peru, Ex parte, 79 P.G. & J.H. v. United Kingdom (Eur. C.H.R.), 4 Philippines v. Marcos, 81 Philippines v. United States District Court, 53 Pink; United States v., 15, 17 Pirocaco v. Turkey (Turk.-Am. Cl. Comm’n), 93 Plaintiffs A, B, C, D, E, F v. Zemin, 78, 79, 80, 81 Plata v. Dretke, 36 Pope & Talbot v. Canada (NAFTA), 159, 167 Presbyterian Church of Sudan v. Talisman Energy, Inc., 211, 212 Price v. Libya, 64, 65, 66, 289 Princz v. F.R.G., 54
xix
The Prize Cases, 293 Prosecutor v. See name of defendant Public Citizen v. Department of Transportation, 177 Pulaski v. India, 57 Pure Magnesium from Canada (NAFTA), 176 Qantas Ltd. v. Povey, 10 Quirin, Ex parte, 293, 298, 300 Rasul v. Bush, 206, 266, 267, 268, 269, 276 Regier v. Iran, 59 Regina v. See name of defendant Respublica v. De Longchamps, 211 Riahi v. Iran (IUSCT), 377, 378 Richards v. United States, 83, 84 Roach Case, 204 Rodriguez de Quijas v. Shearson/American Express, 36 Roeder v. Islamic Republic of Iran, 60, 62, 64, 66, 75 Romagoza v. Garcia, 224 Ruiz v. Tenorio, 395 Rumsfeld v. Padilla, 300 S.A. Empresa de Viacao Aerea Rio Grandense; United States v., 82 Sale v. Haitian Centers Council, Inc., 45 Sampson v. Germany, 54 Sarei v. Rio Tinto PLC, 85, 220 Saudi Arabia v. Nelson, 55 Scherk v. Alberto-Culver Co., 59 The Schooner Exchange, 81 Schreiber v. Canada, 54 S.D. Myers, Inc. v. Canada (NAFTA), 159, 167, 173 Shealy v. Shealy, 394 Sheibani v. United States (IUSCT), 377 Shrimp Import Prohibition Case, United States (WTO), 185, 186 Siderman de Blake v. Argentina, 54 Silverman v. Silverman, 396, 397 Simpson v. Libya, 60, 289 Sinaltrainal v. Coca-Cola Co., 206 Smith; United States v., 37 Smith ex rel. Smith v. Afghanistan, 75 Smith v. Afghanistan, 75 Smith v. Federal Reserve Bank of New York, 76 Smith v. Libya, 54 Smith v. United States, 45 Sosa v. Alvarez-Machain, 11, 84, 192, 206, 211, 213, 214, 215, 217, 218, 219, 220 South African Apartheid Litigation, In re, 218 Southway v. Central Bank of Nigeria, 55 Spelar; United States v., 264 Stanford v. Kentucky, 7, 8 Statehood Solidarity Committee Case, 205 Steel Flat Products from Canada (NAFTA), 175
P1: GDZ 0521750717pre
CB951-Murphy
xx
0 521 75071 7
August 7, 2005
12:2
Table of Cases
Steel Flat Products from Germany, United States (WTO), 175 Steel Flat Products from Japan, United States (WTO), 175 Steel Plate from India, United States (WTO), 180 Steel Products (Safeguard Measures on Certain Imports), United States (WTO), 188 Stethem v. Iran, 59 Stone; United States v., 45 Subsidies on Upland Cotton, United States (WTO), 181 Suerte; United States v., 41, 42 Sun Oil Co. v. Wortman, 148 Swift v. Tyson, 13
United States v. See name of defendant UPS v. Canada (NAFTA), 95, 96 USX Corporation v. Adriatic Insurance Company, 52
Tachiona v. Mugabe, 208 Tadic; Prosecutor v. (ICTY), 220 Taiheiyo Cement Corp. v. Superior Court, 14, 17 Telecommunications Services, Mexico (WTO), 181 Tel-Oren v. Libya, 13, 99, 210, 212, 216 Territo, In re, 298 Texas Industries, Inc. v. Radcliff Materials, Inc., 13, 216 Thompson v. Oklahoma, 7, 8 Thomson-CSF, S.A. v. American Arbitration Association, 391 Timken Co. v. United States, 181 Torres v. Mullin, 33 Torres v. Oklahoma, 33, 35 Touche Ross & Co. v. Redington, 67 Trail Smelter Case, 47 Trajano v. Marcos, 212 Transworld Airlines, Inc. v. Franklin Mint Corp., 63 Trop v. Dulles, 6, 7, 8 Tumey v. Ohio, 296 Turner Entm’t Co. v. Degeto Film, 100 Turtle Island Restoration Network v. Evans, 186
Walker v. Mortham, 223 Ware v. Hylton, 12 Waste Management, Inc. v. Mexico (NAFTA), 172, 173 Weinberger v. Rossi, 63, 71 Weinstein v. Iran, 71, 72 Western Sahara Case, 381 Whitney v. Robertson, 37 Wisconsin v. Navarro, 38 Wiwa v. Royal Dutch Petroleum Co., 206, 207, 208, 220, 222 Wong Kim Ark; United States v., 11 World Wide Minerals, Ltd. v. Kazakhstan, 53, 85
Ungar v. Iran, 60 Ungaro-Benages v. Dresdner Bank, 97, 98, 99
Valdez v. Oklahoma, 24, 29 Valdez v. State, 24 Valdez v. Ward, 24 Valmore Lacarno, Estate of v. Drummond Co., 206 Van Tu v. Koster, 207 Velasco v. Indonesia, 55 Verlinden B.V. v. Central Bank of Nigeria, 50 Virtual Countries v. South Africa, 57
Xuncax v. Gramajo, 219, 221 Yahoo!, Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 244 Yamashita, In re, 222 Ye v. Zemin, 81 Youngstown Sheet & Tube Co. v. Sawyer, 293, 299 Yousef; United States v., 43, 220 Yunis; United States v., 43 Zadvydas v. Davis, 231, 232 Zhou v. Li Peng, 39, 40 Zschernig v. Miller, 15, 17
P1: GDZ 0521750717pre
CB951-Murphy
0 521 75071 7
August 7, 2005
12:2
Table of U.S. Statutes Administrative Procedure Act of 1946, 40, 143, 168 African Growth and Opportunity Act, 55, 179, 180 AGOA Acceleration Act, 180 Alien Tort Claims Act, 11, 12, 38, 78, 79, 84, 144, 192, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 224 All Writs Act, 299 American Jobs Creation Act, 190 American Servicemembers’ Protection Act, 105, 307, 308, 309, 310, 312 Andean Trade Preference Act, 157 Anti-Dumping Act of 1916, 181 Antiterrorism and Effective Death Penalty Act of 1996, 59, 61, 62, 63 Arms Export Control Act, 71 Authorization for Use of Military Force (2001), 291, 294, 300 Authorization for Use of Military Force Against Iraq Resolution of 2002, 333, 360 Benefits for Victims of International Terrorism Act of 2003, 77 Bipartisan Trade Promotion Act of 2002, 157, 160, 161, 163, 179 Bus Regulatory Reform Act of 1982, 176 Cape Town Treaty Implementation Act of 2004, 387 Clean Air Act, 177 Clean Diamond Trade Act, 246, 247 Comprehensive Environmental Response, Compensation, and Liability Act, 47–48 Comprehensive Peace in Sudan Act, 202 Consolidated Appropriations Act of 2003, 302 Consolidated Appropriations Act of 2004, 154, 302 Consolidated Appropriations Act of 2005, 309 Continued Dumping and Subsidy Offset Act, 190, 191 Copyright Act of 1976, 6 Copyright Term Extension Act, 6 Department of Defense and Emergency Supplemental Appropriations for Recovery from and Response to Terrorist Attacks on the United States Act, 62 Department of Transportation and Related Agencies Appropriations Act of 2002, 177
Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 2002, 62, 307 Emergency Supplemental Appropriations Act for Defense and for the Reconstruction of Iraq and Afghanistan, 352 Emergency Wartime Supplemental Appropriations Act, 73, 74, 75, 76 Endangered Species Act, 48 Federal Arbitration Act, 388, 393 Federal Tort Claims Act, 11, 45, 81, 82, 83, 84, 213, 215, 265 First Judiciary Act, 206, 212 Fishermen’s Protective Act of 1967, 141 Fishery Conservation and Management Act of 1976, 141 Flatow Amendment, 59, 62, 63, 64, 66, 67 Foreign Assistance Act of 1961, 73, 113, 196, 308 Foreign Building Security Act, 82 Foreign Operations, Export Financing, and Related Programs Appropriations Act of 2001, 113 Foreign Operations, Export Financing, and Related Programs Appropriations Act of 2002, 113, 302 Foreign Operations, Export Financing, and Related Programs Appropriations Act of 2003, 302 Foreign Operations, Export Financing, and Related Programs Appropriations Act of 2004, 302 Foreign Operations, Export Financing, and Related Programs Appropriations Act of 2005, 309 Foreign Relations Authorization Act of 2003, 20, 21, 116 Foreign Sovereign Immunities Act, 41, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 71, 74, 75, 77, 78, 79, 81 Freedom of Information Act, 160, 281 FSC Repeal and Extraterritorial Income Exclusion Act of 2000, 189 Habeas Corpus Statute (28 U.S.C. §2241), 267, 268 Helms-Biden Act, 103 Holocaust Victim Insurance Relief Act, 16 Immigration and Nationality Act, 231, 232, 387 Internal Revenue Code, 189 International Child Abduction Remedies Act, 394, 395 International Emergency Economic Powers Act, 70, 73, 347 xxi
P1: GDZ 0521750717pre
CB951-Murphy
0 521 75071 7
August 7, 2005
xxii
12:2
Table of U.S. Statutes
International Religious Freedom Act, 197 Interstate Commerce Commission Termination Act of 1995, 176, 177 Iran and Libya Sanctions Act of 1996, 369, 375 Jerusalem Embassy Act of 1995, 20 Kemp-Kasten Amendment, 103, 104 Marine Mammal Protection Act of 1972, 45, 47, 142 Maritime Drug Law Enforcement Act, 41, 42 Maritime Transportation Security Act, 129, 130 Migratory Bird Treaty Act, 143 Millennium Challenge Act of 2003, 154 National Defense Authorization Act of 2003, 144 National Defense Authorization Act of 2004, 47 National Defense Authorization Act of 2005, 287 National Environmental Policy Act, 44, 45, 46, 47, 48, 177 National Security Act of 1947, 320 National Stolen Property Act, 346 Non-Detention Act, 294, 299, 300 North American Free Trade Agreement Implementation Act, 86, 152, 167 Oceans Act of 2000, 119 Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, 67 Packwood-Magnuson Amendment of 1979, 141 Pelly Amendment of 1971, 141, 142 Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003, 247, 248 Public Health Security and Bioterrorism Preparedness and Response Act of 2002, 166 Public Safety Officers’ Benefits Act (42 U.S.C. §3796), 69, 77
Sudan Peace Act, 62, 199, 200, 202 Surface Transportation Assistance Act of 1982, 170 Terrorism Risk Insurance Act of 2002, 70, 71, 72, 73, 74, 76, 77, 347 Terrorism Victim’s Access to Compensation Act of 2002, 69, 70 Torture Convention Implementation Statute (18 U.S.C. §2340A), 277, 278 Torture Victim Protection Act of 1991, 13, 38, 78, 79, 206, 207, 208, 210, 216, 218, 219, 220, 221, 222, 223, 224, 288, 289 Trade Act of 1974, 158, 196 Trade Act of 2002, 158, 160, 161, 179, 248, 249 Trade and Development Act of 2000, 55, 179 Trade Promotion Authority Act of 2002, 153 Trading with the Enemy Act, 70 Uniform Code of Military Justice, 276 United Nations Participation Act of 1945, 70 United States-Australia Free Trade Agreement Implementation Act, 162 United States-Caribbean Basin Trade Partnership Act, 55, 179 United States-Chile Free Trade Agreement Implementation Act, 160 United States-Morocco Free Trade Agreement Implementation Act, 162 United States-Singapore Free Trade Agreement Implementation Act, 161 USA Patriot Act, 73, 226, 227, 231, 347 Victims of Trafficking and Violence Protection Act of 2000, 67, 68, 69, 70, 71 War Crimes Act, 255, 277 War Powers Resolution, 107, 300, 360 Whaling Convention Act of 1949, 137
P1: GDZ 0521750717pre
CB951-Murphy
0 521 75071 7
August 7, 2005
12:2
Table of Treaties Agriculture, GATT Agreement on, 189 Air Emissions Protocol, 119 Aircraft Equipment Protocol to Cape Town Convention, 386 Alaska-Chukotka Polar Bear Population, Agreement on, 142, 143 Algiers Accords, 61, 62, 63, 64 American Convention on Human Rights, 145, 203, 204, 263 American Declaration of the Rights and Duties of Man, 203, 204, 205, 261 Amity, Economic Relations, and Consular Rights, Treaty on (U.S.-Iran), 323, 324 Anti-Ballistic Missile Treaty, 361, 366 Anti-Ballistic Missile Treaty Protocol, 366 Assignment of Receivables in International Trade, UNCITRAL Convention on, 383, 384 Berne Convention, 6 Biological Diversity Convention, 119, 120 Biological Weapons Convention, 368, 369, 373 Biosafety Protocol, 119 Blinding Laser Weapons, Protocol on, 361 Bonn Agreement, 19 Bribery of Foreign Public Officials, OECD Convention on, 240 Cape Town Convention on International Interests in Mobile Equipment, 383, 385, 386, 387 Central American Free Trade Agreement, 152, 178, 179 Chemical Weapons Convention, 117, 368, 369, 373, 374 Child Abduction, Convention on the Civil Aspects of International, 383, 394, 395, 396, 397 Children in Armed Conflict, Optional Protocol on, 192, 193 Civil Aviation Convention, 119 Climate Change, Convention on Comprehensive Test Ban Treaty, 374 Compulsory Settlement of Disputes, Optional Protocol on, 25, 27, 30, 34, 35 Conventional Weapons Convention, 361, 362, 363, 364 Cooperation to Suppress the Proliferation of Weapons (U.S.-Liber.), Agreement Concerning, 126, 127, 128 Cooperation to Suppress the Proliferation of Weapons (U.S.-Marsh. Is.), Agreement Concerning, 126
Cooperation to Suppress the Proliferation of Weapons (U.S.-Pan.), Agreement Concerning, 126 Copenhagen Amendment, 135 Corruption, Council of Europe Convention on, 240 Corruption, OAS Inter-American Convention Against, 240 Corruption, OAU Convention on, 240 Corruption, UN Convention Against, 238, 240 Customs Procedures, Convention on Simplification and Harmonization of, 165 Customs Procedures, Protocol on Simplification and Harmonization of, 165, 166 Cybercrime Convention, 240, 241, 242, 244, 245 Dayton Accords, 312 Detention or Imprisonment, Body of Principles for, 226, 228 Doha Declaration, 96, 184 Encouragement and Reciprocal Protection of Investment, Treaty on (U.S.-Uru.), 164 Endangered Species, Convention on International Trade in, 48 European Convention on Human Rights, 4 Explosive Remnants of War Protocol, 361, 363, 364 Extradition Treaty (U.S.-Aus.), 54 Extradition Treaty (U.S.-Can.), 232 Extradition Treaty (U.S.-Czech), 237 Extradition Treaty (U.S.-E.U.), 235, 236, 237 Extradition Treaty (U.S.-U.K.), 235, 236, 237 Free Trade Agreement of the Americas, 152 Free Trade Agreement (U.S.-Aus.), 161, 162 Free Trade Agreement (U.S.-Bahr.), 162, 163 Free Trade Agreement (U.S.-Can.), 161, 175 Free Trade Agreement (U.S.-Chile), 158, 159, 160 Free Trade Agreement (U.S.-Mor.), 162 Free Trade Agreement (U.S.-Sing.), 161 General Agreement on Trade in Services, 181 General Agreements on Tariffs and Trade, 96, 181, 185, 186, 188, 189, 190 Geneva Convention [I] Relative to Wounded on Land, 249 Geneva Convention [II] Relative to Wounded at Sea, 249 xxiii
P1: GDZ 0521750717pre
CB951-Murphy
0 521 75071 7
August 7, 2005
xxiv
12:2
Table of Treaties
Geneva Convention [III] Relative to Prisoners of War, 1, 249, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 276, 277, 282, 285, 291, 292, 294, 298, 345 Geneva Convention [IV] Relative to Civilians, 61, 111, 204, 249, 259, 277, 282, 283, 290, 348 Geneva Conventions, 109, 110, 249, 254, 255, 256, 273, 276, 277, 279, 282, 283, 284, 285, 295, 296, 305 Geneva Conventions Protocol I, 249, 259, 273 Geneva Conventions Protocol II, 249 Genocide Convention, 200, 201, 249, 322 German Foundation (“Remembrance, Responsibility, and the Future”), Agreement Concerning, 16, 97 Hague Convention Respecting the Laws and Customs of War on Land, 109, 110, 279, 295, 345, 346, 348 Hate-Speech Protocol to Cybercrime Convention, 244, 245 Hazardous Chemicals and Pesticides in International Trade, Rotterdam Convention on, 119 Hazardous Wastes, Basel Convention on, 119 Headquarters of the United Nations, Agreement on, 21, 22, 112, 114 High Seas Convention, 42 Holocaust Era Insurance Claims, Agreement on, 16 Implementation of Article VI of GATT, Agreement on, 190, 191 Incendiary Weapons, Protocol on, 361 Inter-American Democratic Charter, 322 Intermediate Nuclear Forces Treaty, 360 International Centre for Settlement of Investment Disputes Convention, 167 International Covenant on Civil and Political Rights, 82, 145, 197, 204, 214, 216, 226, 227, 233, 234, 259, 273, 322 International Covenant on Economic, Social and Cultural Rights, 144, 145 International Criminal Court, Agreement Regarding Surrender of Persons to, US-East Timor, 311 International Criminal Court, Rome Statute of, 108, 110, 220, 224, 237, 249, 306, 307, 309, 310, 311, 312, 313, 314, 315, 316 Kyoto Protocol, 1, 119, 136, 137 Law of the Sea Convention, 1, 42, 119, 120, 121, 122, 123, 124, 125, 130, 131, 132 London Adjustment, 135 MARPOL 1978 Protocol, 124 MARPOL 1997 Protocol, 124, 125, 126 Marrakesh Accords, 136
Marrakesh Agreement Establishing WTO, 183, 188, 189, 190 Marrakesh Declaration, 136 Migratory Birds and Birds in Danger of Extinction, and Their Environment, Convention for Protection of (U.S.-Jap.), 143 Migratory Birds and Game Mammals, Convention for Protection of (U.S.-Mex.), 143 Migratory Birds and Their Environment, Convention Concerning Conservation of (U.S.-U.S.S.R.), 143 Migratory Birds, Convention for Protection of (U.S.-U.K.), 143 Mines, Booby-Traps and Other Devices, Protocol on, 361, 362 Monterrey Consensus, 153 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 43, 44, 370 Montreal Convention for the Unification of Certain Rules for International Carriage by Air, 149, 150, 151 Montreal Protocol on Substances that Deplete the Ozone Layer, 134, 135, 136 Mutual Legal Assistance Agreement (U.S.-E.U.), 238 Mutual Legal Assistance Treaty (U.S.-Bel.), 238 Mutual Legal Assistance Treaty (U.S.-Ger.), 238 Mutual Legal Assistance Treaty (U.S.-India), 238 Mutual Legal Assistance Treaty (U.S.-Ire.), 238 Mutual Legal Assistance Treaty (U.S.-Jap.), 238 Mutual Legal Assistance Treaty (U.S.-Liech.), 238 Mutual Legal Assistance Treaty (U.S.-Rus.), 238 NAFTA, 86, 87, 88, 89, 90, 91, 92, 94, 95, 96, 152, 158, 159, 167–172, 173, 174, 175, 176, 177, 188, 369 Narcotic Drugs and Psychotropic Substances, Convention Against Illicit Traffic in, 42 Non-Detectable Fragments, Protocol on, 361 Nuclear Non-Proliferation Treaty, 364, 365, 368, 369, 373 Nuclear Safeguards Agreement (IAEA-Libya), 373 Nuclear Safeguards Agreement (IAEA-U.S.), 364 Nuclear Safeguards Agreement, Additional Protocol (IAEA-Libya), 373, 374, 375 Nuclear Safeguards Agreement, Additional Protocol (IAEA-U.S.), 364, 365, 366 Nuclear Safeguards Agreement, Model Additional Protocol, 365 Nuremberg Charter, 219 O.A.S. Charter, 203, 261 Panama Convention on International Commercial Arbitration, 59 Peace Treaty (U.S.-Jap.), 14, 56 Persistent Organic Pollutants Convention, 119 Persistent Organic Pollutants Protocol, 119
P1: GDZ 0521750717pre
CB951-Murphy
0 521 75071 7
August 7, 2005
12:2
Table of Treaties Polar Bear Conservation Agreement, 142 Potsdam Declaration, 54 Prevention of Pollution from Ships, Convention for, 120, 124, 125 Privileges and Immunities of the United Nations, Convention on, 112, 113, 114, 208 Proliferation Security Initiative, 126, 128 Racial Discrimination, Convention on the Elimination of All Forms of, 5, 227 Recognition and Enforcement of Foreign Arbitral Awards, New York Convention on, 59, 383, 388, 389, 390, 392, 393 Refugees, Convention Relating to the Status of, 225, 234 Refugees, Protocol Relating to the Status of, 225, 234 Relations Between the Three Powers and the Federal Republic of Germany, Convention on, 97 Relations, Treaty Defining (U.S.-Cuba), 264 Rights of the Child, Convention on, 145, 192, 204, 205 Rio Declaration on Environment and Development, 144 Road Traffic, Convention on, 383, 387, 388 Role of Lawyers, Basic Principles on, 226, 228 Safety of Life at Sea, International Convention for, 129, 130 Safety of United Nations and Associated Personnel, Convention on, 110 Sale of Children, Child Prostitution and Child Pornography, Optional Protocol on, 192, 193 Settlement of Investment Disputes between States and Nationals of Other States, Convention on, 167 Shipwrecked Vessel RMS Titanic (U.S.-U.K.), Agreement Concerning the, 133 Smuggling of Migrants by Land, Sea and Air, Protocol Against, 243 START I Treaty, 360 START II Treaty, 360, 361 Strategic Arms Limitation Talks (SALT) Agreements, 360 Strategic Arms Reduction Talks (START) Agreements, 360 Strategic Offensive Reductions Treaty, 360 Subsidies and Countervailing Measures, GATT Agreement on, 189, 190, 191 Taking of Hostages, Convention Against, 65 Tax Treaty (U.S.-Jap.), 155, 157
xxv
Termination of the Occupation Regime in the Federal Republic of Germany, Protocol on, 97 Territorial Sea and Contiguous Zone, Convention on, 42 Terrorism, Convention for the Suppression of Financing of, 241 Terrorism, Inter-American Convention Against, 240, 241 Tobacco Control, Framework Convention on, 119, 145, 146, 147 Torture Convention, 194, 277, 278, 280, 288 Torture Convention, Protocol on Preventive Visits, 192, 194 Trade Relations, Agreement on (U.S.-COMESA), 180 Trade Relations, Agreement on (U.S.-Ghana), 180 Trade Relations, Agreement on (U.S.-Niger.), 180 Trade Relations, Agreement on (U.S.-S. Afr.), 180 Trafficking in Persons, Protocol to Prevent, Suppress and Punish, 243 Transnational Organized Crime, Convention Against, 240, 241, 242, 243 TRIPS Agreement, 183, 184, 185 Underwater Cultural Heritage, Convention on the Protection of, 130, 131, 132, 133, 134 UNESCO Constitution, 115 United Nations Charter, 121, 313, 314, 315, 325, 335, 343, 379 Universal Declaration of Human Rights, 1, 2, 144, 197, 214, 216 Vienna Convention on Consular Relations, 18, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 69, 70, 72 Vienna Convention on Diplomatic Relations, 22, 69, 70, 72, 112, 208 Vienna Convention on the Law of Treaties, 87, 138, 139, 140, 311 Warsaw Convention, Hague Protocol (1955), 149 Warsaw Convention, Montreal Protocol No. 4, 149 Warsaw Convention on International Transportation by Air (1929), 8, 9, 10, 149, 150 Whaling Convention, 137, 138, 139, 140, 141, 142 Women, Convention on Elimination of All Forms of Discrimination Against, 6, 195, 196 World Trade Organization Safeguards Agreement, 188 Wreck of the LaBelle (U.S.-Fr.), Agreement Regarding the, 134
P1: GDZ 0521750717pre
CB951-Murphy
0 521 75071 7
August 7, 2005
12:2
xxvi
P1: JtR/KCX P2: IWV 0521750717c01 CB951-Murphy
0 521 75071 7
August 5, 2005
21:55
Chapter I General International and U.S. Foreign Relations Law Overview As demonstrated throughout this volume, during 2002–2004 the United States continued in its role as a critical player with respect to international legal initiatives and as a major supporter of a variety of international organizations, including dispute resolution fora. At the same time, the United States resisted having various initiatives under international law apply to the United States, notably the International Criminal Court, the Kyoto Protocol on climate change, and the UN Convention on the Law of the Sea. Further, while the United States marshaled considerable global support for the “war on terrorism” through UN Security Council sanctions and other measures, the United States resisted the application of the 1949 Third Geneva Convention and human rights instruments to persons detained in Afghanistan and elsewhere in the course of waging that war. Such resistance led many states and observers to criticize the United States as embarking on a unilateralist or “exceptionalist” course. Despite this, the United States viewed international law and its institutions as an important component of U.S. foreign policy, and international law and foreign law continued to influence the development of U.S. law, as may be seen in various cases of the U.S. Supreme Court.
U.S. Influence on International Law President Bush 2004 Speech to UN General Assembly In September 2004, U.S. President George W. Bush spoke to the UN General Assembly regarding the desire of the United States to join with other nations in initiatives that promote security, prosperity, human rights, and the rule of law in international affairs: The United Nations and my country share the deepest commitments. Both the American Declaration of Independence and the Universal Declaration of Human Rights proclaim the equal value and dignity of every human life. That dignity is honored by the rule of law, limits on the power of the state, respect for women, protection of private property, free speech, equal justice, and religious tolerance. That dignity is dishonored by oppression, corruption, tyranny, bigotry, terrorism, and all violence against the innocent. And both of our founding documents affirm that this bright line between justice and injustice – between right and wrong – is the same in every age and every culture and every nation. Wise governments also stand for these principles for very practical and realistic reasons. We know that dictators are quick to choose aggression, while free nations strive to resolve differences in peace. We know that oppressive governments support terror, while free governments fight the terrorists in their midst. We know that free peoples embrace progress and life, instead of becoming the recruits for murderous ideologies. Every nation that wants peace will share the benefits of a freer world, and every nation that seeks peace has an obligation to help build that world. Eventually, there is no safe isolation from terror networks or failed states that shelter them or outlaw regimes or weapons of mass destruction. Eventually, there is no safety in looking away, seeking the quiet life by ignoring the struggles and oppression of others. 1
P1: JtR/KCX P2: IWV 0521750717c01 CB951-Murphy
2
0 521 75071 7
August 5, 2005
21:55
United States Practice in International Law 2002–2004 In this young century, our world needs a new definition of security. Our security is not merely found in spheres of influence or some balance of power. The security of our world is found in the advancing rights of mankind. These rights are advancing across the world, and across the world, the enemies of human rights are responding with violence. Terrorists and their allies believe the Universal Declaration of Human Rights and the American Bill of Rights and every charter of liberty ever written are lies to be burned and destroyed and forgotten. They believe that dictators should control every mind and tongue in the Middle East and beyond. They believe that suicide and torture and murder are fully justified to serve any goal they declare, and they act on their beliefs. .... We’re determined to destroy terror networks wherever they operate, and the United States is grateful to every nation that is helping to seize terrorist assets, track down their operatives, and disrupt their plans. We’re determined to end the state sponsorship of terror, and my Nation is grateful to all that participated in the liberation of Afghanistan. We’re determined to prevent proliferation and to enforce the demands of the world, and my Nation is grateful to the soldiers of many nations who have helped to deliver the Iraqi people from an outlaw dictator. .... Defending our ideals is vital, but it is not enough. Our broader mission as U.N. members is to apply these ideals to the great issues of our time. Our wider goal is to promote hope and progress as the alternatives to hatred and violence. Our great purpose is to build a better world beyond the war on terror. Because we believe in human dignity, America and many nations have established a Global Fund to Fight AIDS, Tuberculosis, and Malaria. In 3 years, the contributing countries have funded projects in more than 90 countries and pledged a total of $5.6 billion to these efforts. America has undertaken a $15 billion effort to provide prevention and treatment and humane care in nations afflicted by AIDS, placing a special focus on 15 countries where the need is most urgent. AIDS is the greatest health crisis of our time, and our unprecedented commitment will bring new hope to those who have walked too long in the shadow of death. Because we believe in human dignity, America and many nations have joined together to confront the evil of trafficking in human beings. We’re supporting organizations that rescue the victims, passing stronger antitrafficking laws, and warning travelers that they will be held to account for supporting this modern form of slavery. Women and children should never be exploited for pleasure or greed anywhere on Earth. Because we believe in human dignity, we should take seriously the protection of life from exploitation under any pretext. In this session, the U.N. will consider a resolution sponsored by Costa Rica calling for a comprehensive ban on human cloning. I support that resolution and urge all governments to affirm a basic ethical principle: No human life should ever be produced or destroyed for the benefit of another. Because we believe in human dignity, America and many nations have changed the way we fight poverty, curb corruption, and provide aid. In 2002, we created the Monterrey Consensus, a bold approach that links new aid from developed nations to real reform in developing ones. And through the Millennium Challenge Account, my Nation is increasing our aid to developing nations that expand economic freedom and invest in the education and health of their own people. Because we believe in human dignity, America and many nations have acted to lift the crushing burden of debt that limits the growth of developing economies and holds millions of people in poverty. Since these efforts began in 1996, poor countries with the heaviest debt burdens have
P1: JtR/KCX P2: IWV 0521750717c01 CB951-Murphy
0 521 75071 7
August 5, 2005
21:55
General International and U.S. Foreign Relations Law
3
received more than $30 billion of relief. And to prevent the buildup of future debt, my country and other nations have agreed that international financial institutions should increasingly provide new aid in the forms of grants rather than loans. Because we believe in human dignity, the world must have more effective means to stabilize regions in turmoil and to halt religious violence and ethnic cleansing. We must create permanent capabilities to respond to future crises. The United States and Italy have proposed a Global Peace Operations Initiative. G-8 countries will train 75,000 peacekeepers, initially from Africa, so they can conduct operations on that continent and elsewhere. The countries of the G-8 will help this peacekeeping force with deployment and logistical needs. .... Because we believe in human dignity, peaceful nations must stand for the advance of democracy. No other system of government has done more to protect minorities, to secure the rights of labor, to raise the status of women, or to channel human energy to the pursuits of peace. We’ve witnessed the rise of democratic governments in predominantly Hindu and Muslim, Buddhist, Jewish, and Christian cultures. Democratic institutions have taken root in modern societies and in traditional societies. When it comes to the desire for liberty and justice, there is no clash of civilizations. People everywhere are capable of freedom and worthy of freedom. Finding the full promise of representative government takes time, as America has found in two centuries of debate and struggle. Nor is there . . . only one form of representative government because democracies, by definition, take on the unique character of the peoples that create them. Yet this much we know with certainty: The desire for freedom resides in every human heart. And that desire cannot be contained forever by prison walls or martial laws or secret police. Over time and across the Earth, freedom will find a way. .... Today I’ve outlined a broad agenda to advance human dignity and enhance the security of all of us. The defeat of terror, the protection of human rights, the spread of prosperity, the advance of democracy, these causes, these ideals, call us to great work in the world. Each of us alone can only do so much. Together, we can accomplish so much more. History will honor the high ideals of this organization. The charter states them with clarity: “to save succeeding generations from the scourge of war,” “to reaffirm faith in fundamental human rights,” “to promote social progress and better standards of life in larger freedom.” Let history also record that our generation of leaders followed through on these ideals, even in adversity. Let history show that in a decisive decade, members of the United Nations did not grow weary in our duties or waver in meeting them. I’m confident that this young century will be liberty’s century. I believe we will rise to this moment, because I know the character of so many nations and leaders represented here today, and I have faith in the transforming power of freedom.1
International and Foreign Relations Law Influences on the United States Interpretation of Constitution in Light of Foreign and International Law In several cases decided in 2002–2004, the U.S. Supreme Court in majority and separate opinions referred to foreign and international law when interpreting the U.S. Constitution. In some instances, 1
Remarks to the U.N. General Assembly in New York City, 40 Weekly Comp. Pres. Doc. 2075, 2076–79 (Sept. 21, 2004).
P1: JtR/KCX P2: IWV 0521750717c01 CB951-Murphy
4
0 521 75071 7
August 5, 2005
21:55
United States Practice in International Law 2002–2004
reference was made to the law of the United Kingdom at the time of the founding of the United States, as a means of illuminating the original intention of the drafters of the Constitution, who had been trained in and in many respects were reacting to such foreign law.1 Yet foreign and international law of more recent vintage also featured in Supreme Court opinions during 2002–2004. While a majority of the justices appeared comfortable in modestly relying upon such law for the purpose of constitutional interpretation, a minority of justices believed such reliance to be misplaced, and so stated in dissenting opinions.2 In Lawrence v. Texas,3 the Supreme Court considered the constitutionality of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. The case involved two adult males (the petitioners) who had engaged in a consensual act of sodomy in the privacy of their home. The Court found (by a six-to-three majority) that the statute was unconstitutional because it impinged on the petitioners’ right to exercise liberty interests protected by the Due Process Clause of the Fourteenth Amendment.4 In finding that such conduct fell within protected liberty interests, the Court overruled its 1986 decision in Bowers v. Hardwick, written by Chief Justice Warren Burger, which had found that proscriptions against sodomy had “ancient roots” in Western moral and ethical traditions.5 In the course of explaining why the foundations of Bowers could no longer be sustained, Justice Anthony Kennedy, writing for the Court, referred to foreign and international law: The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction. A committee advising the British Parliament recommended in 1957 repeal of laws punishing homosexual conduct. The Wolfenden Report: Report of the Committee on Homosexual Offences and Prostitution (1963). Parliament enacted the substance of those recommendations 10 years later. Sexual Offences Act 1967, §1. Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today’s case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (1981) ¶52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization. .... To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. See P.G. & J.H. v. United Kingdom, App. No. 00044787/98, & ¶56 (Eur. Ct. H.R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H.R. (1993); Norris v. Ireland, 142 Eur. Ct. H.R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to
1 See, e.g., Crawford v. Washington, 541 U.S. 36, 42–47 (2004) (construing the Confrontation Clause of the Sixth Amendment to the U.S. Constitution). 2 For an exchange among academics regarding the propriety of such use of international and foreign law, see Agora: The United States Constitution and International Law, 98 AJIL 42 (2004). 3 539 U.S. 558 (2003). 4 See U.S. Const. amend. XIV, §1 (“nor shall any State deprive any person of life, liberty, or property, without due process of law”). 5 Bowers v. Hardwick, 478 U.S. 186 (1986). Justice Sandra Day O’Connor, while voting with the majority in Lawrence, stated that she did so without overruling Bowers.
P1: JtR/KCX P2: IWV 0521750717c01 CB951-Murphy
0 521 75071 7
August 5, 2005
21:55
General International and U.S. Foreign Relations Law
5
engage in intimate, consensual conduct. See Brief for Mary Robinson et al. as Amici Curiae 11–12.6 The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.7 In his dissent to the majority’s opinion, Justice Antonin Scalia stated: Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct. The Bowers majority opinion never relied on “values we share with a wider civilization,” . . . but rather rejected the claimed right to sodomy on the ground that such a right was not “‘deeply rooted in this Nation’s history and tradition,’” 478 U.S., at 193–194 (emphasis added). Bowers’ rational-basis holding is likewise devoid of any reliance on the views of a “wider civilization,” see id., at 196. The Court’s discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since “this Court . . . should not impose foreign moods, fads, or fashions on Americans.” Foster v. Florida, 537 U.S. 990, n. (2002) (THOMAS, J., concurring in denial of certiorari).8 In Grutter v. Bollinger,9 the Supreme Court (by a five-to-four majority) considered whether the Equal Protection Clause of the Fourteenth Amendment10 was violated by a University of Michigan law school admissions policy designed to promote the racial diversity of the student body. Writing for the Court, Justice Sandra Day O’Connor found that the law school had a compelling interest in attaining a diverse student body and that, since the school’s admissions program was narrowly tailored to serve that compelling interest, the program did not violate the Equal Protection Clause. Noting, however, that race-conscious admissions policies must have a “logical end point,” the Court expressed its expectation that “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”11 In her concurring opinion, Justice Ruth Bader Ginsburg (joined by Justice Stephen Breyer) noted: The Court’s observation that race-conscious programs “must have a logical end point,” . . . accords with the international understanding of the office of affirmative action. The International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994, see State Dept., Treaties in Force 422–423 (June 1996), endorses “special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.” Annex to G.A. Res. 2106, 20 U.N. GAOR Res. Supp. (No. 14) 47, U.N. Doc. A/6014, Art. 2(2) (1965). But such measures, the Convention instructs, “shall in 6 [Author’s Note: See Brief Amici Curiae of Mary Robinson, Amnesty International U.S.A., Human Rights Watch, Interights, the Lawyers Committee for Human Rights, and Minnesota Advocates for Human Rights in Support of Petitioners, 11–12 (Jan. 16, 2003), Lawrence v. Texas, 539 U.S. 558 (2003) (No. 02-102).] 7 539 U.S. at 572–73, 577. 8 Id. at 598. In Foster, a death penalty case, Justice Breyer dissented from the denial of a writ of certiorari noting, among other things, that:
The Supreme Court of Canada recently held that the potential for lengthy incarceration before execution is “a relevant consideration” when determining whether extradition to the United States violates principles of “fundamental justice.” United States v. Burns, [2001] 1 S.C.R. 283, 353, ¶123. Just as “attention to the judgment of other nations” can help Congress determine “the justice and propriety of [America’s] measures,” The Federalist No. 63, P. 382 (C. Rossiter ed. 1961) (J. Madison), so it can help guide this Court when it decides whether a particular punishment violates the Eighth Amendment. Foster v. Florida, 537 U.S. 990, 992 (2002) (citation omitted) (Justice Breyer dissenting from denial of certioriari). 9 539 U.S. 306 (2003). 10 See U.S. Const. amend. XIV, §1 (“nor [shall any State] deny to any person within its jurisdiction the equal protection of the laws”). 11 539 U.S. at 343.
P1: JtR/KCX P2: IWV 0521750717c01 CB951-Murphy
6
0 521 75071 7
August 5, 2005
21:55
United States Practice in International Law 2002–2004 no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.” Ibid; see also Art. 1(4) (similarly providing for temporally limited affirmative action); Convention on the Elimination of All Forms of Discrimination against Women, Annex to G.A. Res. 34/180, 34 U.N. GAOR Res. Supp. (No. 46) 194, U.N. Doc. A/34/46, Art. 4(1) (1979) (authorizing “temporary special measures aimed at accelerating de facto equality” that “shall be discontinued when the objectives of equality of opportunity and treatment have been achieved”).12
In Eldred v. Ashcroft,13 the Supreme Court considered whether the expansion by federal statute of the copyright term by 20 years violated the Copyright Clause of the U.S. Constitution, which requires that copyright terms be for “limited” periods of time.14 Specifically, the Copyright Term Extension Act (CTEA)15 was challenged because it extended the copyright term for existing copyrighted works by the same 20-year period being granted to future works. Justice Ginsburg, writing for a seven-totwo majority of the Court, found that the CTEA complied with the Copyright Clause, based on that clause’s text, history, and precedent.16 The Court then turned to whether such an extension was a rational exercise of the legislative authority conferred by the Copyright Clause. The CTEA reflects judgments of a kind Congress typically makes, judgments we cannot dismiss as outside the Legislature’s domain. As respondent describes . . . , a key factor in the CTEA’s passage was a 1993 European Union (EU) directive instructing EU members to establish a copyright term of life plus 70 years. EU Council Directive 93/98, Art. 1(1), p. 11; see 144 Cong. Rec. S12377-S12378 (daily ed. Oct. 12, 1998) (statement of Sen. Hatch). Consistent with the Berne Convention, the EU directed its members to deny this longer term to the works of any non-EU country whose laws did not secure the same extended term. See Berne Conv. Art. 7(8); P. Goldstein, International Copyright §5.3, p. 239 (2001). By extending the baseline United States copyright term to life plus 70 years, Congress sought to ensure that American authors would receive the same copyright protection in Europe as their European counterparts. The CTEA may also provide greater incentive for American and other authors to create and disseminate their work in the United States.17 In Atkins v. Virginia,18 the Supreme Court determined (by a six-to-three majority) that the Cruel and Unusual Punishment Clause of the Eighth Amendment19 was violated by a Virginia statute that allowed the execution of the mentally impaired. Justice John Paul Stevens, writing for the Court, stated: A claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the “Bloody Assizes” or when the Bill of Rights was adopted, but rather by those that currently prevail. As Chief Justice Warren explained in his opinion in Trop v. Dulles, 356 U.S. 86 (1958): “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. . . . The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Id., at 100–101.20
12
Id. at 344. 537 U.S. 186 (2003). The Copyright and Patent Clause, U.S. Const., art. I, §8, cl. 8, provides: “Congress shall have Power . . . [t]o promote the Progress of Science . . . by securing [to Authors] for limited Times . . . the exclusive Right to their . . . Writings.” 15 Pub. L. No. 105-298, §§102(b) & (d), 112 Stat. 2827–2828 (1998) (amending 17 U.S.C. §§302, 304). Under the 1976 Copyright Act, copyright protection generally lasted from the work’s creation until 50 years after the author’s death. Under the CTEA, most copyrights run from creation until 70 years after the author’s death. 16 537 U.S. at 199–204. 17 537 U.S. at 205–06 (footnotes omitted). 18 536 U.S. 304 (2002). 19 See U.S. Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”). 20 536 U.S. at 311–12. 13 14
P1: JtR/KCX P2: IWV 0521750717c01 CB951-Murphy
0 521 75071 7
August 5, 2005
21:55
General International and U.S. Foreign Relations Law
7
In determining contemporary standards of decency on this issue, the Court surveyed numerous statutes of several states of the United States so as to identify a trend toward precluding execution of the mentally impaired.21 In footnote 21 of the opinion, the Court stated: Additional evidence makes it clear that this legislative judgment reflects a much broader social and professional consensus. For example, several organizations with germane expertise have adopted official positions opposing the imposition of the death penalty upon a mentally retarded offender. . . . In addition, representatives of widely diverse religious communities in the United States, reflecting Christian, Jewish, Muslim, and Buddhist traditions, have filed an amicus curiae brief explaining that even though their views about the death penalty differ, they all “share a conviction that the execution of persons with mental retardation cannot be morally justified.” . . . Moreover, within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved. Brief for European Union as Amicus Curiae 4. Finally, polling data shows a widespread consensus among Americans, even those who support the death penalty, that executing the mentally retarded is wrong. . . . Although these factors are by no means dispositive, their consistency with the legislative evidence lends further support to our conclusion that there is a consensus among those who have addressed the issue.22 In his dissent to the majority’s opinion, Chief Justice Rehnquist (joined by Justices Scalia and Clarence Thomas) stated: I write separately . . . to call attention to the defects in the Court’s decision to place weight on foreign laws, the views of professional and religious organizations, and opinion polls in reaching its conclusion. . . . The Court’s suggestion that these sources are relevant to the constitutional question finds little support in our precedents and, in my view, is antithetical to considerations of federalism, which instruct that any “permanent prohibition upon all units of democratic government must [be apparent] in the operative acts (laws and the application of laws) that the people have approved.” Stanford v. Kentucky, 492 U.S. 361, 377 (1989) (plurality opinion). .... In my view, . . . two sources – the work product of legislatures and sentencing jury determinations – ought to be the sole indicators by which courts ascertain the contemporary American conceptions of decency for purposes of the Eighth Amendment. They are the only objective indicia of contemporary values firmly supported by our precedents. More importantly, however, they can be reconciled with the undeniable precepts that the democratic branches of government and individual sentencing juries are, by design, better suited than courts to evaluating and giving effect to the complex societal and moral considerations that inform the selection of publicly acceptable criminal punishments. In reaching its conclusion today, the Court does not take notice of the fact that neither petitioner nor his amici have adduced any comprehensive statistics that would conclusively prove (or disprove) whether juries routinely consider death a disproportionate punishment for mentally retarded offenders like petitioner. Instead, it adverts to the fact that other countries have disapproved imposition of the death penalty for crimes committed by mentally retarded offenders. . . . I fail to see, however, how the views of other countries regarding the punishment of their citizens provide any support for the Court’s ultimate determination. While it is true that some of our prior opinions have looked to “the climate of international opinion,” [Coker v. Georgia, 433 U.S. 584, 596 n. 10 (1977)] to reinforce a conclusion regarding evolving standards of decency, see Thompson v. Oklahoma, 487 U.S. 815, 830 (1988) (plurality opinion); [Enmund v. Florida, 458 U.S. 782, 796– 797, n. 22 (1982)]; Trop v. Dulles, 356 U.S. 86, 102–103 (1958) (plurality opinion); we have 21 22
Id. at 313–16. Id. at 316 n.21.
P1: JtR/KCX P2: IWV 0521750717c01 CB951-Murphy
8
0 521 75071 7
August 5, 2005
21:55
United States Practice in International Law 2002–2004 since explicitly rejected the idea that the sentencing practices of other countries could “serve to establish the first Eighth Amendment prerequisite, that [a] practice is accepted among our people.” Stanford, 492 U.S., at 369, n.1 (emphasizing that “American conceptions of decency . . . are dispositive” (emphasis in original)). Stanford ’s reasoning makes perfectly good sense, and the Court offers no basis to question it. For if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant. And nothing in Thompson, Enmund, Coker, or Trop suggests otherwise. Thompson, Enmund, and Coker rely only on the bare citation of international laws by the Trop plurality as authority to deem other countries’ sentencing choices germane. But the Trop plurality – representing the view of only a minority of the Court – offered no explanation for its own citation, and there is no reason to resurrect this view given our sound rejection of the argument in Stanford.23 In his dissent, Justice Scalia (joined by Justices Rehnquist and Thomas) stated: [T]he Prize for the Court’s Most Feeble Effort to fabricate “national consensus” must go to its appeal (deservedly relegated to a footnote) to the views of assorted professional and religious organizations, members of the so-called “world community,” and respondents to opinion polls. . . . I agree with [Chief Justice Rehnquist] that the views of professional and religious organizations and the results of opinion polls are irrelevant. Equally irrelevant are the practices of the “world community,” whose notions of justice are (thankfully) not always those of our people. “We must never forget that it is a Constitution for the United States of America that we are expounding. . . . [W]here there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution.” Thompson, 487 U.S., at 868–869, n. 4 (SCALIA, J., dissenting).24
Interpretation of Treaty in Light of Foreign Court Decisions In addition to the use of foreign and international law for the purpose of interpreting the U.S. Constitution, the U.S. Supreme Court during 2002–2004 interpreted U.S. treaty obligations by reference to court decisions of U.S. treaty partners. For example, in Olympic Airways v. Husain, Dr. Abid Hanson and his wife, Rubina Husain, traveled on Olympic Airways in December 1997 from San Francisco to Athens and Cairo for a vacation. During the return flight, Dr. Hanson and his wife discovered that their seats were located very near the smoking section of the economy class, even though they had informed Olympic that Dr. Hanson suffered from asthma and was sensitive to secondhand smoke. The Olympic flight attendant refused to change their seats and during the flight Dr. Hanson died from an allergic reaction to secondhand smoke.1 Rubina Husain then sued Olympic Airways for the wrongful death of her husband, citing Article 17 of the Warsaw Convention,2 which creates a presumption of air carrier liability so long as the plaintiff 23
Id. at 322, 324–26 (footnote omitted). Id. at 347–48 (footnote omitted). Olympic Airways v. Husain, 540 U.S. 644, 646–49 (2004). 2 Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, Art. 17, 49 Stat. 3000, 3018, 137 LNTS 11, 23 [hereinafter Warsaw Convention]. The Warsaw Convention entered into force for the United States on October 29, 1934. Article 17 of the convention provides: 24 1
The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
P1: JtR/KCX P2: IWV 0521750717c01 CB951-Murphy
0 521 75071 7
August 5, 2005
21:55
General International and U.S. Foreign Relations Law
9
shows that the injury was caused by an “accident.”3 Olympic Airways responded, however, that the refusal to reseat Dr. Hanson did not constitute an “accident” within the meaning of Article 17. Having lost before both the federal district4 and circuit courts,5 Olympic Airways then appealed to the U.S. Supreme Court. In considering whether the flight attendant’s refusal to reseat Dr. Hanson qualified as an “accident” under Article 17, the Court’s majority opinion (written by Justice Thomas) noted that, while the word “accident” is not clearly defined in the Warsaw Convention, the Court had previously discerned its meaning from the Convention’s “text, structure, and history as well as from the subsequent conduct of the parties.”6 In Air France v. Saks,7 the Court had undertaken a textual analysis of Article 17, and of Article 17 in relation to Article 18,8 finding that a passenger’s loss of hearing caused by the normal operation of an aircraft’s pressurization system was not an “accident.” In that case, the Court found that an “accident” under Article 17 is “an unexpected or unusual event or happening that is external to the passenger,” and not “the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft.”9 By contrast, in Olympic Airways v. Husain, the Court found that the refusal to move Dr. Hanson was a “factual event” external to him, that the event was a link in the chain of events that had caused his death, and that Olympic Airways had not challenged the contention that the flight attendant’s conduct was unusual or unexpected in light of both industry standards and Olympic’s own company policy.10 Justice Scalia, joined by Justice O’Connor, dissented from the majority decision for its failure to consider how the courts of U.S. treaty partners have addressed the issue. When we interpret a treaty, we accord the judgments of our sister signatories “‘considerable weight.’” Air France v. Saks, 470 U.S. 392, 404 . . . (1985). True to that canon, our previous Warsaw Convention opinions have carefully considered foreign case law. See, e.g., El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 173–174 . . . (1999); Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 550–551 . . . (1991); Saks, supra, at 404. . . . Today’s decision stands out for its failure to give any serious consideration to how the courts of our treaty partners have resolved the legal issues before us. This sudden insularity is striking, since the Court in recent years has canvassed the prevailing law in other nations (at least, Western European nations) to determine the meaning of an American Constitution that those nations had no part in framing and that those nations’ courts have no role in enforcing. See Atkins v. Virginia, 536 U.S. 304, 316–317, n.21 . . . (2002) (whether the Eighth Amendment prohibits execution of the mentally retarded); Lawrence v. Texas, 539 U.S. 558 . . . (2003) (whether the Fourteenth Amendment prohibits the criminalization of homosexual conduct). One would have thought that foreign courts’ interpretations of a treaty that their governments adopted jointly with ours, and that they have an actual role in applying, would be (to put it mildly) all the more relevant. The Court’s new abstemiousness with regard to foreign fare is not without consequence: Within the past year, appellate courts in both England and Australia have rendered decisions squarely at odds with today’s holding. . . . ....
3 Once the plaintiff makes a prima facie showing, the defendant carrier may rebut the presumption under Article 20 by showing that it took “all necessary measures to avoid the damage or that it was impossible for [the airline] to take such measures.” 49 Stat. at 3019, 137 LNTS at 25; see Andreas Lowenfeld & Allan I. Mendelsohn, The United States and the Warsaw Convention, 80 Harv. L. Rev. 497, 521 (1967). 4 Husain v. Olympic Airways, 116 F.Supp.2d 1121 (N.D. Cal. 2000). 5 Husain v. Olympic Airways, 316 F.3d 829 (9th Cir. 2002). 6 540 U.S. at 649–52 (citing Air France v. Saks, 470 U.S. 392, 399 (1985)). 7 470 U.S. 392 (1985). 8 Article 18 addresses liability for destruction or loss of baggage caused by an “occurrence.” 49 Stat. at 3019, 137 LNTS at 23. 9 470 U.S. at 405. 10 540 U.S. at 651–57.
P1: JtR/KCX P2: IWV 0521750717c01 CB951-Murphy
0 521 75071 7
10
August 5, 2005
21:55
United States Practice in International Law 2002–2004 . . . In Deep Vein Thrombosis and Air Travel Group Litigation, [2003] EWCA Civ. 1005, 2003 WL 21353471 (July 3, 2003), England’s Court of Appeal, in an opinion by the Master of the Rolls that relied heavily on Abramson v. Japan Airlines Co., 739 F.2d 130 (C.A. 3 1984), and analyzed more than a half-dozen other non-English decisions, held as follows:
“A critical issue in this appeal is whether a failure to act, or an omission, can constitute an accident for the purposes of Article 17. Often a failure to act results in an accident, or forms part of a series of acts and omissions which together constitute an accident. In such circumstances it may not be easy to distinguish between acts and omissions. I cannot see, however, how inaction itself can ever properly be described as an accident. It is not an event; it is a non-event. Inaction is the antithesis of an accident.” [2003] EWCA Civ. 1005, ¶25, 2003 WL 21353471 (Lord Phillips, M. R.). Six months later, the appellate division of the Supreme Court of Victoria, Australia, in an opinion that likewise gave extensive consideration to American and other foreign decisions, agreed: “The allegations in substance do no more than state a failure to do something, and this cannot be characterised as an event or happening, whatever be the concomitant background to that failure to warn or advise . . .” Qantas Ltd. v. Povey, [2003] VSCA 227, ¶17, 2003 WL 23000692 (Dec. 23, 2003) (Ormiston, J. A.). We can, and should, look to decisions of other signatories when we interpret treaty provisions. Foreign constructions are evidence of the original shared understanding of the contracting parties. Moreover, it is reasonable to impute to the parties an intent that their respective courts strive to interpret the treaty consistently. (The Warsaw Convention’s preamble specifically acknowledges “the advantage of regulating in a uniform manner the conditions of . . . the liability of the carrier.” 49 Stat. 3014 (emphasis added).) Finally, even if we disagree, we surely owe the conclusions reached by appellate courts of other signatories the courtesy of respectful consideration.11 In light of the decisions reached by foreign courts, Justice Scalia disagreed with the majority opinion’s willingness to qualify the flight attendant’s lack of help as inaction and still conclude that it was an “accident.”12 In a footnote, the majority opinion responded to Justice Scalia’s dissent. The majority first asserted that its conclusion was not inconsistent with the Deep Vein Thrombosis and Qantas Ltd. v. Povey decisions. Moreover, even if it were inconsistent, the majority stated that it would hesitate to follow the opinions of intermediate appellate courts of foreign treaty partners where the highest courts had not yet spoken, especially when there are substantial factual distinctions between the cases.13 Interpretation of Foreign Law When Applying U.S. Statutes In several cases during 2002–2004, U.S. courts were called upon to use and interpret foreign law as a means of interpreting or applying U.S. statutes. For example, in J.P. Morgan Chase Bank v. Traffic Stream (BVI) Infrastructure Ltd.,1 the Supreme Court was confronted with whether a corporation organized in the British Virgin Islands (BVI) was a “citize[n] or subjec[t] of a foreign state” for purposes of “diversity jurisdiction” in federal court. Uncertainty about the application of the diversity jurisdiction statute (28 U.S.C. §1332) arose because the BVI is an overseas territory of the
11 12 13 1
Id. at 1230–32. Id. at 1233–34. Id. at 1229 n.9. 536 U.S. 88 (2002).
P1: JtR/KCX P2: IWV 0521750717c01 CB951-Murphy
0 521 75071 7
August 5, 2005
21:55
General International and U.S. Foreign Relations Law
11
United Kingdom, and is not recognized by the U.S. executive branch as an independent foreign state. In determining whether the BVI was part of a foreign state (the United Kingdom), the Court reviewed the BVI Constitution and the role of U.K. law in the governance of the BVI, and found that the United Kingdom exercised pervasive authority over the territory.2 The relationship between the BVI’s powers over corporations and the sources of those powers in Crown and Parliament places the United Kingdom well within the range of concern addressed by Article III and §1332(a)(2). The United Kingdom exercises ultimate authority over the BVI’s statutory law, including its corporate law and the law of corporate charter, and it exercises responsibility for the BVI’s external relations. These exercises of power and responsibility point to just the kind of relationship that the Framers believed would bind sovereigns “by inclination, as well as duty, to redress the wrong [s]” against their nationals, 2 Elliot’s Debates 493 (J. Wilson).3 Having established such authority, the Court considered and rejected the argument of the respondent, Traffic Stream, that the British Nationality Act of 1981 classifies BVI residents not as “citizens” or “subjects,” but rather as mere “nationals,” without the rights and privileges of citizens or subjects. Here, the Court was less interested in whether U.K. law considered BVI residents to be “citizens” or “subjects.” [ J]urisdictional analysis under the law of the United States is not ultimately governed by the law of the United Kingdom, whatever that may be. While it is perfectly true that “every independent nation [has the inherent right] to determine for itself . . . what classes of persons shall be entitled to its citizenship,” United States v. Wong Kim Ark, 169 U.S. 649, 668 (1898), our jurisdictional concern here is with the meaning of “citizen” and “subject” as those terms are used in §1332(a)(2). In fact, we have no need even to decide whether Traffic Stream’s reading of the British Nationality Act is wrong, as the United Kingdom says it is, but only whether the status Traffic Stream claims under the Nationality Act would so operate on the law of the United States as to disqualify it from being a citizen or subject under the domestic statute before us here. We think there is nothing disqualifying. Although the word “citizen” may imply . . . the enjoyment of certain basic rights and privileges, . . . a “subject” is merely “[o]ne who owes allegiance to a sovereign and is governed by that sovereign’s laws”. . . . Thus, contrary to Traffic Stream’s view, the text of §1332(a)(2) has no room for the suggestion that members of a polity, under the authority of a sovereign, fail to qualify as “subjects” merely because they enjoy fewer rights than other members do.4 Customary International Law as a Part of U.S. Law In Sosa v. Alvarez-Machain,1 the Supreme Court considered whether customary international law could provide a cause of action for private rights in U.S. courts. In that case, the Court construed the Alien Tort Claims Act2 as purely a jurisdictional statute, one that did not itself provide a cause of action. The Court further found, however, that private causes of action may be found under U.S. law for certain torts that violate the “law of nations” or customary international law.
2
Id. at 92–94. Id. at 96–97. Id. at 98–99. 1 124 S.Ct. 2739 (2004). For a discussion of the Court’s analysis of the Federal Tort Claims Act, see infra Ch. III. For the Court’s interpretation of the Alien Tort Claims Act, see infra Ch. VIII. 2 28 U.S.C. §1350 (2000) (ATCA). The ATCA provides: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 3 4
P1: JtR/KCX P2: IWV 0521750717c01 CB951-Murphy
0 521 75071 7
12
August 5, 2005
21:55
United States Practice in International Law 2002–2004 “When the United States declared their independence, they were bound to receive the law of nations, in its modern state of purity and refinement.”Ware v. Hylton, 3 Dall. 199, 281, 1 L.Ed. 568 (1796) (Wilson, J.). In the years of the early Republic, this law of nations comprised two principal elements, the first covering the general norms governing the behavior of national states with each other: “the science which teaches the rights subsisting between nations or states, and the obligations correspondent to those rights,” E. de Vattel, The Law of Nations, Preliminaries §3 (J. Chitty et al. transl. and ed. 1883) (hereinafter Vattel) (footnote omitted), or “that code of public instruction which defines the rights and prescribes the duties of nations, in their intercourse with each other,” 1 James Kent Commentaries. This aspect of the law of nations thus occupied the executive and legislative domains, not the judicial. See 4 W. Blackstone, Commentaries on the Laws of England 68 (1769) (hereinafter Commentaries) (“[O]ffenses against” the law of nations are “principally incident to whole states or nations”). The law of nations included a second, more pedestrian element, however, that did fall within the judicial sphere, as a body of judge-made law regulating the conduct of individuals situated outside domestic boundaries and consequently carrying an international savor. To Blackstone, the law of nations in this sense was implicated “in mercantile questions, such as bills of exchange and the like; in all marine causes, relating to freight, average, demurrage, insurances, bottomry . . . ; [and] in all disputes relating to prizes, to shipwrecks, to hostages, and ransom bills.” Id., at 67. The law merchant emerged from the customary practices of international traders and admiralty required its own transnational regulation. And it was the law of nations in this sense that our precursors spoke about when the Court explained the status of coast fishing vessels in wartime grew from “ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law. . . .” The Paquete Habana, 175 U.S. 677 . . . (1900). There was, finally, a sphere in which these rules binding individuals for the benefit of other individuals overlapped with the norms of state relationships. Blackstone referred to it when he mentioned three specific offenses against the law of nations addressed by the criminal law of England: violation of safe conducts, infringement of the rights of ambassadors, and piracy. 4 Commentaries 68. An assault against an ambassador, for example, impinged upon the sovereignty of the foreign nation and if not adequately redressed could rise to an issue of war. See Vattel 463– 464. It was this narrow set of violations of the law of nations, admitting of a judicial remedy and at the same time threatening serious consequences in international affairs, that was probably on minds of the men who drafted the [ATCA] with its reference to tort.3
In light of such history, and the Court’s further analysis of the crafting of the ATCA, the Court concluded that the jurisdictional grant set forth in the ATCA “is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time.”4 In considering whether customary international still exists as a part of federal common law, the Court stated: [W]e now tend to understand common law not as a discoverable reflection of universal reason but, in a positivistic way, as a product of human choice. And we now adhere to a conception of limited judicial power first expressed in reorienting federal diversity jurisdiction, see Erie R. Co. v. Tompkins, 304 U.S. 64 . . . (1938), that federal courts have no authority to derive “general” common law. Whereas Justice SCALIA sees these developments as sufficient to close the door to further independent judicial recognition of actionable international norms, other considerations persuade us that the judicial power should be exercised on the understanding that the door is still ajar
3 4
124 S.Ct. at 2755–56. Id. at 2761.
P1: JtR/KCX P2: IWV 0521750717c01 CB951-Murphy
0 521 75071 7
August 5, 2005
21:55
General International and U.S. Foreign Relations Law
13
subject to vigilant doorkeeping, and thus open to a narrow class of international norms today. Erie did not in terms bar any judicial recognition of new substantive rules, no matter what the circumstances, and post-Erie understanding has identified limited enclaves in which federal courts may derive some substantive law in a common law way. For two centuries we have affirmed that the domestic law of the United States recognizes the law of nations. See, e.g., Sabbatino, 376 U.S., at 423 . . . (“[I]t is, of course, true that United States courts apply international law as a part of our own in appropriate circumstances”); The Paquete Habana, 175 U.S., at 700 . . . (“International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination”); The Nereide, 9 Cranch 388, 423, 3 L.Ed. 769 (1815) (Marshall, C.J.) (“[T]he Court is bound by the law of nations which is a part of the law of the land”); see also Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641 . . . (1981) (recognizing that “international disputes implicating . . . our relations with foreign nations” are one of the “narrow areas” in which “federal common law” continues to exist). It would take some explaining to say now that federal courts must avert their gaze entirely from any international norm intended to protect individuals. We think an attempt to justify such a position would be particularly unconvincing in light of what we know about congressional understanding bearing on this issue lying at the intersection of the judicial and legislative powers. The First Congress, which reflected the understanding of the framing generation and included some of the Framers, assumed that federal courts could properly identify some international norms as enforceable in the exercise of §1350 jurisdiction. We think it would be unreasonable to assume that the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism. Later Congresses seem to have shared our view. The position we take today has been assumed by some federal courts for 24 years, ever since the Second Circuit decided Filartiga v. Pena-Irala, 630 F.2d 876 (C.A. 2 1980), and for practical purposes the point of today’s disagreement has been focused since the exchange between Judge Edwards and Judge Bork in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (C.A.D.C. 1984). Congress, however, has not only expressed no disagreement with our view of the proper exercise of the judicial power, but has responded to its most notable instance by enacting legislation supplementing the judicial determination in some detail.5 Justice Scalia (joined by Justices Rehnquist and Thomas) concurred in most respects with the majority’s opinion, but disagreed with the majority’s view that the law of nations continued to exist as a part of federal common law. This Court’s decision in Erie R. Co. v. Tompkins, . . . signaled the end of federal court elaboration and application of the general common law. Erie repudiated the holding of Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865 (1842), that federal courts were free to “express our own opinion” upon “the principles established in the general commercial law.” Id., 16 Pet., at 19, 18. After canvassing the many problems resulting from “the broad province accorded to the so-called ‘general law’ as to which federal courts exercised an independent judgment,” 304 U.S., at 75, . . . the Erie Court extirpated that law with its famous declaration that “[t]here is no federal general common law.” Id., at 78, 58 S.Ct. 817. Erie affected the status of the law of nations in federal courts not merely by the implication of its holding but quite directly, since the question decided in Swift turned on the “law merchant,” then a subset of the law of nations.6
5 Id. at 2764–65. The “notable instance” referred to by the Court was the enactment in 1992 of the Torture Victim Protection Act, 28 U.S.C. §1350 note (2000). 6 124 S.Ct. at 2770–71.
P1: JtR/KCX P2: IWV 0521750717c01 CB951-Murphy
14
0 521 75071 7
August 5, 2005
21:55
United States Practice in International Law 2002–2004
Federal Foreign Relations Law Preemption of State Law During the course of 2002–2004, various cases arose in U.S. federal courts in which U.S. foreign relations law served to preempt inconsistent laws of the several states. Two such cases arose in the Ninth Circuit involving (1) claims under the California civil code against Japanese companies for alleged slave labor during the Second World War; and (2) claims under a California insurance law designed to provide redress to Holocaust survivors and their heirs. Each is considered in turn. Deutsch v. Turner. During the course of the Second World War, the Japanese government sent thousands of prisoners of war to work under horrendous conditions in various Japanese industries. In recent years, several individual and class action lawsuits were filed in California by, or on behalf of, those prisoners against certain Japanese companies that benefited from such labor.1 The lawsuits, brought by both U.S. and foreign nationals, were based, in part, on a 1999 California statute – section 354.6 of the California Code of Civil Procedure – that created a cause of action against such defendants for such claims.2 By early 2003, California state courts had split on the permissibility of the statute under U.S. constitutional law.3 As a part of those proceedings, the government of Japan had submitted through the U.S. government a diplomatic note expressing the view that lawsuits under the California statute were inconsistent with the peace agreement formally terminating the state of war between Japan and the Allied Powers,4 and could jeopardize peace and stability in Asia and the Pacific region. The note stated, in part: 3. . . . If a U.S. court permits . . . reopening the war claims settlements attained by the Peace Treaty, such a decision would have negative repercussions that would result in the reopening or the revisiting of various war-related issues by Japan, its Asian neighbors, the U.S. and other former Allied Powers. Such a result would disturb Japan’s relationship with those countries and its foreign policy toward them. .... 5. Japan and North Korea are presently engaged in sensitive normalization talks. Although the issues of property and claims between Japan and North Korea arising out of the World War II era are to be addressed and settled through the ongoing talks, section 354.6 does not preclude, and actually presumes, that such issues are also to be dealt with by courts in the U.S. through private legal actions. The [government of Japan] is gravely concerned that section 354.6 would prejudice the ongoing talks with North Korea.5 In January 2003, the Ninth Circuit Court of Appeals considered a consolidated appeal of several cases and struck down the California statute as an unconstitutional intrusion on the foreign affairs power of the United States. The court’s analysis in Deutsch v. Turner began by noting: Because the Constitution mentions no general foreign affairs power, and because only a few specified powers related to foreign affairs are expressly denied the states, one might assume that, with certain exceptions, states are free to pursue their own foreign policies. This is not, however, 1 See Sean D. Murphy, United States Practice in International Law, Vol. 1: 1999–2001, at 152–57 (2002). One of the lawsuits before the Ninth Circuit Court of Appeals along with Deutsch involved wrongs by a German company and was disposed of by the court in a manner similar to that recounted here with respect to the Japanese companies. Most of the recent lawsuits against German industry and banks have been addressed, however, in the context of a claims settlement agreement. See id. at 137–44. 2 Cal. Civ. Proc. Code §354.6 (West 2003). 3 Compare Taiheiyo Cement Corp. v. Superior Court, 129 Cal. Rptr. 2d 451, 469 (Cal. Ct. App. 2003) (upholding the statute on grounds that it was purely procedural and not substantive in nature), with Mitsubishi Materials Corp. v. Superior Court, 130 Cal. Rptr. 2d 734 (Cal. Ct. App. 2003) (striking down the statute as attempting to create a war-related cause of action). For further developments in those cases, see infra note 22. 4 See Treaty of Peace, U.S.–Japan, Sept. 8, 1951, 3 UST 3169, 136 UNTS 45. Article 14(b) expressly waived the claims of Allied parties and their nationals against Japan and Japanese nationals. 5 Diplomatic Note of the Government of Japan to the U.S. Government, paras. 3, 5 (Feb. 20, 2003), contained in Request for Judicial Notice of Diplomatic Correspondence from the Government of Japan to the Government of the United States[, and] Proposed Order (Mar. 5, 2003), Taiheiyo Cement Corp. v. Superior Court, No. S113759 (Sup. Ct. Cal.).
P1: JtR/KCX P2: IWV 0521750717c01 CB951-Murphy
0 521 75071 7
August 5, 2005
21:55
General International and U.S. Foreign Relations Law
15
the case. To the contrary, the Supreme Court has long viewed the foreign affairs powers specified in the text of the Constitution as reflections of a generally applicable constitutional principle that power over foreign affairs is reserved to the federal government. The Court has sometimes expressed this principle in expansive terms, declaring, for example, that “[p]ower over external affairs is not shared by the States; it is vested in the national government exclusively.” United States v. Pink, 315 U.S. 203, 233 . . . (1942). . . . The implication of the general principle is that “even in [the] absence of a treaty” or federal statute, a state may violate the constitution by “establish[ing] its own foreign policy.” Zschernig v. Miller, 389 U.S. 429, 441 . . . (1968).6 In applying this general principle, the Ninth Circuit observed that in the 2001 Gerling case (discussed below), it had refused to strike down a related California statute – the Holocaust Victim Insurance Relief Act – which also had been claimed to intrude unconstitutionally upon the federal foreign affairs power.7 That statute required insurers doing business in California to file certain information about any insurance policies that they (or companies related to them) had sold in Europe and that were in effect between 1920 and 1945. The Ninth Circuit in Deutsch distinguished that statute as not requiring the affected businesses to compensate victims for past wrongs but, rather, as merely imposing a reporting requirement directed at foreign commerce. Noncompliance with the reporting requirement resulted in an inability to do business in California, but the statute did not hold the defendants liable for their past wartime conduct.8 By contrast, the California statute establishing a cause of action relating to forced labor during the Second World War implicated the federal power to make and resolve war. While Gerling shows that the general prohibition against state involvement with external affairs is not as broad as some judicial statements would imply, it also suggests a mode of analysis that is relevant to the cases before us. In particular, Gerling distinguishes among statutes according to the foreign affairs functions that they implicate. Gerling suggests that statutes that “mainly involve foreign commerce” are among those least likely to be held invalid under the foreign affairs power. The regulation of commerce is simply not central to the foreign affairs power that is off limits to states. For present purposes, we must consider the importance to foreign affairs analysis of another subset of foreign affairs powers: the power of the federal government to make and to resolve war, including the power to establish the procedure for resolving war claims. While neither the Constitution nor the courts have defined the precise scope of the foreign relations power that is denied to the states, it is clear that matters concerning war are part of the inner core of this power. Of the eleven clauses of the Constitution granting foreign affairs powers to the President and Congress, . . . seven concern preparing for war, declaring war, waging war, or settling war. Most of the Constitution’s express limitations on states’ foreign affairs powers also concern war. Even those foreign affairs powers in the Constitution that do not expressly concern war and its resolution may be understood, in part, as a design to prevent war.9 In light of the above, the Ninth Circuit held that California’s statute intruded “on the federal government’s exclusive power to make and resolve war, including the procedure for resolving war claims.”10 California’s statute sought to redress wrongs committed in the course of the Second World War. But the United States “has already exercised its own exclusive authority to resolve the war, 6 Deutsch v. Turner, 317 F.3d 1005, 1020–21 (9th Cir. 2003) (citation omitted) (footnote omitted). On a petition by plaintiffs for a rehearing, which was denied, the Ninth Circuit made some amendments to its earlier decision. See Deutsch v. Turner, 324 F.3d 692 (9th Cir. 2003). 7 See Gerling Global Reinsurance Corp. of Am. v. Low, 240 F.3d 739, 752–53 (9th Cir. 2001). 8 17 F.3d at 1027. 9 Id. at 1022 (citations and footnotes omitted). 10 Id. at 1023.
P1: JtR/KCX P2: IWV 0521750717c01 CB951-Murphy
16
0 521 75071 7
August 5, 2005
21:55
United States Practice in International Law 2002–2004
including claims arising out of it. It did not choose, however, to incorporate into that resolution a private right of action against our wartime enemies or their nationals.”11 While noting that the various U.S. treaties and international agreements that concluded the war did not prohibit a state from creating such a right of action, the Court found the lack of prohibition irrelevant. [T]he Constitution allocates the power over foreign affairs to the federal government exclusively, and the power to make and resolve war, including the authority to resolve war claims, is central to the foreign affairs power in the constitutional design. In the absence of some specific action that constitutes authorization on the part of the federal government, states are prohibited from exercising foreign affairs powers, including modifying the federal government’s resolution of warrelated disputes.12 American Insurance Association v. Garamendi. The Ninth Circuit’s dichotomy, for purposes of federal preemption, between a statute requiring businesses to compensate victims for past wrongs and a statute imposing a reporting requirement directed at foreign commerce, did not survive review by the U.S. Supreme Court. In the Gerling case (noted above), the Ninth Circuit confronted the effects of an initiative to provide compensation for Holocaust-era insurance claims. In 1998, an International Commission on Holocaust Era Insurance Claims (ICHEIC) was established by the U.S. National Association of Insurance Commissioners, the major European insurance companies, Jewish organizations, and Israel (the United States has observer status, as do several European states). The purpose of the ICHEIC, which is a voluntary organization, is to foster a fact-based, equitable effort to resolve Holocaust-era insurance claims without resorting to lengthy litigation. Ultimately, agreement was reached for a claims program whereby Holocaust victims’ heirs who were denied life insurance payments by European companies could file claims with, and receive compensation from, the ICHEIC based on relaxed standards of proof.13 A U.S.–German agreement in 2000 establishing a “Foundation Initiative of German Enterprises: Remembrance, Responsibility and Future” (Foundation) specifically endorsed the ICHEIC as the proper means for resolving Holocaustera insurance claims. On October 16, 2002, the Foundation and ICHEIC, along with the German Insurance Association, entered into an agreement on the procedures for using funds controlled by the Foundation for the payment of claims processed by the ICHEIC.14 In view of the agreements establishing the ICHEIC and the Foundation, and also the U.S. executive agreements with Austria, Germany, and France relating to those agreements, the U.S. government began in 2000 to challenge the constitutionality of U.S. state insurance laws designed to provide redress to Holocaust survivors and their heirs. One of those challenges concerned the California Holocaust Victim Insurance Relief Act (HVIRA). HVIRA mandated broad disclosures of information by insurance companies doing business in California regarding all policies issued in Europe between 1920 and 1945, including the names of policyholders and beneficiaries, as well as a certification as to whether and how policy proceeds had been paid.15 In a suit by insurance companies for injunctive relief in 2001 and 2002, the Ninth Circuit Court of Appeals found HVIRA to be constitutional.16 On appeal, however, the U.S. Supreme Court reversed. By a five-to-four majority opinion written by Justice David Souter, the Court in Am. Ins. Ass’n v. Garamendi affirmed the long-standing premise that “at some point an exercise of state power that touches on foreign relations must yield to the National Government’s policy” so as to maintain uniformity in U.S. dealings with other nations.17 Further, the Court recognized prior precedents 11
Id. at 1023–24. Id. at 1025. For background, see Sean D. Murphy, United States Practice in International Law, Vol. 1: 1999–2001, at 145–47 (2002). 14 Agreement Concerning Holocaust Era Insurance Claims, Oct. 16, 2002, at . 15 Cal. Ins. Code §§13800–13807 (West 2000). 16 See Gerling Global Reinsurance Corp. of Am. v. Low, 240 F.3d 739 (9th Cir. 2001) (finding HVIRA not to violate the federal foreign affairs power or the Commerce Clause); Gerling Global Reinsurance Corp. of Am. v. Low, 296 F.3d 832 (9th Cir. 2002) (finding that HVIRA did not violate procedural due process and reaffirming its prior ruling). 17 Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 413 (2003). 12 13
P1: JtR/KCX P2: IWV 0521750717c01 CB951-Murphy
0 521 75071 7
August 5, 2005
21:55
General International and U.S. Foreign Relations Law
17
and practice supporting the president’s authority to make executive agreements with foreign nations settling claims of U.S. nationals.18 The Court acknowledged that, in this instance, the claims at issue were not between persons and a foreign government, but between persons and foreign corporations. Nevertheless, the distinction does not matter. Historically, wartime claims against even nominally private entities have become issues in international diplomacy, and three of the postwar settlements dealing with reparations implicating private parties were made by the Executive alone. Acceptance of this historical practice is supported by a good pragmatic reason for depending on executive agreements to settle claims against foreign corporations associated with wartime experience. As shown by the history of insurance confiscation mentioned earlier, untangling government policy from private initiative during war time is often so hard that diplomatic action settling claims against private parties may well be just as essential in the aftermath of hostilities as diplomacy to settle claims against foreign governments. While a sharp line between public and private acts works for many purposes in the domestic law, insisting on the same line in defining the legitimate scope of the Executive’s international negotiations would hamstring the President in settling international controversies. Cf. [United States v. Pink, 315 U.S. 203, 234–42 (1942)] (Frankfurter, J., concurring) (noting the unsoundness of transplanting “judicial subtleties” of domestic law into “the solution of analogous problems between friendly nations”).19 The Court noted that the executive agreements at issue did not expressly preempt state law, so the claim of preemption rested on “asserted interference with the foreign policy those agreements embody.”20 Drawing upon its decision in Zschernig v. Miller,21 the Court found that the California statute clearly conflicted with a specific federal interest in the field of foreign affairs. [R]esolving Holocaust-era insurance claims that may be held by residents of this country is a matter well within the Executive’s responsibility for foreign affairs. Since claims remaining in the aftermath of hostilities may be “sources of friction” acting as an “impediment to resumption of friendly relations” between the countries involved, Pink, supra, at 225, there is a “longstanding practice” of the national Executive to settle them in discharging its responsibility to maintain the Nation’s relationships with other countries, Dames & Moore, 453 U.S., at 679. The issue of restitution for Nazi crimes has in fact been addressed in Executive Branch diplomacy and formalized in treaties and executive agreements over the last half century, and although resolution of private claims was postponed by the Cold War, securing private interests is an express object of diplomacy today, just as it was addressed in agreements soon after the Second World War. Vindicating victims injured by acts and omissions of enemy corporations in wartime is thus within the traditional subject matter of foreign policy in which national, not state, interests are overriding, and which the National Government has addressed.22
18
Id. at 415–16. Id. at 416 (footnote omitted). Id. at 417. 21 389 U.S. 429 (1968). 22 539 U.S. at 420–21.In the aftermath of the Supreme Court’s decision, several lower courts reconsidered their decisions in related cases. See, e.g., Taiheiyo Cement Corp. v. Superior Court, 12 Cal. Rptr. 3d 32 (Cal. Ct. App. 2004); Mitsubishi Materials Corp. v. Sup. Ct. Orange County, 6 Cal. Rptr. 3d 159 (Cal. Ct. App. 2003). For other cases in U.S. courts concerning Holocaust-era insurance claims, see Assicurazioni Generali S.P.A. Holocaust Insurance Litigation, 228 F.Supp.2d 348 (S.D.N.Y. 2002) (finding that ICHEIC was not an adequate foreign forum for purposes of forum non conveniens); Anderman v. Austria, 256 F.Supp.2d 1098 (C.D. Cal. 2003) (finding that claims falling within the ICHEIC claims procedure related to the executive’s foreign affairs power, and that judicial action on them would evince a lack of respect for the political branches and raise the possibility of embarrassment from multifarious pronouncements by various branches). 19 20
P1: JtR/KAC P2: IWV 0521750717c02 CB951-Murphy
0 521 75071 7
August 5, 2005
22:4
Chapter II State Diplomatic and Consular Relations Overview As of February 2004, the United States recognized 192 independent states worldwide and maintained diplomatic relations with all but five of those states (Bhutan, Cuba, Iran, Iraq, and North Korea).1 During the period 2002–2004, issues of U.S. recognition of states or governments arose infrequently, but included U.S. recognition of new governments in Afghanistan and Iraq after U.S. intervention in those countries. Separate from the issue of recognition, numerous incidents arose concerning the U.S. treatment of diplomatic and consular personnel and the provision to foreign nationals of their consular rights. In this time period, the United States expelled as persona non grata Iraqi and Cuban diplomats on charges of spying. Perhaps the most notorious issues, however, involved consular rights, especially the fall-out from the LaGrand and Avena cases before the International Court of Justice. Those cases concerned German and Mexican nationals in the United States, who were not notified of their right to consular assistance after their arrests, and were subsequently tried, convicted, and sentenced to death. Germany and Mexico both brought cases before the International Court in efforts to halt the executions, and both obtained decisions from the Court that the United States had violated its obligations under the Vienna Convention on Consular Relations. The Court asserted that the United States must provide for judicial review and reconsideration of the death sentences of those nationals, resulting in various proceedings before U.S. federal and state courts on the status of International Court decisions in the United States, and on whether the Vienna Convention could serve as a basis for legally enforceable rights of individuals.
Recognition of States and Governments Recognition of the Name “Republic of Macedonia” Following the breakup of the Socialist Federal Republic of Yugoslavia in 1991, several of its constituent republics became independent states, including the republic of Macedonia. Macedonia established a parliamentary democracy with multiethnic party representation and a popularly elected president. While the new state proclaimed itself the “Republic of Macedonia,” the government of Greece protested the use of such a name, stating that it implied territorial designs on the northern Greek province of “Macedonia.” Greece stated that it would block the new state from joining NATO or the European Union unless the dispute over the name was resolved. In April 1993, the General Assembly decided to admit the new state as a member of the United Nations, with the state being “provisionally” referred to for all purposes within the United Nations as “The former Yugoslav Republic of Macedonia” (or “FYROM”), pending settlement of the difference that had arisen over its name.1 On February 3, 2004, the U.S. Department of State spokesman announced: We have now decided to refer to Macedonia officially as the Republic of Macedonia. By recognizing Macedonia’s chosen constitutional name, we wish to underscore the U.S. commitment to a permanent, multiethnic, democratic Macedonian state within its existing borders. ....
1 1
18
See U.S. Dep’t of State Fact Sheet on Independent States of the World (Feb. 27, 2004), at . G.A. Res. 47/225, UN GAOR, 47th Sess., Supp. No. 49, Vol. 2, at 6, UN Doc. A/47/49 (1993).
P1: JtR/KAC P2: IWV 0521750717c02 CB951-Murphy
0 521 75071 7
August 5, 2005
22:4
State Diplomatic and Consular Relations
19
Macedonia’s success is in our interest and in the interest of all its neighbors. Macedonia is an important and steadfast partner of the United States in the global war on terrorism, contributing troops to coalition efforts in Iraq and Afghanistan. We have taken our decision on Macedonia’s name without prejudice to the negotiations under UN auspices that have been ongoing since 1993 on differences between Macedonia and Greece over the name. We hope those talks will reach a speedy and mutually agreeable conclusion.2 Some observers asserted that the U.S. action was a reward to the Republic of Macedonia for supporting the 2003 U.S. intervention in Iraq, and a reprimand to Greece for not providing such support.3 Asked about the basis within the U.S. government for determining what to call a foreign state, the Department of State spokesman said: [T]here is a formal structure in the government for determining geographic names that we use on publications and maps[. T]here are also sometimes policy considerations that relate to how we call something because some people feel strongly one way and some feel the other way and sometimes we have to make a decision. All I can tell you is that each of these cases has different factors involved, a different balance of factors involved. What people call themselves is one of the factors. But . . . how each individual case comes out depends on the individual case.4 Recognition of New Afghan Government In the Fall of 2001, the United States intervened militarily in Afghanistan as a response to the terrorist attacks of September 11, 2001, and joined Afghan opposition groups in deposing the de facto Afghan government of the Taliban.1 In late 2001, major leaders from the Afghan opposition groups and diaspora met in Bonn, Germany, and agreed on a plan for the formulation of a new government structure. That plan led to the inauguration on December 22 of Hamid Karzai as Chairman of the Afghan Interim Authority (AIA). In anticipation of Karzai’s inauguration, the U.S. Department of State announced: The United States has continued to maintain diplomatic relations with the state of Afghanistan, even though we have not for some time recognized that the Taliban or anyone else is capable of speaking for Afghanistan internationally. Under the Bonn Agreement, the Afghans have agreed that the interim Authority will represent Afghanistan in its external relations. The [U.S.] Liaison Office will deal with the interim Authority accordingly when it assumes power on December 22.2 Thereafter, in June 2002, the AIA held a nationwide Loya Jirga (Grand Assembly), and Karzai was elected President by the Transitional Islamic State of Afghanistan (TISA). In December 2003/January 2004, the TISA convened another Loya Jirga for the drafting and approval of a new constitution, which was signed on January 16, 2004. President Bush stated: I congratulate the people of Afghanistan on the adoption of their new constitution. This document lays the foundation for democratic institutions and provides a framework for national elections in 2004. A democratic Afghanistan will serve the interests and just aspirations of all of the Afghan people and help ensure that terror finds no further refuge in that proud land. This new constitution 2 Richard Boucher, Spokesman, U.S. Dep’t of State Daily Press Briefing (Nov. 4, 2004), at . 3 See, e.g., Glenn Kessler, President Signals No Major Shift in Foreign Policy, Wash. Post, Nov. 7, 2004, at A1. 4 U.S. Dep’t. of State Daily Press Briefing, supra note 2. 1 See Sean D. Murphy, United States Practice in International Law, Vol. 1: 1999–2001, at 421–36 (2002). 2 U.S. Dep’t of State Press Release on Afghanistan: Reopening of U.S. Mission (Dec. 14, 2001), at <www.state.gov>.
P1: JtR/KAC P2: IWV 0521750717c02 CB951-Murphy
20
0 521 75071 7
August 5, 2005
22:4
United States Practice in International Law 2002–2004 marks a historic step forward, and we will continue to assist the Afghan people as they build a free and prosperous future.3
On October 9, 2004, the TISA held nationwide elections, in which millions of Afghans voted to select representatives of a new government under the new Constitution through secret ballot across Afghanistan, and in Iran and Pakistan. On November 3, the Joint Electoral Management Board in Kabul officially announced the final results of the election, including Karzai’s selection as Afghanistan’s first democratically elected national leader. Recognition of New Iraqi Government In March 2003, the United States invaded Iraq, asserting that Iraq had failed to abide by its obligations under Security Council resolutions to cooperate in the elimination of all weapons of mass destruction programs. After ousting the government of President Saddam Hussein, the United States and United Kingdom, operating as “occupying powers under a unified command,” governed in Iraq through an entity known as the Coalition Provisional Authority (CPA). The CPA, in conjunction with the United Nations, undertook a lengthy process culminating in the establishment of an interim Iraqi government, which took over the governing of Iraq until a permanent government could be established.1 In June 2004, the U.S. government announced: On June 28, 2004, full sovereignty was transferred to a new Iraqi interim government. The Coalition Provisional Authority, led by Ambassador Paul Bremer, ceased to exist. The Iraqi Government is now running the day-to-day operations of its country.2 Congressional Effort to Move U.S. Embassy to Jerusalem In 1995, Congress enacted, and President Clinton signed into law, the Jerusalem Embassy Act of 1995, which declared the policy of the United States to be that Jerusalem should be recognized as the capital of the State of Israel and that the U.S. Embassy should be moved from Tel Aviv to Jerusalem no later than May 31, 1999.1 Further, the law limited the funds available to the Department of State for acquisition and maintenance of buildings abroad pending the opening of the embassy in Jerusalem, but allowed the president to suspend such limitation if necessary to protect U.S. national security interests.2 Thereafter, both Presidents Clinton and Bush exercised the waiver and declined to move the U.S. Embassy to Jerusalem.3 On September 30, 2002, President Bush signed into law the Foreign Relations Authorization Act for 2003.4 Section 214 provides: (a) . . . The Congress maintains its commitment to relocating the United States Embassy in Israel to Jerusalem and urges the President, pursuant to the Jerusalem Embassy Act of 1995 (Public Law 104-45; 109 Stat. 398), to immediately begin the process of relocating the United States Embassy in Israel to Jerusalem. ....
3
Statement on Afghanistan’s Adoption of a New Constitution, 40 Weekly Comp. Pres. Doc. 16 (Jan. 4, 2004). See infra Ch. X. U.S. Dep’t of State Press Release on Iraq’s Transition to Self-Government (June 28, 2004), at . 1 Jerusalem Embassy Act of 1995, Pub. L. No. 104-45, §3, 109 Stat. 398, 399 (1995). 2 Id. §7, 109 Stat. at 400. 3 See, e.g., Memorandum on Suspension of Limitations Under the Jerusalem Embassy Act, 38 Weekly Comp. Pres. Doc. 1026 (June 15, 2002). 4 Foreign Relations Authorization Act, Fiscal Year 2003, Pub. L. No. 107-228, 116 Stat. 1349 (2002). 1 2
P1: JtR/KAC P2: IWV 0521750717c02 CB951-Murphy
0 521 75071 7
August 5, 2005
22:4
State Diplomatic and Consular Relations
21
(c) . . . None of the funds authorized to be appropriated by this Act may be available for the publication of any official government document which lists countries and their capital cities unless the publication identifies Jerusalem as the capital of Israel. (d) . . . For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.5 The section contains no waiver provision. When signing the authorization act into law, President Bush stated: Section 214, concerning Jerusalem, impermissibly interferes with the President’s constitutional authority to conduct the Nation’s foreign affairs and to supervise the unitary executive branch. Moreover, the purported direction in section 214 would, if construed as mandatory rather than advisory, impermissibly interfere with the President’s constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states. U.S. policy regarding Jerusalem has not changed. .... My approval of the Act does not constitute my adoption of the various statements of policy in the Act as U.S. foreign policy. Given the Constitution’s commitment to the presidency of the authority to conduct the Nation’s foreign affairs, the executive branch shall construe such policy statements as advisory, giving them the due weight that comity between the legislative and executive branches should require, to the extent consistent with U.S. foreign policy.6 The parliament of the Palestinian Authority reacted to the U.S. legislation by enacting its own legislation designating Jerusalem as the capital of a future Palestinian state.7
Persona Non Grata U.S. Expulsion of Iraqi Diplomat On June 14, 2002, the United States ordered the expulsion of Abdul Rahman Saad, an Iraqi diplomat accredited to the United Nations. The Bush administration accused Saad of “abuse of the privilege of residence” by engaging in espionage and attempting to recruit U.S. nationals as spies.1 The U.S.-UN Headquarters Agreement2 addresses the privileges that the United States accords to persons accredited to the United Nations. It provides: Laws and regulations in force in the United States regarding the residence of aliens . . . shall not be applied in such manner as to require any such person to leave the United States on account of any activities performed by him in his official capacity. In case of abuse of such privileges of residence by any such person in activities in the United States outside his official capacity, it is understood that the privileges . . . shall not be construed to grant him exemption from the laws and regulations
5
Id. §214, 116 Stat. at 1365. Statement on Signing the Foreign Relations Authorization Act, Fiscal Year 2003, 38 Weekly Comp. Pres. Doc. 1658, 1659–60 (Sept. 30, 2002); see Todd S. Purdum, Law Won’t Alter U.S. Stand on Jerusalem, Officials Say, N.Y. Times, Oct. 2, 2002, at A10. 7 See Khaled Abu Toameh, PLC Declares US Bill on Jerusalem Is Illegal, Jerusalem Post, Oct. 7, 2002, at 2. 1 U.S. Dep’t of State Press Release on Taken Questions on Expulsion of Iraq Diplomat Assigned to Iraq Mission to the UN (June 28, 2002), at . 2 Agreement Relating to the Headquarters of the United Nations, June 26, 1947, U.S.–UN, 61 Stat. 3416, 11 UNTS 11 (subsequently supplemented and amended). 6
P1: JtR/KAC P2: IWV 0521750717c02 CB951-Murphy
22
0 521 75071 7
August 5, 2005
22:4
United States Practice in International Law 2002–2004 of the United States regarding the continued residence of aliens, provided that: (1) No proceedings shall be instituted under such laws or regulations to require any such person to leave the United States except with the prior approval of the Secretary of State of the United States. Such approval shall be given only after consultation with the appropriate Member in the case of a representative of a Member. . . . (2) A representative of the Member concerned . . . shall have the right to appear in any such proceedings on behalf of the person against whom they are instituted[.]3
In comparing the protections accorded to diplomats under this agreement with those accorded to them under the Vienna Convention on Diplomatic Relations,4 the State Department spokesman commented that “[t]he consultation processes are different, but the practical outcome is the same. Diplomats who engage in activities that are incompatible with their status as diplomats and are harmful to U.S. security are required to leave the U.S.”5 As requested by the Bush administration, Saad left the United States. U.S. Expulsion of Cuban Diplomats In addition to the U.S.–UN Headquarters Agreement noted above, Article 9(1) of the Vienna Convention on Diplomatic Relations provides that a receiving state “may at any time and without having to explain its decision” notify the sending state that a member of its diplomatic mission is not acceptable, in which case the state shall either recall the person or terminate his or her functions with the mission.1 On November 1, 2002, the United States declared persona non grata two Cuban diplomats posted at the Cuban interests section of the Swiss Embassy in Washington, D.C. At the same time, the United States requested the departure of two members of the Cuban mission to the United Nations. Speaking the following week, the Department of State spokesman asserted: In response to unacceptable Cuban activities, the United States decided to take strong action last Friday. The United States declared First Secretary Oscar Redondo Toledo and First Secretary Gustavo Machin Gomez, both of the Cuban Interests Section of the Embassy of Switzerland in Washington, persona non grata requiring their departure from the United States within ten days from the date of that notice. These expulsions represent our response to the unacceptable Cuban activities for which Ana Belen Montes was arrested and convicted. As you all remember, she was a senior defense intelligence analyst who conducted espionage for Cuba against the United States.2 We call upon the Cuban Government to ensure that there will be no similar episodes or new actions in the future against the interests of the United States. In a separate action, two members of the Cuban Mission to the United Nations have been requested to leave the United States for engaging in activities deemed to be harmful to the United States outside their official capacity as members of the Permanent Mission of Cuba to the United Nations. These activities constitute an abuse of their privileges of residence. 3
Id. §13(b), 61 Stat. at 3425, 11 UNTS at 22. Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 UST 3227, 500 UNTS 95. U.S. Dep’t of State Press Release on Taken Questions on Expulsion of Iraq Diplomat Assigned to Iraq Mission to the UN (June 14, 2002), at . 1 Vienna Convention on Diplomatic Relations, Apr. 18, 1961, Art. 9(1), 23 UST 3227, 3233–34, 500 UNTS 95, 102. 2 [Author’s Note: Ms. Montes was arrested in September 2001 and pled guilty in March 2002 to being a spy for the Cuban government from 1985 to 2001. In October 2002, she was sentenced to twenty-five years in prison.] 4 5
P1: JtR/KAC P2: IWV 0521750717c02 CB951-Murphy
0 521 75071 7
August 5, 2005
22:4
State Diplomatic and Consular Relations
23
The record of espionage by the Cuban regime against the United States is long. It was marked recently by the October 16th sentencing of Ana Belen Montes on charges of spying for Cuba. The Montes matter, we believe, is extremely serious. Other recent Cuban acts of espionage include the case of a former INS official, Faget, and the “Wasp Ring” case in Miami,3 both of which resulted in espionage or espionage-related convictions.4 The Cuban government stated that there was “no evidence whatsoever” that the four diplomats had engaged in espionage.5 Nevertheless, the diplomats returned to Cuba. On May 13, 2003, the United States declared persona non grata seven Cuban diplomats posted at the Cuban interests section of the Swiss Embassy for “certain inappropriate and unacceptable activities.”6 At the same time, the United States requested the departure of seven members of the Cuban mission to the United Nations “for activities outside of their official capacity as members of the Permanent Mission of Cuba to the United Nations,” since “those activities constitute an abuse of their privileges of residence.”7 The diplomats were provided ten days to leave the United States. Although the U.S. government did not expressly assert that these individuals engaged in espionage, it noted the prior “record of espionage by the Cuban regime against the United States.”8 The diplomats reportedly included both the deputy chief and the spokesman of the Cuban interests section in Washington, D.C., as well as the third-ranking diplomat at the Cuban mission in New York.9 The Cuban government denied that any of the diplomats were engaged in espionage, but stated that it would comply with the expulsions.10
Consular Affairs Effects of German LaGrand Case in U.S. Courts On June 27, 2001, the International Court of Justice (ICJ) issued its judgment in LaGrand – a case by Germany against the United States involving two brothers of German nationality who were arrested, convicted, and sentenced to death by Arizona state authorities. After being arrested, the brothers were not informed of their right under Article 36 of the Vienna Convention on Consular Relations (Vienna Convention)1 to have the German consulate notified of their arrest and detention. The ICJ found that by not informing the LaGrand brothers of their right to request consular notification, the United States had violated its obligations under the Vienna Convention, and also that the operation of Arizona’s procedural default rule2 in the LaGrands’ cases – a rule that barred judicial review of their 3
[Author’s Note: See Sean D. Murphy, United States Practice in International Law, Vol. 1: 1999–2001, at 26–27 (2002).] Richard Boucher, Spokesman, U.S. Dep’t of State Daily Press Briefing at 14–17 (Nov. 6, 2002), at . See Karen DeYoung, Cuba Calls Expulsions Undeserved, Wash. Post, Nov. 9, 2002, at A14. 6 Philip T. Reeker, Deputy Spokesman, U.S. Dep’t of State Daily Press Briefing at 8–13 (May 13, 2003), at . 7 Id. 8 Id.; see also Federal Bureau of Investigation Press Release on FBI Statement on Expulsion of Cuban Diplomats (May 15, 2003), at (“Based on thorough investigations, and to preempt the activities of Cuban intelligence in the United States, the FBI recommended to the State Department that a number of Cuban intelligence officers be declared persona non grata and expelled.”). 9 See Colum Lynch & Karen DeYoung, U.S. Orders Expulsion of 14 Cuban Diplomats, Wash. Post, May 14, 2003, at A1. 10 See Karen DeYoung, Cuba Denounces Diplomats’ Expulsions, Wash. Post, May 15, 2003, at A18. 1 Apr. 24, 1963, 21 UST 77, 596 UNTS 261. Article 36(1)(a) provides that consular officers shall be free to communicate with, and have access to, their nationals in the receiving state, and vice versa. Article 36(1)(b) provides that “[i]f he so requests, the competent authorities of the receiving state shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner.” Article 36(1)(c) states that consular officers “have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation.” 2 State law procedural rulings that are both sufficiently independent from federal law and adequate to sustain the judgment against the defendant (“procedural defaults”) often preclude consideration of the merits of federal legal claims. Thus, if a defendant fails to file in state court proceedings a timely motion for a new trial or sentencing proceeding because he was not informed of his right to request consular notification, that procedural failure may bar filing such a motion not only before that state’s courts, but also before federal courts. Prior to the ICJ’s decision in LaGrand, the U.S. Supreme Court in Breard v. Greene, 523 U.S. 371, 375–76 (1998) (per curiam), declared that motions in federal courts based on violations of the Vienna Convention could be barred by procedural default from consideration on 4 5
P1: JtR/KAC P2: IWV 0521750717c02 CB951-Murphy
24
0 521 75071 7
August 5, 2005
22:4
United States Practice in International Law 2002–2004
convictions and sentences despite the lack of notification – constituted a further breach of the Vienna Convention.3 The Court also found that its provisional orders are binding on states and that the United States violated the Court’s provisional order in this case by failing to take all measures at its disposal to ensure that one of the brothers, Walter LaGrand, was not executed pending a final decision by the Court. Taking into account the steps subsequently taken by the United States to ensure implementation of its Vienna Convention obligations, the Court did not order it to provide a general assurance of nonrepetition. The Court did find, however, that “should nationals of the Federal Republic of Germany nonetheless be sentenced to severe penalties” without their right to consular notification having been respected, the United States, “by means of its own choosing, shall allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth” in the Vienna Convention.4 Thereafter, the significance of the ICJ’s LaGrand decision was apparent in various legal proceedings in U.S. court concerning individuals on death row. Valdez v. Oklahoma. In 1989, Oklahoma state authorities arrested Gerardo Valdez Maltos, a Mexican national, for killing a man who had made sexual advances to him. At the time of his arrest, Valdez was not informed of his right to request notification to the Mexican consulate, as required by Article 36 of the Vienna Convention. Valdez confessed to the killing, for which he was convicted by a jury of his peers and sentenced to death. After he exhausted his appeals, including an application for postconviction relief before the state courts and a habeas corpus petition before federal courts,5 the Oklahoma criminal court set an execution date for June 19, 2001. Upon issuance of the LaGrand decision, the U.S. Department of State sent letters to the state’s clemency authorities, including the governor of Oklahoma, asking that they take into account whether the violation of the Vienna Convention had any prejudicial effect on either Valdez’s conviction or sentence.6 Although the governor concluded that there was minimal prejudice to Valdez from the violation of Article 36, the governor temporarily stayed the execution to allow the government of Mexico to review and evaluate the “legal and diplomatic alternatives available to them and Mr. Valdez in light of the novel legal issues presented.”7 On August 21, Valdez filed in the Oklahoma Court of Criminal Appeals a second application for postconviction relief. In it, Valdez argued that the violation of the Vienna Convention – in light of the ICJ’s ruling – required that he be retried. In September, the Oklahoma Court of Criminal Appeals issued an indefinite stay of execution in order to consider Valdez’s petition, which it noted raised a “unique and serious matter involving novel legal issues and international law.”8 In May 2002, the court found that the issue of the state’s failure to notify Valdez of his right to request consular notification had been available at the time of his direct appeal and original application for postconviction relief, and therefore was improper in the second application, despite the ICJ’s intervening decision. The court nevertheless granted a new sentencing hearing because Valdez’s counsel had been ineffective in failing to investigate and present evidence on Valdez’s social, mental, and health history.9 the merits. For background on the Breard case and the decision of the Supreme Court, see Sean D. Murphy, United States Practice in International Law, Vol. 1: 1999–2001, at 27–31 (2002). 3 See LaGrand (Ger. v. U.S.), Judgment, 2001 ICJ Rep. 466 (June 27), reprinted in 40 ILM 1069 (2001). The basic documents, decisions, pleadings, and other materials concerning the International Court of Justice are available at the Court’s Web site, . For further background and analysis of the LaGrand case, see Sean D. Murphy, United States Practice in International Law, Vol. 1: 1999–2001, at 32–37 (2002); William J. Aceves, Case Report, 96 AJIL 210 (2002). 4 LaGrand, 2001 ICJ Rep. 466, para. 128(7). 5 See Valdez v. Oklahoma, 900 P.2d 363 (Okla. Crim. App. 1995), cert. denied, 516 U.S. 967 (1995). The court of criminal appeals of Oklahoma denied Valdez’s application for postconviction relief. See Valdez v. State, 933 P.2d 931 (Okla. Crim. App. 1997). Valdez’s petition for federal habeas relief was denied by the district court in 1998; that denial was affirmed by the Court of Appeals for the Tenth Circuit in 2000. See Valdez v. Ward, 219 F.3d 1222 (10th Cir. 2000), cert. denied, 532 U.S. 979 (2001). 6 See Murphy, supra note 3, at 38–39. 7 See Governor of Oklahoma Executive Order 2001-28 (Aug. 17, 2001). 8 See Valdez v. Oklahoma, 2001 WL 1715885 (Okla. Crim. App. Sept. 10, 2001); see also Okla. Court Postpones Execution of Mexican, Wash. Post, Sept. 11, 2001, at A16; Brooke A. Masters, U.S. Deprived Mexican of Fair Trial, Appeal Says, Wash. Post, Aug. 23, 2001, at A8. 9 See Valdez v. Oklahoma, 46 P.3d 703 (Okla. Crim. App. 2002).
P1: JtR/KAC P2: IWV 0521750717c02 CB951-Murphy
0 521 75071 7
August 5, 2005
22:4
State Diplomatic and Consular Relations
25
Madej v. Schomig. The ICJ’s holdings in LaGrand were also invoked during federal habeas corpus proceedings involving an Illinois state court’s conviction and sentencing of Gregory Madej, a Polish national living in the United States. Madej was convicted of murder and three counts of felony murder predicated on a 1981 armed robbery, rape, and deviant sexual assault, and was thereafter sentenced to death.10 At the time of his arrest, Madej was not informed of his right to request notification to the Polish consulate. After exhausting his appeals at the state level, Madej petitioned for a writ of habeas corpus in a U.S. federal court. He argued, among other things, that an Illinois state procedural rule could not serve as the basis for denial of relief from the state’s violation of the Vienna Convention. In granting the motion, the district court stated: Petitioner contends that the International Court of Justice foreclosed reliance on a state procedural rule when a court confronts an alleged Vienna Convention violation. Respondent replies that the judgment of the Supreme Court in Breard v. Greene, 523 U.S. 371, 375–76 . . . (1998) (per curiam) establishes that procedural default rules do apply to violations of the Vienna Convention.11 This Court agrees with Petitioner, that LaGrand does foreclose strict reliance on procedural default rules for violations of the Vienna Convention. The International Court of Justice (I.C.J.) announced that procedural default rules “in [themselves] do[] not violate Article 36 of the Vienna Convention.” LaGrand Case (Germany v. U.S.), 2001 I.C.J. [466], at ¶90. The I.C.J. went on to declare: procedural default rules [that] prevent[] [courts] from attaching any legal significance to the fact [that violations of the Vienna Convention prevent consulates from affording legal assistance to foreign nationals] . . . have the effect of preventing ‘full effect [from being] given to the purposes for which the rights accorded under this article are intended’, and thus violate [] paragraph 2 of Article 36. LaGrand Case, 2001 I.C.J. 104, at ¶91. The United States voluntarily submitted to the jurisdiction of the I.C.J. to resolve disputes over the interpretation of the Vienna Convention. See Vienna Convention on Consular Relations, Optional Protocol Concerning the Compulsory Settlement of Disputes, Apr. 24, 1963, 21 U.S.T. 326 (“Disputes arising out of the interpretation or application of the [Vienna] Convention shall lie within the compulsory jurisdiction of the International Court of Justice. . . . ”). Consequently, the I.C.J. ruling conclusively determines that Article 36 of the Vienna Convention creates individually enforceable rights, resolving the question most American courts (including the Seventh Circuit) have left open. See LaGrand Case, 2001 I.C.J. 104, at ¶77 (“the Court concludes that Article 36, paragraph 1, creates individual rights”). It also suggests that courts cannot rely upon procedural default rules to circumvent a review of Vienna Convention claims on the merits. Respondent’s contention that this claim is foreclosed by Breard does not withstand close scrutiny. The Supreme Court’s declaration in Breard that the procedural default rules apply equally to Vienna Convention violations operated on the explicit assumption that “those rules enable full effect to be given to the purposes for which the rights accorded under this Article are intended.” Breard v. Greene, 523 U.S. 371, 375 . . . (quoting Vienna Convention, Article 36 §2). The I.C.J. has now declared that those rules do interfere with giving full effect to the purposes of the treaty, see LaGrand Case, 2001 I.C.J. 104, at ¶91, undermining a major premise of the holding.12 10
See People v. Madej, 478 N.E.2d 392 (Ill. 1985). [Author’s Note: For background on the Breard case and the decision of the Supreme Court, see Sean D. Murphy, United States Practice in International Law, Vol. 1: 1999–2001, at 27–31 (2002).] 12 Madej v. Schomig, 223 F.Supp.2d 968, 978–79 (N.D. Ill. 2002); but see Bierengu v. Ashcroft, 259 F.Supp.2d 342 (D.N.J. 2003) (holding that prior determination that alien had received effective assistance of counsel was entitled to preclusive effect regardless of claimed violation of Vienna Convention Article 36). 11
P1: JtR/KAC P2: IWV 0521750717c02 CB951-Murphy
26
0 521 75071 7
August 5, 2005
22:4
United States Practice in International Law 2002–2004
After noting that Madej’s rights were clearly violated under the Vienna Convention,13 the district court considered whether the violation likely affected either Madej’s trial or his subsequent sentencing. The court found that the violation did not affect the trial since the evidence of Madej’s guilt was overwhelming. By contrast, the court found that “in this case, where trial counsel failed completely to undertake any investigation of the client’s life, character and background in preparation for the sentencing phase, the participation of the Consulate could possibly have made a difference.”14 Further consideration of the violation’s impact on his sentence was nevertheless considered moot; the court had already found that Madej’s death sentence should be set aside based on a violation of his Sixth Amendment right to effective counsel. In short, the court granted Madej’s motion that the procedural default rule not be applied to bar a federal claim that is based on the Vienna Convention, but denied any relief based on that motion. Illinois authorities decided not to appeal the decision, thus paving the way for Madej’s resentencing hearing. Bell v. Virginia. The ICJ’s holdings in LaGrand were also invoked during Virginia state court proceedings involving the conviction and sentencing to death of Edward Nathaniel Bell, a Jamaican national living in the United States. Bell was suspected of killing a Virginia law enforcement officer in 1999. Upon his arrest, Bell informed the police that he was a Jamaican national, and was then questioned. After the questioning, the police informed Bell that the Jamaican consulate would be notified of his arrest but, according to the police, Bell asked that such notification not be made. The police nevertheless notified the consulate by telefax thirty-six hours after the arrest, which thereafter took no action.15 Bell filed a motion before his trial to suppress evidence and dismiss the indictment because of an alleged violation of Article 36 of the Vienna Convention. The trial court denied the motion. On appeal, the Supreme Court of Virginia affirmed. First, we conclude that any rights that Bell has under Article 36 of the Vienna Convention were not violated. That article provides in subsection (1)(b) that “competent authorities . . . shall, without delay, inform the consular post of the sending State” when one of its nationals is arrested or detained pending trial, and shall also “inform the person concerned without delay of his rights under this subparagraph.” The record in this case demonstrates that the Winchester Police Department complied with the requirements of this subsection. [The police] advised Bell that the Consulate of Jamaica would be notified of Bell’s arrest and that notification, in fact, occurred within approximately 36 hours after Bell was taken into custody. The provisions of Article 36 do not mandate immediate notification, nor do they necessarily require consular notification before an arrestee is advised of Miranda16 rights and agrees to waive those rights by answering questions. Instead, Article 36 simply requires that the notification be made “without delay.” Thus, we conclude that the lapse of 36 hours was not unreasonable. Cf. County of Riverside v. McLaughlin, 500 U.S. 44 . . . (1991) (probable cause finding within 48 hours of warrantless arrest generally satisfies requirement that judicial officer make probable cause determination promptly). Notably, the delay in the LaGrand case that prompted the ICJ to find that the United States had breached its obligations under Article 36 to the LaGrand brothers and to the Federal Republic of Germany was more than 16 years. In fact, the United States did not notify the LaGrand brothers of their right to consular access until after the completion of proceedings for post-conviction relief. Given the fact that Bell objected to any notification being sent to his consulate, we likewise find no violation of Article 36 arising from the fact that [the police] did not expressly advise Bell of any rights he may have under this article.
13
223 F.Supp.2d at 980. Id.; see Madej v. Schomig, 2002 WL 31386480 (N.D. Ill. Oct. 22, 2002) (second motion to reconsider). Bell v. Virginia, 563 S.E.2d 695 (Va. 2002). 16 [Author’s Note: Miranda v. Arizona, 384 U.S. 436 (1966). In Miranda, the Supreme Court decided that the Fifth Amendment of the U.S. Constitution (which provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself ”) required that persons taken into custody be given certain warnings and be informed of their right to counsel.] 14 15
P1: JtR/KAC P2: IWV 0521750717c02 CB951-Murphy
0 521 75071 7
August 5, 2005
22:4
State Diplomatic and Consular Relations
27
Second, we conclude that the ICJ, contrary to Bell’s assertion, did not hold that Article 36 of the Vienna Convention creates legally enforceable individual rights that a defendant may assert in a state criminal proceeding to reverse a conviction. Instead, the ICJ stated that “Article 36, paragraph 1, creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in [the ICJ] by the national State of the detained person.” LaGrand Case . . . (emphasis added). The ICJ also held that if the United States should fail in its obligation under Article 36, then the United States should allow review of the conviction and sentence by taking into account the violation of the rights set forth in the Vienna Convention. However, the ICJ recognized that the “obligation can be carried out in various ways” and that “[t]he choice of means must be left to the United States.” LaGrand Case. . . . This acknowledgment by the ICJ reflects the fact that, in the absence of a clear statement to the contrary, procedural rules of a forum State govern the implementation of a treaty in that State. Breard v. Greene, 523 U.S. 371, 375 . . . (1998). . . . This principle is also evident in the provisions of Article 36(2). That subsection provides that “[t]he rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State,” provided that those “laws and regulations . . . enable full effect to be given to the purposes for which the rights accorded under this Article are intended.” In criminal proceedings in the receiving State, i.e., the United States, a harmless error analysis is routinely used when deciding whether to suppress a defendant’s statement made as a result of a violation of the Fifth Amendment right against self-incrimination. . . . The same analysis should apply when a defendant seeks to suppress a statement because of an alleged violation of rights conferred pursuant to Article 36 of the Vienna Convention. Thus, in the present case, even if Bell’s rights under Article 36 were violated because the police questioned him prior to advising him of his rights to consular notice and access, we conclude that any such error was harmless. The evidence of Bell’s guilt . . . is overwhelming. Furthermore, Bell has not alleged, much less demonstrated, any prejudice resulting from the fact that approximately 36 hours elapsed before his consulate was notified of his arrest, nor has he asserted that he would not have answered the police officers’ questions if he had first been advised of his right to communicate with his consulate. Bell, after all, objected to his consulate receiving notice of his arrest. Finally, even if Article 36 creates legally enforceable individual rights, it does not provide – explicitly or otherwise – that a violation of those rights should be remedied by suppression of evidence. . . . Such a remedy is generally not available when a fundamental right is not implicated. . . . The language of Article 36 does not create a fundamental right comparable to the privilege against self-incrimination.17 Mexican Avena Case Before the ICJ On January 9, 2003, Mexico instituted proceedings against the United States at the International Court of Justice (ICJ) in the Avena case.1 The Mexican application maintained that the United States had failed to inform fifty-four Mexican nationals, in ten different states of the United States, of their right under Article 36 of the Vienna Convention on Consular Relations2 to have the Mexican government notified of their arrests and detention. After being arrested, the fifty-four nationals were tried and sentenced to death. The Mexican application asked, among other things, that the Court order the United States to restore the status quo ante – that is, to “re-establish the situation that 17 563 S.E.2d at 706–07; see also United States v. Emuegbunam, 268 F.3d 377 (6th Cir. 2001) (holding on direct criminal appeal that Vienna Convention Article 36 does not create individual rights enforceable in U.S. federal court), cert denied, 535 U.S. 977 (2002). 1 Application of Mexico (Jan. 9, 2003), Avena and Other Mexican Nationals (Mex. v. U.S.), Judgment (Int’l Ct. Justice Mar. 31, 2004). 2 Apr. 24, 1963, Art. 36(1)(b), (2), 21 UST 77, 101, 596 UNTS 261, 292 [hereinafter Vienna Convention]. During the course of the proceedings, Mexico amended its claim so as to cover fifty-two Mexican nationals.
P1: JtR/KAC P2: IWV 0521750717c02 CB951-Murphy
28
0 521 75071 7
August 5, 2005
22:4
United States Practice in International Law 2002–2004
existed before the detention of . . . Mexico’s nationals in violation of United States international legal obligations.”3 Immediately after filing the application, Mexico filed a request for the indication of provisional measures, stating that three Mexican nationals faced execution within six months. Mexico asked the Court to order that, pending final judgment, the United States execute no Mexican nationals.4 On January 21, the Court held oral proceedings on the request. Mexico noted the Court’s prima facie jurisdiction under the optional protocol to the Vienna Convention;5 noted the Court’s prior provisional measures orders in the Breard 6 and LaGrand 7 cases concerning the right to consular notification;8 provided citations to U.S. court decisions in which Mexican nationals alleged violations of Article 36, including decisions in which courts declined to provide any judicial remedy for Article 36 violations;9 and stressed that – absent an order of the Court – Mexican nationals would be executed in the United States prior to the Court’s judgment in the instant case.10 At the merits stage of the LaGrand case (discussed above), the Court had found that the United States had the obligation “by means of its own choosing, [to] allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in” the Vienna Convention.11 Noting this holding, counsel for Mexico stated: 71. In the post-LaGrand world, the United States has continued to execute foreign nationals despite the protests of their governments. Moreover, in the recent cases of Mexican nationals Gerardo Valdez12 and Javier Su´arez Medina,13 the courts applied the municipal doctrine of “procedural default” to avoid resolving the merits of the uncontested Article 36 violations in their cases – even though they were fully briefed on the significance of this Court’s Judgment in LaGrand. Although the United States Government was informed of each case with ample time to intercede in judicial proceedings, it chose not to do so. 72. In the case of Mr. Valdez, . . . the only action taken by the United States was to send carefully worded letters to state clemency authorities, requesting that they “consider” the violations of Article 36. . . . Those letters support one of the fundamental propositions underlying Mexico’s request for provisional measures and its Application: namely, that the United States does not believe that executions need be stopped in cases presenting uncontested violations of Article 36. Rather, the United States believes that state authorities have unfettered discretion to grant or deny hearings; to grant or deny commutation; to grant or deny reprieves of execution – all as a matter of grace. And that is precisely why there is a dispute between Mexico and the United States on the issue of remedy, and that is precisely why provisional measures are necessary.14 In response, the United States argued that accepting the Mexican request would be a significant departure from the Court’s decision in the LaGrand case, where the Court said that the United States should, by means of its own choosing, provide for a review and reconsideration of the conviction and death sentence of German nationals that takes into account the failure to comply with Vienna
3
Application of Mexico, supra note 1, para. 281. Request of Mexico for Provisional Measures (Jan. 9, 2003), Avena and Other Mexican Nationals (Mex. v. U.S.), Provisional Measures (Int’l Ct. Justice Feb. 5, 2003). 5 Verbatim Record (Jan. 21, 2003), Avena and Other Mexican Nationals (Mex. v. U.S.), Provisional Measures, ICJ Doc. CR 2003/1, paras. 24–35. 6 Vienna Convention on Consular Relations (Para. v. U.S.), Provisional Measures, 1998 ICJ Rep. 266 (Apr. 9). 7 LaGrand (Ger. v. U.S.), Provisional Measures, 1999 ICJ Rep. 9 (Mar. 3). 8 Verbatim Record, supra note 5, paras. 36–49. 9 Id., paras. 93–96. 10 Id., paras. 51–83. 11 LaGrand (Ger. v. U.S.), Judgment, 2001 ICJ Rep. 466, para. 128 (June 27), reprinted in 40 ILM 1069 (2001). 12 [Author’s Note: See discussion of the Valdez case supra this chapter.]. 13 [Author’s Note: See Medina v. Cockrell, 31 Fed.Appx. 835, 2002 WL 243246 (5th Cir. Jan 16, 2002).] 14 Verbatim Record, supra note 5, paras. 71–72 (citations omitted). 4
P1: JtR/KAC P2: IWV 0521750717c02 CB951-Murphy
0 521 75071 7
August 5, 2005
22:4
State Diplomatic and Consular Relations
29
Convention Article 36. Rather, according to Department of State Legal Adviser William H. Taft IV, Mexico “argues, in effect, that a breach of Article 36 automatically voids United States domestic proceedings – a result that this Court declined to adopt in LaGrand.”15 He stated: In the wake of LaGrand, we have chosen means that have succeeded in securing review and reconsideration in every case when a consular notification violation had occurred and the death penalty was to be imposed. I can assure the Court that the United States will continue to employ these measures, which have proved effective in every case so far and which there is no basis to believe will not be effective in future cases. Assurances such as the one I am giving the Court today have proved sufficient in the past to dispose of requests for provisional measures.16 U.S. Department of State Assistant Legal Adviser Catherine Brown noted to the Court that in the U.S. legal system, the clemency power is vested either in the president (for federal crimes) or in the governor of a state, sometimes in conjunction with a state clemency board (for state crimes). In exercising this power, there is broad discretion in the evidence considered and the measures taken.17 With respect to Valdez v. Oklahoma, Brown argued that the governor seriously considered the possible prejudice of the Article 36 violation to Mr. Valdez’s conviction and sentence, but concluded that such prejudice was small and was outweighed by other factors.18 Ultimately, on other grounds, Valdez did receive a new sentencing hearing. Similar review and reconsideration has occurred in other cases.19 To find irreparable prejudice to Mexico’s rights notwithstanding these facts, would . . . mean that review and reconsideration of a sentence, as set out in LaGrand, is after all not a sufficient remedy for a failure of consular notification under the Convention, or that a different remedy could apply to Mexican nationals than to German nationals. The possibility of such an a contrario interpretation should not be entertained by the Court, nor should it be permitted to form the basis for a finding of irreparable prejudice.20 On February 5, the Court granted Mexico’s request and ordered the United States to take “all measures necessary to ensure that” the three Mexican nationals “are not executed pending final judgment in these proceedings.”21 The parties then agreed that there would be a single round of further pleadings. In its memorial on the merits, Mexico claimed that the United States had violated its international legal obligations to Mexico by failing to inform its nationals, without delay, of their rights under Article 36(1), and that “without delay” meant prior to interrogation or other prejudicial acts by U.S. authorities.22 Further, Mexico claimed that the United States was failing to allow defendants to raise such violation of the Vienna Convention as a basis for challenging their convictions and sentences, and that this failure constituted a separate violation of international law. In particular, Mexico stated that applying rules of national law (in particular, the doctrine of procedural default) so as to preclude raising the Vienna Convention issue in federal courts violated the United States’ international legal obligation
15 Verbatim Record (Jan. 21, 2003), Avena and Other Mexican Nationals (Mex. v. U.S.), Provisional Measures, ICJ Doc. CR 2003/2, para. 1.4. 16 Id., para. 1.10. 17 Id., paras. 3.10, 3.11. 18 Id., paras. 3.12–3.17. 19 Id., paras. 3.18–3.25. 20 Id., para. 3.26. 21 Avena and Other Mexican Nationals (Mex. v. U.S.), Provisional Measures (Feb. 5, 2003), 42 ILM 309, para. 59 (2003); see William Aceves, Case Report, 97 AJIL 923 (2003). 22 Memorial of Mexico, paras. 169–208 (June 20, 2003), Avena and Other Mexican Nationals (Mex. v. U.S.), Judgment (Mar. 31, 2004), 43 ILM 581 (2004).
P1: JtR/KAC P2: IWV 0521750717c02 CB951-Murphy
30
0 521 75071 7
August 5, 2005
22:4
United States Practice in International Law 2002–2004
to give full effect to the purpose of Article 36.23 Although the Vienna Convention issue had been taken into account as part of the clemency review process in individual U.S. states, Mexico contended that doing so was an insufficient remedy, largely because violations of the Vienna Convention were given basically no weight in the clemency process, notwithstanding efforts by the Department of State encouraging states to consider that issue.24 With respect to such postconviction review, Mexico emphasized that the United States had misinterpreted the ICJ’s holding in LaGrand. In that case, the Court found that if “nationals of the Federal Republic of Germany [were] nonetheless . . . sentenced to severe penalties” without their right to consular notification having been respected, the United States, “by means of its own choosing, shall allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth” in the Vienna Convention.25 Mexico argued that the means chosen must be designed to . . . provide an effective remedy that gives full effect to the obligations of the Vienna Convention. If the U.S. legal system does not provide the necessary means to afford an effective remedy, . . . then the United States is under an obligation to amend its domestic laws.26 Mexico requested as relief that the ICJ (1) declare that the United States had violated its international obligations to Mexico, (2) provide restitutio in integrum by ordering the United States to vacate the convictions and sentences of the fifty-four Mexican nationals, by excluding all evidence obtained in violation of Article 36 in any future criminal proceedings against them, and by prohibiting the application of U.S. domestic legal doctrines that would bar them from obtaining relief from violations of the Vienna Convention; and (3) order cessation and a guarantee of nonrepetition by the United States.27 In its countermemorial, the United States challenged the Court’s jurisdiction over aspects of Mexico’s claims that went beyond an interpretation of the Vienna Convention.28 According to the United States, many of Mexico’s claims were “fundamentally addressed to the treatment of Mexican nationals in the federal and state criminal justice systems of the United States and, more broadly, to the operation of the United States criminal justice systems as a whole.”29 Further, the United States asserted that Mexico’s claims were inadmissable for various reasons: Mexico was seeking to have the Court function as a court of criminal appeal; the Mexican nationals had not exhausted local remedies; some of the persons were U.S. nationals at the time of their arrest; in some cases, Mexico had knowledge of the breach of the Vienna Convention, yet failed to raise the matter promptly with the United States; and Mexico should not be allowed to invoke standards that Mexico itself does not follow in its own practice.30 With respect to the merits of the claims, the United States argued that Mexico had failed to prove that violations of the Vienna Convention had, in fact, occurred in the cases of the fifty-four Mexican nationals. Further, the United States argued that it had made good faith efforts to ensure compliance with Article 36(1)(b) generally, and that the U.S. criminal justice system and the clemency process gave “full effect” to Article 36(1).31 Any remedy for violating Article 36(1) should come in the form of 23
Id., paras. 209–38. Article 36(2) of the Vienna Convention provides:
The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended. 24
Memorial of Mexico, supra note 22, paras. 239–82. LaGrand, supra note 11, para. 128 (emphasis added). Memorial of Mexico, supra note 22, para. 283. 27 Id., paras. 353–55, 356–406. 28 The Court’s jurisdiction was based on Article I of the Vienna Convention’s Optional Protocol Concerning the Compulsory Settlement of Disputes, Apr. 24, 1963, 21 UST 325, 596 UNTS 487, to which both the United States and Mexico are party. 29 Counter-memorial of the United States, para. 3.2 (Nov. 3, 2003), Avena and Other Mexican Nationals (Mex. v. U.S.), Judgment (Mar. 31, 2004), 43 ILM 581 (2004). 30 Id., paras. 4.1–4.15. 31 Id., paras. 6.1–6.104, 7.1–7.35. 25 26
P1: JtR/KAC P2: IWV 0521750717c02 CB951-Murphy
0 521 75071 7
August 5, 2005
22:4
State Diplomatic and Consular Relations
31
“review and reconsideration” by appropriate U.S. authorities, and not by an order from the Court for the automatic exclusion of evidence or the voiding of convictions and sentences.32 At oral argument, the U.S. legal adviser submitted that 1.3. The LaGrand Judgment broke new ground in two respects. First, the Court called for the United States to take actions to implement its obligations under the Vienna Convention on Consular Relations by reviewing and reconsidering the results of a criminal proceeding. This was striking because no State party had previously understood that it was required to take account of a failure to carry out its obligations under the treaty in the administration of its criminal laws. As far as is known, . . . no State had ever done so. 1.4. In a second respect the Court went even further. It undertook to direct a sovereign State to include a specific new procedural step within its domestic legal system – namely, a targeted review and reconsideration of a criminal conviction and sentence in certain cases. In doing this the Court expressly left it to the United States to carry out this obligation in its domestic law by means of its own choosing. 1.5. The United States has conformed its conduct to the Court’s interpretation of the treaty in LaGrand. This has been possible only because the Court has left to us the choice of the proper means. Moreover, the United States has conformed its conduct with respect not only to German nationals, but with respect to all foreign nationals. . . . 1.6. The Court travelled a considerable distance in LaGrand; now, less than three years later, Mexico asks it to go further, much further. In disregard of basic principles of State sovereignty and the Convention’s specific object and purpose to regulate consular relations between States, Mexico asks the Court to interpret and apply the treaty as if it were intended principally to govern the operation of a State’s criminal justice system as it affects foreign nationals. Mexico asks the Court to find in this Convention a requirement that consular officers may intervene in an ongoing criminal investigation, including in the interrogation process, and participate in the foreign national’s defence like an attorney. With regard to remedies, Mexico would have the Court intrude even more deeply into the United States criminal justice system. Mexico asks the Court to decide that the Convention requires not review and reconsideration, as LaGrand provided, but automatic exclusions of evidence and the voiding of convictions and sentences in cases of breach. Mexico seeks a set of remedies given by no national court for a breach of Article 36, and mandated by no State’s statutes. .... 1.11. The role of the Court in this case is to interpret the Convention. It has no authority to create, revise, or implement a State’s domestic law. The line separating these functions is a sharp one that the Court has always respected. When the Court fashions remedies for breaches of international law, it does not attempt to penetrate the sovereignty of a State and itself reconfigure State systems to meet the international obligation. Instead, it assumes that States, having voluntarily undertaken the obligations contained in the treaty, may be counted on to carry them out. The assumption concerning the bona fides of a sovereign State and its elected or appointed public officials is, indeed, essential to the Court’s authority and the Court’s effectiveness. .... 1.22. The Court said in LaGrand that the choice of means for allowing the review and reconsideration it called for “must be left” to the United States. “Must be left.” Mexico would not leave this choice to the United States but have the Court undertake the review instead and decide at once
32
Id., paras. 8.1–8.58.
P1: JtR/KAC P2: IWV 0521750717c02 CB951-Murphy
0 521 75071 7
32
August 5, 2005
22:4
United States Practice in International Law 2002–2004 that the breach requires the conviction and sentence to be set aside in each case. But if the result is known, why review the cases at all? 1.23. This Court went far in LaGrand. Mexico says it didn’t go far enough. The United States respectfully but vigorously urges that it go no further.33
On March 31, 2004, the Court issued its opinion in the Avena case.34 The Court dismissed the U.S. objections to its jurisdiction, finding in most instances that Mexico’s submissions called for an interpretation of the Vienna Convention, a matter over which the Court had jurisdiction.35 As to admissibility, the Court found that the U.S. concern over the Court functioning as one of criminal appeal belonged to the merits,36 that the duty to exhaust local remedies did not apply where the injury to Mexico was both direct and through the violation of individual rights of its nationals,37 that the U.S. nationality of certain Mexican nationals belonged to the merits,38 that Mexico’s failure promptly to raise the breach did not constitute an implied waiver of Mexico’s rights,39 and that the nature of the Vienna Convention precluded the U.S. argument that Mexico should not be allowed to invoke standards that it did not follow itself.40 As to the merits, the Court found that the United States had violated various of its obligations under Article 36(1)(a), (b), and (c) of the Vienna Convention with respect to various detained Mexican nationals (the Court specified which nationals were affected by which violations).41 As a means of avoiding future violations, the Court noted that U.S. law enforcement personnel, upon detaining any individual in the United States (whether the person appeared to be a foreign national or not), could inform the individual that “should he be a foreign national, he is entitled to ask for his consular post to be contacted.”42 As to the issue of remedies, the Court found that the appropriate reparation in this case consists in the obligation of the United States of America to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals . . . , by taking account both of the violation of the rights set forth in Article 36 of the Convention and of paragraphs 138 to 141 of this Judgment[.]43 Among other things, paragraphs 138 to 141 of the Court’s judgment state that the process of review and reconsideration must entail “a procedure which guarantees that full weight is given to the violations of the rights set forth in the Vienna Convention” and “should occur within the overall judicial proceedings relating to the individual defendant concerned.”44 Moreover, the Court noted in a subsequent 33 Verbatim Record (Dec. 16, 2003), Avena and Other Mexican Nationals (Mex. v. U.S.), ICJ Doc. CR 2003/26, paras. 1.3–1.6, 1.11, 1.22–1.23. 34 Avena and Other Mexican Nationals (Mex. v. U.S.), Judgment (Mar. 31, 2004), 43 ILM 581 (2004); see Dinah L. Shelton, Case Report, 98 AJIL 559 (2004). 35 Avena and Other Mexican Nationals, supra note 34, paras. 26–35. 36 Id., para. 37. 37 Id., paras. 38–40. 38 Id., paras. 41–42. In its discussion on the merits, the Court found that Mexico had introduced evidence showing the nationality of the fifty-two individuals, which was not challenged by the United States. While the United States asserted the some of the individuals were or might be dual nationals (holding Mexican and U.S. nationality), the Court found that the United States failed to prove the U.S. nationality. Id., para. 57. 39 Id., paras. 43–44. 40 Id., paras. 45–47. 41 Id., paras. 106, 153. 42 Id., para. 64. The Court suggested that the
provision of such information could parallel the reading of those rights of which any person taken into custody in connection with a criminal offence must be informed prior to interrogation by virtue of what in the United States is known as the “Miranda rule”; these rights include, inter alia, the right to remain silent, the right to have an attorney present during questioning, and the right to have an attorney appointed at government expense if the person cannot afford one. Id.
43 44
Id., para. 153(9). Id., paras. 139–40.
P1: JtR/KAC P2: IWV 0521750717c02 CB951-Murphy
0 521 75071 7
August 5, 2005
22:4
State Diplomatic and Consular Relations
33
paragraph that “the clemency process, as currently practised within the United States criminal justice system, does not appear to meet the requirements described in paragraph 138 above.”45 Effects of Avena Case in U.S. Courts The International Court’s decision in the Avena case (along with its earlier decision in LaGrand ) were assessed by U.S. federal and state courts during 2004. Torres v. Oklahoma. One of the Mexican nationals in the Avena case, Osbaldo Netzahaulc´oyotl Torres Aguilera, was arrested by Oklahoma law enforcement authorities in July 1993 and was charged with having committed two murders during a burglary. He was not informed of his rights under the Vienna Convention and was convicted of murder and sentenced to death. Efforts in federal court to vacate the conviction and sentence as a remedy for the treaty violation were unsuccessful.1 Separately, Torres filed a petition with the Oklahoma Pardon and Parole Board for clemency. After the issuance of the Avena decision, the Legal Adviser of the U.S. Department of State wrote on April 23, 2004, to the Oklahoma Pardon and Parole Board, recounting the principal findings of the International Court. Further, the Legal Adviser stated: The Department of State requests that in its review of the case the Pardon and Parole Board give careful consideration to the pending clemency request of Mr. Torres, including by considering the failure to provide Mr. Torres with consular information and notification pursuant to Article 36 of the [Vienna Convention] and whether that failure should be regarded as having ultimately led to his conviction and sentence. We request that the Board give particular attention to the representations of the Government of Mexico on Mr. Torres’ behalf.2 On May 7, the Oklahoma Pardon and Parole Board recommended that Torres be granted clemency.3 On May 11, the Legal Adviser sent a second, nearly identical letter to the governor of Oklahoma.4 On May 13, the governor commuted Torres’s sentence to life without possibility of parole. Among other things, the press release issued by the governor’s office stated: The Governor also noted that Torres had not been notified of his right to contact the consulate of his native Mexico to seek legal representation. Such rights are ensured under the 1963 Vienna Convention on Consular Relations. Signed by the U.S. in 1969, that treaty is also important in protecting the rights of American citizens abroad. The International Court of Justice ruled on March 31 that Torres’ rights were violated because he had not been told about his rights guaranteed by the 1963 Vienna Convention. Under agreements entered into by the United States, the ruling of the ICJ is binding on U.S. courts. “I took into account the fact that the U.S. signed the 1963 Vienna Convention and is part of that treaty,” the Governor said.
45
Id., para. 143. Torres v. Mullin, 317 F.3d 1145 (10th Cir. 2003), cert. denied, 540 U.S. 1035 (2003). For Justice Breyer’s dissent regarding the denial of the petition for certiorari, see 540 U.S. at 1035 (“This case raises important questions concerning the relation between, on the one hand, the domestic law of the United States, and, on the other, decisions of the International Court of Justice interpreting the Convention.”). 2 Letter of William H. Taft IV, U.S. Dep’t of State Legal Adviser, to Susan B. Loving, chairperson, Oklahoma Pardon and Parole Board (Apr. 23, 2004) (on file with author). 3 Office of Governor Brad Henry, Press Release: Governor Henry Grants Clemency to Death Row Inmate Torres (May 13, 2004), at . 4 Letter of U.S. Dep’t of State Legal Adviser William H. Taft IV to Brad Henry, Governor of Oklahoma (May 11, 2004) (on file with author). 1
P1: JtR/KAC P2: IWV 0521750717c02 CB951-Murphy
34
0 521 75071 7
August 5, 2005
22:4
United States Practice in International Law 2002–2004 “In addition, the U.S. State Department contacted my office and urged us to give ‘careful consideration’ to that fact.”5
In addition to pursuing clemency, Torres had filed an application for postconviction relief from the Oklahoma Court of Criminal Appeals, asking it to take account of the ICJ’s decision in Avena. On the same day that the governor commuted Torres’s sentence, the Oklahoma Court of Criminal Appeals issued an order staying execution and remanding the case for an evidentiary hearing on whether Torres had been prejudiced by the Vienna Convention violation or by ineffective assistance of counsel. The five-judge panel was split, with three judges in favor of the order and two dissenting. In explaining the relevance of the Avena decision to the court’s stay and remand, Judge Charles S. Chapel, in a concurring opinion, stated: The Vienna Convention is a multinational treaty respecting consular relations, which provides that law enforcement authorities shall inform detained foreign nationals of their right to contact consular officials for assistance. Both the United States and Mexico are signatories to the Convention. The Convention itself does not specify an enforcement mechanism. That mechanism is contained in the Optional Protocol, ratified along with the Convention itself, which provides that states may bring disputes under the Vienna Convention to the International Court of Justice for binding resolution. Under the treaty’s terms, while states ratifying the Vienna Convention are free to accept or reject the Optional Protocol, acceptance creates a binding obligation. The United States proposed this provision on dispute settlement and was instrumental in drafting the Optional Protocol, was the first state to bring a case under its provisions, and has consistently looked to the International Court of Justice for binding decisions in international treaty disputes, including those brought under the Vienna Convention. The United States was the first to bring a case in the International Court of Justice specifically under the Optional Protocol. The United States has also defended against eleven cases brought in the International Court of Justice, including Avena. There is no question that this Court is bound by the Vienna Convention and Optional Protocol. The Supremacy Clause provides that “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”6 The federal government’s power to make treaties is independent of and superior to the power of the states. Every state or federal court considering the Vienna Convention, for any reason, has agreed that it is binding on all jurisdictions within the United States, individual states, districts and territories. Several courts have expressed concern that any failure of United States courts to abide by the Vienna Convention may have significant adverse consequences for United States citizens abroad. “Treaty violations not only undermine the ‘Law of the Land,’ but also international law, where reciprocity is key. If American law enforcement officials disregard, or perhaps more accurately, remain unaware of the notification provision in Article 36, then officials of foreign signatories are likely to flout those obligations when they detain American citizens.”7 I share those concerns. At its simplest, this a matter of contract. A treaty is a contract between sovereigns. The notion that contracts must be enforceable against those who enter into them is fundamental to the Rule of Law. This case is resolved by that very basic idea. The United States voluntarily and legally entered into a treaty, a contract with over 100 other countries. The United States is bound by the terms of the treaty and the State of Oklahoma is obligated by virtue of the Supremacy Clause to give effect to the treaty. As this Court is bound by the treaty itself, we are bound to give full faith and credit to the Avena decision. I am not suggesting that the International Court of Justice has jurisdiction over this 5 6 7
Office of Governor Brad Henry, supra note 3. [Author’s Note: U.S. Const. art. VI, cl. 2.] [Author’s Note: United States v. Carrillo, 70 F.Supp.2d 854, 860 (N.D. Ill. 1999).]
P1: JtR/KAC P2: IWV 0521750717c02 CB951-Murphy
0 521 75071 7
August 5, 2005
22:4
State Diplomatic and Consular Relations
35
Court – far from it. However, in these unusual circumstances the issue of whether this Court must abide by that court’s opinion in Torres’s case is not ours to determine. The United States Senate and the President have made that decision for us. The Optional Protocol, an integral part of the treaty, provides that the International Court of Justice is the forum for resolution of disputes under the Vienna Convention. . . . In order to give full effect to Avena, we are bound by its holding to review Torres’s conviction and sentence in light of the Vienna Convention violation, without recourse to procedural bar. Common sense and fairness also suggest this result. Torres, like many foreign nationals, was unaware he had the right to contact his consulate after his arrest for murder. Torres’s Vienna Convention claim was generated by the State of Oklahoma’s initial failure to comply with a treaty. I believe we cannot fulfill the goal of a fair and just review of Torres’s case if we refuse to look at his Vienna Convention claims on the merits. .... . . . Other courts, considering Vienna Convention claims brought initially in state and federal courts, have used a three-prong test to determine prejudice: (1) the defendant did not know he had a right to contact his consulate for assistance; (2) he would have availed himself of the right had he known of it; and (3) it was likely that the consulate would have assisted the defendant. . . . The first of these prongs is uncontested. Regarding the second prong, Torres has provided this Court with an affidavit stating that he would have asked the Mexican consulate for help. . . .
Torres offers this Court a great deal of material regarding the third prong. The Mexican government has actively assisted Mexican nationals since well before Torres’s 1993 arrest. This tradition of active assistance extends back to the 1920s. In 1993, the Mexican government monitored and participated in capital cases throughout the United States involving Mexican nationals through consulates, Mexican government departments, and retained counsel in the United States. Mexico has a systematic procedure to offer very specific consular assistance in defending these cases. . . . These services were all available to Torres. This assistance would have been offered at the time of his arrest, had the Mexican consulate been informed of Torres’s detention under the Vienna Convention. After the Mexican government was told of Torres’s case, consular staff interviewed appellate counsel, Torres, and his family, and determined Torres had no criminal record in Mexico. Mexico retained counsel to review Torres’s case and assist his court-appointed attorney, and retained two investigators, a social worker, a mitigation specialist, two gang experts, and a bilingual neuropsychologist to develop evidence in Torres’s case. Torres provides this Court with information generated by these investigations. Torres has raised enough significant questions to warrant an evidentiary hearing on these issues. In accordance with the Avena decision, I have thoroughly reviewed and reconsidered Torres’s conviction and sentence in light of the consequences of the violation of his rights under the Vienna Convention. I have concluded that there is a possibility a significant miscarriage of justice occurred, as shown by Torres’s claims, specifically: that the violation of his Vienna Convention rights contributed to trial counsel’s ineffectiveness, that the jury did not hear significant evidence, and that the result of the trial is unreliable. This Court has decided to remand the case for an evidentiary hearing on the Vienna Convention and ineffective assistance of counsel issues. This decision comports with the Avena requirement of review and reconsideration.8 Medellin v. Dretke. In June 1993, Jose Ernesto Medellin, along with fellow gang members, raped and killed two teenage girls in Texas. Medellin, who was a Mexican national, was arrested, convicted, and sentenced to death in Texas state courts. Medellin pursued state court appeals and habeas corpus 8 Torres v. Oklahoma, No. PCD-04-442, slip. op. at 2–5, 8–12 (Okla. Crim. App. May 13, 2004) (Chapel, J., concurring) (footnotes omitted), reprinted in 43 ILM 1227 (2004). The opinion appears to have drawn heavily on an amicus brief submitted in the case on April 30 by several international law experts and former diplomats.
P1: JtR/KAC P2: IWV 0521750717c02 CB951-Murphy
36
0 521 75071 7
August 5, 2005
22:4
United States Practice in International Law 2002–2004
proceedings without success. In November 2001, Medellin filed a federal petition for a writ of habeas corpus, raising for the first time a claim that at the time of his arrest he was not notified of his right to contact the Mexican consulate under Article 36 of the Vienna Convention on Consular Relations. The federal district court denied the petition, notwithstanding the decisions reached by the International Court in the LaGrand and Avena cases (Medellin was one of the Mexican nationals on death row identified by Mexico in the Avena case). On appeal, the Fifth Circuit Court of Appeals affirmed,9 explaining:
1.
Procedural default
The district court held that Petitioner’s Vienna Convention claim was procedurally defaulted. Petitioner all but concedes that, under Texas law, he did procedurally default on his Vienna Convention claim by not raising the issue at the trial stage. See Fisher v. Texas, 169 F.3d 295, 300–01 (5th Cir. 1999). Petitioner argues, however, that the state’s application of the procedural default rule in this case violates the Vienna Convention. To support this conclusion, Petitioner relies on the LaGrand Case (Germany v. United States of America), 2001 ICJ 104 (Judgment of June 27) (“LaGrand”). In LaGrand, the International Court of Justice held that procedural default rules cannot bar review of a petitioner’s claim. LaGrand at ¶¶90–91. We note that the International Court of Justice adhered to this position again in Avena and Other Mexican Nationals (Mexico v. United States of America), a case brought by Mexico on behalf of Petitioner and others. See 2004 ICJ 128 (Judgment of March 31) (“Avena” ) at ¶¶110–13, 153. The Supreme Court, prior to the Avena and LaGrand decisions, however, ruled that Vienna Convention claims, like Constitutional claims, can be procedurally defaulted, even in a death penalty case. Breard v. Greene, 523 U.S. 371, 375, . . . (1998). Though Avena and LaGrand were decided after Breard, and contradict Breard, we may not disregard the Supreme Court’s clear holding that ordinary procedural default rules can bar Vienna Convention claims. “If a precedent of [the Supreme Court] has direct application in a case [ . . . ], the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/American Express, 490 U.S. 477, 484 . . . (1989). That is, only the Supreme Court may overrule a Supreme Court decision. The Supreme Court has not overruled Breard. We are bound to follow the precedent until taught otherwise by the Supreme Court.
2.
No individually enforceable right under Article 36 of the Vienna Convention
Even if Petitioner were not procedurally barred from making his Vienna Convention claim, the case law of our Court precludes success on this claim. In making his Vienna Convention claim, Petitioner necessarily also argues that Article 36 creates an individually enforceable right. For this proposition, Petitioner again relies on LaGrand. The International Court of Justice held in LaGrand that Article 36 did create personal rights. LaGrand at ¶77. Again, we note that the International Court of Justice adhered to this position in Avena. See Avena at ¶40. A prior panel of this Court, however, held that Article 36 of the Vienna Convention does not create an individually enforceable right. Jimenez-Nava, 243 F.3d [192, 198 (5th Cir. 2001)] (“The sum of [petitioner’s] arguments fails to lead to an ineluctable conclusion that Article 36 creates judicially enforceable rights of consultation between a detained foreign national and his consular office. Thus, the presumption against such rights ought to be conclusive.”). Despite minor differences in this case and that presented in Jimenez-Nava, the Court’s holding in JimenezNava is inescapable. We are bound to apply this holding, the subsequent decision in LaGrand 9 Medellin v. Dretke, 371 F.3d 270 (5th Cir. 2004). For a similar result before the Fifth Circuit in a different case, see Plata v. Dretke, 2004 WL 1814089 (5th Cir. Aug. 16, 2004).
P1: JtR/KAC P2: IWV 0521750717c02 CB951-Murphy
0 521 75071 7
August 5, 2005
22:4
State Diplomatic and Consular Relations
37
notwithstanding, until either the Court sitting en banc or the Supreme Court say otherwise. “[N]o panel is empowered to hold that a prior decision applies only on the limited facts set forth in that opinion.” United States v. Smith, 354 F.3d 390, 399 (5th Cir.2003).10 On December 10, 2004, the U.S. Supreme Court granted a petition for a writ of certiorari in the case,11 such that the case is expected to be heard by the Court in 2005. Cauthern v. Tennessee. In 1987, Ronnie M. Cauthern was arrested for the murders of two U.S. army nurses stationed at Fort Campbell, Kentucky. Cauthern was born in Tennessee to a German father and Canadian mother, and was raised in Tennessee by his grandmother.12 At the time of his arrest, Cauthern looked and appeared to be a U.S. national, but was arguably a dual U.S. and German national.13 After he was convicted and sentenced to death, Cauthern filed a petition for postconviction relief in Tennessee courts, asserting in part that he was entitled to, but was not notified of, his right to seek German consular assistance under the Vienna Convention. In affirming the denial of the petition, the Court of Criminal Appeals of Tennessee stated: Through the Supremacy Clause of the United States Constitution, “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” U.S. Const. art. VI, cl. 2. Nevertheless, it does not automatically follow that the Supremacy Clause converts violations of treaty provisions into violations of constitutional rights. As persuasively reasoned in Murphy v. Netherland, 116 F.3d 97 (4th Cir.1997), Although states may have an obligation under the Supremacy Clause to comply with the provisions of the Vienna Convention, the Supremacy Clause does not convert violations of treaty provisions (regardless whether those provisions can be said to create individual rights) into violations of constitutional rights. Just as a state does not violate a constitutional right merely by violating a federal statute, it does not violate a constitutional right merely by violating a treaty. See Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314, 7 L.Ed. 415 (1829) (stating that a treaty must “be regarded in courts of justice as equivalent to an act of the legislature”). Id. at 100 (emphasis in original); see Whitney v. Robertson, 124 U.S. 190 . . . (1888) (“By the Constitution a treaty is placed on the same footing, and made of like obligation, with an act of legislation.”). Consequently, we are of the opinion that post-conviction relief does not reach a claimed violation of the Vienna Convention on Consular Relations. Furthermore, we conclude that, for purposes of this post-conviction proceeding, Article 36 of the Vienna Convention on Consular Relations creates no individual rights that are privately enforceable. As a general proposition, but not invariably true, international treaties do not create rights that are privately enforceable. See, e.g., United States v. Emuegbunam, 268 F.3d 377, 389–90 (6th Cir.) (collecting and discussing cases), reh’g en banc denied (2001). Because the consular-notification provision addresses the right of detained foreign nationals to have the consular post of the sending state notified of their detention, one arguable position is that Article 36 creates individual rights. On the other hand, relevant portions of the preamble to the Vienna Convention, such as the following, support the view that no judicially enforceable rights are implicated: “The purpose of [the] privileges and immunities [set forth in the treaty] is not to benefit individuals but to ensure the efficient performance of functions by consular posts.” Preamble to Vienna Convention on Consular Relations. . . . Furthermore, the first paragraph of Article 36 specifically provides that the article is drafted “[w]ith a view to facilitating the exercise of consular functions relating to nationals of the sending State.” Id., art. 36 . . . (emphasis added). 10 11 12 13
371 F.3d at 279–80. Medellin v. Dretke, 125 S.Ct. 686 (2004). Cauthern v. Tennessee, 145 S.W.3d 571, 582–84 (Tenn. Crim. App. 2004). Id. at 591–92, 595–96.
P1: JtR/KAC P2: IWV 0521750717c02 CB951-Murphy
38
0 521 75071 7
August 5, 2005
22:4
United States Practice in International Law 2002–2004 The United States Department of State adopts the view that the Vienna Convention creates state-to-state rights and obligations, not judicially enforceable individual rights. See United States v. Li, 206 F.3d 56, 63–64 (1st Cir.) (en banc), cert. denied, 531 U.S. 956 . . . (2000). Substantial deference, it should be noted, is to be accorded the State Department’s view in interpreting an international treaty. See El Al Israel Airlines v. Tsui Yuan Tseng, 525 U.S. 155 . . . (1999) (“Respect is ordinarily due the reasonable views of the Executive Branch concerning the meaning of an international treaty.”); Kolovrat v. Oregon, 366 U.S. 187, 194 . . . (1961) (“While courts interpret treaties for themselves, the meaning given them by the departments of government particularly charged with their negotiation and enforcement is given great weight.”). As for the United States Supreme Court, in a per curiam order denying two related petitions for writ of certiorari, the Court in Breard v. Greene, 523 U.S. 371 . . . (1998), left open the issue whether the consular-notification provision creates any private rights. Id. at 376 . . . (Court noted that Article 36 “arguably confers on an individual the right to consular assistance following arrest”). Given the lack of direction from the United States Supreme Court, we take our lead from the general principle that treaties are not presumed to create privately enforceable rights.14 Even, however, if we were to hold that Article 36 creates individual rights, the petitioners claim fails for additional reasons. First, the petitioner has waived his claim within the meaning of the Post-Conviction Procedure Act. . . . Second, the petitioner’s nationality, at best, is dual; his father was a German national, but the petitioner was born in the United States. The State Department’s official position . . . is that a person, such as the petitioner, may be treated solely as a United States citizen, which would obviate any requirement of consular notification. Last, the petitioner’s claim fails for the additional reason that he has not demonstrated how any violation of the treaty prejudiced his trials or requires that his convictions and/or sentences be set aside. We note that in Breard v. Greene, the Supreme Court observed that even if a Vienna Convention claim was “properly raised and proven, it is extremely doubtful that the violation should result in the overturning of a final judgment of conviction without some showing that the violation had an effect on the trial.” 523 U.S. at 377. . . . The petitioner’s prejudice argument is rather slim. He insists that had the German consul been contacted, consular involvement would have “insured [sic] that Mr. Cauthern received the expert and investigative resources necessary for a fair trial.” We regard the matter as highly speculative.15
Service of Process on Foreign Officials in United States Five students who participated in the 1989 Tiananmen Square protests in Beijing, China, filed suit in U.S. court in August 2000 against Li Peng, who in 1989 was the Chinese premier and in 2000 was president of the Chinese National People’s Congress. The suit alleged that Li Peng was responsible in 1989 for summary execution, arbitrary detention, torture, and other torts in violation of the Alien Tort Claims Act,1 the Torture Victim Protection Act of 1991,2 and various other U.S. laws and international agreements. Prior to reaching the merits of the allegations, the court faced an issue concerning whether the defendant, Li Peng, was properly served with process by the delivery of a copy of the summons and 14 [Author’s Note: For a similar decision during 2002–2004 by a Wisconsin state court that the Vienna Convention does not create individual rights in U.S. courts, see Wisconsin v. Navarro, 659 N.W.2d 487 (Wis. Ct. App. 2003) (case involving the suppression of evidence in a narcotics prosecution). Among other things, the court found that, in the LaGrand case, “the ICJ did not hold that Article 36 of the Vienna Convention creates legally enforceable individual rights that a defendant may assert in a domestic criminal proceeding to reverse a conviction.” Id. at 493.] 15 145 S.W.3d at 625–28. 1 28 U.S.C. §1350 (2000). 2 28 U.S.C. §1350 note (2000).
P1: JtR/KAC P2: IWV 0521750717c02 CB951-Murphy
0 521 75071 7
August 5, 2005
22:4
State Diplomatic and Consular Relations
39
complaint to a member of his U.S. Department of State diplomatic security detail. Li Peng had traveled to New York in August 2000 to attend the Millennium Conference of Presiding Officers of National Parliaments, an event sponsored by the United Nations and the International Parliamentary Union. An investigator for the plaintiffs determined that Li Peng was protected by an array of security provided by both the U.S. government and the New York police department. Based on that assessment, the plaintiffs on August 30 obtained an ex parte order from a federal district court judge (sitting as the “Part I” judge of the Southern District of New York). The order provided that service shall be accomplished by delivering a copy of the summons and complaint to any employee of the United States government or its agencies who is guarding defendant Li Peng during his stay in New York. Said employee is to forthwith provide said defendant with the said copy of the summons and complaint during defendant’s stay in New York.3 On August 31, plaintiffs served the summons and complaint on Robert Eckert, a member of the U.S. Department of State’s diplomatic security detail assigned to guard Li Peng. Eckert gave the papers to his superiors. They, in turn – rather than notifying Li Peng or turning the papers over to him – informed an official of the Chinese mission in New York of the delivery. Eckert was not given a copy of the judicial order itself, but plaintiffs produced evidence that he was shown one.4 On June 1, 2001, the U.S. government filed a statement of interest in the case expressing its view that such method of service is unconstitutional because it does not afford notice reasonably calculated, under the circumstances, to inform the party of the pending action and to afford him the opportunity to present his objections.5 According to the government, the mission of U.S. protective personnel is to protect dignitaries visiting the United States; it is not to serve as agents of those dignitaries for purposes of accepting service of process. If served with process directed at a foreign official, U.S. protective personnel are unlikely to relay the papers immediately and on their own to the protected dignitary. Instead, they are likely to seek guidance from appropriate persons within the U.S. government. As such, “[m]erely providing for the delivery of papers to United States protective personnel cannot be deemed ‘reasonably calculated’ to provide Li Peng with notice and an opportunity to respond to the summons and complaint.”6 Moreover, deeming U.S. protective personnel as agents for service of process impairs their protective mission since that mission “depends on the willingness of foreign dignitaries to permit United States protective personnel to have close access to them, and further depends on protective personnel enjoying the complete trust and cooperation of their protectees.”7 Finally, the U.S. government asserted that allowing such service of process would impair U.S. foreign relations since “deeming service complete upon delivery to United States protective personnel would . . . preclud[e] the United States, in appropriate cases, from seeking to quash any ex parte orders seeking to compel service, including in certain cases on individuals who may enjoy immunity from the Court’s jurisdiction, and from service of process.”8 On August 8, 2002, the district court found that service of process was complete when the papers were accepted by the member of the Department of State’s diplomatic security detail. The Department of State’s argument that its protective detail are not agents of the protectee for purposes of accepting service and delivering papers to the protectee are unavailing. The Part I Order 3 Zhou v. Li Peng, 2002 WL 1835608, at ∗ 2 (S.D.N.Y. Aug. 8, 2002) (the order is referred to as a “Part I Order”). The court based the order on a similar order that was issued in Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir. 1995). In that case, the summons and complaint were provided to U.S. government personnel, who then delivered them to the defendant as contemplated in the court’s order. However, neither the propriety of the method of service set forth in the order, nor the validity of the service in the absence of actual delivery to the defendant, was contested in Kadic or addressed in the U.S. government’s statement of interest in that case. The defendant did assert that he was immune from service of process, an assertion rejected by the Second Circuit. 4 2002 WL 1835608, at ∗ 3–5. 5 Statement of Interest of the United States of America (June 1, 2001), Zhou v. Li Peng, 2002 WL 1835608 (S.D.N.Y. Aug. 8, 2002) (No. 00-6446) (citations and footnote omitted). 6 Id. at 7. 7 Id. at 9. 8 Id. at 9–10.
P1: JtR/KAC P2: IWV 0521750717c02 CB951-Murphy
40
0 521 75071 7
August 5, 2005
22:4
United States Practice in International Law 2002–2004 does not require service on an agent of Li Peng; rather, it required service on those law enforcement officers closest to Li Peng and accessible to plaintiffs because of the security net around the former Chinese Premier. The purpose of plaintiffs’ ex parte motion for an order authorizing an alternate means of service is so they can effect service in a non-traditional way, which may include serving persons who are not agents of the defendant for accepting service. Although the Department of State’s Security Detail’s function is to provide security and not serve process, a tangential effect of their existence should not be the immunization of protectees from service of process. If a protectee, like Li Peng, wishes to assert an immunity defense or raise any issues concerning human rights law or the power to conduct foreign relations, those arguments should be presented in a court of law. The physical presence of a Security Detail does not insulate a protectee from the judicial process or empower the Department of State to determine unilaterally who among its protectees can be served with legal process. Finally, the Government’s argument is further undermined by the axiomatic principle that service is authorized on non-agents of a defendant by the Federal Rules and the [New York Civil Practice Laws and Rules]. .... This Court is mindful of the difficult task the Department of State faces in protecting foreign dignitaries. However, the function of the Diplomatic Security Detail is to protect foreign dignitaries, like Li Peng, from physical harm, not service of process.9
In September 2003, however, the district court vacated the August 30, 2002 order authorizing an alternative means of service.10 The court found that because the order compelled the U.S. government to take a particular action, the order infringed upon the government’s sovereign immunity from judicial proceedings in the absence of an express waiver.11 Further, the court found that the government’s immunity was not statutorily waived by the Administrative Procedure Act (APA),12 in part because a government agency’s decision that is committed to its discretion – in this case, the Department of State’s decision to protect Li Peng from harm – is not reviewable under the APA.13
2002 WL 1835608, at ∗ 14–15 (citations and footnote omitted). Zhou v. Li Peng, 286 F.Supp.2d 255 (S.D.N.Y. 2003). 11 Id. at 262–63. 12 See 5 U.S.C. §702 (2000). 13 286 F.Supp.2d at 263–64. 9
10
P1: ICD 0521750717c03
CB951-Murphy
0 521 75071 7
August 6, 2005
11:3
Chapter III State Jurisdiction and Immunities Overview During the course of 2002–2004, numerous cases involving transnational activity arose in U.S. courts, requiring those courts to consider various issues, such as whether they had jurisdiction over a foreign defendant, whether they should exercise jurisdiction over suit by a foreign plaintiff against a foreign defendant, and, if jurisdiction did exist, whether U.S. or foreign law should apply to the dispute. There were also numerous cases in U.S. courts concerning the immunity of a foreign state or its instrumentalities from the jurisdiction of U.S. courts. These cases, brought pursuant to the Foreign Sovereign Immunities Act (FSIA), typically entailed the interpretation of one of the several exceptions to sovereign immunity contained in the FSIA, such as whether the immunity had been waived or whether the state had engaged in a commercial activity giving rise to the action. A particularly robust area of litigation involved an exception to sovereign immunity enacted in 1996 covering situations where a foreign terrorist state causes injury or death by an act of torture, extrajudicial killing, or certain other serious actions. Numerous high-profile judgments were issued under this exception and concerns with the ability of claimants to execute those judgments against foreign state assets led to further amendments of the law. Finally, various cases also arose concerning the diplomatic and consular immunities of individuals, as well as “head of state” immunity, such as a case concerning China’s former president, Jiang Zemin.
Jurisdiction Extraterritorial Application of U.S. Criminal Statutes In several cases decided during 2002–2004, U.S. appellate courts considered the application of U.S. law to crimes committed on foreign vessels outside U.S. territory. United States v. Suerte. Defendant Suerte – a Philippine national and resident of Colombia who had never entered U.S. territory – was captain of a freighter registered in Malta and owned by a member of a drug-trafficking organization. In August 2000, the freighter attempted to rendezvous with speedboats on the high seas for the purpose of loading cocaine from Venezuela for transport to Europe. The United States received permission from Malta to board and search the freighter, and to enforce U.S. laws over the freighter and its crew. Thereafter, the United States arrested Suerte and charged him with conspiracy to possess, and with intent to distribute, cocaine on board a vessel subject to U.S. jurisdiction, in violation of the Maritime Drug Law Enforcement Act (MDLEA).1 Suerte moved to dismiss the indictment on the ground that he had no connection to the United States and that the exercise of U.S. jurisdiction was therefore an unconstitutional denial of due process under the Fifth Amendment. A U.S. district court, reviewing principles of extraterritorial jurisdiction under international law, agreed and consequently dismissed the indictment.2 On appeal, the Fifth Circuit Court of Appeals vacated the district court’s decision and remanded the case for further consideration. Since Congress enacted the MDLEA under the Piracies and Felonies Clause of the U.S. Constitution, the circuit court found that at least in circumstances where the flag state has consented to the application of U.S. law, the Fifth Amendment’s Due Process Clause does not operate to impose a nexus requirement for applying the statute.3 In reaching this conclusion, the 1
46 U.S.C. app. §1903 (2000). United States v. Suerte, No. CRIM. 00-0659, 2001 WL 1877264 (S.D. Tex. June 6, 2001). U.S. Const. art. I, §8, cl. 10 (“[t]he Congress shall have the power . . . [t]o define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations”). 2 3
41
P1: ICD 0521750717c03
CB951-Murphy
42
0 521 75071 7
August 6, 2005
11:3
United States Practice in International Law 2002–2004
court reviewed early Supreme Court opinions addressing the extraterritorial application of laws that were based on the Piracies and Felonies Clause and that criminalized felonious conduct by foreign citizens on the high seas.4 On the specific question of whether international law requires a nexus between Suerte and the United States, the Fifth Circuit found that Malta’s consent to the exercise of U.S. jurisdiction constituted a waiver of any rights that the state might otherwise have had under international law. The court concluded that the power “to define and punish Piracies and Felonies committed on the high seas, and Offenses against the Law of Nations” is “the only specific grant of power to be found in the Constitution for the punishment of offenses outside the territorial limits of the United States.” S. Doc. No. 103-6, at 304 (emphasis added). The MDLEA represents an extremely limited exercise of that power. For certain persons not aboard United States vessels or in United States customs waters, it proscribes drug trafficking only aboard a stateless vessel or, as in the case at hand, a vessel whose flag nation consents to enforcement of United States law. Enforcement of the MDLEA in these circumstances is neither arbitrary nor fundamentally unfair. . . . Those subject to its reach are on notice. In addition to finding “that trafficking in controlled substances aboard vessels . . . presents a specific threat to the security and societal well-being of the United States”, Congress has also found that such activity “is a serious international problem and is universally condemned”. 46 U.S.C.App. §1902 (emphasis added). Along this line, the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, opened for signature 20 Dec. 1988, 28 I.L.M. 493, to which Malta and the United States are signatories, provides as its purpose: “to promote cooperation among the Parties so that they may address more effectively the various aspects of illicit traffic in narcotic drugs and psychotropic substances having an international dimension”. Id. art. 2.5 United States v. Best. In May 2001, the U.S. Coast Guard stopped a Brazilian vessel located near the U.S. Virgin Islands, boarded and inspected the vessel, and then arrested defendant Best. At the time of the arrest, which occurred without Brazil’s consent, the vessel was outside U.S. territorial waters but within the U.S. contiguous zone. Best was subsequently indicted for attempting to smuggle aliens into the United States in violation of U.S. law.6 A U.S. district court dismissed the indictment for lack of jurisdiction because the defendant was seized in violation of international law. On appeal, the Third Circuit (Virgin Islands) noted that under the Ker-Frisbie doctrine, a court’s power to try a defendant is ordinarily not affected by the manner in which the defendant is brought to trial.7 The court further noted that the doctrine is inapplicable to cases in which a person is forcibly abducted from a foreign country in violation of the express language of a treaty or established practice thereunder.8 In this case, the district court had referred to Article 24 of the Convention on the Territorial Sea and Contiguous Zone,9 Article 22 of the Convention on the High Seas,10 and Article 33 of the UN Convention on the Law of the Sea11 in finding that the arrest violated international law. The Third Circuit noted, however, that Brazil is not a party to the first two treaties and that the United States is not a party to the third treaty.12 Since the treaties therefore did not limit the application of the Ker-Frisbie doctrine, the lower court’s dismissal of the indictment was reversed. 4 United States v. Suerte, 291 F.3d 366 (5th Cir. 2002) (citing United States v. Palmer, 16 U.S. (3 Wheat.) 610, 630 (1818) (“The constitution having conferred on congress the power of defining and punishing piracy, there can be no doubt of the right of the legislature to enact laws punishing pirates, although they may be foreigners, and may have committed no particular offence against the United States.”)). 5 Id. at 376–77. 6 See 8 U.S.C. §1324 (2000). 7 United States v. Best, 304 F.3d 308, 311 (3d Cir. (Virgin Islands) 2002) (citing Ker v. Illinois, 119 U.S. 436 (1886); Frisbie v. Collins, 342 U.S. 519 (1952)). 8 Id. at 314 (citing United States v. Alvarez-Machain, 504 U.S. 655, 662 (1992)). 9 Apr. 29, 1958, 15 UST 1606, 516 UNTS 205. 10 Apr. 29, 1958, 13 UST 2312, 450 UNTS 82. 11 Dec. 10, 1982, S. Treaty Doc. No.103-39 (1994), 1833 UNTS 397, reprinted in 21 ILM 1261 (1982). 12 304 F.3d at 315.
P1: ICD 0521750717c03
CB951-Murphy
0 521 75071 7
August 6, 2005
11:3
State Jurisdiction and Immunities
43
United States v. Neil. The defendant in this case was a national of St. Vincent and the Grenadines, and was employed on a Panamanian cruise ship that departed from, and returned to, a California port. In October 2000, the vessel was in Mexican territorial waters on a round-trip cruise when the defendant molested a young girl. Upon return to the United States, the defendant confessed to the act and was tried and convicted of sexual contact with a minor in violation of a federal statute that criminalizes molestation in the “special maritime and territorial jurisdiction of the United States.”13 Congress has defined such jurisdiction as including, “[t]o the extent permitted by international law, any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States.”14 The defendant appealed, arguing that the district court lacked jurisdiction since international law does not permit the exercise of such extraterritorial jurisdiction. The Ninth Circuit found that Congress intended the statute to apply extraterritorially15 and that international law supported such jurisdiction in this case based on the territorial and the passive personality principles. With respect to the territorial principle, the court noted that the molestation occurred on a cruise that originated and terminated in the United States; the defendant was arrested in the United States; and the victim is a U.S. national who lives and attends school in the United States.16 With respect to the passive personality principle, the crime was committed against a U.S. national. While the court noted that this principle is generally not applied by the United States to ordinary torts and crimes, the court viewed the molestation statute’s reliance on the broad scope of the “special maritime and territorial jurisdiction” statute as reflecting congressional intent to invoke the passive personality principle in the circumstances of this case.17 United States v. Yousef. In 1995, five individuals were involved in a plan to plant bombs on board twelve U.S.-flag airliners operating on routes from southeast Asia to the United States. When the plans were uncovered in the Philippines, the individuals fled. One of the individuals, Ramzi Yousef, was arrested in Pakistan. Thereafter, he was transported to the United States on charges relating to the 1993 bombing of the World Trade Center. After arriving in the United States, he was also indicted for the conspiracy to bomb U.S. commercial airliners in southeast Asia. In 1998, Yousef and a co-defendant were convicted of the conspiracy in a jury trial before a U.S. federal court. The defendants challenged the convictions, stating that the court did not have extraterritorial jurisdiction over defendants’ attempts to damage aircraft in foreign air commerce. In the course of affirming the convictions, the Second Circuit Court of Appeals found that the statutes under which the defendants were charged reflected an intent of Congress to apply the laws extraterritorially.18 Those statutes included 18 U.S.C. §32, which criminalizes the placing of a bomb on aircraft registered in other countries while in flight, no matter where the attack is committed, and provides for U.S. jurisdiction over such a crime whenever “an offender is afterwards found in the United States.”19 This statute was used to cover a “test run” made by the conspirators, in which they successfully planted a bomb on a Philippines airliner in 1994. Defendant Yousef challenged the use of this statute because he had not been “found” in the United States but, instead, was involuntarily transported to the United States. The Second Circuit rejected that characterization of the meaning of the statute,20 citing to a similar case before the D.C. Circuit Court of Appeals, United States v. Yunis.21 Moreover, the Second Circuit noted that 18 U.S.C. §32 was enacted to implement the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation,22 which uses the words “present in” rather than “found in.”23 13 14 15 16 17 18 19 20 21 22 23
18 U.S.C. §2244(a)(3) (2000). 18 U.S.C. §7(8) (2000). United States v. Neil, 312 F.3d 419, 421–22 (9th Cir. 2002). Id. at 422. Id. at 422–23. United States v. Yousef, 327 F.3d 56, 86–88 (2d Cir. 2003). 18 U.S.C. §32 (2000). 327 F.3d at 88–89. 924 F.2d 1086 (D.C. Cir. 1991). Sept. 23, 1971, 24 UST 565, 974 UNTS 177. 327 F.3d at 89–90.
P1: ICD 0521750717c03
CB951-Murphy
44
0 521 75071 7
August 6, 2005
11:3
United States Practice in International Law 2002–2004
Yousef also challenged the extraterritorial application of the U.S. criminal statutes by arguing that customary international law does not provide a basis for such jurisdiction, and U.S. law is subordinate to customary international law. The Second Circuit rejected this argument on three grounds. First, U.S. law is not subordinate to customary international law. While it is preferable to interpret U.S. law, where possible, so as not to conflict with international law, if a U.S. statute is unambiguous then it must be enforced by U.S. courts irrespective of whether the statute conforms with customary international law.24 Second, in this instance, the aut dedere aut punire (“extradite or punish”) jurisdiction created by the Montreal Convention supported the exercise of U.S. jurisdiction, such that there was no conflict between U.S. law and international law.25 Third, even customary international law provides a basis for the exercise of U.S. jurisdiction under the statutes, pursuant to the “objective territorial,” “protective,” and “passive personality” principles.26 With respect to 18 U.S.C. §32, rather than look to the “universality principle” to support the statute (as the district court had done),27 however, the Second Circuit found that the “protective principle” of customary international law applied.28 Extraterritorial Application of U.S. Environmental Statutes In 2002–2004, various U.S. federal courts considered the extraterritorial application of a key U.S. environmental statute, the National Environmental Policy Act (NEPA).1 In Natural Resources Defense Council v. Department of the Navy,2 a federal district court considered the U.S. Navy’s Littoral Warfare Advanced Development (LWAD) program, whose goal is to develop technologies that protect vessels from enemy submarines in the relatively shallow shelf areas (littoral areas) extending as close as a few miles, to as far as hundreds of miles, offshore. Among other things, in order to detect increasingly quiet enemy submarines, the program is conducting research using intense sonar pulses at low frequencies that travel hundreds of miles.3 In 2002, the Natural Resources Defense Council (NRDC) filed suit to enjoin such active sonar tests until the Navy complied with several U.S. environmental laws, including the environmental reviews required by NEPA. According to the NRDC, active sonar can adversely affect a variety of ocean species, including marine mammals.4 In its pleadings, the NRDC relied, in part, on the 1993 decision of the D.C. Circuit Court of Appeals in Environmental Defense Fund v. Massey.5 In that case, the court found that NEPA required an environmental impact statement for major federal actions affecting the quality of the human environment in the Antarctic. The U.S. government responded to the suit by arguing, among other things, that the determination of whether the effects might fall within or outside U.S. territorial waters must occur in the context of individual sonar tests rather than with respect to the program as a whole.6 On such a test-by-test basis, if the Navy determines that a test has potential effects outside U.S. territory, the Navy engages in an environmental analysis – but as required by Executive Order 12,114,7 not by NEPA. According 24
Id. at 92–93. Id. at 94–96. Id. at 91 n.24, 96. 27 See id. at 97–108. The Second Circuit criticized the district court for “misplaced reliance” on a treatise – the Restatement (Third) of the Foreign Relations Law of the United States – as a primary source of the customary international law of universal jurisdiction, and rejected the idea that “contemporary international law scholars . . . are an authentic source of customary international law, perhaps even more relevant than the practices and acts of states.” Id. at 99, 101. 28 Id. at 110–11. 1 42 U.S.C. §§4321–4370f (2000). Under NEPA, an agency must prepare an environmental impact statement for any proposed “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. §4332(C). 2 No. 01-07781, 2002 WL 32095131 (C.D. Cal. Sept. 17, 2002). 3 For further information on the LWAD program, see . 4 See, e.g., Marc Kaufman, Whales’ Plight Revives Sonar Theory, Wash. Post, July 11, 2004, at A1 (report on a near-mass stranding of healthy melon-headed whales in Hawaii); Marc Kaufman, Navy Tests Linked to Beaching of Whales; Ear Bleeding Consistent with Intense Noise, Wash. Post, June 15, 2000, at A3 (reporting on a mass stranding of healthy beaked whales in the Bahamas at a time of Navy testing in the area); see also P. D. Jepson et al., Gas-Bubble Lesions in Stranded Cetaceans, 425 Nature 575 (2003). 5 986 F.2d 528 (D.C. Cir. 1993). 6 Defendants’ Reply to Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for Summary Judgment & Opposition to Plaintiffs’ Motion for Summary Judgment at 2, 26–40 (July 8, 2002) [hereinafter Defendants’ Reply], Natural Res. Def. Council v. Dep’t of the Navy, 2002 WL 32095131 (C.D. Cal. Sept. 17, 2002) (No. 01-07781). 7 Exec. Order No. 12,114, 32 C.F.R. pt. 187 (2001). 25 26
P1: ICD 0521750717c03
CB951-Murphy
0 521 75071 7
August 6, 2005
11:3
State Jurisdiction and Immunities
45
to the government, NEPA’s requirements are not applicable to actions with potential effects outside of U.S. territorial waters, including effects on the exclusive economic zone (EEZ).8 The government asserted that the reasoning in Massey was superseded by the Supreme Court’s 1993 holding in Smith v. United States.9 In that case, the Court held that the waiver of sovereign immunity under the Federal Tort Claims Act10 (FTCA) did not apply to tort claims arising in Antarctica. The Court’s reasoning was that the plain language of the statute did not provide for extraterritorial application. Moreover, in case there was any doubt about the interpretation of the statute, the government noted that there was a long-standing legal presumption in U.S. law against such application. In Natural Resources Defense Council v. Department of the Navy, the government argued that the Supreme Court in Smith had not only decline[d] to extend a domestic statute to Antarctica based on the presumption against extraterritoriality, it specifically rejected the notion that the presumption applies with less force in the global commons where conflicts with the laws of other nations may not be likely to occur. Instead, the Smith court reaffirmed, without qualification, the rule that “‘legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’” [507 U.S.] at 204 (internal citations omitted). Furthermore, the Massey court’s central tenet – that the decisionmaking occurred within the U.S. and was therefore subject to NEPA – lacks logic.11 Common sense dictates that most U.S. actions around the world involve decisionmaking within this country. The Massey court’s rationale would eviscerate the longstanding presumption against extraterritoriality by extending domestic statutes to almost any foreign setting in which the U.S. government operates. . . . .... While the U.S. EEZ is not part of U.S. territory, the United States enjoys certain “sovereign rights” in its EEZ, including sovereign rights “for the purpose of exploring, exploiting, conserving and managing natural resources,” as well as “jurisdiction” with regard to artificial islands, installations, and structures, and “the protection and preservation of the marine environment. [Koru North America v. United States, 701 F.Supp. 229, 232–33 (U.S.C.I.T. 1988)]. . . . However, the power to regulate the marine environment of the EEZ in certain respects does not translate into the automatic extension of U.S. statutes to an area outside of U.S. territory that Plaintiffs urge. Only Congress can act to extend the reach of a domestic statute. Congress has not so acted with respect to NEPA. “The question is whether Congress intended to make” NEPA applicable to the U.S. EEZ. [Foley Bros., Inc. v. Filardo, 336 U.S. 281, 284–85 (1949)]. At the time NEPA was enacted in 1969, the U.S. EEZ did not exist and U.S. jurisdiction extended no farther than the limits of the three-mile territorial sea, beyond which lay the high seas. See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 441, n.8 (1989). Therefore, Congress could not have intended that NEPA apply to the U.S. EEZ. Furthermore, the Supreme Court has spoken directly to the question of whether a domestic statute may be construed to apply on the high seas, which, at the time of the passage of NEPA, encompassed the entire area of the oceans outside sovereign territory including what is now the U.S. EEZ. The Supreme Court has held that “[w]hen it desires to do so, Congress knows how to place the high seas within the jurisdictional reach of a statute.” [EEOC v. Arabian American Oil Co., 499 U.S. 244, 258 (1991) (internal citations omitted). See also Sale v. Haitian 8 The U.S. exclusive economic zone, which extends two hundred nautical miles from the U.S. coast, was established in 1983. See Proclamation No. 5030, 3 C.F.R. 22 (1984). 9 507 U.S. 197 (1993). Smith was decided in early March, just over a month after Massey. 10 28 U.S.C. §§1346(b), 2401(b), 2671–2680 (2000). 11 This rationale is inconsistent with the line of cases refusing to extend NEPA to effects outside U.S. territory. See Greenpeace USA v. Stone, 748 F.Supp. 749 (D. Haw. 1990); NRDC v. NRC, 647 F.2d 1345 (D.C. Cir. 1981); NEPA Coalition of Japan v. Aspin, 837 F.Supp. 466 (D.D.C. 1993).
P1: ICD 0521750717c03
CB951-Murphy
46
0 521 75071 7
August 6, 2005
11:3
United States Practice in International Law 2002–2004 Centers Council, Inc., 509 U.S. 155, 173 (1993).] Congress’s inaction with respect to NEPA once the EEZ was established is in marked contrast to its actions with respect to other statutes. Congress enacted legislation to implement various rights enumerated in [the UN Convention on the Law of the Sea], including expressly extending certain statutes to the U.S. EEZ. . . . .... Case law is clear that U.S. Navy ships are not considered U.S. territory. Referring to the designation of a public vessel as “territory” of the country whose flag it flies, the Supreme Court has stated that “this, as has been aptly observed, is a figure of speech, a metaphor.” Cunard S.S. Co. v. Mellon, 262 U.S. 100, 123 (1923). . . . While a nation is empowered to regulate its public vessels outside of U.S. territory, the question of which laws apply must be analyzed on a case-by-case basis taking into account the presumption against extraterritoriality. Kollias v. D&G Marine Maintenance, 29 F.3d 67, 72 (2nd Cir. 1994) (“[W]e decline to characterize the [ship] as a kind of floating United States territory, where application of the [Act] would not be extraterritorial.”).12 In its September 2002 decision, the district court rejected the U.S. arguments. [I]t is undisputed that with regard to natural resource conservation and management, the area of concern to which NEPA is directed, the United States does have substantial, if not exclusive, legislative control of the EEZ. Because the United States exercises substantial legislative control of the EEZ in the area of the environment stemming from its “sovereign rights” for the purpose of conserving and managing natural resources, the Court finds that NEPA applies to federal actions which may affect the environment in the EEZ.13
In finding the reasoning in Massey persuasive, the Court emphasized that applying NEPA to decisions made within the United States was sensible given that NEPA is a “purely procedural statute” that itself had “no substantive effects outside the United States.”14 Moreover, the court distinguished the instant case from those in which NEPA was found to be inapplicable to federal actions taken outside the United States.15 “[I]n each of these cases, the court’s rationale for finding that NEPA did not apply to particular actions was that its application would implicate important foreign policy concerns or demonstrate a lack of respect for another nation’s sovereignty.”16 Here, the Court found that most if not all LWAD sea tests have been conducted in the open oceans or within the United States’ EEZ, areas which, like Antarctica as characterized by Massey, are global commons (and which in the case of the EEZ are under substantial United States legislative control). Accordingly, the foreign policy implications of applying NEPA in this case are minimal.17 On October 31, 2002, the court granted the plaintiffs’ motion for a preliminary injunction.18 After ordering the parties to engage in a settlement conference regarding the precise language of the injunction, the court issued a preliminary injunction on November 15, based on the resulting agreement. On August 26, 2003, the court issued a permanent injunction permitting the Navy to train and test the sonar in a wide range of oceanic conditions, while restricting it from operating in 12
Defendants’ Reply, supra note 6, at 30, 33–35, 38–39 (footnotes omitted). Natural Res. Def. Council, 2002 WL 32095131, at *12 (footnote omitted). Id. at *10. 15 See Natural Res. Def. Council v. Nuclear Regulatory Comm’n, 647 F.2d 1345 (D.C. Cir. 1981); NEPA Coalition of Japan v. Aspin, 837 F.Supp. 466 (D.D.C. 1993); Greenpeace USA v. Stone, 748 F.Supp. 749 (D. Haw. 1990). 16 Natural Res. Def. Council, 2002 WL 32095131, at *10. 17 Id. at *11. 18 Natural Res. Def. Council v. Evans, 232 F.Supp.2d 1003 (N.D. Cal. 2002). 13 14
P1: ICD 0521750717c03
CB951-Murphy
0 521 75071 7
August 6, 2005
11:3
State Jurisdiction and Immunities
47
certain sensitive areas where marine mammals are particularly abundant.19 The court directed that the parties enter into a detailed agreement consistent with its finding, which the parties did in October. Under that agreement, the Navy agreed to use its sonar only off the eastern seaboard of Asia, an area of about 1.5 million square miles.20 In another case involving NEPA, Center for Biological Diversity v. National Science Foundation,21 a federal district court considered the applicability of NEPA to research being conducted by the National Science Foundation (NSF) in the Gulf of California that had potential effects on Mexico’s EEZ. The research, which was commenced without an environmental impact statement under NEPA, entailed the firing of acoustic bursts to generate geophysical data.22 In October 2002, the court enjoined the NSF from pursuing its research: Defendant has failed to identify any foreign policy implications of the Research Project. It implies that any activities within the Exclusive Economic Zone (“EEZ”) of Mexico is beyond the reach of NEPA. This court disagrees. The waters of the Gulf of California are considered as the high seas, rather than the territorial waters of Mexico, for the purposes of U.S. law. The EEZ of Mexico which extends 200 miles from shore is not considered part of its territorial waters and under U.S. law is considered part of the “high seas” or the “global commons,” that is, territory which belongs to all nations but subject to the sovereignty of none. These areas have been explicitly found to be subject to the [Marine Mammal Protection Act] and NEPA. [United States v. Mitchell, 553 F.2d 996, 1004 (5th Cir. 1977)] (American citizen not subject to MMPA for capturing dolphins in the Bahamas, but court noted MMPA jurisdiction over Americans taking marine mammals on the high seas); Environmental Defense Fund, Inc. v. Massey, 986 F.2d 528, 529–530 (D.C. Cir. 1993) (NEPA applies to decision to incinerate waste in Antarctica, as part of the “global commons,” not subject to any nation’s sovereignty). The court finds that imposing the procedural requirements of NEPA does not impinge on the sovereignty of Mexico, since most of the research takes place outside Mexican territorial waters, and the decision making process for funding and planning the project occurred within the United States.23 In Pakootas v. Teck Cominco Metals,24 the U.S. Environmental Protection Agency in December 2003 issued an administrative order under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)25 to a Canadian corporation, Teck Cominco Metals, Ltd. (Teck) directing it to conduct a “remedial investigation/feasibility study.” Teck owned and operated a smelter in Trail, British Columbia, approximately ten miles north along the Columbia River from the U.S.–Canada border.26 The purpose of the administrative order was to have Teck investigate and determine the full nature of contamination at the Trail smelter site and whether contaminants were migrating into the Columbia River and then into the United States. Teck refused to comply with the order, contending 19
Natural Res. Def. Council v. Evans, 279 F.Supp.2d 1129 (N.D.Cal. 2003). See Marc Kaufman, Navy Agrees to Injunction Limiting Sonar Use, Wash. Post, Oct. 14, 2003, at A3. In November 2003, President Bush signed into law an amendment to the Marine Mammal Protection Act (MMPA) allowing the Secretary of Defense, after conferring with the Secretary of Commerce and the Secretary of the Interior, to exempt any action undertaken by the Department of Defense from compliance with the MMPA if the Secretary determines that it is necessary for national defense. National Defense Authorization Act, Fiscal Year 2004, Pub. L. No. 108-136, §319, 117 Stat. 1392, 1433–36 (2003). While the amendment did not immediately affect the permanent injunction (since the injunction was based on a failure to comply with several laws, including NEPA), the amendment did result in fewer restrictions on U.S. military ocean activities. 21 No. 02-5065, 2002 WL 31548073 (N.D. Cal. Oct. 30, 2002). 22 Id. at *1. 23 Id. at *3–4 (citation and footnotes omitted). 24 2004 WL 2578982 (E.D. Wash. Nov. 8, 2004). 25 42 U.S.C. §§9601–9675 (2000). 26 For the famous case regarding transboundary air pollution from the same smelter, see Trail Smelter Case (U.S. v. Can.), 3 R.I.A.A. 1911. 20
P1: ICD 0521750717c03
CB951-Murphy
48
0 521 75071 7
August 6, 2005
11:3
United States Practice in International Law 2002–2004
that CERCLA could not be applied extraterritorially to actions by a Canadian corporation taken within Canada.27 In 2004, U.S. members of the Confederated Tribes of the Colville Reservation sued Teck in U.S. court under the “citizen suit” provision of CERCLA to enforce the administrative order. Defendant Teck moved to dismiss the case. The district court first found that it had personal jurisdiction over the defendant under Washington state’s “long-arm” statute, since the plaintiffs alleged that defendant had engaged in intentional acts expressly aimed at, and causing effects in, the State of Washington. Turning to whether it had subject matter jurisdiction, the court accepted that the case involved an extraterritorial application of CERCLA to conduct occurring outside U.S. borders, although it noted that such application was not an attempt to regulate the discharges at the Trail smelter, but rather simply to deal with the effects thereof in the United States. The court further noted that Congress has the authority to enforce its laws beyond the territorial boundaries of the United States, but that it was a longstanding principle of U.S. law that, unless a contrary intent appears, Congress has meant to apply its laws only within the territorial jurisdiction of the United States.28 After reviewing the text and legislative history of CERCLA, the court found: There is no direct evidence that Congress intended extraterritorial application of CERCLA to conduct occurring outside the United States. There is also no direct evidence that Congress did not intend such application. There is, however, no doubt that Congress intended CERCLA to clean up hazardous substances at sites within the jurisdiction of the United States. That fact, combined with the well-established principle that the presumption against extraterritorial application generally does not apply where conduct in a foreign country produces adverse effects within the United States, leads the court to conclude that extraterritorial application of CERCLA is not precluded in this case. The Upper Columbia River Site is a “domestic condition” over which the United States has sovereignty and legislative control. Extraterritorial application of CERCLA in this case does not create a conflict between U.S. laws and Canadian laws.29 Consequently, the court denied the defendant’s motion to dismiss the case. By contrast, in Born Free USA v. Norton,30 plaintiffs sought an injunction to stop the import of eleven elephants from Swaziland, charging that, in granting import permits, the U.S. Fish and Wildlife Service had failed to conduct an environmental impact review as required by NEPA.31 Under the Convention on International Trade in Endangered Species (CITES),32 Swaziland is obligated to issue export permits for African elephants since they are listed as an endangered species under CITES Appendix I. Further, under CITES and the Endangered Species Act,33 the United States is obligated to issue import permits. In August 2003, the district court declined to enjoin the import, stating: In the present case, the Court is not dealing with environmental effects in a no-man’s land such as Antarctica, where the United States has some real measure of control; rather, it is dealing with environmental affects [sic] in a foreign sovereign nation. That nation has made an independent determination to proceed with the export of the elephants under CITES, has concluded that the export will not be detrimental to the species, and has determined that if the export is not possible, it will be necessary to cull the elephants. Absent some further indication from Congress, this Court is not inclined to take the step of requiring [the Fish and Wildlife Service] to conduct an environmental analysis aimed at second-guessing the validity of Swaziland’s determination.34 27 28 29 30 31 32 33 34
2004 WL 2578982 at *1. Id. at *5. Id. at *16. 278 F.Supp.2d 5 (D.D.C. 2003). Id. at 9, 10, 17. Mar. 3, 1973, 27 UST 1087, 993 UNTS 243. 16 U.S.C. §§1531–1544 (2000). 278 F.Supp.2d. at 20.
P1: ICD 0521750717c03
CB951-Murphy
0 521 75071 7
August 6, 2005
11:3
State Jurisdiction and Immunities
49
Foreign Sovereign Immunities Act Background The Foreign Sovereign Immunities Act (FSIA)1 is the sole basis for obtaining jurisdiction over a foreign state in U.S. courts. During 2002–2004, several FSIA cases were litigated in U.S. courts. Many dealt with the procedural aspects of filing such cases, whether corporations could invoke such immunity due to their relationship to a foreign government, and the ability to attach assets of foreign sovereigns. Since the FSIA provides a general grant of immunity to foreign governments, many cases also dealt with the various exceptions to that immunity. Each area is discussed in turn, with particular attention to the newest FSIA exception to immunity for certain acts by states listed as “terrorist states” by the U.S. Department of State. Application of FSIA to Pre-FSIA Events A U.S. national named Maria Altmann – who was born in Austria in 1916 and escaped to the United States after Austria was annexed by Nazi Germany in 1938 – was the heir to the owners of certain paintings by Gustav Klimt, which were seized by the Nazis in Austria. Ultimately, the paintings ended up in the Austrian Gallery of the Austrian government. In 1948 the heirs then living agreed to “donate” the paintings to the Austrian Gallery so as to secure Austrian export permits for other works of art that they owned.1 In 2000 Altmann sued in U.S. court seeking return of the Klimt paintings. The Austrian government claimed sovereign immunity, but Altmann asserted that the claim came within the expropriation exception to immunity under the FSIA.2 Austria argued, however, that in 1948, when the alleged wrongdoing occurred, the Austrian government enjoyed absolute immunity from suit in the United States, since the United States did not adopt a restrictive theory of immunity until issuance of the “Tate letter” in 19523 and the FSIA was not enacted until 1976. On May 4, 2000, the district court concluded that the FSIA applied to pre-1952 events.4 In reaching its decision, the district court drew upon the Supreme Court’s decision in Landgraf, 5 which stated that a statute expressly “commanding” retroactive application should be given that effect, but that the default rule is that a statute should normally not be read retroactively if it impairs a person’s rights, imposes new duties on him, or increases his liability for past conduct.6 Finding that the FSIA is “a jurisdictional statute that does not alter substantive legal rights,” the district court held that it could be applied retroactively.7 The circuit court agreed as to retroactive application, but on different grounds.8 The circuit court stated that Austria could not have legitimately expected to receive immunity for its wrongdoing even in 1948. At that time, U.S. courts deferred to the executive branch’s views, and the executive branch’s view was that it wanted U.S. courts to exercise their jurisdiction to pass upon the validity of Nazi acts.9 Austria sought and received a writ of certiorari from the U.S. Supreme Court. In November 2003, the U.S. Department of Justice, in conjunction with the U.S. Department of State, filed an amicus brief before the Supreme Court arguing that the FSIA does not authorize U.S. courts to exercise jurisdiction over an expropriation claim against a foreign state based on conduct that occurred before the FSIA’s enactment. 1
The FSIA is codified at 28 U.S.C. §§1330, 1602–11 (2000). Altmann v. Austria, 142 F.Supp.2d 1187, 1195 (C.D. Cal. 2001). 28 U.S.C. §1605(a)(3). 3 In a 1952 letter sent from the U.S. Department of State to the U.S. Department of Justice, the U.S. executive branch announced its adoption of the “restrictive” theory of foreign sovereign immunity, meaning that a state should be granted immunity only for its sovereign or public acts. Letter from Jack B. Tate, Acting Legal Adviser, to Philip B. Perlman, Acting Attorney General (May 19, 1952), reprinted in 26 Dep’t St. Bull. 984 (1952). 4 142 F.Supp.2d at 1201. 5 Landgraf v. USI Film Prods., 511 U.S. 244 (1994). 6 Id. at 262. 7 142 F.Supp.2d at 1201. 8 Altmann v. Austria, 317 F.3d 954, 962 (9th Cir. 2002). 9 Id. at 966. 1 2
P1: ICD 0521750717c03
CB951-Murphy
50
0 521 75071 7
August 6, 2005
11:3
United States Practice in International Law 2002–2004 This Court’s decisions governing non-retroactivity establish that, in the absence of a clear statement of contrary intent not present here, federal legislation does not apply new rules of substantive law to events long past. That principle has particular force in this case, where the type of conduct at issue is extensively addressed through treaties, agreements, and separate legislation that were all adopted against the background assumption that such claims could not be litigated in United States courts. .... . . . Long before the FSIA established the expropriation exception for the first time, the United States had entered into numerous treaties and executive agreements that addressed claims relating to the conduct of Germany and its Axis allies, as well as Austria, during World War II. The United States and other foreign nations entered into those agreements against the background assumption that foreign states could not be sued in United States courts. The retroactive application of the FSIA to pre-1952 conduct therefore would introduce significant new issues that the negotiators of those instruments could not have foreseen.10
Despite this submission, on June 7, 2004, the U.S. Supreme Court agreed that the FSIA could be applied retroactively to the Austrian government’s alleged wrongful act, but for reasons different from those expressed by the courts below. Landgraf ’s antiretroactivity presumption, while not strictly confined to cases involving private rights, is most helpful in that context. Cf. 511 U.S., at 271, n.25 (“[T]he great majority of our decisions relying upon the antiretroactivity presumption have involved intervening statutes burdening private parties”). The aim of the presumption is to avoid unnecessary post hoc changes to legal rules on which parties relied in shaping their primary conduct. But the principal purpose of foreign sovereign immunity has never been to permit foreign states and their instrumentalities to shape their conduct in reliance on the promise of future immunity from suit in United States courts. Rather, such immunity reflects current political realities and relationships, and aims to give foreign states and their instrumentalities some present “protection from the inconvenience of suit as a gesture of comity.” Dole Food Co. v. Patrickson, 538 U.S. 468, 479 (2003). Throughout history, courts have resolved questions of foreign sovereign immunity by deferring to the “decisions of the political branches . . . on whether to take jurisdiction.” Verlinden, 461 U.S. [480,] 486 [(1983)]. In this sui generis context, we think it more appropriate, absent contraindications, to defer to the most recent such decision – namely, the FSIA – than to presume that decision inapplicable merely because it postdates the conduct in question. .... This leaves only the question whether anything in the FSIA or the circumstances surrounding its enactment suggests that we should not apply it to petitioners’ 1948 actions. Not only do we answer this question in the negative, but we find clear evidence that Congress intended the Act to apply to preenactment conduct. To begin with, the preamble of the FSIA expresses Congress’ understanding that the Act would apply to all postenactment claims of sovereign immunity. That section provides: “Claims of foreign states to immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles set forth in this chapter.” 28 U.S.C. §1602 (emphasis added).
10 Brief for the United States as Amicus Curiae Supporting Petitioners, at 7–8, 18, Austria v. Altmann, 541 U.S. 677 (2004) (No. 03-13) (footnotes omitted).
P1: ICD 0521750717c03
CB951-Murphy
0 521 75071 7
August 6, 2005
11:3
State Jurisdiction and Immunities
51
Though perhaps not sufficient to satisfy Landgraf ’s “express command” requirement, 511 U.S., at 280, this language is unambiguous: Immunity “claims” – not actions protected by immunity, but assertions of immunity to suits arising from those actions – are the relevant conduct regulated by the Act; those claims are “henceforth” to be decided by the courts. As the District Court observed, . . . this language suggests Congress intended courts to resolve all such claims “in conformity with the principles set forth” in the Act, regardless of when the underlying conduct occurred. The FSIA’s overall structure strongly supports this conclusion. Many of the Act’s provisions unquestionably apply to cases arising out of conduct that occurred before 1976. . . . And there has never been any doubt that the Act’s procedural provisions relating to venue, removal, execution, and attachment apply to all pending cases. . . . In this context, it would be anomalous to presume that an isolated provision (such as the expropriation exception on which respondent relies) is of purely prospective application absent any statutory language to that effect. Finally, applying the FSIA to all pending cases regardless of when the underlying conduct occurred is most consistent with two of the Act’s principal purposes: clarifying the rules that judges should apply in resolving sovereign immunity claims and eliminating political participation in the resolution of such claims.11 Corporations as Agencies of Foreign Sovereigns Under section 1603(b) of the FSIA, a “foreign state” is defined to include an “agency or instrumentality” of the state. An “agency or instrumentality,” in turn, is defined as any separate legal entity which is not a U.S. national and which satisfies one of two prongs of section 1603(b): either the entity must be an “organ” of a foreign state or the entity must have a majority of its shares owned by a foreign state.1 Several cases during 2002–2004 addressed the issue of whether corporate entities are entitled to claim immunity under the FSIA.2 For example, in Dole Food Company v. Patrickson,3 Latin American banana workers brought a state court class action against multinational fruit and chemical companies. The companies impleaded certain chemical companies, collectively referred to as the Dead Sea Companies, that were indirectly owned by the Israeli government. The district court and the Ninth Circuit Court of Appeals found that the Dead Sea Companies were not “instrumentalities” of a foreign state under the FSIA because they were indirectly owned. Further, the district court found that the status of an entity under the FSIA is to be assessed at the time suit is filed. While the government of Israel indirectly owned the Dead Sea Companies at the time of the alleged wrongdoing, such ownership ended prior to the filing of this lawsuit, thus precluding the Dead Sea Companies from falling within the FSIA. The U.S. Supreme Court affirmed, addressing both the issue of whether foreign government ownership of the entity must be direct and whether ownership must exist at the time the complaint is filed. With respect to ownership, the Court found that a foreign state must own a majority of the corporation’s shares for the corporation to be an “instrumentality” of the state under the FSIA. In this case, Israel never had any direct ownership of shares in the Dead Sea Companies. While at certain times there were “intermediate corporate tiers” such that Israel indirectly owned the Dead Sea Companies, such “indirect subsidiaries of Israel” do not fall within the language of section 1603(b)(2). Among other things, the Court noted that section 1603(b)(2)’s reference to ownership of “shares”
11
Austria v. Altmann, 541 U.S. 677, 696–99 (2004) (footnotes omitted). 28 U.S.C. §1603(b) (2000). In addition to the cases discussed infra, see Abrams v. Societe Nationale des Chemins de fer Francais, 332 F.3d 173 (2d Cir. 2003) (finding defendant to be a separate legal entity wholly-owned by the French government and thus an “instrumentality” within the meaning of the FSIA, but remanding on the issue of whether it had such status at the time the claim arose); EIE Guam Corp. v. Long Term Credit Bank of Japan, 322 F.3d 635 (9th Cir. 2003) (finding a Japanese corporation responsible for resolution and collection of corporate notes to be an organ of the Japanese government and thus an “instrumentality” within the meaning of the FSIA). 3 538 U.S. 468 (2003). 1 2
P1: ICD 0521750717c03
CB951-Murphy
52
0 521 75071 7
August 6, 2005
11:3
United States Practice in International Law 2002–2004
demonstrated that Congress intended coverage to turn on formal corporate ownership. The Court acknowledged that the “veil” separating corporations and their shareholders may be pierced in certain exceptional circumstances, but found no such circumstances in this case.4 As for when the ownership must exist, the Court found that “instrumentality” status is determined at the time of the filing of the complaint. The Court noted that section 1603(b)(2) uses the present tense in speaking of “a majority of whose shares . . . is owned by a foreign state,” and further noted the principle that jurisdiction depends upon the state of things at the time the action is brought. The Court rejected the Dead Sea Companies’ efforts to compare foreign sovereign immunity with other immunities that are based on status at the time of the conduct giving rise to the suit. In this case, the ownership relationship between Israel and the Dead Sea Companies ended before the suit was commenced, and therefore the companies could not claim “instrumentality” status even if indirect ownership fell within the FSIA.5 In International Insurance Company v. Caja Nacional de Ahorro y Seguro,6 an Argentinian insurance company (Caja) sought to establish that it was owned by the government of Argentina. The Seventh Circuit rejected the affidavits submitted by Caja, including an affidavit submitted by its attorney, Horacio R. Crespo. The affidavits offered by Caja are not adequate to constitute a prima facie case that Caja is an instrumentality of Argentina. Sufficient evidence of the validity for a foreign instrumentality should be relatively simple to obtain. For example, an authenticated corporate document demonstrating ownership at the time of suit, or an affidavit of a duly authorized corporate or government officer, should be readily available, especially when an entity’s sovereign immunity is at stake. While we are not limiting what constitutes proof under all circumstances, the naked assertions of Caja’s attorneys are clearly insufficient to establish that Caja is wholly-owned by Argentina. . . . Additionally, we note that an affidavit executed outside the United States must include a statement that the affiant has made his declarations “under penalty of perjury under the laws of the United States of America.” 28 U.S.C. §1746. Mr. Crespo’s affidavit contained no such declaration. However, even if it had been properly executed, the affidavit only refers to a document that was apparently executed in 1998, and nothing therein indicates that, as of a relevant time, such as the time of this lawsuit in 2000, at least 50% of Caja was owned by the Argentinean government. . . . Therefore, we conclude that Caja has not presented sufficient prima facie evidence to establish that it is a foreign instrumentality under the FSIA such that it would be entitled to immunity from posting pre-judgment security.7 In USX Corporation v. Adriatic Insurance Company,8 the Third Circuit discussed the meaning of “organ” of a foreign government for purposes of the FSIA. In that case, a railroad sued in state court certain insurers in connection with antitrust actions against the railroad. The insurers filed contribution claims against an Ireland insurer, which removed the action to federal court on the ground that the Ireland insurer was owned by the government of Ireland and thus an “agency or instrumentality” of that government within the meaning of the FSIA. After removal, however, the district court allowed the Ireland insurer to amend its notice of removal to assert that it was actually an “organ” of the government of Ireland. The Third Circuit Court of Appeals found that the district court did not abuse its discretion in allowing such an amendment.9 Further, the Third Circuit affirmed that the Irish insurer was in fact an “organ” of the Irish government and, in so doing, discussed the meaning of that term under the 4 5 6 7 8 9
Id. at 473–77. Id. at 478–80. 293 F.3d 392 (7th Cir. 2002). For a discussion of the facts of this case, see infra this chapter. Id. at 398–99. 345 F.3d 190 (3d Cir. 2003). Id. at 203–06.
P1: ICD 0521750717c03
CB951-Murphy
0 521 75071 7
August 6, 2005
11:3
State Jurisdiction and Immunities
53
FSIA. The court noted that both the Ninth Circuit10 and the Fifth Circuit11 had developed flexible approaches when determining whether an entity qualifies as an “organ” of a state.12 The Third Circuit found that such flexibility was appropriate, given Congress’ desire to promote uniformity of decision (through removal to federal courts) and to avoid impairing U.S. foreign relations.13 According to the court, the starting point in determining whether an entity was an “organ” is to ask whether the entity engages in a public activity on behalf of the foreign government. In making this assessment, factors employed by both the Courts of Appeals for the Ninth and Fifth Circuits are relevant, although no one is determinative: (1) the circumstances surrounding the entity’s creation; (2) the purpose of its activities; (3) the degree of supervision by the government; (4) the level of government financial support; (5) the entity’s employment policies, particularly regarding whether the foreign state requires the hiring of public employees and pays their salaries; and (6) the entity’s obligations and privileges under the foreign state’s laws. To this list, we should add an additional factor: (7) the ownership structure of the entity. Under the organ prong, as opposed to the majority ownership prong of section 1603(b)(2), a foreign state might own only 10% of an entity; it might own directly 50% of the entity; or it might own even 100% of a holding company that owns 100% of the entity. On the other hand it is possible that a foreign state might not own any portion of any entity that nevertheless is its organ as section 1603(b)(2) does not require a foreign state to have any ownership interest in an entity for it to be its organ. Courts should consider how these different ownership structures might influence the degree to which an entity is performing a function “on behalf of the foreign government.”14 The court then applied these factors and found that the Ireland insurer was an “organ” of the government of Ireland given the government’s indirect ownership, its control over the insurer’s shares, and the government’s decision-making role.15 Waiver of Immunity Under the FSIA, a foreign state is not immune from the jurisdiction of U.S. courts where it has “waived its immunity either explicitly or by implication.”1 During 2002–2004, U.S. courts in numerous cases considered whether to apply this “waiver” exception so as to allow suit against a foreign government or its instrumentalities.2 For example, in Blaxland v. Commonwealth Director of Public Prosecutions, a U.S. resident, Christopher Blaxland, served as director of a publicly listed Australian company and also of some affiliated companies from 1986 to 1989. After resigning from the companies, Blaxland was charged by Australian authorities with fraud and other improper use of his position – charges that Blaxland asserted to be politically motivated. When he failed to appear for trial in Australia, an Australian court issued a warrant for his arrest, and the Australian government filed an extradition request with the U.S. government. Blaxland was extradited by the United States in October 1997, but he was ultimately acquitted in Australia.3 Upon returning to the United States, Blaxland filed suit against the Australian government and two of its employees for malicious prosecution, abuse of process, intentional infliction of emotional distress, 10 See EOTT Energy Operating Ltd. v. Winterthus Swiss Ins., 257 F.3d 992 (9th Cir. 2001); Gates v. Victor Fine Foods, 54 F.3d 1457 (9th Cir. 1995). 11 See Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841 (5th Cir. 2000). 12 345 F.3d at 206–07. 13 Id. at 207–09. 14 Id. at 209 (footnotes omitted). 15 Id. at 209–16. 1 28 U.S.C. §1605 (a)(1) (2000). 2 See, e.g., Gulf Res. Am., Inc. v. Congo, 370 F.3d 65 (D.C. Cir. 2004); Coyle v. P.T. Garuda Indonesia, 363 F.3d 979 (9th Cir. 2003); World Wide Minerals, Ltd. v. Kazakhstan, 296 F.3d 1154 (D.C. Cir. 2002); Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (“Pertamina”), 313 F.3d 70 (2d Cir. 2002); Philippines v. United States District Court, 309 F.3d 1143 (9th Cir. 2002). 3 Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1201–03 (9th Cir. 2003).
P1: ICD 0521750717c03
CB951-Murphy
54
0 521 75071 7
August 6, 2005
11:3
United States Practice in International Law 2002–2004
and false imprisonment. The defendants claimed immunity under the FSIA. Blaxland responded that the Australian government and its employees implicitly waived their immunity from suit in U.S. courts by seeking extradition. The Ninth Circuit noted that in Siderman de Blake v. Argentina,4 Argentina was found to have waived its immunity by filing a letter rogatory with a California court in order to obtain assistance in a bogus fraud action in an Argentinean court. In the instant case, however, the court found no such waiver because “the Australian government did not itself apply to our courts for assistance but instead invoked its rights under the Extradition Treaty by applying to the executive branch of our government.”5 The court expressed a concern that regarding extradition requests as implied waivers of immunity could “interfere with foreign policy and threaten the ethos of the extradition system,”6 and noted that the same position had recently been taken by the Supreme Court of Canada.7 In a separate case, Hwang Geum Joo v. Japan, fifteen non-U.S. nationals (on behalf of themselves and others similarly situated) sued the government of Japan, alleging that they were victims of sexual slavery and torture at the hands of the Japanese military before and during the Second World War. The plaintiffs alleged that throughout Japanese-occupied Asia, approximately two hundred thousand women referred to as “comfort women” were recruited through forcible abduction, deception, and coercion to serve at “comfort stations” of the Japanese army, near the front lines, where they were repeatedly raped, tortured, beaten, mutilated, and sometimes murdered. The plaintiffs charged that Japan waived its immunity from suit under the FSIA when it accepted the Potsdam Declaration at the end of the war. The district court disagreed, stating that “[t]he Potsdam Declaration does not explicitly state that Japan waived its immunity or intended to subject itself to civil suits in United States courts, and therefore does not constitute an explicit waiver of immunity under §1605(a)(1).”8 The plaintiffs further argued that since the alleged conduct violated jus cogens, there was an implied waiver of sovereign immunity. The district court disagreed, finding that such an argument had been consistently rejected by U.S. courts.9 On appeal, the Department of Justice submitted an amicus curiae brief concurring with the result of the district court’s opinion. Plaintiff ’s argument that Japan impliedly waived its immunity by violating preemptive norms of international law, referred to as jus cogens, is precluded by [Princz v. F.R.G., 26 F.3d 1166 (D.C. Cir. 1994)], which held that one could not infer from Germany’s violations of human rights in the Holocaust “a willingness to waive immunity for actions arising out of the Nazi atrocities.” Princz, 26 F.3d at 1174. Contrary to plaintiffs’ suggestion, there has been no change in the domestic law of sovereign immunity since the Princz decision that would warrant revisiting that issue now. Indeed, since Princz, the Second and Seventh Circuits have each concurred with this Court’s holding. See Sampson v. Federal Republic of Germany, 250 F.3d 1145, 1156 (7th Cir. 2001); Smith v. Socialist People’s Libyan Arab Jamahiriya, 101 F.3d 239 (2d Cir. 1996). The fundamental premise of this Court’s decision – that the courts cannot create new exceptions to the rule of immunity under the guise of applying the narrow “implied waiver” exception – remains sound. See Princz, 26 F.3d at 1174 n.1. . . . Congress recognized that the principle of waiver had been narrowly applied by the courts and intended that it be similarly applied under the FSIA. See id. at 1174.10 On June 27, 2003, the D.C. Circuit Court of Appeals affirmed the judgment of the district court. Among other things, the circuit court agreed that “a sovereign cannot realistically be said to manifest
4
965 F.2d 699 (9th Cir. 1992). Blaxland, 323 F.3d at 1206. Id. at 1208. 7 See Schreiber v. Canada (Attorney General), 2002 S.C.R. 62. 8 Hwang Geum Joo v. Japan, 172 F.Supp.2d 52, 59 (D.D.C. Oct. 4, 2001). 9 Id. at 60–61. 10 Brief for Amicus Curiae the United States of America in Support of Appellee at 20–21 (Dec. 10, 2002), Hwang Geum Joo v. Japan, 332 F.3d 679 (D.C. Cir. 2003) (No. 01-7169). 5 6
P1: ICD 0521750717c03
CB951-Murphy
0 521 75071 7
August 6, 2005
11:3
State Jurisdiction and Immunities
55
its intent to subject itself to suit inside the United States when it violates a jus cogens norm outside the United States.”11 Commercial Activity Exception Under the FSIA, a foreign state is not immune from the jurisdiction of U.S. courts where “the action is based upon a commercial activity,” so long as it is carried out in, or has a “direct effect” in, the United States.1 During 2002–2004, U.S. courts in numerous cases considered whether to apply this “commercial activity” exception so as to allow suit against a foreign government or its instrumentalities.2 Japanese Military Use of “Comfort Women.” In the case of Hwang Geum Joo v. Japan, discussed supra this chapter, plaintiffs argued that the Japanese military’s use of “comfort women” during the Second World War constituted a “commercial activity” within the meaning of the FSIA. The district court found that the “comfort women” system was not a commercial activity under the FSIA and the plaintiffs appealed. In a brief before the D.C. Circuit Court of Appeals, the U.S. government agreed with the district court. Nor does the Japanese military’s subjugation of plaintiffs to sexual slavery for Japanese soldiers during the war constitute “commercial activity” within the meaning of the FSIA. . . . In applying the commercial activity exception, the critical question is “whether the particular actions that the foreign state performs (whatever the motive behind them) are the type of actions by which a private party engages in ‘trade and traffic or commerce.’” Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614 (1992). Not all conduct with a financial component is “commercial activity” within the meaning of the FSIA. Thus, in Saudi Arabia v. Nelson, 507 U.S. 349 (1993), the Court held that suit by an employee recruited to a hospital of the government of Saudi Arabia was barred under the FSIA notwithstanding the commercial nature of the relationship, because the plaintiff complained of imprisonment and torture, an abuse of the police power that is “not the sort of action by which private parties can engage in commerce.” Id. at 361–62. Likewise, here, although plaintiffs allege a financial aspect of Japan’s conduct – that Japan charged a fee to soldiers who used the “comfort stations” – the essence of the challenged conduct was that, “pursuant to a premeditated master plan,” the Japanese military took plaintiffs from their home countries, transferred them to the front lines, housed them in buildings constructed by the military, and forced them into sexual slavery to Japanese soldiers. . . . As the district court held, such conduct “might be characterized properly as a war crime or a crime against humanity,” but it was not conduct “typically engaged in by private players in the market” and it was not commercial in nature. . . . Finally, even if plaintiffs could show that kidnapping and rape constituted commercial activity within in the meaning of the FSIA, plaintiffs could not show the requisite nexus between their injury and the United States.3 On June 27, 2003, the D.C. Circuit Court of Appeals affirmed the judgment of the district court. The circuit court found that the FSIA’s commercial-activity exception should not be applied 11
Hwang Geum Joo v. Japan, 332 F.3d 679, 686 (D.C. Cir. 2003). 28 U.S.C. §1605(a)(2) (2000). See, e.g., Velasco v. Indonesia, 370 F.3d 392 (4th Cir. 2004); Kato v. Ishihara, 360 F.3d 106 (2d Cir. 2004); I. T. Consultants, Inc. v. Pakistan, 351 F.3d 1184 (D.C. Cir. 2003); Southway v. Central Bank of Nigeria, 328 F.3d 1267 (10th Cir. 2003); Garb v. Poland, 207 F.Supp.2d 16 (E.D.N.Y. 2002); Keller v. Central Bank of Nigeria, 277 F.3d 811 (6th Cir. 2002); Beg v. Pakistan, 353 F.3d 1323 (11th Cir. 2003); Filetech v. France Telecom, 304 F.3d 180 (2d Cir. 2002); Park v. Shin, 313 F.3d 1138 (9th Cir. 2002); BP Chem. Ltd. v. Jiangsu Sopo Corp., 285 F.3d 677 (8th Cir. 2002); First Merchants Collection Corp. v. Argentina, 190 F.Supp.2d 1336 (S.D.Fla. 2002). 3 Brief for Amicus Curiae the United States of America in Support of Appellee at 22–23 (Dec. 10, 2002), Hwang Geum Joo v. Japan, 332 F.3d 679 (D.C. Cir. 2003) (No. 01-7169). 1 2
P1: ICD 0521750717c03
CB951-Murphy
56
0 521 75071 7
August 6, 2005
11:3
United States Practice in International Law 2002–2004
retroactively to create jurisdiction over claims that were immune from suit when the challenged events took place. The court therefore did not reach the issue of whether the “comfort stations” were a commercial activity. The court noted the Ninth Circuit case, Altmann v. Austria, where the FSIA exception regarding expropriation was applied to events occurring prior to 1952 because the foreign government in that case could have had no legitimate expectation of avoiding liability.4 In this case, however, the court stated that the 1951 Treaty of Peace between Japan and the United States reflected a foreign policy determination to resolve all claims against Japan through intergovernmental agreement, “creat[ing] a settled expectation on the part of Japan that it would not be sued” in U.S. courts for its actions during the Second World War.5 Interpretation of “Direct Effect.” A Seattle-based corporation named Virtual Countries owns various Internet domain names, including <www.southafrica.com>, which it uses to provide access to news, weather, travel, and other information relating to countries worldwide. In October 2000, the Republic of South Africa issued a press release stating that it intended to seek rights to the Internet domain name <www.southafrica.com> by taking appropriate steps before the World Intellectual Property Organization and the Internet Corporation for Assigned Names and Numbers.6 One week later, Virtual Countries sued the Republic of South Africa and the South African Tourism Board in U.S. court seeking declaratory relief (to the effect that South Africa lacked rights to the domain name) and injunctive relief (to prevent any arbitration or judicial proceeding in any forum challenging Virtual Countries’ rights). The district court granted the defendant’s motion to dismiss the action for lack of subject matter jurisdiction under the FSIA. In affirming dismissal of the case, the Second Circuit agreed that the commercial activity exception to the FSIA did not apply since their was no “direct effect in the United States” from the issuance of the press release in South Africa.7 The court explained that even accepting the plaintiff’s account for purposes of the motion to dismiss, the press release’s effect falls at the end of a long chain of causation and is mediated by numerous actions by third parties. First, the Republic issued the press release. Then wire services and newspapers in South Africa and elsewhere obtained the release and wrote articles about it. Current or potential investors – perhaps in the United States, perhaps in other countries, and perhaps in both – and a potential strategic business partner in South Africa, allegedly then learned of the release’s contents. Drawing on news reports, they then formed their own independent assessments of the Republic’s intentions and the possible effect of those intentions on Virtual Countries and people who would do business with it. . . . Only then could investors and the prospective business partner have decided to give effect to their doubts as to the validity of the plaintiff’s current registration of southafrica.com and their fears of reprisal by the Republic, by declining to invest in or do business with Virtual Countries. . . . The press release’s effect thus depended crucially on variables independent of the Republic. This tangled causal web does not provide the requisite immediacy to establish jurisdiction. . . . . . . Defining “direct effect” to permit jurisdiction when a foreign state’s actions precipitate reactions by third parties, which reactions then have an impact on a plaintiff, would foster uncertainty in both foreign states and private counter-parties. Neither could predict when an action would create jurisdiction, which would hinge on third parties’ independent reactions and conduct, even if in individual cases, such as the one at bar, a particular effect might be foreseeable. To permit 4
See Altmann v. Austria, 317 F.3d 954 (9th Cir. 2002). The Supreme Court’s review of this decision is discussed supra this chapter. Hwang Geum Joo v. Japan, 332 F.3d 679, 681 (D.C. Cir. 2003). The Internet Corporation for Assigned Names and Numbers was established in 1998 as a nonprofit, private-sector corporation that coordinates some of the Internet’s technical management functions. See ICANN Fact Sheet (n.d.), at . 7 The FSIA commercial-activity exception provides, in part, that a foreign state shall not be immune from the jurisdiction of U.S. courts in any case in which the action is based “upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.” 28 U.S.C. §1605(a)(2) (2000). 5 6
P1: ICD 0521750717c03
CB951-Murphy
0 521 75071 7
August 6, 2005
11:3
State Jurisdiction and Immunities
57
jurisdiction in such cases would thus be contrary to the predictability interest fostered by the statute.8 Expropriation Exception Under the FSIA, a foreign state is not immune from the jurisdiction of U.S. courts in an action “in which rights in property taken in violation of international law are at issue and that property . . . is present in the United States in connection with a commercial activity carried on in the United States by a foreign state. . . .”1 An example of the application of this exception during 2002–2004 is Anderman v. Austria.2 In that case, plaintiffs were Jews in Austria in 1938 (or their heirs) at the time of the German Anschluss (the German annexation of Austria). In 2001, plaintiffs sued the government of Austria, alleging that the government deprived them in 1938 and thereafter of property through theft, intimidation, coercion and discriminatory taxes. The government of Austria asserted that it was immune from suit. Plaintiffs sought to invoke FSIA exceptions with respect to waiver, commercial activity, and expropriation. In finding that the expropriation exception to immunity did not apply, the district court noted that the plaintiffs had not alleged that the property at issue was present in the United States (or any property exchanged for that property) in connection with an Austrian government commercial activity.3 Moreover, the court found that all but one of the plaintiffs had not alleged that the government of Austria owns or operates any such property.4 As such, the plaintiffs could not invoke the FSIA expropriation exception. Tortious Activity Exception Under section 1605(a)(5) of the FSIA, a foreign state is not immune from the jurisdiction of U.S. courts in any case “in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state,” but this exception shall not apply to “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function. . . .”1 During 2002–2004, U.S. courts in numerous cases considered whether to apply this “tortious activity” exception so as to allow suit against a foreign government or its instrumentalities.2 For example, in Blaxland v. Commonwealth Director of Public Prosecutions,3 also discussed supra this chapter, a U.S. resident, Christopher Blaxland, filed suit against the Australian government and two of its employees for malicious prosecution, abuse of process, intentional infliction of emotional distress, and false imprisonment. The defendants claimed immunity under the “tort” exception of the FSIA. In March 2003, the Ninth Circuit Court of Appeals held that the claims involved torts, that some of the alleged harm occurred in the United States, and consequently that the claims prima facie fell within the scope of the FSIA exception to immunity for torts.4 The court further noted, however, that the tort exception expressly states that it does not apply to “any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” As such, the court found that only Blaxland’s claim for false imprisonment fell within the
8
Virtual Countries v. South Africa, 300 F.3d 230, 237–38 (2d Cir. 2002). 28 U.S.C. §1605(a)(3) (2000). 256 F.Supp.2d 1098 (C.D. Cal. 2003); see also Fagot Rodriguez v. Costa Rica, 297 F.3d 1 (1st Cir. 2002) (finding that claims for breach of contract, personal injury, and damage to or loss of property did not fall within the FSIA “expropriation” exception). 3 256 F.Supp.2d at 1110. 4 Id. at 1110–11. 1 28 U.S.C. §1605(a)(5) (2000). 2 See, e.g., Marchisella v. Japan, 2004 WL 307248 (S.D.N.Y. Feb. 17, 2004); Burnett v. Al Baraka Inv. & Dev. Corp., 292 F.Supp.2d 9 (D.D.C. 2003); Pulaski v. India, 212 F.Supp.2d 653 (S.D. Tex. 2002). 3 323 F.3d 1198 (9th Cir. 2003). 4 Id. at 1203. 1 2
P1: ICD 0521750717c03
CB951-Murphy
0 521 75071 7
58
August 6, 2005
11:3
United States Practice in International Law 2002–2004
scope of section 1605(a)(5); the others consisted in, or “arose out of,” malicious prosecution or abuse of process.5 Yet the claim for false imprisonment was also defective since the only imprisonment in the United States was by the U.S. government acting under a valid legal process. The court found that any claim concerning the Australian government’s effort to gain extradition, although it resulted in Blaxland’s U.S. imprisonment, was actually a claim for malicious prosecution or abuse of process, and thus fell outside the scope of section 1605(a)(5).6 Arbitration Exception Under the FSIA, a foreign state is not immune from the jurisdiction of U.S. courts where an action is brought to enforce an agreement made by the foreign state with a private party to submit to arbitration any disputes which may arise between them, or to confirm an arbitral award made pursuant to such an agreement to arbitration, subject to certain conditions.1 In International Insurance Company v. Caja Nacional de Ahorro y Seguro (discussed supra this chapter),2 a U.S. insurance company (International Insurance Company) in 1979 purchased reinsurance from an Argentinian insurance company (Caja Nacional) pursuant to two contracts that contained an arbitration clause in the event that a dispute arose. Caja Nacional subsequently failed to pay more than U.S.$2 million in indemnity obligations. In 2000, International Insurance Company initiated an arbitration in the United States and won a default award after Caja failed to appear. International Insurance Company then filed a petition in a U.S. court for confirmation of the arbitral award. When Caja appeared and filed defenses, International Insurance Company moved for an order requiring Caja to post a pre-judgment security. Caja responded that it was an instrumentality of a foreign government and therefore was not required to post such a security under the FSIA.3 The district court rejected that argument and the Seventh Circuit Court of Appeals affirmed. According to the Seventh Circuit: Section 1605(a)(6)(A) of the FSIA provides that a foreign state or instrumentality is not immune from the jurisdiction of American courts in any proceeding to confirm an arbitral award where that foreign state or instrumentality agreed to submit to arbitration and the arbitration takes place in the United States. Article XX of each of the parties’ reinsurance contracts provides that Caja would “submit to the jurisdiction of any court of competent jurisdiction within the United States and will comply with all requirements necessary to give such court jurisdiction. . . .” Article XXI of each contract contained a provision that arbitration would occur in Chicago, Illinois, unless some other location was mutually agreed upon by the parties. By agreeing to a contract designating Chicago, Illinois as the site of arbitration, even if it is a foreign instrumentality, Caja waived its immunity in a proceeding to confirm the arbitral award.4 The Seventh Circuit then considered whether Caja was entitled to immunity from the pre-judgment security under FSIA section 1609, which provided that “[s]ubject to existing international agreements to which the United States is a party . . . the property of a foreign state shall be immune from attachment arrest and execution,” except in certain situations,5 such as waiver.6 The court found that the affidavits offered by Caja were not adequate to show that Caja was an “instrumentality” of the government of Argentina.7 Moreover, the court found that any immunity under section 1609 was waived
5
Id. Id. at 1203–06. 28 U.S.C. §1605(a)(6) (2000). 2 293 F.3d 392 (7th Cir. 2002); see also Arbitration between Monegasque de Reassurance S.A.M. v. Nak Naftogaz of Ukraine, 311 F.3d 488 (2d Cir. 2002) (dismissing proceeding to confirm arbitral award under doctrine of forum non conveniens). 3 293 F.3d at 393–94. 4 Id. at 397. 5 28 U.S.C. §1609 (2000). 6 Id., §1610(d). 7 293 F.3d at 397–99. 6 1
P1: ICD 0521750717c03
CB951-Murphy
0 521 75071 7
August 6, 2005
11:3
State Jurisdiction and Immunities
59
by Argentina by virtue of Argentina’s adherence to the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards (New York Convention)8 and the Inter-American Convention on International Commercial Arbitration (Panama Convention).9 The purpose of the New York Convention, and similarly the Panama Convention, is to “encourage the recognition and enforcement of commercial arbitration agreements in international contracts and to unify the standards by which agreements to arbitrate are observed and arbitral awards are enforced in the signatory countries.” Scherk v. Alberto-Culver Co., 417 U.S. 506, 520, n. 15 (1974). Article VI of the New York Convention states, “[i]f an application for the setting aside or suspension of the award has been made to a competent authority . . . the authority before which the award is sought to be relied upon may, if it considers it proper, . . . on the application of the party claiming enforcement of the award, order the other party to give suitable security.” [New York Convention], art. VI (emphasis added). Similarly, Article 6 of the Panama Convention states, “[i]f the competent authority . . . has been requested to annul or suspend the arbitral decision, the authority . . . at the request of the party requesting execution, may also instruct the other party to provide appropriate guaranties.” [Panama Convention], art. 6 (emphasis added). The emphasized language of these Conventions allowing a court to impose a security requirement is very explicit. Thus the court-ordered pre-judgment deposit of security is clearly appropriate.10 Terrorist State Exception The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) amended the FSIA1 so as to permit under section 1605(a)(7) civil suits for monetary damages against foreign states that cause personal injury or death “by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources . . . for such an act,” provided that the claimant or victim was a U.S. national at the time of the act, and that the foreign state has been designated by the U.S. secretary of state as a sponsor of terrorism.2 When enacting this exception to sovereign immunity, Congress also passed a civil liability statute (thus creating a cause of action) that largely tracks the conditions specified in the exception, known as the “Flatow Amendment.”3 During the course of 2002–2004, numerous cases were decided by U.S. courts under this “terrorist state” exception to the FSIA.4 For example, in Stethem v. Iran, several plaintiffs successfully sued the government of Iran for a death related to a terrorist hijacking. On June 14, 1985, seven U.S. servicemen were aboard TWA Flight 847 en route from Greece to Italy.5 After being hijacked by at least two individuals, later identified as belonging to the Lebanese Shi’ite paramilitary group Hezbollah, the plane was diverted to Lebanon. One serviceman, Robert Stethem, was killed by the hijackers on the plane; the surviving American military personnel were taken from the plane in Beirut as prisoners of the local militia. They were finally released on June 30, 1985. Stethem’s family and the surviving servicemen and their families filed suit against Iran and its intelligence service based on the terrorist-state exception. Iran failed to appear, and a default was issued. At the evidentiary 8
June 10, 1958, 21 UST 2517, 330 UNTS 38. Jan. 30, 1975, 1438 UNTS 245, OAS T.S. No. 42, reprinted in 14 ILM 336 (1975). 293 F.3d at 399–400. 1 Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, §221, 110 Stat. 1214, 1241 (1996), codified at 28 U.S.C. §1605(a)(7) (2000). 2 28 U.S.C. §§1605(a)(7), 1610(a)(7) (2000). 3 28 U.S.C. §1605 note (2000). The Flatow Amendment provides, in part: 9
10
An official, employee, or agent of a foreign state designated as a state sponsor of terrorism . . . while acting within the scope of his or her office, employment, or agency shall be liable to a United States national or the national’s legal representative for personal injury or death caused by acts of that official, employee, or agent for which the courts of the United States may maintain jurisdiction under section 1605(a)(7) of title 28, United States Code, for money damages . . . . 4 In addition to the cases discussed infra, see Campuzano v. Iran, 281 F.Supp.2d 258 (D.D.C. 2003); Regier v. Iran, 281 F.Supp.2d 87 (D.D.C. 2003); Dammarell v. Iran, 281 F.Supp.2d 105 (D.D.C. 2003); Cronin v. Iran, 238 F.Supp.2d 222 (D.D.C. 2002). 5 Stethem v. Iran, 201 F.Supp.2d 78, 80 (D.D.C. 2002).
P1: ICD 0521750717c03
CB951-Murphy
60
0 521 75071 7
August 6, 2005
11:3
United States Practice in International Law 2002–2004
hearing, the district court received evidence regarding the treatment of the victims and established that Iran provided material support or resources to Hezbollah.6 On April 19, 2002, the court awarded a judgment against the defendants for approximately U.S.$326 million in compensatory and punitive damages.7 Plaintiffs bringing such cases had to comply with the jurisdictional requirement within the terroriststate exception that “the claimant . . . afford[ ] the foreign state a reasonable opportunity to arbitrate the claim in accordance with accepted rules of arbitration” if “the act occurred in the foreign state against which the claim has been brought.”8 In Simpson v. Libya, the plaintiff sued Libya for hostage taking and torture when her cruise ship made an emergency stop at a Libyan port. Shortly thereafter, she mailed to Libya an offer to arbitrate, subject to certain conditions. Among the conditions was that plaintiff would not be required to leave the United States. The D.C. Circuit Court of Appeals found that the offer was timely and that the conditions were reasonable.9 Not all plaintiffs during 2002–2004, however, prevailed in obtaining judgments, even when the foreign state declined to appear.10 For example, on June 9, 1996, Yaron and Efrat Ungar were killed by a machine gun attack in Beit Shemesh, Israel, carried out by members of Hamas. In 2000, the family of Yaron Ungar filed a claim against Iran and its intelligence service based on the terroriststate exception. Iran failed to appear, and the court issued a default. Nevertheless, after hearing the evidence presented by the plaintiffs at the evidentiary hearing, the court held that they had failed to establish a causal link between Iran and this specific attack. In particular, the court pointed to confessions by the persons who carried out the attack – which indicated that the killers received no training from Iran, obtained funding and weapons from sources other than just Hamas, and were only loosely connected to Hamas.11 The court concluded that the “plaintiffs had not established a legally sufficient evidentiary base for a reasonable jury to find that the defendants’ acts were a necessary condition or a ‘but for’ cause of the Ungars’ deaths.”12 Likewise, the court found that the plaintiffs had not presented sufficient evidence for a finding of liability for either aiding and abetting or civil conspiracy.13 Effect of executive agreement. On December 29, 2000, various U.S. nationals who were held hostage (or whose spouses or parents were held hostage) by Iran from November 1979 to January 1981 filed a class action suit in U.S. federal district court against Iran and the Iranian Ministry of Foreign Affairs for compensatory and punitive damages.14 The plaintiffs asserted that the court had jurisdiction over the defendants pursuant to the FSIA terrorist-state exception. Iran failed to appear before the 6
Id. at 85. Id. at 87–93. 28 U.S.C. §1605(a)(7(B)(i) (2000). 9 Simpson v. Libya, 326 F.3d 230, 233–34 (D.C. Cir. 2003). The court also found, however, that the alleged treatment did not rise to the level of “torture” under the FSIA and that the complaint failed to state a hostage-taking claim, and therefore remanded the case to allow for the complaint to be amended. Id. at 234–35. 10 See, e.g., Bettis v. Iran, 315 F.3d 325 (D.C. Cir. 2003) (finding that nieces and nephews were not direct victims entitled to seek recovery for emotional distress nor indirect victims entitled to recovery as members of the victim’s immediate family). 11 Ungar v. Iran, 211 F.Supp.2d 91 (D.D.C. 2002). 12 Id. at 98. 13 Id. at 99–100. 14 See Complaint (Dec. 29, 2000), Roeder v. Iran, 195 F.Supp.2d 140 (D.D.C. 2002) (No. 00-3110); First Amended Complaint (Feb. 23, 2001), Roeder v. Iran, 195 F.Supp.2d 140 (D.D.C. 2002) (No. 00-3110). Sixty-six hostages were taken on November 4, 1979, when radical Iranian students seized the U.S. Embassy compound in Tehran and consulates in Tabriz and Shiraz in the wake of the overthrow of Muhammad Reza Shah Pahlevi. Although thirteen hostages were released later that month and one was released the following July because of illness, the rest were held until January 20, 1981, the day that Ronald Reagan was sworn into office. Later in 1981, several of the hostages filed suit against Iran, but the cases were dismissed for lack of subject matter jurisdiction. At the time, the only arguably applicable exception to foreign sovereign immunity – the one for tortious acts – was found not to apply since that exception requires that the tort occur within U.S. territory. See Persinger v. Iran, 729 F.2d 835 (D.C. Cir. 1984); McKeel v. Iran, 722 F.2d 582 (9th Cir. 1983); Ledgerwood v. Iran, 671 F.Supp. 311 (D.D.C. 1985). Several former hostages also sued the United States on the ground that the extinguishment of the hostages’ right to sue Iran (see infra page 61) constituted a “taking” of private property without just compensation. The federal circuit court of appeals found that assuming (without deciding) that the hostages’ claims against Iran constituted “property” under the Fifth Amendment, the extinguishment of the claims was not a taking since (1) the Algiers Accords were primarily designed to benefit the hostages, (2) barring the hostage claims against Iran was not novel or unexpected, and (3) the president clearly had the authority to extinguish those claims in return for the hostages’ release. See Belk v. United States, 858 F.2d 706 (Fed. Cir. 1988). 7 8
P1: ICD 0521750717c03
CB951-Murphy
0 521 75071 7
August 6, 2005
11:3
State Jurisdiction and Immunities
61
court. In August 2001, the court entered a default judgment against Iran. The court then scheduled proceedings to determine the amount of damages to be awarded to the plaintiffs. In mid-September, the U.S. government became aware of the case. On October 15, the government filed motions to intervene in the case, to vacate the judgment, and to dismiss the claims.15 Although the plaintiffs sharply criticized the U.S. government as siding with a terrorist state,16 the government asserted that the United States had agreed with Iran as part of the 1981 Algiers Accords that all claims arising out of the seizure of the hostages were to be extinguished. Paragraph 11 of the General Claims Declaration of the Algiers Accords provided that once the fifty-two hostages had safely departed Iran, the United States will promptly withdraw all claims now pending against Iran before the International Court of Justice and will thereafter bar and preclude the prosecution against Iran of any pending or future claim of the United States or a United States national arising out of events occurring before the date of this Declaration related to (A) the seizure of the 52 United States nationals on November 4, 1979, (B) their subsequent detention, [or] (C) injury to the United States property or property of the United States nationals within the United States Embassy compound in Tehran after November 3, 1979. . . . 17 The United States’ obligation under this provision was given effect via U.S. executive order and implementing regulations.18 At the time that the plaintiffs obtained their default judgment from the court, they had not drawn the court’s attention to this provision of the Algiers Accords. After the intervention by the U.S. government, the plaintiffs took the position that the apparent extinguishment of the hostages’ claims by the Algiers Accords was superseded when Congress created the terrorist-state exception to the FSIA in the AEDPA.19 The U.S. government noted that the FSIA exception applies, however, only if the foreign state had been designated as a state sponsor of terrorism either at the time of, or because of, the terrorist acts forming the basis of the plaintiff’s claims. Since Iran was listed as a terrorist-state only in January 1984 (for Iranian policies furthering terrorism beyond its borders and not as a result of the seizure of the hostages in 1979–1981),20 claims based on the seizure of the hostages did not fall within the terrorist-state exception to sovereign immunity. Confronted with this difficulty, the plaintiffs successfully lobbied Congress to amend the terroriststate exception through a provision in the fiscal year 2002 appropriations legislation covering the Commerce, Justice, and State Departments. That amendment, which appeared as Section 626(c) of the legislation, provides in full: Amend 28 U.S.C. Section 1605(a)(7)(A) by inserting at the end, before the semicolon, the following: “or the act is related to Case Number 1:00CV03110 (ESG) in the United States District Court for the District of Columbia.”21
None of the hostages filed cases before the Iran–U.S. Claims Tribunal in the Hague. See George H. Aldrich, The Jurisprudence of the Iran–United States Claims Tribunal 105 (1996). 15 See Neely Tucker, U.S. Seeking to Vacate Judgment Against Iran, Wash. Post, Oct. 16, 2001, at A2. 16 See, e.g., Barry Rosen, With Iran, Against Americans, N.Y. Times, Dec. 12, 2001, at A31. 17 Declaration of the Government of the Democratic and Popular Republic of Algeria, Jan. 19, 1981, para. 11, reprinted in 1 Iran–U.S. Cl. Trib. Rep. 3 (1983); see also Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran, Jan. 19, 1981, Art. II(1), reprinted in 1 Iran-U.S. Cl. Trib. Rep. 9 (1983). 18 See Exec. Order No. 12283, 46 Fed. Reg. 7927 (1981); 31 C.F.R. §535.216a (2000). 19 See supra note 1. 20 See 49 Fed. Reg. 10,247 (1984). 21 Pub. L. No. 107-77, §626(c), 115 Stat. 748, 803 (2001). A subsequent technical correction was made to correct the initials in the case number from “ESG” to “EGS.” See Pub. L. No. 107-117, §208, 115 Stat. 2230, 2299 (2002). The initials are those of the judge in the case.
P1: ICD 0521750717c03
CB951-Murphy
62
0 521 75071 7
August 6, 2005
11:3
United States Practice in International Law 2002–2004
The conference report associated with the appropriations legislation stated that “subsection (c) quashes the State Department’s motion to vacate the judgment obtained by plaintiffs in Case Number 1:00CV03110 (ESG) in the United States District Court for the District of Columbia.”22 When he signed this provision into law on November 28, President Bush stated: Section 626 . . . subsection (c) . . . purports to remove Iran’s immunity from suit in a case brought by the 1979 Tehran hostages in the District Court for the District of Columbia. To the maximum extent permitted by applicable law, the Executive Branch will act, and encourage the courts to act, with regard to Subsection 626(c) of the bill in a manner consistent with the obligations of the United States under the Algiers Accords that achieved the release of U.S. hostages in 1981.23 On the day that this provision was signed into law, the U.S. government filed a memorandum accepting that the court now had subject matter jurisdiction to adjudicate the merits of the plaintiffs’ claims, but nevertheless arguing that the court should dismiss those claims on the merits.24 First, the government argued that the new legislation should not be applied retroactively to validate the court’s jurisdiction to enter the August 2001 default judgment against Iran.25 Second, the government noted that the FSIA itself does not provide plaintiffs with a cause of action; rather, it provides the conditions under which immunity should be accorded to foreign states. According to the U.S. government, the plaintiffs must look elsewhere for a cause of action. The plaintiffs invoked as a cause of action the 1996 “Flatow Amendment,” which was enacted in the same year as the Antiterrorism Act.26 In arguing that the Flatow Amendment could not serve as a cause of action, the U.S. government noted: [T]he plain language of the Flatow Amendment provides the victims of terrorist acts a cause of action against the “official[s], employee[s] or agent[s] of a foreign state” who commit such acts, not against the foreign state itself. . . . Tacitly conceding that they cannot overcome this legal hurdle, plaintiffs try to sidestep it. Rather than offer textual support for their interpretation of the Flatow Amendment (for there is none to be found), they point to Elahi [v. Iran], 124 F.Supp.[2d 97,] 106 [(D.D.C. 2000)]; Daliberti v. Republic of Iraq, 97 F.Supp.2d 38, 43 n.1 (D.D.C. 2000); and Flatow v. Islamic Republic of Iran, 999 F.Supp. 1, 12–13 (D.D.C. 1998), as cases where “judges of this Court . . . have imposed judgments against foreign state sponsors of terrorism.” . . . None of these cases, however, based its analysis on the language of the Flatow Amendment. Both Elahi and Daliberti simply cited the decision in Flatow, 999 F.Supp. at 12–13, as the basis for their conclusions, whereas Flatow itself, rather than examine the plain language of the statute, attempted to glean its meaning from the separate 22 H.R. Conf. Rep. No. 107-278, at 170 (2001). In a hearing before the district court on December 13, 2001, Judge Emmet G. Sullivan asked “how can Congress quash a motion to vacate pending in an Article III court? What authority does Congress have to do that?” See Roeder v. Iran, Transcript of Motions Hearing Before the Honorable Emmet G. Sullivan, U.S. District Judge, No. 1:00CV03110 (EGS), at 10 (D.D.C. Dec. 13, 2001). 23 Statement on Signing the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 2002, 37 Weekly Comp. Pres. Doc. 1723, 1724 (Nov. 28, 2001). Separately, when adopting the technical correction cited supra note 21, Congress issued a Joint Explanatory Statement of the Conference Committee, which described §626(c) as an “acknowledge[ment] that, notwithstanding any other authority, [plaintiffs] have a claim against Iran under the Antiterrorism Act of 1996.” H.R. Conf. Rep. No.107-350, at 422–23 (2001). In signing that technical correction into law, however, the president stated that it
does nothing to alter the effect of that provision or any other provision of law. Since the enactment of subsection 626(c) and consistent with it, the executive branch has encouraged the courts to act, and will continue to encourage the courts to act, in a manner consistent with the obligations of the United States under the Algiers Accords that achieved the release of U.S. hostages in 1981. Statement on Signing the Department of Defense and Emergency Supplemental Appropriations for Recovery from and Response to Terrorist Attacks on the United States Act, 2002, 38 Weekly Comp. Pres. Doc. 46, 48 (Jan. 10, 2002). 24 Reply Memorandum in Support of the United States’ Motion to Vacate Default Judgment and Dismiss Plaintiffs’ Claims at 16–22, Roeder v. Iran, 195 F.Supp.2d 140 (D.D.C. 2002) (No. 00-3110) (footnotes omitted) [hereinafter U.S. Reply Memorandum]. 25 Id. at 4–16. 26 See supra note 3.
P1: ICD 0521750717c03
CB951-Murphy
0 521 75071 7
August 6, 2005
11:3
State Jurisdiction and Immunities
63
legislative history of the Antiterrorism Act. A court should not substitute its reading of legislative history for the plain meaning of the language that Congress chose to enact as the law. Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 922, 929 (D.C. Cir. 1985). .... The fact remains, too, that even if the Flatow Amendment could be construed as creating a cause of action against a foreign state, plaintiffs remain barred under the Algiers Accords and their implementing regulations from prosecuting claims against Iran that arise from the events underlying this case. . . . Plaintiffs have presented no arguments to the contrary, nor have they pointed to anything in the language or legislative history of the Flatow Amendment that even remotely suggests a congressional purpose to abrogate the Algiers Accords, or any provisions thereof. See Transworld Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252 (1984) (“[a] treaty will not be deemed to have been abrogated or modified by a later statute unless such purpose on the part of Congress has been clearly expressed”); Weinberger v. Rossi, 456 U.S. 25, 32 (1982) (applying the same rule of construction to an international executive agreement).27 The U.S. government further argued that there was no conflict between the Algiers Accords and the Antiterrorism Act such that the latter was a “later in time” statute that altered the Accords. There is no conflict between the Antiterrorism Act and the Algiers Accords, and the government has not contended otherwise. As relevant here, the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104–132, §221, 110 Stat. 1214, 1241 (entitled “Jurisdiction for Lawsuits Against Terrorist States”) created a new exception to foreign sovereign immunity under the FSIA, codified at 28 U.S.C. §1605(a)(7). In so doing, it extended the jurisdiction of the federal courts to permit them to hear claims against designated terrorist states for the acts of terrorism that they sponsor. . . . In complete contrast, both the Supreme Court and the D.C. Circuit have held that the provisions of the Algiers Accords and their implementing regulations that extinguish the claims of American nationals against Iran constitute “substantive law governing” the cases, such as this one, that fall within their reach. Dames & Moore [v. Regan], 453 U.S. [654,] 685 [(1981)]; American International Group [v. Iran], 657 F.2d [430,] 441 [(D.C. Cir. 1981)]. In so holding, both courts explicitly rejected arguments that the Algiers Accords represent an improper effort by the Executive Branch to define the jurisdiction of the federal courts. Dames & Moore, 453 U.S. at 685–86; American International Group, 657 F.2d at 444. . . . .... Plaintiffs are right that Iran should accept responsibility for the morally repugnant acts of hostagetaking and torture committed against them. But redress cannot be had in this forum, owing to the legal commitments made by this nation in order to free the hostages from captivity. The Supreme Court’s eloquent observations in Chew Heong v. United States, 112 U.S. 536, 539–40 (1884), remain valid today: There would no longer be any security . . . no longer any commerce between mankind, if [nations] did not think themselves obliged to keep faith with each other, and to perform their promises. . . . Aside from the duty imposed by the Constitution to respect treaty stipulations when they become the subject of judicial proceedings, the court cannot be unmindful of the fact that the honor of the government and people of the United States is involved in every inquiry whether rights secured by such stipulations shall be recognized and protected [internal quotations and citations omitted].
27
U.S. Reply Memorandum, supra note 24, at 17–19.
P1: ICD 0521750717c03
CB951-Murphy
64
0 521 75071 7
August 6, 2005
11:3
United States Practice in International Law 2002–2004 In consequence of the duties imposed upon this Court by the Constitution, and respect for the legal undertakings of our government with foreign nations, the default judgment must be vacated, and plaintiffs’ claims must be dismissed for failure to state a claim that survives the United States’ commitments made under the Algiers Accords.28
On April 18, 2002, the district court issued its decision. The court vacated its August 2001 default judgment on the ground that the FSIA precludes such a judgment prior to plaintiffs’ presentation to the court of satisfactory evidence supporting their claim; as of August 2001, the court had received no such evidence.29 The judgment also had to be vacated because, as of August 2000, the FSIA precluded subject matter jurisdiction over the claim; Iran was not designated a state sponsor of terrorism either at the time of the 1979–1981 hostage crisis or as a result of that crisis.30 While the enactment of legislation in November 2001 allowed for subject matter jurisdiction, the court found no intent that the law be applied retroactively.31 Turning to the U.S. government’s motion to dismiss the case, the court first expressed concern that the Congress may have sought to legislate the outcome of litigation, thus violating the exclusive province of the judiciary.32 The court reached no decision, however, on that matter. The court then determined that the Algiers Accords, along with the relevant executive order and implementing regulations, extinguished the claims of the plaintiffs.33 After conducting a detailed analysis of the relevant statutes and legislative history, the court concluded that the FSIA’s terrorist-state exception (even as amended in 2001), the Flatow Amendment, and other legislation do not abrogate the Algiers Accords or unambiguously create a cause of action for the plaintiffs against Iran.34 Consequently, the court dismissed the case. In explaining the values underlying its analysis – and its concern that three of the four statutes at issue in the case were passed as riders to appropriations bills with minimal legislative history – the court stated: The spheres of power of our co-equal branches of government can at times overlap. When such overlap occurs, and the wills of two branches are in conflict, the Constitution sets forth the rules for deciding which branch gets to trump the will of the other. In this case, by virtue of his power to direct the foreign affairs of this country, the President clearly has the authority to enter into international agreements. Congress, however, clearly has the corresponding right to abrogate the agreement reached by the President if it so wishes. Because of the respect owed to each co-equal branch of government, the courts must require that Congress make its intent clear, either by legislating unambiguously or accompanying ambiguous statutes with clear expressions of intent. Any other rule would allow the courts, by inference and interpretation, to impermissibly assume the legislative role.35 On appeal, the D.C. Circuit Court of Appeals affirmed, finding that there was “no clear expression in anything Congress enacted abrogating the Algiers Accords.”36 Due process issues. States who appeared in U.S. courts to defend against FSIA terrorist-exception suits sought to deploy various defenses, including the argument that exercise of jurisdiction over the foreign state violated U.S. constitutional due process protections. For example, in Price v. Libya,37 Michael Price and Roger Frey were living in Libya and employed by a Libyan company in March of 1980. According to the two men, they were arrested by the government of Libya and charged with “anti-revolutionary propaganda” after it had been discovered that they were taking photographs of 28 29 30 31 32 33 34 35 36 37
Id. at 20, 23. See Roeder v. Iran, 195 F.Supp.2d 140, 158–59 (D.D.C. 2002) (citing FSIA §1608(e)). Id. at 159–61. Id. at 161–62. Id. at 164–66. Id. at 166–68. Id. at 168–84. Id. at 183 (citation omitted). Roeder v. Iran, 333 F.3d 228, 237 (D.C. Cir. 2003). 294 F.3d 82 (D.C. Cir. 2002).
P1: ICD 0521750717c03
CB951-Murphy
0 521 75071 7
August 6, 2005
11:3
State Jurisdiction and Immunities
65
Tripoli. Thereafter, the two men claimed that they spent 105 days in jail in appalling conditions. After being acquitted of all charges, the men asserted that their passports were held for 60 days until the government’s appeal was rejected, at which point they were permitted to leave the country.38 In May 1997, Price and Frey filed a civil suit against Libya in a U.S. federal court. Libya moved to dismiss the complaint on grounds of both sovereign immunity and lack of personal and subject matter jurisdiction. After the district court denied the motion, Libya appealed. In its June 2002 decision, the D.C. Circuit Court of Appeals addressed three key points in the case. First, although the issue was not yet before the circuit court, that court expressed doubt as to whether the plaintiffs would be able to sustain a cause of action against the government of Libya, as opposed to its officials, employees, or agents. In that regard, the court noted that the Flatow Amendment is more restrictive than the terrorist-state exception.39 Second, the court found that the plaintiffs had failed to state any facts that would fit a claim of hostage taking. According to the court, “the plaintiffs have suggested no demand for quid pro quo terms between the government of Libya and a third party whereby Price and Frey would have been released upon the performance or non-performance of any action by that third party.”40 Similarly, the plaintiffs had failed to state with sufficient clarity acts constituting “torture” within the meaning of the FSIA. Nevertheless, since the court found that the plaintiffs had at least intimated that they could allege facts that might support such a claim of torture, the case was remanded to the district court on the claim of torture so that the plaintiffs could amend the complaint.41 Third, the circuit court considered Libya’s claim that the assertion of personal jurisdiction over Libya in the manner authorized by the FSIA violated the Due Process Clause of the U.S. Constitution, which states, “nor shall any person . . . be deprived of life, liberty, or property, without due process of law.”42 The FSIA sets forth certain requirements for service of process;43 so long as those requirements are met, the statute provides that personal jurisdiction over a foreign state exists for every claim over which the court has subject matter jurisdiction.44 While most of the exceptions to the FSIA require some tangible connection between the foreign defendant and U.S. territory, Libya noted to the court that the terrorist-state exemption requires no link beyond the nationality of the plaintiff. Thus, according to Libya, exercise of jurisdiction under the terrorist-state exception does not satisfy the “minimum contacts”45 required by the Due Process Clause, and is therefore constitutionally insufficient. The court found that although the word “person” may explicitly be expanded to include foreign states within the meaning of a particular statute, the term has been interpreted consistently and narrowly in the context of the Due Process Clause.46 In particular, since the term “person” does not include “States of the Union,” it would be unreasonable to extend to foreign sovereigns a protection that is not afforded to U.S. states.47 The court found, moreover, that extending such a protection would be inconsistent with the traditional relations between nations: Unlike private entities, foreign nations are the juridical equals of the government that seeks to assert jurisdiction over them. If they believe that they have suffered harm by virtue of being haled into court in the United States, foreign states have available to them a panoply of mechanisms in the international arena through which to seek vindication or redress. . . . These mechanisms, not the Constitution, set the terms by which sovereigns relate to one another. We would break with the norms of international law and the structure of domestic law were we to extend a constitutional rule 38
For the facts as recounted before the U.S. district court, see Price v. Libya, 110 F.Supp.2d 10 (D.D.C. 2000). 294 F.3d at 87. Id. at 94. The FSIA, at 28 U.S.C. §1602(e)(2) (2000), adopts the definition of hostage taking used in the International Convention Against the Taking of Hostages, Dec. 17, 1979, TIAS 11,081, 1316 UNTS 205 (defining the offense, in pertinent part, as the seizure or detention of a person coupled with a threat to continue to detain that person “in order to compel a third party . . . to do or abstain from doing any act as an explicit condition for the release of the hostage”). 41 Price v. Libya, 294 F.3d at 94. 42 U.S. Const. amend. V (emphasis added). 43 See 28 U.S.C. §1608 (2000). 44 See 28 U.S.C. §1330(b) (2000). 45 See Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945). 46 Price v. Libya, 294 F.3d at 96. 47 Id. at 96–97. 39 40
P1: ICD 0521750717c03
CB951-Murphy
66
0 521 75071 7
August 6, 2005
11:3
United States Practice in International Law 2002–2004 meant to protect individual liberty so as to frustrate the United States government’s clear statutory command that Libya be subject to the jurisdiction of the federal courts in the circumstances of this case. The constitutional limits that have been placed on the exercise of personal jurisdiction do not limit the prerogative of our nation to authorize legal action against another sovereign. Conferring on Libya the due process trump that it seeks against the authority of the United States is thus not only textually and structurally unsound, but it would distort the very notion of “liberty” that underlies the Due Process Clause.48
Finally, the circuit court noted that to extend the protections of the Due Process Clause to foreign sovereigns would create certain practical problems in the conduct of foreign relations. For instance, courts would be obligated to address the due process rights of foreign states when the executive branch takes steps to seize assets or impose economic sanctions.49 Such cases would interfere with the nation’s “‘single voice’ in foreign affairs.”50 Narrow scope of Flatow Amendment. As noted but not decided in the Roeder and Price cases (discussed supra), the civil liability statute (the “Flatow Amendment”) enacted at the time of the establishment of the FSIA terrorist-state exception is, by its terms, more narrow than the exception itself. The Flatow Amendment confers a right of action only against an “official, employee, or agent of a foreign state,” not against the foreign state itself.51 Despite this language, many of the initial cases brought under section 1605(a)(7) assumed that the Flatow Amendment created a cause of action against foreign governments and their ministries, and issued judgments against such defendants. In Cicippio v. Iran, however, the D.C. Circuit directly addressed the issue. The facts of that case were that in May 1985 and September 1986, members of Hezbollah, acting as agents of the Iranian Ministry of Information and Security, kidnapped certain American educators in Lebanon, including Joseph Cicippio, and thereafter held them hostage and tortured them for several years until their release. In 1996, Cicippio, two other hostages, and two spouses sued the government of Iran under the Flatow Amendment and the section 1605(a)(7) exception to sovereign immunity. After the defendants failed to appear, the court issued a judgment for U.S.$65 million in compensatory damages.52 No appeal was taken. In 2001, Cicippio’s children and siblings also filed suit in U.S. federal court against the government of Iran and the Iranian Ministry of Information and Security for intentional infliction of emotional distress and loss of solatium caused by Cicippio’s detention. Again, the defendants failed to appear. Nevertheless, on June 21, 2002, the district court denied plaintiffs’ motion for summary judgment and dismissed the complaint for failure to state a claim upon which relief can be granted.53 On appeal, the U.S. Court of Appeals for the D.C. Circuit requested the views of the executive branch, in response to which the U.S. Department of Justice filed a brief as amicus curiae stating that section 1605(a)(7) and the Flatow Amendment do not create a private cause of action against foreign governments.54 On January 16, 2004, the court of appeals affirmed, holding that neither 28 U.S.C. §1605(a)(7) nor the Flatow Amendment, nor the two considered in tandem, creates a private right of action against a foreign government. Section 1605(a)(7) merely waives the immunity of a foreign state without creating a cause of action against it, and the Flatow Amendment only provides a private right of action against officials, employees, and agents of a foreign state, not against the foreign state itself. . . .
48
Id. at 98–99 (citations omitted). Id. at 99. Id. (citing DKT Mem’l Fund v. Agency for Int’l Dev., 887 F.2d 275, 291 (D.C. Cir. 1989)). Subsequent district court decisions followed Price in rejecting similar due process challenges. See, e.g., Kilburn v. Iran, 277 F.Supp.2d 24 (D.D.C. 2003). In late 2004, the D.C. Circuit Court of Appeals found that Libya failed to show that the alleged action against it fell outside the scope of the FSIA terrorism exception. See Price v. Libya, 389 F.3d 192 (D.C. Cir. 2004). 51 See supra note 3. 52 Cicippio v. Iran, 18 F.Supp.2d 62, 64, 70 (D.D.C. 1998). 53 Cicippio-Puleo v. Iran, Civ. No. 01-1496, slip op. at 2 (D.D.C. June 21, 2002). 54 Brief for the United States as Amicus Curiae (Dec. 3, 2003), Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C. Cir. 2004) (No. 02-7085). 49 50
P1: ICD 0521750717c03
CB951-Murphy
0 521 75071 7
August 6, 2005
11:3
State Jurisdiction and Immunities
67
There is a clearly settled distinction in federal law between statutory provisions that waive sovereign immunity and those that create a cause of action. It cannot be assumed that a claimant has a cause of action for damages against a government agency merely because there has been a waiver of sovereign immunity. See FDIC v. Meyer, 510 U.S. 471, 483–84 . . . (1994). . . . The Supreme Court has also made it clear that federal courts should be loath to “imply” a cause of action from a jurisdictional provision that “creates no cause of action of its own force and effect . . . [and] imposes no liabilities.” See Touche Ross & Co. v. Redington, 442 U.S. 560, 577 . . . (1979). . . . Unsurprisingly, the Supreme Court has applied the distinction between immunity and liability in interpreting the FSIA itself, explaining that “[t]he language and history of the FSIA clearly establish that the Act was not intended to affect the substantive law determining the liability of a foreign state or instrumentality.” First Nat’l City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 620 . . . (1983). . . . .... We also agree with the United States that, insofar as the Flatow Amendment creates a private right of action against officials, employees, and agents of foreign states, the cause of action is limited to claims against those officials in their individual, as opposed to their official, capacities[.]55 The court emphasized, however, that §1605(a)(7) does make foreign state sponsors of terrorism “amenable to suits in United States courts for acts of terrorism in cases in which there is a viable cause of action,” and remanded the case to “allow plaintiffs an opportunity to amend their complaint to state a cause of action under some other source of law, including state law.”56 Difficulties in execution of FSIA terrorist-exception judgments. Although many cases based on the FSIA exception have been successfully brought in U.S. courts against such terrorist states, plaintiffs have experienced considerable difficulties in executing their judgments against the assets of those states.57 (As discussed in the next section, even if a foreign state is not immune from suit in U.S. court, its assets are generally presumed to be immune from attachment or execution.) In light of these difficulties, Congress enacted legislation in 199858 and 2000 (the Victims Protection Act or VTVPA)59 designed 55
353 F.3d at 1033–34. Id. at 1036. See, e.g., Flatow v. Iran, 308 F.3d 1065 (9th Cir. 2002) (finding that plaintiff did not overcome presumption that Bank Saderat Iran was a juridical entity separate and apart from the government of Iran and therefore was not subject to execution of a judgment against Iran based on the FSIA terrorist-state exception). 58 Omnibus Consolidated and Emergency Supplemental Appropriations Act for 1999, Pub. L. No. 105-277, 112 Stat. 2681 (1998). This statute added 28 U.S.C. §1610(f) (2000) and modified 28 U.S.C. §1606 (2000), thereby allowing plaintiffs to attach and execute judgments against any property of a terrorist state with respect to which financial transactions are prohibited or regulated under U.S. blocking statutes. President Clinton initially sought to waive this abrogation of foreign sovereign immunity in the national interest, but at least one lower court found the waiver to be unauthorized. See Alejandre v. Cuba, 42 F.Supp.2d 1317 (S.D. Fla. 1999), vacated on other grounds, 183 F.3d 1277 (11th Cir. 1999). Thereafter, as part of the 2000 legislation, infra note 59, the president’s ability to waive §1610(f ) in the national interest was made clear. See 28 U.S.C. §1610(f )(3) (2000). President Clinton subsequently did exercise that waiver. See Presidential Determination 2001-03, 3 C.F.R. 405 (2001). As a result, legislation enacted in 2002, infra note 68, sought to provide plaintiffs a further opportunity to attach and execute against such assets. 59 Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, §2002, 114 Stat. 1464, 1541–43 (2000) [hereinafter VTVPA]. The VTVPA amended the FSIA to make clear that the president – in the interest of national security – may prevent attachment of, or execution against, property of foreign terrorist states located in the United States that is subject to U.S. blocking statutes. The VTVPA also provided that claimants who either (1) possessed as of July 20, 2000, a final judgment against Iran or Cuba or (2) filed suit against Iran or Cuba on one of five specified dates and received a final judgment after July 20 had three options for obtaining compensation. First, they may obtain from the Treasury Department 110 percent of the compensatory damages awarded in their judgments, plus interest, if they relinquish all rights to compensatory and punitive damages awarded by U.S. courts. Second, they may obtain from the Treasury Department 100 percent of the compensatory damages awarded in their judgments, plus interest, if they relinquish (a) all rights to compensatory damages awarded by U.S. courts and (b) all rights to execute against or attach certain categories of properties, such as diplomatic and consular properties, including property that is at issue in claims against the United States before an international tribunal. Third, they may decline to obtain any payments from the Treasury Department and then continue to pursue their judgments as best they can. Funds were to be obtained principally from certain blocked assets in the United States (or proceeds therefrom) of Cuba and Iran, but in the case of Iran could also be drawn from U.S. funds up to a certain limit. See Payments to Persons Who Hold 56 57
P1: ICD 0521750717c03
CB951-Murphy
68
0 521 75071 7
August 6, 2005
11:3
United States Practice in International Law 2002–2004
both to provide partial compensation directly from the U.S. Department of Treasury to a narrow class of victims from a limited amount of funds, and to facilitate plaintiffs’ efforts to enforce or collect on their judgments from assets of the terrorist state located in the United States. The Hegna v. Iran case litigated during 2002–2004 is a good example of the continuing difficulties experienced by plaintiffs and of further efforts by the Congress to assist them. In 1984, an employee of the U.S. Agency for International Development, Charles Hegna, was aboard a Kuwait Airways flight from the United Arab Emirates to Pakistan when it was hijacked by Hezbollah terrorists, who redirected the plane to Tehran. After Hegna identified himself as a U.S. national, he was beaten, tortured, and eventually killed by the hijackers. In 2000, Hegna’s widow and children filed suit against Iran and the Iranian Ministry of Information and Security, invoking the terrorist-state exception to the FSIA. A default judgment was entered against the defendants, and in January 2002, Hegna’s family obtained an award of U.S.$375 million in compensatory and punitive damages.60 Thereafter, the plaintiffs sought payment for the compensatory portion of the judgment from the U.S. Department of Treasury under the VTVPA. As noted above, however, that act provided redress only for a narrow class of victims, and the Hegna plaintiffs did not fall within the defined class. Consequently, in May 2002, the Hegna plaintiffs sued the U.S. government on the ground that the VTVPA violated the equal protection component of the Fifth Amendment’s Due Process Clause.61 The plaintiffs sought, among other things, an injunction to prevent the exhaustion of funds available under the VTVPA for claims against terrorist states. On May 28, the U.S. government moved to dismiss the complaint. The Victims Protection Act provides for payment to certain persons who obtained judgments against Iran under Section 1605(a)(7) of the Foreign Sovereign Immunities Act. The Victims Protection Act specifies that only those persons who either obtained a final judgment as of July 20, 2000, or who filed suit on certain dates in 1999 and 2000, are eligible for payment. Plaintiffs, who satisfy neither criteria, claim that their exclusion from the coverage of the Victims Protection Act is a violation of the equal protection element of the Fifth Amendment’s due process clause. . . . The Victims Protection Act, which neither targets a suspect class nor implicates a fundamental right, is clearly a rational exercise of Congress’ authority to provide for, and limit, the expenditure of public funds. As such, plaintiffs’ exclusion from the Victims Protection Act’s coverage does not violate their constitutional right to equal protection, and plaintiffs’ Complaint must therefore be dismissed for failure to state a claim.62
On June 27, 2002, District Court Judge Henry H. Kennedy Jr. granted the U.S. government’s motion and dismissed the complaint. The following month, the judge sent a letter to Senate Majority Leader Tom Daschle, among others, criticizing Congress’s unequal treatment of victims of terrorism. I write to bring to your attention a grave injustice in the case of Hegna v. O’Neill, decided by this court on June 27, 2002, and to urge Congress to take action to rectify this injustice. As a result of what appears to have been poor statutory drafting, the Hegnas and other families have been unfairly excluded from funds set aside by Congress to assist victims of terrorism. ....
Certain Categories of Judgments Against Cuba or Iran, 65 Fed. Reg. 70,382 (Nov. 22, 2000), as supplemented by 65 Fed. Reg. 78,533 (Dec. 15, 2000). 60 Hegna v. Iran, 2002 U.S. Dist. Lexis 27544 (D.D.C. Jan. 22, 2002); see Neely Tucker, Iran Loses $42 Million Judgment in Hijack Suit, Wash. Post, Jan. 23, 2002, at A3. 61 Complaint (May 1, 2002), Hegna v. O’Neill, slip. op. (D.D.C. June 27, 2002) (No. 02-00857). 62 Defendant’s Memorandum of Points and Authorities in Support of Motion to Dismiss and in Opposition to Plaintiffs’ Motion for a Preliminary Injunction at 1–2 (May 28, 2002), Hegna v. O’Neill, slip. op. (D.D.C. June 27, 2002) (No. 02-00857).
P1: ICD 0521750717c03a
CB951-Murphy
0 521 75071 7
August 6, 2005
11:18
State Jurisdiction and Immunities
69
The Hegnas . . . brought suit against defendant, alleging that their exclusion from the Victims Protection Act violated their constitutional right to equal protection. I could find no basis for the distinction between the Hegnas and other victims’ families who are covered by the Act and therefore found it likely that the Hegnas would prevail on their equal protection claim. However, I determined that I could not award the Hegnas the relief they requested because to do so would result in exhausting the funds available under the Act, and therefore leave other families who are covered by the Act and who have also obtained judgments without relief. I also found that to attempt to rewrite the statute to include the Hegnas would impermissibly intrude upon the powers of the legislative branch. As a result, the Hegnas are barred from obtaining relief under the Act, while other similarlysituated families are not. Those families who are eligible will quickly exhaust the remaining funds set aside under the Act, so that no funds will remain for the Hegnas even were they to become eligible. This result is illogical and inconsistent with Congress’ intent in passing the Victims Protection Act. On a more fundamental level, it is a grievous injustice to the Hegnas and the other families excluded from the Act. Therefore, I respectfully urge Congress to rectify this error and allow these families to obtain relief for their tremendous suffering, as other victims have done. I am aware that legislation that would rectify the error is currently pending before Congress, and urge you to support this legislation and work for its speedy passage.63 New legislation. The pending legislation referred to by Judge Kennedy was a bill introduced in Congress in April 2002 as the Terrorism Victim’s Access to Compensation Act of 2002.64 The legislation sought generally to make it easier for claimants to attach, and to execute their judgments against, the blocked assets of terrorist states to the extent of the claimant’s compensatory damages, “[n]otwithstanding any other provision of law.”65 The legislation permitted the president, however, to prevent such attachment of, or execution against, terrorist-state property that is protected under the Vienna Convention on Diplomatic Relations or the Vienna Convention on Consular Relations, so long as the president acts on an “asset-by-asset basis” and for reasons of national security. Finally, the legislation included an amendment to the VTVPA designed to help all claimants holding judgments against Iran to obtain compensation from the U.S. government under that act. Two months after the 2002 legislation was introduced, the Bush administration proposed that Congress create a new, different program for compensating the victims of terrorist attacks. In lieu of resorting to the assets of terrorist states, the proposed program was modeled on, and would provide compensation roughly equivalent to, the federal benefit program for families of public safety officers killed in the line of duty.66 The new program would be funded out of a State Department account; instead of seeking redress through filing claims in U.S. courts, victims or their families would file claims with the Department of State as part of a streamlined administrative process that would result in more uniform payments to claimants. According to the Bush administration, this approach would preserve the President’s ability to conduct foreign policy. The Administration opposes the use of blocked assets to fund victim compensation or to satisfy judgments. Using blocked assets would preclude their use to pressure regimes to improve their policies on terrorism, risk taxpayer liability for third-party claims against the assets, eliminate their availability to satisfy current U.S. Government claims (currently more than $2 billion), and put at risk [U.S.] diplomatic property [abroad].67 63 Letter from Henry H. Kennedy Jr., United States District Judge, to Thomas A. Daschle, United States Senate 1–2 (July 29, 2002) (on file with author); see Neely Tucker, Judge Asks Hill to Overturn Law on Compensation, Wash. Post, Aug. 9, 2002, at A21. 64 S. 2134, 107th Cong. (2002). 65 Id. §4(a). 66 See 42 U.S.C. §3796 (2000). 67 Letter from Richard L. Armitage, Deputy Secretary of State, to J. Dennis Hastert, Speaker of the House of Representatives, at 3 (June 12, 2002) (on file with author).
P1: ICD 0521750717c03a
CB951-Murphy
70
0 521 75071 7
August 6, 2005
11:18
United States Practice in International Law 2002–2004
Congress rejected the Bush administration’s approach, however, and adopted the proposed Terrorism Victim’s Access to Compensation Act of 2002 as Title II of the Terrorism Risk Insurance Act of 2002 (TRIA), which was signed into law by President Bush on November 26, 2002.68 The TRIA provided in section 201(a): Notwithstanding any other provision of law, . . . in every case in which a person has obtained a judgment against a terrorist party on a claim based upon an act of terrorism, or for which a terrorist party is not immune under section 1605(a)(7) of title 28, United States Code, the blocked assets of that terrorist party (including the blocked assets of any agency or instrumentality of that terrorist party) shall be subject to execution or attachment in aid of execution in order to satisfy such judgment to the extent of any compensatory damages for which such terrorist party has been adjudged liable.69 The term “blocked assets” was then defined in TRIA section 201(d)(2) as “any asset seized or frozen by the United States” under either the Trading with the Enemy Act70 or the International Emergency Economic Powers Act,71 excluding property that (i) is subject to a license issued by the United States Government for final payment, transfer, or disposition by or to a person subject to the jurisdiction of the United States in connection with a transaction for which the issuance of such license has been specifically required by statute other than the International Emergency Economic Powers Act . . . or the United Nations Participation Act of 1945 (22 U.S.C. 287 et seq.); or (ii) in the case of property subject to the Vienna Convention on Diplomatic Relations or the Vienna Convention on Consular Relations, or that enjoys equivalent privileges and immunities under the law of the United States, is being used exclusively for diplomatic or consular purposes.72 Efforts to execute judgments under the 2002 legislation. Thereafter, the Hegna plaintiffs attempted to attach and execute against properties in New York, Illinois, Maryland, and Texas. In some instances, U.S. courts stayed or denied the application for attachment based on a conclusion that the plaintiffs had relinquished the right to attach properties after accepting payment from the U.S. government via the VTVPA.73 In other instances, U.S. courts denied the application based on a conclusion that the properties at issue fell outside the definition of “blocked asset” in the TRIA.74 For example, two parcels of real property located in Maryland were owned by Iran and occupied by Iranian diplomatic personnel until the United States severed diplomatic relations with Iran in April 1980 and then took control of the property. At the time of the attachments, the properties were being leased to the governments of the Netherlands and Peru. The United States filed a motion to quash the plaintiffs’ writs of attachment as falling outside the scope of the TRIA. The district court agreed, finding that the properties were “being used exclusively for diplomatic or consular purposes.”75 The court stated: The United States has an international legal obligation under the Vienna Conventions to protect foreign missions, consular premises, and their property in the United States in the event that diplomatic relations between the United States and a foreign country are severed. The conventions 68
Terrorism Risk Insurance Act of 2002, Pub. L. No. 107-297, Title II, 116 Stat. 2322, 2337–40 (2002). TRIA §201(a), 116 Stat. at 2337 (emphasis added). 50 U.S.C. App. §5(b) (2000). 71 50 U.S.C. §§1701, 1702 (2000). 72 TRIA §201(d)(2)(B), 116 Stat. at 2339–40. 73 See Hegna v. Iran, 299 F.Supp.2d 229 (S.D.N.Y. 2004); Hegna v. Iran, 2003 U.S. Dist. LEXIS 14039 (N.D. Ill. Aug. 11, 2003), aff ’d, 380 F.3d 1000 (7th Cir. 2004); Hegna v. Iran, 2003 WL 21501978 (N.D. Tex. June 27, 2003), aff ’d, 376 F.3d 485 (5th Cir. 2004). 74 See Hegna v. Iran, 376 F.3d 485 (5th Cir. 2004). 75 Hegna v. Iran, 287 F.Supp.2d 608 (D. Md. 2003), aff ’d, 376 F.3d 226 (4th Cir. 2004). 69 70
P1: ICD 0521750717c03a
CB951-Murphy
0 521 75071 7
August 6, 2005
11:18
State Jurisdiction and Immunities
71
recognize that diplomatic properties belong to the state that established them, not to the government that controls the state. The conventions also recognize that host states have the duty to hold in trust for future generations the diplomatic properties of a state with whom they have a dispute, however severe and violent, that has caused the severance of diplomatic relations. As treaties into which the United States has voluntarily entered, the conventions are part of the fundamental fabric of the nation’s law. Likewise, the goal of assuring that the United States is in compliance with its treaty obligations is quintessentially “diplomatic.” Therefore, in protecting the subject properties the United States clearly is using them for a “diplomatic purpose.” To exercise sovereign power to take the United States outside of the law of nations would be a solemn act for which there must be strict accountability. If elected officials choose to renounce treaty obligations, their intent must be manifest and their responsibility clear. Thus, “[i]t has been a maxim of statutory construction since the decision in Murray v. The Charming Betsy, 2 Cranch 64, 118, 2 L.Ed. 208 (1804), that ‘an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains.’” Weinberger v. Rossi, 456 U.S. 25, 32 (1982).76 Similar difficulties in attaching and executing against terrorist state assets may be seen in Weinstein v. Iran. In February 1996, a U.S. citizen named Ira Weinstein was injured and later died from a suicide bombing undertaken by Hamas in Jerusalem. In October 2000, plaintiff heirs sued Iran under the FSIA terrorist-state exception, alleging that Iran provided support to Hamas for terrorism.77 In February 2002, a U.S. district court entered a default judgment against Iran for U.S.$33.2 million in compensatory, and U.S.$150 million in punitive damages.78 Plaintiffs then sought in January 2003 to attach three different types of assets associated with the government of Iran: (1) Iran’s Foreign Military Sales (FMS) fund; (2) four bank accounts operated by the U.S. government on behalf of Iran; and (3) certain bank accounts maintained by the Bank of New York for three Iranian banks. Iran’s FMS fund existed as a holdover from the time prior to 1979 when the United States engaged in an extensive foreign military sales program with Iran. The Arms Export Control Act79 and associated laws and regulations require the United States to obtain payment up front from a foreign state purchaser of military goods or services, and to deposit those payments in an FMS fund held in trust by the U.S. Treasury for the foreign purchaser. Iran’s FMS fund remains in existence, in part due to continuing disputes between Iran and the United States at the Iran-U.S. Claims Tribunal in The Hague. In a decision rendered in July 2003, the district court considered whether the TRIA’s removal of immunity for “any asset seized or frozen by the United States” included the removal of U.S. government immunity for assets held by the United States. The court found that the TRIA phrase “assets seized by” did not necessarily equate with “assets held by” the U.S. government; the former might refer only to assets that the U.S. government has taken by force, and not to assets that the government holds by a lawful title (such as the FMS fund). The TRIA language was “susceptible of two meanings, one providing for a waiver of federal sovereign immunity and one that does not provide a waiver of sovereign immunity. As such, this Court cannot conclude that it constitutes a clear, unequivocal waiver of federal sovereign immunity.”80 Consequently, the TRIA did not permit attachment of Iran’s FMS fund. With respect to the bank accounts operated by the U.S. government that the plaintiffs sought to attach, two of the four accounts contained funds that the U.S. government obtained by leasing Iranian diplomatic and consular properties located in the United States that were taken into U.S. government control when the United States severed diplomatic relations with Iran in April 1980. The funds in those accounts were then used for maintenance and upkeep of the properties, although a portion of the funds was already being diverted for payment to certain victims of terrorism under the VTVPA. 76
Id. at 610 (citations and footnote omitted). Two other cases had already been brought by victims of the same attack. See Eisenfeld v. Iran, 172 F.Supp.2d 1 (D.D.C. 2000); Mousa v. Iran, 238 F.Supp.2d 1 (D.D.C. 2001). 78 Weinstein v. Iran, 184 F.Supp.2d 13 (D.D.C. 2002). 79 22 U.S.C. §§2751–2796(d) (2000). 80 Weinstein v. Iran, 274 F.Supp.2d 53, 58 (D.D.C. 2003). 77
P1: ICD 0521750717c03a
CB951-Murphy
72
0 521 75071 7
August 6, 2005
11:18
United States Practice in International Law 2002–2004
The court noted that in an earlier case, the funds in the first account had been held to constitute U.S. property, and thus were immune from attachment by virtue of the doctrine of sovereign immunity.81 With respect to the funds in the second account, the court noted that the Vienna Convention on Diplomatic Relations provides that “[i]f diplomatic relations are broken off between two States, or if a mission is permanently or temporarily recalled: . . . the receiving State must, even in case of armed conflict, respect and protect the premises of the mission, together with its property and archives;. . . . ”82 The court then held that the funds fit within the TRIA’s definition of property “being used exclusively for diplomatic and consular purposes” and thus “are not subject to attachment because they do not constitute ‘blocked assets’ under the TRIA.”83 The third and fourth bank accounts had been used by the Iranian consulates in Chicago and San Francisco from November 1979 to April 1980, but since that time the funds had remained blocked and unused. Although the United States argued that it had an obligation under the Vienna Conventions on Diplomatic and Consular Relations to protect the Chicago and San Francisco accounts, the court rejected that argument. Referring to the definitions contained in Article 1 of both Vienna Conventions, the court found that the “only property that the United States is obliged to ‘respect and protect’ under the conventions is ‘the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used exclusively for’ diplomatic or consular purposes. The accounts in question manifestly do not fit within this definition.”84 The court therefore held that plaintiffs could attach those accounts. With respect to the bank accounts maintained by the Bank of New York, a district court found in January 2004 that the accounts were not actually “blocked assets” under the TRIA. Among other things, these accounts operated under regulations that allowed the Iranian banks to close the accounts and receive a lump-sum payment of the funds. As such, the accounts were not subject to attachment under the TRIA.85 Change of government in Iraq. One of the more unusual aspects of the terrorist-state cases during 2002–2004 was the shift in 2003 of Iraq from being a terrorist-state to being a state under occupation by U.S. and coalition military forces. That shift created several issues affecting the ability of plaintiffs to attach and execute against Iraqi assets, which may best be seen in certain claims brought by former prisoners of war. On August 2, 1990, when Iraq invaded Kuwait, approximately 2,500 U.S. nationals were trapped within Iraq and Kuwait. Iraq declared that foreign nationals would be detained indefinitely, so long as Iraq was threatened by other states for its actions. President George H. W. Bush characterized the detainees as one would characterize hostages: “innocent people, citizens of many nations, held against their will in return for concessions.”86 Many of the detainees reportedly were confined in very difficult conditions, and some were transported to industrial or military sites that were anticipated targets of air strikes by allied coalition aircraft.87 In 1999, twenty of the detainees filed suit against Iraq under the terrorist-state exception to the FSIA, alleging hostage taking, false imprisonment, personal injury, intentional infliction of emotional distress, and in some cases assault, battery, and also loss of consortium. Although served with process, Iraq failed to appear and was declared in default in January 2001 in the case of Hill v. Iraq. Thereafter, the court held the legally required evidentiary hearing, noting that a default judgment can be entered 81 See Flatow v. Iran, 76 F.Supp.2d 16, 22–23 (D.D.C. 1999). The funds in this account were held for longer-term property renovation, as opposed to immediate disbursals for maintenance and repairs. 82 Vienna Convention on Diplomatic Relations, Apr. 18, 1961, Art. 45, 23 UST 3227, 3248, 500 UNTS 95, 122. A comparable provision exists for consulates. See Vienna Convention on Consular Relations, Apr. 24, 1963, Art. 27, 21 UST 77, 95, 596 UNTS 261, 284. 83 Weinstein v. Iran, 274 F.Supp.2d at 60–61. By contrast, a court in the same circuit found that bank accounts held in the name of the former Iraqi embassy in the United States could be attached under the TRIA since the funds “were used primarily (if not exclusively) for commercial, rather than diplomatic purposes.” Hill v. Iraq, No. Civ. 99-3346, 2003 WL 21057173 (D.D.C. Mar. 11, 2003). In that case, the court considered whether the accounts were immune from execution under the Vienna Convention on Diplomatic Relations, but decided that the “notwithstanding any other provision of law” language found in the TRIA “by its plain terms . . . overrides any immunity from execution that blocked Iraqi property might otherwise enjoy.” Id. at *2. 84 Weinstein v. Iran, 274 F.Supp. 2d at 61. 85 Weinstein v. Iran, 299 F.Supp.2d 63 (E.D.N.Y. 2004). 86 Hill v. Iraq, 175 F.Supp.2d 36, 37 (D.D.C. 2001). 87 Id. at 39.
P1: ICD 0521750717c03a
CB951-Murphy
0 521 75071 7
August 6, 2005
11:18
State Jurisdiction and Immunities
73
against a foreign government only if the plaintiff “establishes a right thereto by evidence satisfactory to the court.”88 At that hearing, the court received testimony from the plaintiffs regarding the conditions of their detention. On December 5, 2001, the plaintiffs obtained a judgment, jointly and severally, against the government of Iraq and its president, Saddam Hussein, for approximately U.S.$9 million in compensatory damages, and against Saddam Hussein for U.S.$300 million in punitive damages.89 Similarly, in the case of Acree v. Iraq, seventeen former prisoners of war and their close relatives sued the government of Iraq, Iraqi leader Saddam Hussein, and the Iraqi intelligence service, for torture during their captivity. On July 7, 2003, the plaintiffs were awarded a default judgment of U.S.$653 million in compensatory, and U.S.$306 million in punitive, damages.90 The plaintiffs then sought to attach the Iraqi funds that the U.S. government had vested for use in Iraq’s reconstruction. That vesting had occurred as follows. When Iraq invaded and occupied Kuwait in August of 1990, President George H. W. Bush issued an executive order blocking “all Iraqi property within the United States.”91 Even after Iraq was expelled from Kuwait, those U.S. sanctions remained in place pending Iraqi compliance with its cease-fire obligations, including the identification and elimination of weapons of mass destruction. In March 2003, the United States led an invasion of Iraq that toppled Iraqi leader Saddam Hussein and allowed for U.S. and other forces to occupy Iraq. On March 20, at the outset of the U.S. invasion of Iraq, President George W. Bush ordered that virtually all of the previously blocked Iraqi assets be vested “in the Department of the Treasury,” to be used “to assist the Iraqi people and to assist in the reconstruction of Iraq.”92 The former Iraqi assets (totaling approximately U.S.$1.9 billion) were transferred into a “Special Purpose Account” at the Federal Reserve Bank, which acts as the fiscal agent of the U.S. Treasury Department. Further, on April 16, a U.S. statute – the Emergency Wartime Supplemental Appropriations Act (EWSAA) – was enacted authorizing the president to “make inapplicable with respect to Iraq section 620A of the Foreign Assistance Act of 1961 or any other provision of law that applies to countries that have supported terrorism.”93 On May 7, President Bush, pursuant to that statute, issued a presidential determination making such laws inapplicable to Iraq.94 On July 18, the district court in the Acree case issued a temporary restraining order restricting the U.S. government from transferring funds from the Special Purpose Account in an amount that would reduce its balance below the compensatory damages due to the plaintiffs.95 On July 30, however, the district court vacated that order and granted the United States’ motion for a summary judgment in its favor.96 Plaintiffs argue that the [EWSAA] and the Determination are ineffective because Iraq is still officially designated as a sponsor of terrorism. The effectiveness of the [EWSAA] and the Determination, however, does not depend on the decertification of Iraq as a state sponsor of terrorism. Instead, the [EWSAA] authorizes the President – and the Determination is an exercise of that authority – to make inapplicable to Iraq certain statutes, including TRIA, that would otherwise apply because Iraq has been designated as a country that has supported terrorism. ....
88
Id. at 38 n.4 (quoting 28 U.S.C. §1608(e) (2000)). Id. at 48–49. Acree v. Iraq, 271 F.Supp.2d 179, 220–24 (D.D.C. 2003). 91 Exec. Order No. 12,722, 3 C.F.R. 294 (1991). 92 Exec. Order No. 13,290, 68 Fed. Reg. 14,307 (Mar. 20, 2003). This measure was taken pursuant to the International Emergency Economic Powers Act, 50 U.S.C. §§1701–1707 (2000). The USA Patriot Act had amended that act in order to empower the president to confiscate and vest in the United States the assets of foreign states “when the United States is engaged in armed hostilities or has been attacked by a foreign country or foreign nationals.” See USA Patriot Act §106, Pub. L. No. 107-56, 115 Stat. 271, 277–78 (2001) (codified at 50 U.S.C. §1702(a)(1)(C)). 93 Emergency Wartime Supplemental Appropriations Act §1503, Pub. L. No. 108-11, 117 Stat. 559 (2003). 94 Pres. Determination No. 2003-23, 68 Fed. Reg. 26,459 (May 16, 2003). The president subsequently declared that “such provisions of law . . . include, but are not limited to, 28 U.S.C. 1605(a)(7), 28 U.S.C. 1610, and section 201 of the Terrorism Risk Insurance Act.” Message to Congress Reporting the Declaration of a National Emergency with Respect to the Development Fund for Iraq, 39 Weekly Comp. Pres. Doc. 647, 647–48 (May 22, 2003). 95 See Some Iraqi Assets Set Aside for Ex-POWs, Wash. Post, July 20, 2003, at A10. 96 Acree v. Snow, 276 F.Supp.2d 31, 32 (D.D.C. 2003). 89 90
P1: ICD 0521750717c03a
CB951-Murphy
74
0 521 75071 7
August 6, 2005
11:18
United States Practice in International Law 2002–2004 The [EWSAA] is Congressional authorization for the President to make TRIA prospectively inapplicable to Iraq, and the President exercised that authority when he issued the Determination on May 7, 2003. As a result, at the time the plaintiffs obtained their judgment against Iraq on July 7, 2003, TRIA was no longer an available mechanism for plaintiffs to use to satisfy their judgments.97
After this decision, the Acree plaintiffs asked the D.C. Circuit Court of Appeals to issue an injunction preventing the movement of funds out of the Special Purpose Account, pending the plaintiffs’ appeal of the district court’s decision. The United States opposed the injunction, arguing that it “would cause serious harm to foreign policy and the national security interests of the United States.”98 The circuit court denied the plaintiffs’ motion on August 4. In the meantime, in July 2003, the United States filed both a motion to intervene in the underlying case of Acree v. Iraq, and a motion to vacate the judgment awarding damages to the plaintiffs. The government asserted that it was entitled to intervene as of right since it had an interest in the Special Purpose Account and also an important foreign policy interest – namely, to effectuate “the expressed intent of Congress and the President with respect to suits against Iraq.”99 In its motion to vacate the July 7 judgment against Iraq, the United States argued that the court lacked jurisdiction over the Iraqi government effective May 7, 2003, when the president’s determination removed the basis for plaintiffs’ claims against Iraq.100 According to the U.S. government, the EWSAA “restored to the Executive Branch in some measure the authority, exercised before the enactment of the FSIA, to determine if a foreign state could be sued in United States’ courts.”101 The government further stated: It is important to recognize that the President’s authority under [EWSAA] Section 1503 to make certain provisions of law inapplicable to Iraq is separate and distinct from the Executive Branch’s preexisting authority to rescind a designation of a foreign state as a sponsor of terrorism. When the Executive Branch rescinds a country’s designation as a state sponsor of terrorism, the state is immune from suits for acts that occur after rescission. But the state remains subject to suit in United States courts for acts that occurred while the country was still designated as a state sponsor of terrorism. By contrast, the President’s Determination implementing Section 1503 “make[s] inapplicable with respect to Iraq” any law that “applies to countries that have supported terrorism.” The Section 1503 Determination negates the current effect of any law that would otherwise apply to Iraq by virtue of that country’s designation as a state that has supported terrorism, preventing a court from exercising jurisdiction over any claim brought under Section 1605(a)(7), irrespective of when the underlying conduct occurred. Thus, the Determination is quite different in both form and effect from a decision to rescind the designation itself. .... We note that it is not unusual for the political branches to alter existing law concerning a claim against a foreign state. As the Supreme Court has recognized, “outstanding claims by nationals of one country against the government of another country are ‘sources of friction’ between the two sovereigns.” Dames & Moore v. Regan, . . . . For that reason, the political branches have frequently 97
Id. at 33. United States’ Opposition to Motion for Injunction Pending Appeal at 1 (July 31, 2003), Acree v. Snow, 2003 U.S. App. Lexis 15654 (D.C. Cir. Aug. 4, 2003) (No. 03-5195). The U.S. government attached to its pleading a series of declarations by U.S. officials testifying to the importance of these funds for the reconstruction effort in Iraq. For example, Paul Bremer, presidential envoy to Iraq, declared that “the United States has an urgent and critical national security need to make use of vested Iraqi funds as soon as possible for humanitarian assistance and reconstruction efforts in Iraq.” Declaration of L. Paul Bremer, III, Administrator, Coalition Provisional Authority, at para. 18 ( July 23, 2003), attached to United States’ Opposition to Appellants’ Motion for an Emergency Stay (Aug. 29, 2003), Acree v. Snow, 2003 U.S. App. Lexis 27789 (D.C. Cir. Oct. 7, 2003) (No. 03-5195); see also Declaration of the Hon. Dov S. Zakheim, Under Secretary of Defense (Comptroller) and Chief Financial Officer (July 31, 2003), id.; Declaration of Mary Tomkey, Assistant Deputy Comptroller (Program/Budget) Office of the Under-Secretary of Defense (Comptroller) (Aug. 20, 2003), id. 99 United States’ Motion to Intervene and Memorandum of Points and Authorities in Support of Motion to Intervene at 3–5 (July 21, 2003), Acree v. Iraq, 276 F.Supp.2d 95 (D.D.C. 2003) (No. 02-632). 100 Memorandum of Points and Authorities in Support of the United States’ Motion Under FRCP 59(e) to Vacate Judgment (July 23, 2003), Acree v. Iraq, 276 F.Supp.2d 95 (D.D.C. 2003) (No. 02-632). 101 Id. at 4. 98
P1: ICD 0521750717c03a
CB951-Murphy
0 521 75071 7
August 6, 2005
11:18
State Jurisdiction and Immunities
75
suspended, compromised, or even extinguished such claims against foreign states. See ibid.; Roeder v. Islamic Republic of Iran, [333 F.3d 228, 235 (D.C. Cir. 2003)] (“The authority of the President to settle claims of American nationals through executive agreements is clear.”) (citing Am. Ins. Ass’n v. Garamendi [539 U.S. 396, 413–16] (2003); id. at [430] (Ginsburg, J., dissenting)). The joint decision by Congress and the President to make Section 1605(a)(7) inapplicable here – restoring to Iraq the usual rule of immunity from suit for such claims in U.S. courts, a less intrusive action than settling or extinguishing the claims altogether – should be understood against that background.102 On August 6, 2003, the district court denied as untimely the U.S. government’s motion to intervene. The court found that the United States had only moved to intervene more than two months after the May 7 presidential determination and almost two weeks after the court entered final judgment in Acree, and had offered no explanation for that delay.103 Moreover, the court found that the United States had no interest in the judgment; not only was the judgment not directly concerned with Iraqi assets, but the United States’ ability to protect those assets had not been impaired. Further, the court found that the United States’ interest in establishing a democratic regime in Iraq was not impaired by adjudication of liability against the former regime.104 As to its subject matter jurisdiction, the court noted that, at the time the suit was filed, the sovereign immunity of Iraq, Saddam Hussein, and the Iraqi intelligence service had been abrogated under the FSIA, and that sovereign immunity, once abrogated, cannot be reasserted, even by a presidential determination. Moreover, “[e]ven if the Presidential Determination operated to restore Iraq’s previously waived sovereign immunity in this case, the defense of sovereign immunity could be asserted only by Iraq, not by the United States.”105 Finally, the court noted, the EWSAA mentioned only “Iraq.” If “Congress and the President want to absolve Saddam Hussein and the Iraqi Intelligence Service of liability for having tortured the POW plaintiffs, they must do so specifically.”106 On June 4, 2004, the D.C. Circuit Court of Appeals held that the district court abused its discretion in not allowing the United States to intervene, given the United States’ clear foreign policy interests in the case.107 The appeals court agreed that the district court had subject matter jurisdiction over the case, and that the language in the EWSAA did not restore sovereign immunity to Iraq.108 However, the appeals court followed its decision in Cicippio-Puleo (discussed above) that the Flatow Amendment did not provide a cause of action for the plaintiffs’ claims against Iraq.109 Consequently, the appeals court vacated the judgment against Iraq and dismissed the suit as against the Republic of Iraq, the Iraqi Intelligence Service, and Saddam Hussein in his official capacity as President of Iraq.110 In a similar case, Smith v. Afghanistan, plaintiff relatives of two individuals killed in the World Trade Center on September 11, 2001, brought suit against several parties, including Iraq. Although President Bush – in a widely reported comment in September 2003 – conceded that there was no evidence connecting Iraq to the September 11 attacks,111 the district court found that Iraq was, among other defendants, responsible for the September 11 attacks because plaintiffs showed “by evidence satisfactory to the court” that Iraq provided material support to the Al Qaeda terrorist network (and its leader, Osama Bin Laden), which in turn planned and implemented the attacks.112
102
Id. at 8–10 (citations omitted). Acree v. Iraq, 276 F.Supp.2d 95, 98–99 (D.D.C. 2003). Id. at 99–100. 105 Id. at 100–101. 106 Id. at 101. 107 Acree v. Iraq, 370 F.3d 41, 49–51 (D.C. Cir. 2004). 108 Id. at 51–58. The court found the presidential determination to be immaterial since it could not exceed the authority granted in the statute. 109 Id. at 58–60. 110 Id. at 60. 111 See Remarks Following a Meeting With the Congressional Conference Committee on Energy Legislation and an Exchange With Reporters, 39 Weekly Comp. Pres. Doc.1237, 1238 (Sept. 22, 2003). 112 Smith ex rel. Smith v. Afghanistan, 262 F.Supp.2d 217, 228–32 (S.D.N.Y. 2003). 103 104
P1: ICD 0521750717c03a
CB951-Murphy
76
0 521 75071 7
August 6, 2005
11:18
United States Practice in International Law 2002–2004
Consequently, in May 2003, the plaintiffs in Smith obtained a judgment against Iraq for damages of U.S.$63.5 million.113 On July 30, the plaintiffs sought to attach the Iraqi assets held in the Special Purpose Account (discussed above) but were opposed by the U.S. government.114 On September 11, 2003, the district court, citing two separate grounds, granted the government’s motion for summary judgment. First, the court followed the Acree court’s decision regarding the Special Purpose Account (discussed above) that the TRIA abrogation of immunity with respect to terrorist-state assets was made inapplicable to Iraq by the EWSAA and the ensuing presidential determination.115 Second, the court found that plaintiffs could not take advantage of the TRIA because – by virtue of the president’s March 20 executive order vesting Iraqi assets – the funds contained in the Special Purpose Account were made property of the United States and hence shielded by the sovereign immunity of the United States itself. The court considered whether the “notwithstanding any other provision of law” language in section 201(a) of the TRIA overruled the earlier statutory authority authorizing the vesting of Iraqi assets. In finding that the “notwithstanding” clause did not have such an effect, the court stated that the clause controls only when there are other statutes that directly conflict with the TRIA, such as statutes addressing the extent of a foreign state’s sovereign immunity. The relevant vesting authority presented no such conflict and therefore was not overruled.116 On October 3, the Second Circuit Court of Appeals upheld the district court.117 Proposed new legislation. On July 17, 2003, the U.S Department of State legal adviser, William H. Taft IV, testified before the Senate Committee on Foreign Relations on behalf of proposed legislation that would significantly change the process for compensating U.S. victims of international terrorism. In explaining why the change was necessary, Taft reviewed the various legislative changes since 1996 and noted: [W]hile it was Congress’ intent to address the suffering of victims of international terrorism, the legislation it passed, piecemeal over the years, has proven unsatisfactory in several respects. The current litigation-based system of compensation is inequitable, unpredictable, occasionally costly to the U.S. taxpayer and damaging to the foreign policy and national security goals of this country. First, let me address the inequitable and unpredictable nature of the current system. While some U.S. victims have been successful in obtaining large default judgments, others, who may not be able to prove who was responsible for the terrorist act, are not able to obtain court judgments. Yet others are barred by international agreement from even bringing suit. Some judgment holders have been able to satisfy judgments against the particular state sponsor of terrorism, because at the time their judgments were rendered, there happened to be sufficient blocked assets they could attach. Others have not, because the defendant state in their cases has few blocked assets in the United States. In addition, plaintiffs have had to compete against each other for satisfaction, hoping that their writs were served before the others for attachment of the very same assets. .... Second, the current system has been costly to the U.S. taxpayer and will continue to be so, whether or not the funds come directly from the U.S. Treasury. Under the Victims of Trafficking Act, payments totaling $386 million were made from the U.S. Treasury for 14 victims. Continued payments in this fashion, based upon compensatory damages awarded by a court, would amount to a significant drain on the U.S. Treasury. . . . .... 113
Id. at 240–41. See Defendant Snow’s Memorandum of Law in Opposition to Plaintiffs’ Motion for a Preliminary Injunction and Temporary Restraining Order (July 31, 2003), Smith v. Federal Reserve Bank of New York, 280 F.Supp.2d 314 (S.D.N.Y. 2003) (No. 03-5658). 115 Smith v. Federal Reserve Bank of New York, 280 F.Supp.2d at 323–24. 116 Id. at 319–20. 117 Smith v. Federal Reserve Bank of New York, 346 F.3d 264 (2d Cir. 2003). 114
P1: ICD 0521750717c03a
CB951-Murphy
0 521 75071 7
August 6, 2005
11:18
State Jurisdiction and Immunities
77
Third, the current system has frequently conflicted with foreign policy and national security interests. The U.S. government blocks assets in the interests of the nation as a whole. This is a powerful foreign policy tool. It is not intended to expropriate those assets, but to use them to promote important foreign policy goals. Using those assets to pay court judgments undermines the President’s ability to use this tool in the broader interest of the nation. For example, blocked Iraqi assets were needed this year for the people of Iraq and to support reconstruction efforts, just as blocked Afghan assets were needed for similar purposes in 2002, and as blocked Iranian assets were held as critical leverage in 1981 to secure the release of the hostages.118 The proposed legislation would amend the TRIA and FSIA so as to preclude U.S. victims of international terrorism from being able to execute judgments against blocked terrorist-state assets unless their cases were already filed when the new law was adopted.119 The new law would establish a program, however, under which monetary awards would be available for those victims, excluding military personnel.120 Under the program, the secretary of state would determine whether an incident met the definition of “act of international terrorism.” If so, the Department of State would receive and adjudicate the claims of, and pay awards to, the victims of the terrorist act in question.121 For victims who died as a direct result of that act, the amount of compensation would be equal to death benefits paid to survivors of police officers and firefighters killed in the line of duty.122 For victims who were injured or held hostage, the amount of compensation would be determined by the Department of State but could not exceed the proposed legislation’s defined death benefit.123 Compensation would be paid out of a fund administered by the Department of State, and the U.S. government would be subrogated, to the extent of such payments, with respect to any recovery against the terrorist state.124 In late 2004, the 108th Congress adjourned without passing the proposed legislation. Immunity of Foreign State Assets from Attachment or Execution Even if a foreign state is not immune from suit in U.S. court, its assets are generally presumed to be immune from attachment or execution.1 After a judgment is issued against a foreign government, the FSIA provides that a reasonable time must pass before the judgment holder will be allowed to execute the judgment against assets.2 If a reasonable time has elapsed, a government’s property is still immune from attachment or execution unless, under FSIA section 1610, the property is being “used for a commercial activity in the United States”3 and fits within one of several secondary requirements.4 Thus, in Connecticut Bank of Commerce v. Congo,5 a predecessor in interest to the Connecticut Bank of Commerce (Bank) lent the Republic of Congo U.S.$6.5 million under a loan agreement in which the Congo waived any right to claim foreign sovereign immunity, either from suit or from attachment or execution of its property. After the Congo defaulted on the loan, the Bank acquired the rights to a valid London judgment against the Congo. The Bank filed suit in the United States to turn the London judgment into a U.S. judgment. The Bank then obtained an order from a New York state court allowing it to garnish royalty and tax obligations owed by Texas oil companies to the Congo, relating to a joint venture between those companies and the Congo.6
118 Testimony of U.S. Department of State Legal Adviser William H. Taft IV on S. 1275, Benefits for Victims of International Terrorism Act, Before the Senate Committee on Foreign Relations, at 7–12 (July 17, 2003) (on file with author). 119 Benefits for Victims of International Terrorism Act of 2003, S. 1275, 108th Cong., §14 (2003). 120 Id. §§2, 6. 121 Id. §4. 122 Id. §7(a). Public safety officers’ death benefits are paid pursuant to 42 U.S.C. §§3796–3796d-7 (2000). 123 Benefits for Victims of International Terrorism Act, supra note 119, §7(b). 124 Id. §§10–11. 1 28 U.S.C. §1609 (2000). 2 Id. at §1610(c). 3 Thus, diplomatic and consular properties are generally immune from attachment and execution. 4 28 U.S.C. §1610 (2000). 5 309 F.3d 240 (5th Cir. 2002); see also Min. of Def. & Support for Armed Serv. of Iran v. Cubic Def. Sys. Inc., 385 F.3d 1206 (9th Cir. 2004). 6 309 F.3d at 247–48.
P1: ICD 0521750717c03a
CB951-Murphy
78
0 521 75071 7
August 6, 2005
11:18
United States Practice in International Law 2002–2004
A federal court in Texas, however, set aside the writs of garnishment, stating that the royalty and tax payments were not generated from a “commercial activity in the United States” (the joint venture) and therefore were immune. On appeal, the Fifth Circuit Court of Appeals stated that the district court was focusing on the wrong question in considering the “commercial activity” requirement of section 1610. Under the FSIA, courts may attach only a foreign state’s “property in the United States” when that property is “used for a commercial activity in the United States.” 28 U.S.C. § 1610(a) (emphasis added). What matters under the statute is what the property is “used for,” not how it was generated or produced. If property in the United States is used for a commercial purpose here, that property is subject to attachment and execution even if it was purchased with tax revenues or some other noncommercial source of government income. Conversely, even if a foreign state’s property has been generated by commercial activity in the United States, that property is not thereby subject to execution or attachment if it is not “used for” a commercial activity within our borders. The district court (and the litigants) have focused on the question of whether the Congo’s joint venture with the garnishees, which gave rise to the royalty and tax obligations that the Bank wants to garnish, was a “commercial activity in the United States.” This was the wrong question to consider. What matters under the statute is not how the Congo made its money, but how it spends it. The amenability of these royalties and taxes to garnishment depends on what they are “used for,” not on how they were raised.7 Since there was little information in the record as to how the royalties and tax obligations were being used, the Fifth Circuit vacated the dismissal of the garnishment action, and remanded the matter to the district court for further consideration.8
Immunity as Head of State Immunity as Head of State for Former Chinese President Jiang Zemin In October 2002, individual plaintiffs filed a class action lawsuit under the Alien Tort Claims Act (ATCA)1 and the Torture Victims Protection Act (TVPA)2 in a U.S. federal court against Jiang Zemin, then president of China, and against the Chinese government’s Falun Gong Control Office. The complaint alleged that the defendants committed certain acts against practitioners of Falun Gong (a spiritual movement of Chinese origin) while they were held in government detention – acts that constituted torture, genocide, and violations of the rights to life, liberty, security of the person, and freedom of thought, conscience, and religion.3 Immediately after the complaint was filed, the U.S. district court issued an order providing that service of process could be accomplished by delivery of a copy of a summons and complaint to any of the federal security agents guarding President Jiang during his visit to Chicago on October 22–23, and ordered those agents, upon receipt of the documents, to serve the Chinese president.4 Thereafter, the plaintiffs served process on federal security agents in such a manner. The government of China did not respond to the complaint, but in December 2002, the United States challenged the service of process as defective because it violated both the principle of separation of powers and, absent an applicable Congressional waiver, the immunity of the United States and its officers from judicial proceedings (including a judicial order compelling U.S. officers to serve 7
Id. at 251. Id. at 260–61. 28 U.S.C. §1350 (2000). 2 28 U.S.C. §1350 note (2000). 3 See Complaint, paras. 47–55 (Oct. 18, 2002), Plaintiffs A, B, C, D, E, F v. Zemin, 282 F.Supp.2d 875 (N.D. Ill. 2003) (No. 02-7530). The complaint is available at . 4 See Corrected United States’ Motion to Vacate October 21, 2002 Order and Statement of Interest or, in the Alternative, Suggestion of Immunity at 2–3 (Dec. 12, 2002) [hereinafter Corrected United States’ Motion], Plaintiffs A, B, C, D, E, F v. Zemin. 8 1
P1: ICD 0521750717c03a
CB951-Murphy
0 521 75071 7
August 6, 2005
11:18
State Jurisdiction and Immunities
79
process).5 In the alternative, the United States suggested that President Jiang should be extended immunity from jurisdiction as head of state. With respect to the latter issue, the United States asserted: The Legal Adviser of the Department of State has informed the Department of Justice that “[t]he Department of State recognizes and allows the immunity of President Jiang from this suit.” . . . Under customary rules of international law recognized and applied in the United States, and pursuant to this Suggestion of Immunity, President Jiang, as the head of a foreign state, is immune from the Court’s jurisdiction in this case. See, e.g., Leutwyler v. Queen Rania Al Abdullah, [184 F.Supp.2d 277] (S.D.N.Y. 2001); First Am. Corp. v. Sheikh Zayed Bin Sultan Al-Nahyan, 948 F.Supp. 1107, 1119 (D.D.C. 1996). . . . The Supreme Court has mandated that the courts of the United States are bound by suggestions of immunity, such as this one, submitted by the Executive Branch. See, e.g., Republic of Mexico v. Hoffman, 324 U.S. 30, 35–36 (1945); Ex parte Peru, 318 U.S. 578, 588–589 (1943). In Ex Parte Peru, the Supreme Court, without further review of the Executive Branch’s determination regarding immunity, declared that the Executive Branch’s suggestion of immunity “must be accepted by the courts as a conclusive determination by the political arm of the Government” that the retention of jurisdiction by the courts would jeopardize the conduct of foreign relations. Ex Parte Peru, 318 U.S. at 589. . . . Accordingly, where, as here, immunity has been recognized by the Executive Branch and a suggestion of immunity is filed, it is the “court’s duty” to surrender jurisdiction. Ex Parte Peru, 318 U.S. at 589; accord Hoffman, 324 U.S. at 35.6 In March 2003, Jiang Zemin stepped down as president of China. In June 2003, twenty-three Democratic Party members of the U.S. House of Representatives submitted to the district court an amicus curiae brief. The brief contended that the Foreign Sovereign Immunities Act contains the applicable procedures for service of process in this case, that the United States should not have intervened in a dispute arising from such service, and that “some of these arguments do not appear to be arguments on behalf of U.S. interests but on behalf of the People’s Republic of China.”7 We do believe that nothing in the Alien Torts Claims Act . . . or the Torture Victim Protection Act . . . provides a basis for an opportunity by the executive branch to assert its constitutional role over foreign affairs to block private litigation against a former head of state charged with violations of internationally recognizable human rights, especially where the legal standards themselves have been established and confirmed by the United States Congress. It is the judicial branch of government that has been vested with the power to interpret statutes in disputes between litigants, and this responsibility should not be shirked merely because the court’s ruling may have significant political overtones. This clearly pertains to cases brought under the ATCA and TVPA, which directly confirm the authority of the U.S. courts to consider cases such as the one at bar. Congress specifically passed the TVPA to “make sure that torturers and death squads will no longer have safe haven in the United States.” S. Rep. No. 249, 102nd Cong., 1st Sess., 1991 WL 258662. The legislative history also expresses strong support for the ATCA, noting “section 1350 has important uses and should not be replaced.” H.R. Rep. No. 367, Part 1, 102nd Cong., 1st Sess. at 3. The argument proffered by the Department of Justice – that the lawsuit risks provoking retaliatory lawsuits against U.S. officials – has been addressed and dismissed by Congress. . . . .... 5
For an acceptance of this argument by a different federal court, see supra Ch. II. Corrected United States’ Motion, supra note 4, at 15 (footnote omitted). Brief of Amicus Curiae Relating to Issues Raised by the United States in Its Motion to Vacate October 21, 2002, Matters and Statement of Interest or, in the Alternative Suggestion of Immunity at 4 (June 9, 2003), Plaintiffs A, B, C, D, E, F v. Zemin. 6 7
P1: ICD 0521750717c03a
CB951-Murphy
80
0 521 75071 7
August 6, 2005
11:18
United States Practice in International Law 2002–2004 Granting immunity to a sitting head of state of any regime has been a long recognized approach to the conduct of the foreign affairs because of the interference that such suits may impose on the President’s constitutional responsibilities to receive ministers of foreign states and has been recognized as part of traditional concepts of diplomatic immunity. However, the principles underlying these concerns and the U.S. interest in them are diminished significantly once the individual is no longer the head of state. . . . U.S. interests in conducting its foreign policy and protecting the President no longer hold, since the United States no longer needs to confer with the individual at the state-to-state level and the exercise of a sitting President’s responsibilities will not be affected because of expectations of assertions of immunity on the President’s behalf with respect to foreign states. Moreover, we also recognize the value of an assertion of head of state immunity to a former head of state of a democratic country that has its own internal process for resolving disputes against such a head of state for injuries allegedly caused by such individuals. In such cases, we can see that assertions of immunity would be justified because of the ability of the foreign state to resolve the dispute and the dangers it would pose in our foreign policy with democratic friends and allies. However, we see no policy or prudential reason to accept a suggestion of immunity by the executive branch with respect to a former head of a country that is a totalitarian regime and that does not afford the opportunity for its citizens to petition its government for grievances or to make claims against the governments for wrongdoing. . . . Indeed, international law makes clear that individuals that are responsible for gross violations of human rights may be subject to prosecution even if they were heads of state at the time that the offenses occurred. See, e.g., the Convention on the Prevention and Punishment of Genocide (specifying that “persons committing genocide” are subject to punishment, “whether they are constitutionally responsible rulers, public officials, or private individuals”). Moreover, there are a number of cases where suits have been successfully brought against former heads of state. See, e.g., Hilao v. Estate of Marcos, 25 F.3d 1467 (1994); 103 F.3d 767 (9th Cir. 1996). Here the court faces the unusual situation where the suit was filed while Mr. Jiang was in office but has not made its decision regarding immunity until after he left office. We note that in the case of Estate of Domingo v. the Republic of the Phillipines, 808 F.2d 1349 (9th Cir. 1987), on remand 694 F.Supp. 782 (W.D. Wash. 1988), the court held that the suggestion of immunity filed while a head of state was in office did not have significance once he was out of office. 694 F.Supp. at 786. In that case, similar to the case at bar, the United States filed a suggestion of immunity while President Marcos was in office but did not reaffirm the suggestion after the head of state had left office. In this unique circumstance, we believe the court should give due consideration to the equities involved in unnecessarily filing this case a second time.8
In June 2003, the United States filed a response to the congressional amicus brief, arguing that the representation of U.S. interests in litigation rests with the executive branch, not the legislative branch, and that “because it is the Executive Branch that represents the interests of the United States in this litigation, that representation may not be second-guessed by Amici, Plaintiffs, or the Court.”9 The United States also rejected the notion that Jiang’s departure from the presidency was pertinent, since his “immunity must be determined as of the time the lawsuit is filed.”10 The United States’ suggestion of immunity on behalf of former President Jiang reflects the Executive Branch’s assessment of the foreign policy considerations relevant to whether the Chinese head of state, now the former head of state, should be recognized as immune from the Court’s jurisdiction in this case. The suggestion is binding on the Court.11 8
Id. at 5–6, 9–11. United States’ Response to Amended Brief of Amici Curiae at 2 (June 19, 2003), Plaintiffs A, B, C, D, E, F v. Zemin. 10 Id. at 4. 11 Id. at 5 (footnote omitted). 9
P1: ICD 0521750717c03a
CB951-Murphy
0 521 75071 7
August 6, 2005
11:18
State Jurisdiction and Immunities
81
In September 2003, the district court dismissed the complaint against the Falun Gong Control Office for lack of personal jurisdiction since Jiang Zemin was neither an officer nor agent of that office, and the office had no constructive presence in Illinois.12 The court also dismissed the complaint as against Jiang Zemin, finding that under traditional common law, a foreign head of state was immune and that, notwithstanding the assertions made in the congressional amicus brief, the U.S. government’s suggestion of immunity was dispositive as to Jiang Zemin’s immunity.13 With respect to whether such immunity should be accorded to a former head of state, the district court asserted: Plaintiffs cite no holding by any court that head-of-state immunity for acts committed during one’s tenure as ruler disappears when a leader steps down. The Second Circuit has stated in dictum that “there is respectable authority for denying head-of-state immunity to former heads-of-state.” In re Doe, 860 F.2d 40, 45 (2d Cir. 1988). However, the cases the court cited in support of this proposition suggest merely that a former head of state may not be entitled to immunity (1) for his private acts, see The Schooner Exchange, 11 U.S. (7 Cranch) at 145; Republic of Philippines v. Marcos, 806 F.2d 344, 360 (2d Cir. 1986) (stating in dicta that head-of-state immunity may not “go[ ] so far as to render a former head of state immune as regards his private acts” (emphasis added)), or (2) when the foreign state waives the immunity of its former leader, see In re Grand Jury Proceedings, 817 F.2d 1108, 1111 (4th Cir. 1987). Neither scenario is present here. Moreover, the cornerstones of foreign sovereign immunity, comity and the mutual dignity of nations, are not implicated by denying immunity in the types of matters cited in Doe – in the first scenario because the head of state is being sued for acts taken as a private person and in the second because the foreign state disavows immunity for its former leader. By contrast, the rationale for head-of-state immunity is no less implicated when a former head of state is sued in a United States court for acts committed while head of state than it is when a sitting head of state is sued.14 On appeal, the Seventh Circuit Court of Appeals affirmed, stating: “Because the FSIA does not apply to heads of states, the decision concerning the immunity of foreign heads of states remains vested where it was prior to 1976 – with the Executive Branch.”15 The Seventh Circuit found this to be the case even if the underlying claim purportedly related to a violation of jus cogens norms.16 Moreover, the Seventh Circuit stated that the scope of Jiang Zemin’s immunity was such that he could not be used as an involuntary agent of the appellants to effect service on the Falon Gong Control Office, regardless of his connections with that office.17
Immunity of U.S. for Acts Abroad U.S. Immunity for Security Measures at Embassy Abroad On August 7, 1998, a powerful truck bomb exploded outside the U.S. Embassy in Nairobi, Kenya, killing more than two hundred people, injuring thousands more, and damaging Kenyan businesses located near the embassy.1 Thereafter, Kenyan nationals and companies sued in U.S. federal court under the Federal Tort Claims Act (FTCA),2 alleging, among other things, that the Department of State knew or should have known that a terrorist attack against the embassy was likely, and yet negligently failed to take proper precautions or to issue an alert. Moreover, the plaintiffs alleged that 12
Plaintiffs A, B, C, D, E, F v. Zemin, 282 F.Supp.2d 875, 884–89 (N.D. Ill. 2003). Id. at 879–82. 14 Id. at 883. 15 Ye v. Zemin, 383 F.3d 620, 625 (7th Cir. 2004). 16 Id. at 626–27. 17 Id. at 628–30. 1 See James C. McKinley Jr., Bombs Rip Apart 2 U.S. Embassies in Africa; Scores Killed; No Firm Motive or Suspects, N.Y. Times, Aug. 8, 1998, at A1. The attack coincided with an attack on the U.S. Embassy in Tanzania. It was subsequently determined that the two attacks were planned and executed by the terrorist organization Al Qaeda. For an overview both of the criminal law actions taken by the United States in response to the attacks, and of the U.S. military response by missile attacks on Sudan and Afghanistan, see Sean D. Murphy, United States Practice in International Law: Vol. 1, 1999–2001, at 351–59, 417–21 (2002). 2 28 U.S.C. §§1346(b), 2671–80 (2000). 13
P1: ICD 0521750717c03a
CB951-Murphy
82
0 521 75071 7
August 6, 2005
11:18
United States Practice in International Law 2002–2004
the negligence of local security staff, who had been provided by an independent contractor, could be attributed to the Department of State on the principle of respondeat superior.3 The government moved to dismiss the case for lack of subject matter jurisdiction, invoking the “discretionary function” and the “foreign country” exceptions to the FTCA waiver of sovereign immunity.4 In July 2002, the district court granted the government’s motion to dismiss, finding that plaintiffs had not identified an applicable statute or regulation that would limit governmental discretion, and that the conduct at issue – what action should be taken related to security – was clearly “susceptible to policy analysis” and thus fell within the discretionary function exception.5 With regard to the local security staff, the district court found that the foreign country exception applied since the plaintiffs failed to demonstrate activities occurring within the United States that resulted in a failure to train the local guards properly.6 Further, the “broad supervisory control” exercised by the United States over the local guards was insufficient to characterize them as employees rather than independent contractors.7 Plaintiffs appealed. In a brief to the circuit court, the U.S. government reiterated that there was no mandatory federal statute, regulation, or policy, or any Department of State regulation or procedure, prescribing a specific course of action for the Department of State in handling security at the embassy in Nairobi. Appellants complain about three types of decisions: where to locate the Embassy, how best to secure the Embassy’s premises, and whether to warn the local public about suspected terrorist actions. These are plainly the type of policy decisions that Congress shielded from judicial secondguessing. United States v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797, 814, reh’g denied, 468 U.S. 1226 (1984). . . . . . . [T]he [Foreign Building Security] Act requires the Secretary to balance competing priorities – such as budget limitations, safe, secure, and well-designed embassy facilities, and foreign relations concerns. . . . Because decisions whether to purchase or construct a new building or renovate an existing one are rooted in economic and political judgment, they are exempt from judicial review. 28 U.S.C. §2680(a).
The Department’s decisions on overseas facilities security are also firmly grounded in economic and policy judgments. The Department decides on funding of particular security requests from foreign posts by reviewing funding for appropriateness and for prioritization and determining whether a request makes sense from a security perspective. . . . .... The decision about whether to notify the local public in Kenya about suspected terrorist activity is also subject to policy analysis. Decisions about when, where, and to whom to provide intelligence data are clearly the most discretionary of all governmental functions. See Frigard v. United States, 862 F.2d 201, 203 (9th Cir. 1988), cert. denied, 490 U.S. 1098 (1989) (decisions concerning intelligence gathering and dissemination of intelligence information are inherently discretionary).8 3
See Macharia v. United States, 238 F.Supp.2d 13, 17–18 (D.D.C. 2002). The FTCA preserves sovereign immunity from claims “based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation . . . 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.” 28 U.S.C. §2680(a) (2000). Moreover, a claim must not “arise in a foreign country.” Id. §2680(k). 5 238 F.Supp.2d at 23, 25. 6 Id. at 27. 7 Id. at 28. The district court also dismissed as bases of suit against the United States alleged violations of Kenyan law and of the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171, reprinted in 6 ILM 368 (1967). The former was inadmissible because the government had not waived its immunity for violations of foreign laws, and the latter because the Covenant was not self-executing and therefore did not provide a private right of action. 238 F. Supp.2d at 29–30. 8 Brief for Appellee at 24–27 (Feb. 28, 2003), Macharia v. United States, 334 F.3d 61 (D.C. Cir. 2003) (No. 02-5252). 4
P1: ICD 0521750717c03a
CB951-Murphy
0 521 75071 7
August 6, 2005
11:18
State Jurisdiction and Immunities
83
As to the foreign country exception, the U.S. government argued that whatever training the local guards should have received would have occurred in Kenya, that any more security equipment would have been provided in Kenya, that efforts to better control the embassy’s rear parking lot would have been made in Kenya, and that any warning to Kenyan citizens about the impending threat would also have been issued there.9 With respect to the local guards and the principle of respondeat superior, the U.S. government argued that the Kenyan contractor had assumed responsibility for hiring, training, and supervising them, and that even if the contract granted the State Department day-to-day control over the contractor’s employees, “those actions took place in Nairobi.”10 The government also argued that the political question doctrine should preclude a review of plaintiffs’ claims.11 In July 2003, the circuit court affirmed the district court’s dismissal of the case. The circuit court quoted favorably the district court’s finding that “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 judgment and discretion.”12 The circuit court also held that the local guards in Nairobi should be characterized as independent contractors because their “day-to-day operations” were not supervised by the federal government. Even if the work of the local U.S. government security officer amounted to day-to-day supervision of the local guards, that work occurred outside the United States and hence fell under the foreign country exception.13 On January 20, 2004, the U.S. Supreme Court denied a request for a writ of certiorari in the case.14 Supreme Court Rejection of “Headquarters Doctrine” Under FTCA In 1990, Mexican nationals acting on behalf of the U.S. Drug Enforcement Administration (DEA) abducted a Mexican national, Humberto Alvarez-Machain, from his office in Mexico without the involvement of Mexican authorities and brought him to the United States for trial for his alleged involvement in the murder of a DEA agent in Mexico. After the U.S. Supreme Court decided that Alvarez’s abduction – though undertaken without the United States having requested extradition under the U.S.–Mexican extradition treaty – did not preclude trial in the United States,1 the criminal proceeding against Alvarez was dismissed due to lack of evidence.2 Alvarez then brought a civil action against the United States and numerous individual defendants.3 Alvarez sued the United States for false arrest under the Federal Tort Claims Act (FTCA),4 arguing that the warrant to arrest issued to the DEA applied only within U.S. territory. That act contains, however, an exception to its waiver of sovereign immunity for claims “arising in a foreign country.”5 In a decision issued in 2003, the Ninth Circuit Court of Appeals found that, while Alvarez’s abduction occurred in a foreign country (Mexico), the abduction was the direct result of wrongful planning and direction by DEA agents in the United States. Relying on prior FTCA circuit court decisions advancing a “headquarters doctrine” – which cite, in turn, the Supreme Court’s decision in Richards v. United States6 – the court rejected the United States’ position and found that the claim did not arise
9
Id. at 32–33. Id. at 35–38. Id. at 43–45. 12 Macharia v. United States, 334 F.3d 61, 65 (D.C. Cir. 2003) (citing to 238 F.Supp.2d at 23). 13 334 F.3d at 68–69. 14 See Macharia v. United States, 540 U.S. 1149 (2004). 1 See United States v. Alvarez-Machain, 504 U.S. 655 (1992). 2 See Alvarez-Machain v. United States, 107 F.3d 696, 699 (9th Cir. 1996). 3 For background on some of the initial decisions in the case, see Sean D. Murphy, United States Practice in International Law: Vol. 1, 1999–2001, at 304–06 (2002). 4 28 U.S.C. §§2671–2680 (2000). The FTCA waives the federal government’s sovereign immunity in suits for personal injury caused by the negligence or wrongful acts of government employees while acting within the scope of their office or employment. 28 U.S.C. §1346(b)(1). 5 28 U.S.C. §2680(k) (2000). 6 369 U.S. 1 (1962). 10 11
P1: ICD 0521750717c03a
CB951-Murphy
84
0 521 75071 7
August 6, 2005
11:18
United States Practice in International Law 2002–2004
in Mexico.7 Subsequently, in a brief filed before the Supreme Court, the United States challenged both the breadth of such a headquarters doctrine and its application in this particular case. Richards and its focus on where the tortious activity occurred . . . provide no support for the Ninth Circuit’s attempt to make a tort committed abroad actionable under a “headquarters exception” whenever there is involvement by officials inside the United States. Torts may often involve planning, authorization, or support from officials in multiple jurisdictions. But the tortious conduct itself – the particular conduct that makes the matter actionable – generally will occur exclusively or predominantly in one place. . . . The Ninth Circuit’s variant of the headquarters doctrine renders the FTCA’s foreign country exception inapplicable whenever some authorization, support, or planning took place in the United States. . . . [I]t thus does not represent an effort to determine where the claim arose, but is an expedient to avoid the foreign country exception whenever some involvement of officials in the United States is shown. . . . In this case, respondent’s false arrest claim arose in Mexico. The arrest is alleged to be “false” and thus actionable only because it took place in Mexico. A critical element of the claim – the “nonconsensual, intentional confinement of a person” – occurred in Mexico, and ceased to be actionable once respondent crossed the border into the United States. . . . Mexico thus was not merely the site of the injury. It was the location where the allegedly wrongful “act . . . occurred” and the place where there claim “arose” within the meaning of the FTCA. The invocation of a judicially crafted “headquarters doctrine” does not alter that reality.8
In a decision issued June 29, 2004, the Supreme Court agreed that the headquarters doctrine could not be invoked. The Court noted that the central issue was whether the actions in the United States proximately caused the alleged injury; such a finding would require the act or omission at home headquarters [to be] sufficiently close to the ultimate injury, and sufficiently important in producing it, to make it reasonable to follow liability back to the headquarters behavior. Only in this way could the behavior at headquarters properly be seen as the act or omission on which all FTCA liability must rest. . . . 9 Moreover, the Court held that the existence of such proximate causation did not preclude an additional finding that acts in the foreign country were also proximate causes – which might trigger the FTCA foreign-country exception to immunity.10 Finally, the Court stated that there was “good reason to think that Congress understood a claim ‘arising in’ a foreign country in such a way as to bar application of the headquarters doctrine.”11 Based on a historical analysis of the meaning of “arising under” in various statutes and in choice of law doctrine, the Court concluded that the FTCA’s “arising in” referred to the place where the harm occurred, not the place where the wrongful acts occurred.12 Consequently, the Court held “that the FTCA’s foreign country exception bars all claims based on any injury suffered in a foreign country, regardless of where the tortious act or omission occurred.”13 7
Alvarez-Machain v. United States, 331 F.3d 604, 641 (9th Cir. 2003). Brief for the Petitioner at 44–45 (Jan. 23, 2004), Sosa v. Alvarez-Machain, 124 S.Ct. 2739 (2004) (No. 03-485) (citation omitted) (the brief was filed before the Supreme Court as part of United States v. Alvarez-Machain, Case No. 03-485, which was the companion case to Sosa). The Supreme Court’s decision in Sosa and Alvarez-Machain is discussed in a case report by Brad Roth at 98 AJIL 798 (2004). 9 Sosa v. Alvarez-Machain, 124 S.Ct. at 2749. For a discussion of the Court’s analysis of customary international law as a part of U.S. law, see supra Ch. I. For the Court’s interpretation of the Alien Tort Claims Act, see infra Ch. VIII. 10 Id. at 2750. 11 Id. 12 Id. at 2750–54. 13 Id. at 2754. 8
P1: ICD 0521750717c03a
CB951-Murphy
0 521 75071 7
August 6, 2005
11:18
State Jurisdiction and Immunities
85
Act of State Doctrine License to Export as an Act of State During 2002–2004, the “act of state” doctrine arose in various cases in U.S. courts.1 For example, in the World Wide Minerals case, a Canadian corporation (World Wide Minerals, Ltd.) entered into a series of agreements with the Republic of Kazakhstan in 1996–1997 for the management of certain Kazakhstan uranium complexes. In 2000, World Wide Minerals filed a suit in U.S. court against Kazakhstan, two of its instrumentalities, and a New York corporation, contending that Kazakhstan breached the agreements by failing to issue to World Wide Minerals a uranium-export license and by seizing the company’s assets in Kazakhstan. The D.C. Circuit Court of Appeals accepted that Kazakhstan had expressly waived sovereign immunity with respect to two of the four agreements with World Wide Minerals.2 Nevertheless, the court found that the act of state doctrine – which generally precludes U.S. courts from inquiring into the validity of the public acts of a recognized foreign sovereign committed within its own territory – barred adjudication of World Wide Minerals’ claims under those agreements. After reviewing the scope of the act of state doctrine, the court stated that it had “no doubt that issuance of a license permitting the removal of uranium from Kazakhstan is a sovereign act.”3 Since the relief sought would require the court to question the legality of Kazakhstan’s denial of the export license (by ruling that denial to be a breach of contract), the court found that the act of state doctrine applied. The court noted that “questioning the export control policies of a foreign state would both disrupt international comity and interfere with the conduct of foreign relations by the Executive Branch.”4 Similarly, the alleged expropriation of property fell squarely within “the classic act of state addressed in the case law.”5
1 See, e.g., United States v. Giffen, 326 F.Supp.2d 497 (S.D.N.Y. July 2, 2004); United States v. Labs of Virginia, Inc., 272 F.Supp.2d 764 (N.D. Ill. 2003); Sarei v. Rio Tinto PLC, 221 F.Supp.2d 1116 (C.D. Cal. 2002); Garb v. Poland, 207 F.Supp.2d 16 (E.D.N.Y. 2002); In re Grand Jury Subpoena Dated August 9, 2000, 218 F.Supp.2d 544 (S.D.N.Y. 2002); First Merchants Collection Corp. v. Argentina, 190 F.Supp.2d 1336 (S.D. Fla. 2002). 2 World Wide Minerals v. Kazakhstan, 296 F.3d 1154, 1161–64 (D.C. Cir. 2002). 3 Id. at 1165. 4 Id. 5 Id. at 1166 (citing Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964)).
P1: ICD 0521750717c04
CB951-Murphy
0 521 75071 7
August 6, 2005
11:23
Chapter IV State Responsibility and Liability Overview During the course of 2002–2004, various issues of state responsibility and liability arose in the context of claims by U.S. nationals against foreign governments, and foreign nationals against the U.S. government. A particularly fertile area for the development of international standards on the presentation of claims (such as rules on continuous nationality of a claim and on exhaustion of local remedies), and on expropriation, national treatment, and denial of justice, was the dispute settlement process under Chapter 11 of the North American Free Trade Agreement (NAFTA).1 In briefs filed before various NAFTA panels, the U.S. government explicated its positions on such standards, and the panels then reacted to those positions in their decisions. The positions taken by the United States, in turn, influenced the development of investment-related provisions in bilateral and multilateral trade agreements, as discussed infra Chapter VII. There were no bilateral “lump sum” settlement agreements concluded with foreign governments during this period, nor any high-profile payments of claims by the United States to foreign nationals. While all private claims had been concluded before the Iran-U.S. Claims Tribunal, the U.S. government remained actively engaged in the resolution of claims before the UN Compensation Commission concerning loss, damage or injury by Iraq during the 1990–1991 Iraq–Kuwait war.2 Compensation for injuries sustained during the Second World War also featured during this period. The United States assisted U.S. nationals through an international forum in obtaining compensation for persecution during the Second World War by the Nazi regime, but sought to preclude such claims from being adjudicated in U.S. courts.
Rules of State Responsibility Retroactive Application of Treaty to Treaty-Based Claim In December 1978, the City of Boston (City) and the Boston Redevelopment Authority (BRA) concluded a commercial real estate development contract with Lafayette Place Associates (LPA), a Massachusetts limited partnership owned by Mondev International, a Canadian company (Mondev). A dispute arose under the contract, and LPA filed suit in 1992 in Massachusetts court. In 1994, a jury found against the defendants and awarded LPA damages of U.S.$9.6 million against the City and U.S.$6.4 million against BRA. The trial judge set aside the verdict against BRA, however, holding that BRA was immune from liability under a Massachusetts statute. On appeal, the Massachusetts Supreme Court in 1998 affirmed BRA’s immunity and further overturned the verdict against the City. LPA’s petitions for rehearing by the Massachusetts Supreme Court and for certiorari to the U.S. Supreme Court were denied. In 1999, Mondev filed a claim under Chapter 11 of the North American Free Trade Agreement (NAFTA) alleging violation of various NAFTA provisions, including Article 1105(1) on national treatment.1
1 North American Free Trade Agreement, Dec. 17, 1992, U.S.-Can.-Mex., 32 ILM 289 & 605 (1993). NAFTA was implemented by the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057 (1993) (codified as amended at 19 U.S.C. §§3301–3473 (2000)). 2 As of December 2004, the UN Compensation Commission had resolved approximately 99 percent of the 2.6 million claims submitted. Information on the commission may be found at . 1 North American Free Trade Agreement, Dec. 17, 1992, Can.-Mex.-U.S., Art. 1105(1), 32 ILM 605, 639 (1993). Article 1105(1) provides: “Each Party shall accord to investments of investors of another Party treatment in accordance with international law, including fair and equitable treatment and full protection and security.”
86
P1: ICD 0521750717c04
CB951-Murphy
0 521 75071 7
August 6, 2005
11:23
State Responsibility and Liability
87
The United States responded that there was no breach of contract, as was determined by U.S. courts. Further, the United States argued that even if there were a breach of a government contract, a mere breach is not per se a violation of international law. In certain circumstances, a breach of a government contract may be viewed as violating international law, such as when a repudiation of a contract is discriminatory or motivated by noncommercial considerations, but the United States asserted that such circumstances were not present in this case.2 The “full protection and security” obligation is limited to those cases “in which a State failed to provide reasonable police protection against acts of a criminal nature that physically invaded the person or property of an alien.”3 There was no such failure in this case, according to the United States. Moreover, the United States argued that acts or omissions occurring before 1994 (when NAFTA entered into force) cannot breach a NAFTA obligation.4 In support of its position, the United States cited both the Vienna Convention on the Law of Treaties5 and the International Law Commission’s articles on state responsibility,6 and noted that no provision of NAFTA suggested an intent for retroactive application. The United States also cited prior case law under NAFTA7 and the 1963 Northern Cameroons case of the International Court of Justice.8 Mondev responded, in part, by arguing that the alleged pre-NAFTA acts and omissions of the City and BRA constituted violations of international law that remained unremedied by the United States. Further, Mondev argued that, upon NAFTA’s entry into force, the failure to satisfy the continuing obligation to Mondev to make full reparation constituted a continuing violation of NAFTA Article 1105.9 The United States rejected this theory, stating: Even assuming that the United States owed any obligation under customary international law to LPA, a U.S. company, Mondev’s “continuing violation” theory cannot be reconciled with the plain text of the treaty or long-standing principles of international law. First, Article 1105(1)’s standard of “treatment of investments of investors of another Party in accordance with international law” on its face references primary international law obligations in the form of standards of treatment. The text of the NAFTA does not suggest any intent to encompass secondary obligations such as the requirement to make reparation. Second, Mondev’s argument is based on the false premise that the United States could owe an obligation of reparation under customary international law to Mondev in any event. Any breach of an obligation to make reparation to another State could hardly constitute “treatment” of Mondev within the meaning of Article 1105(1). Finally, Mondev’s argument, if adopted, would read NAFTA’s three-year prescription period out of the treaty. According to Mondev, an investor would be permitted to bring claims based on a supposed breach of the obligation to make reparation not within three years of the original breach, but for as long as the respondent State refused to accede to the investor’s demands. Fundamental principles of treaty interpretation (and common sense) preclude such a construction.10 2 U.S. Counter-Memorial on Competence and Liability at 35–36 ( June 1, 2001), Mondev Int’l v. United States, Award (NAFTA Ch. 11 Arb. Trib. Oct. 11, 2002). For NAFTA pleadings and decisions, see . 3 Id. at 37. 4 Id. at 20–24. 5 Vienna Convention on the Law of Treaties, May 23, 1969, Art. 28, 1155 UNTS 331, 339 (“Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.”). 6 Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, Art. 13, at 46, UN Doc. A/56/10/10 (2001), at , reprinted in James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002) (“An act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs.”). 7 Feldman v. United Mexican States, Interim Decision on Preliminary Jurisdictional Issues, para. 62 (NAFTA Ch. 11 Arb. Trib. Dec. 6, 2000) (“Given that NAFTA came into force on January 1, 1994, no obligations adopted under NAFTA existed, and the Tribunal’s jurisdiction does not extend, before that date. NAFTA itself did not purport to have any retroactive effect.”). 8 Northern Cameroons (Cameroon v. UK), 1963 ICJ Rep. 15, 129 (Dec. 2) (separate opinion of Judge Fitzmaurice) (“An act which did not, in relation to the party complaining of it, constitute a wrong at the time it took place, obviously cannot ex post facto become one.”). 9 Mondev Reply on Competence and Liability at para. 200 (Aug. 1, 2001), Mondev Int’l v. United States. 10 U.S. Rejoinder on Competence and Liability at 7–8 (Oct. 1, 2001), Mondev Int’l v. United States.
P1: ICD 0521750717c04
CB951-Murphy
88
0 521 75071 7
August 6, 2005
11:23
United States Practice in International Law 2002–2004
In an award rendered in October 2002, the Arbitral Tribunal agreed that conduct that is unremedied when a treaty enters into force does not provide a justification for the treaty’s retroactive application to the conduct in question. [E]vents or conduct prior to the entry into force of an obligation for the respondent State may be relevant in determining whether the State has subsequently committed a breach of the obligation. But it must still be possible to point to some conduct of the State after that date which is itself a breach. In the present case the only conduct which could possibly constitute a breach of any provision of Chapter 11 is that comprised by the decisions of the [Massachusetts Supreme Court] and the Supreme Court of the United States, which between them put an end to LPA’s claims under Massachusetts law. Unless those decisions were themselves inconsistent with applicable provisions of Chapter 11, the fact that they related to pre-1994 conduct which might arguably have violated obligations under NAFTA (had NAFTA been in force at the time) cannot assist Mondev. The mere fact that earlier conduct has gone unremedied or unredressed when a treaty enters into force does not justify a tribunal applying the treaty retrospectively to that conduct. Any other approach would subvert both the intertemporal principle in the law of treaties and the basic distinction between breach and reparation which underlies the law of State responsibility.11 Consequently, the tribunal found “that the only arguable basis of claim under NAFTA concerns the conduct of the United States courts in dismissing LPA’s claims.”12 Thus, the tribunal did not reach the arguments raised by the United States as to why, in any event, Article 1105 was not violated by the acts of the City and BRA. U.S. Interpretation of Continuous Nationality Rule A U.S. national, Jeremiah O’Keefe, along with his son and various companies owned by the O’Keefe family, filed suit in Mississippi state court against a Canadian company, the Loewen Group, Inc., and its principal U.S. subsidiary, Loewen Group International, Inc., for breach of certain contracts. After a seven-week trial, a Mississippi jury awarded the O’Keefe family U.S.$500 million in damages, including U.S.$75 million for emotional distress and U.S.$400 million in punitive damages. The Loewen companies sought to appeal the verdict but were required under Mississippi law to post a bond for 125 percent of the judgment. Although that requirement may be reduced or dispensed with for “good cause,” the Mississippi Supreme Court declined to do so. Believing that the bond requirement foreclosed their ability to pursue further appeals, and facing an execution of the trial court judgment against their Mississippi assets, the Loewen companies then settled the case for a payment of U.S.$175 million.1 On July 29, 1998, the Loewen Group initiated arbitration on its own and on behalf of its U.S. subsidiary against the United States under Chapter 11 of the North American Free Trade Agreement (NAFTA),2 charging that, in violation of the NAFTA, it had been exposed to discrimination and expropriation, and been denied a minimum standard of treatment. The claims were based principally on arguments that the Mississippi trial court had admitted extensive anti-Canadian and pro-American testimony; that the court had permitted opposing counsel to make prejudicial comments;3 that
11
Mondev Int’l v. United States, Award, para. 70. Id., para. 75. For the tribunal’s analysis of whether there had been a denial of justice in this case, see infra this chapter. The facts of the case as alleged by the Loewen Group may be found in its Notice of Claim (Oct. 30, 1998), Loewen Group v. United States, Award (NAFTA Ch. 11 Arb. Trib. June 26, 2003), while the U.S. government’s account of the facts may be found in U.S. Counter-Memorial (Mar. 30, 2001), Loewen Group v. United States, as well as subsequent pleadings. For NAFTA pleadings and decisions, see . 2 North American Free Trade Agreement, Dec. 17, 1992, Can.-Mex.-U.S., 32 ILM 289 & 605 (1993). 3 Among other things, Counsel for O’Keefe had contrasted Loewen’s “foreign” nationality with O’Keefe’s “Mississippi roots,” highlighted that O’Keefe was not racist (thereby implying that Loewen was racist), and made class-based distinctions between Loewen as a large, wealthy corporation and O’Keefe as a family-owned business. See Notice of Claim, supra note 1, para. 4. 12 1
P1: ICD 0521750717c04
CB951-Murphy
0 521 75071 7
August 6, 2005
11:23
State Responsibility and Liability
89
the verdict and judgment were excessive; and that the application of the bond requirement was arbitrary.4 After filing its claim, the Loewen Group and its U.S. subsidiary filed for bankruptcy and ceased to exist as business entities. All of Loewen Group’s business operations were then reorganized as a U.S. corporation, and the NAFTA claim was assigned to a Canadian corporation owned and controlled by the U.S. corporation. Since the new real beneficiary of the NAFTA claim was a U.S. national, the United States challenged the competence and jurisdiction of the NAFTA tribunal over the claim. The United States argued that the “continuous nationality” rule of customary international law required that a claimant possess its claim from the time of the occurrence of the injury until the issuance of an award (not just until the time of the filing of the claim). Article 1131(1) of the NAFTA requires [the tribunal] to “decide the issues in accordance with the provisions of the NAFTA and applicable rules of international law.” . . . Among the applicable customary international law rules is the well-established principle of “continuous nationality,” which provides that, from the time of the occurrence of the injury until the making of the award, the claim must continuously and without interruption have belonged to a person or to a series of persons . . . not having the nationality of the state against whom it is put forward. I Oppenheim’s International Law (R. Jennings & A. Watts eds., 9th ed. 1992) 512–13 (emphasis added). See also, Ian Brownlie, Principles of Public International Law 482–83 (5th ed. 1998). The rule establishes a time frame for assessing a claimant’s nationality starting with the date of injury (dies a quo) and ending with the date of the award (dies ad quem). To recover, a claimant cannot become a national of the respondent State, or transfer beneficial ownership of the claim to a national of that State, at any time during this period. If such a change in nationality does occur, the “right to press [that] claim is cut off completely, whether the individual has not yet acted or is actively pressing his claim.” Sohn & Baxter, Harvard Draft Convention, art. 22(8) & note, at 187, 197. Application of this rule in State practice is well-documented. Consistent with this State practice, the rule has also been applied repeatedly by international tribunals to deny claims that have changed nationality during the course of proceedings. See e.g., Joseph Kren v. Yugoslavia (U.S. Int’l Cl. Comm’n), [1953] I.L.R. 233, 236 (1957) (“there is ample authority under the decisions of international tribunals that a claim must have a continuous national character from the date of its origin to the date of settlement.”). As the U.S. Foreign Claims Settlement Commission explained in American Security and Trust Co. v. Hungary (U.S. For. Cl. Settlement Comm’n 1957), reprinted in 26 [1958-II] I.L.R. 322 (1963), there is “a long list of authorities who have expressed” the view that, “up to the last moment of its activities, [a Tribunal] remains concerned with the question on whose behalf the claim is prosecuted and to whom the proceeds of an award will flow. . . .” (quoting Administrative Decision No. V, Decisions and Opinions 145, 164 (U.S.-Germany Mixed Claims Commission)). Leading commentators also agree that the continuous nationality requirement extends throughout the proceedings to the date of the final award. As Professor Brownlie observes, “the majority of governments and of writers take the date of the award or judgement as the critical date.” . . . NAFTA Chapter Eleven does not derogate from this established principle. To the contrary, the requirement of continuous nationality is consistent with various of the Agreement’s provisions. . . . .... 4 Loewen believed that there was “good cause” to reduce the appeal bond and that the failure to do so was therefore arbitrary. For example, Loewen asserted that the judgment was patently excessive and “almost certainly would have been reduced or vacated on appeal.” Id., para. 5.
P1: ICD 0521750717c04
CB951-Murphy
90
0 521 75071 7
August 6, 2005
11:23
United States Practice in International Law 2002–2004 Moreover, permitting claims to proceed even after the holder of the claim has become a national of the respondent State would contravene principles of international reciprocity and the sovereignty of each of the Parties to the Agreement, which are fully recognized in the NAFTA’s investor-State dispute resolution provisions. It would be a significant affront to the intentions of the Parties – and, indeed, the sovereignty of each of those Parties – for a Chapter 11 tribunal to require a NAFTA Party to pay an award to an enterprise that is owned or controlled by its own nationals.5
In a decision issued on June 26, 2003, the NAFTA tribunal agreed with the United States on the application of the “continuous nationality” rule. 225. Claimant [Loewen Group] urges that since it had the requisite nationality at the time the claim arose, and antedate [sic] the time that the claim was submitted, it is of no consequence that the present real party in interest – the beneficiary of the claim – is an American citizen. Both as a matter of historical and current international precedent, this argument must fail. In international law parlance, there must be continuous national identity from the date of the events giving rise to the claim, which is known as the dies a quo, through the date of the resolution of the claim, which date is known as the dies ad quem. 226. Claimants’ first argument strand is that NAFTA itself, in Articles 1116 and 1117, requires nationality only to the date of submission. However, those articles deal only with nationality requirements at the dies a quo, the beginning of the claim. There is no language in those articles, or anywhere else in the treaty, which deals with the question of whether nationality must continue to the time of resolution of the claim. It is that silence in the Treaty that requires the application of customary international law to resolve the question of the need for continuous national identity. .... 229. There is only limited dispute as to the history of the requirement of continuous nationality to the end of any international proceeding. When investment claims were negotiated and resolved only at a governmental level, any change in nationality of the claimant defeated the only reason for the negotiations to continue. The claiming government no longer had a citizen to protect. . . . 230. As with most hoary international rules of law, the requirement of continuous nationality was grounded in comity. It was not normally the business of one nation to be interfering into the manner in which another nation handled its internal commerce. Such interference would be justified only to protect the interests of one of its own nationals. If that tie were ended, so was the justification. As international law relaxed to allow aggrieved parties to pursue remedies directly, rather than through diplomatic channels, the need for a rigid rule of dies ad quem also was relaxed. But, . . . such relaxations came about specifically in the language of the treaties. There is no such language in the NAFTA document. . . . .... 232. . . . The private lawyer might well exclaim that the uncovenanted benefit to the defendant would produce a result so unjust that it could be sustained only by irrefutable logic or compelling precedent, and neither exists. The spontaneous disappearance of a vested cause of action must be the rarest of incidents, and no warrant has been shown for it in the present context. 233. Such a reaction, though understandable, in our opinion, would be wholly misplaced. Rights of action under private law arise from personal obligations (albeit they may be owed by or to a State) brought into existence by domestic law and enforceable through domestic tribunals and courts. 5 Memorial of the United States of America on Matters of Jurisdiction and Competence Arising from the Restructuring of the Loewen Group, Inc. at 13–16, 20 (Mar. 1, 2002), Loewen Group v. United States (footnotes omitted).
P1: ICD 0521750717c04
CB951-Murphy
0 521 75071 7
August 6, 2005
11:23
State Responsibility and Liability
91
NAFTA claims have a quite different character, stemming from a corner of public international law in which, by treaty, the power of States under that law to take international measures for the correction of wrongs done to its nationals has been replaced by an ad hoc definition of certain kinds of wrong, coupled with specialist means of compensation. . . . There is no warrant for transferring rules derived from private law into a field of international law where claimants are permitted for convenience to enforce what are in origin the rights of Party states.6 U.S. Interpretation of Exhaustion of Local Remedies Rule In the Loewen Group–U.S. arbitration (discussed above), the U.S. government also argued that the Loewen Group had failed to exhaust local remedies in the United States. Although the North American Free Trade Agreement (NAFTA) tribunal dismissed the Loewen Group’s claim for reasons of the continuous nationality rule, the tribunal proceeded to state its views on why the claim also “should be dismissed on the merits” for failure to exhaust local remedies.1 According to the tribunal, the anti-Canadian and racial strategies deployed by the U.S. plaintiffs against Loewen Group before the Mississippi state trial court, as well as the subsequent verdict against it, were “improper and cannot be squared with minimum standards of fair and equitable treatment.”2 Nevertheless, the tribunal found that a NAFTA claimant must satisfy the “local remedies” rule of customary international law. According to the tribunal: 156. The purpose of the requirement that a decision of a lower court be challenged through the judicial process before the State is responsible for a breach of international law constituted by a judicial decision is to afford the State the opportunity of redressing through its legal system the inchoate breach of international law occasioned by the lower court decision.3 This requirement is not absolute; rather, it is “an obligation to exhaust remedies which are effective and adequate and are reasonably available to the complainant in the circumstances in which it is situated.”4 As the tribunal noted: 169. Availability is not a standard to be determined or applied in the abstract. It means reasonably available to the complainant in the light of its situation, including its financial and economic circumstances as a foreign investor, as they are affected by any conditions relating to the exercise of any local remedy. 170. If a State attaches conditions to a right of appeal which render exercise of the right impractical, the exercise of the right is neither available nor effective nor adequate. Likewise, if a State burdens the exercise of the right directly or indirectly so as to expose the complainant to severe financial consequences, it may well be that the State has by its own actions disabled the complainant from affording the State the opportunity of redressing the matter of complaint.5 Applying this standard to the events subsequent to the Loewen Group’s trial, the tribunal found that the Loewen Group failed to explain why it could not pursue other options under U.S. law.6 The Loewen Group could have pursued an appeal to the Mississippi Supreme Court with a stay of execution of the judgment, although doing so would have required Loewen Group, under Mississippi’s rules of
6
Loewen Group. v. United States, Award, paras. 225–26, 229–30, 232–33 (NAFTA Ch. 11 Arb. Trib. June 26, 2003). Loewen Group. v. United States, Award, para. 2 (NAFTA Ch. 11 Arb. Trib. June 26, 2003). For NAFTA pleadings and decisions, see . 2 Id., para. 137. 3 Id., para. 156. 4 Id., para. 168. 5 Id., paras. 169–70. 6 Id., paras. 207–217. 1
P1: ICD 0521750717c04
CB951-Murphy
92
0 521 75071 7
August 6, 2005
11:23
United States Practice in International Law 2002–2004
procedure, to post a bond for 125 percent of the judgment (that is, a U.S.$625 million bond) as a means of protecting the U.S. plaintiffs’ interests. Alternatively, the Loewen Group could have pursued an appeal to the U.S. Supreme Court, which might have included asking the Supreme Court to stay execution without the posting of a bond. Filing for bankruptcy could have also stayed execution of the judgment. While Loewen Group argued that posting the bond in Mississippi was not reasonable and that it was therefore forced to settle the case, the tribunal found that Loewen Group failed to present evidence disclosing exactly why it settled the case in preference to pursuing its available options. According to the tribunal: 216. Although entry into the settlement agreement may well have been a reasonable course for Loewen to take, we are simply left to speculate on the reasons which led to the decision to adopt that course rather than to pursue other options. It is not a case in which it can be said that it was the only course which Loewen could reasonably be expected to take. 217. Accordingly, our conclusion is that Loewen failed to pursue its domestic remedies, notably the Supreme Court option[,] and that, in consequence, Loewen has not shown a violation of customary international law and a violation of NAFTA for which Respondent is responsible.7 U.S. Interpretation of Denial of Justice Standard In the Loewen Group–U.S. arbitration (discussed in the prior section), the United States argued that, because of Loewen’s failure to appeal the lower court’s decision, there had been no denial of justice in the United States. North American Free Trade Agreement (NAFTA) Article 1105(1) requires a state party to accord to “investments of investors of another Party treatment in accordance with international law, including fair and equitable treatment and full protection and security.”1 In its written pleadings, the United States advanced its interpretation of the denial of justice standard as follows. It is a requirement of customary international law with respect to the treatment of aliens that a State provide a minimum level of internal security and law and order. Customary international law thus requires a State to provide a minimum level of police protection for persons and property within its territory. As discussed further below, a failure to meet this requirement with respect to the persons and property of aliens breaches the customary standard of full protection and security referenced in Article 1105(1). . . . Customary international law also requires that States provide aliens a minimally adequate system of justice for resolving disputes between private parties. Failure to provide a system in which an alien can vindicate his claims may result in a breach of customary international law generally known as a “denial of justice.” In assessing whether this customary international law standard has been met, it is important to bear in mind two fundamental premises. First, international law does not require that a State’s system of justice take any specific form: international law is indifferent whether the system relies for adjudication on appointed jurists, elected jurists, businessmen (as in the French tribunaux de commerce) or lay juries. In the words of the Cotesworth & Powell tribunal: No demand can be founded, as a rule, upon mere objectionable forms of procedure or the mode of administering justice in the courts of a country; because strangers are presumed to consider these before entering into transactions therein. 7
Id., paras. 216–17. North American Free Trade Agreement, Dec. 17, 1992, Can.-Mex.-U.S., Art. 1105(1), 32 ILM 289 & 605, 639 (1993) (entered into force Jan. 1, 1994). 1
P1: ICD 0521750717c04
CB951-Murphy
0 521 75071 7
August 6, 2005
11:23
State Responsibility and Liability
93
The question presented is thus whether the system of justice adopted by the State, whatever its form, is capable of providing the minimum level of justice required by international law. In answering that question, a tribunal necessarily must consider the specific structure of the system of justice a State has adopted. Second, the obligation imposed by international law is to provide a fundamentally adequate system of justice as a whole – not one in which all court decisions are immune from error. International law thus recognizes that errors are inevitable in any system of justice. In evaluating a State’s performance of its international obligation to provide an adequate system of justice, a tribunal must necessarily take into account that system’s ability to correct the errors that international law acknowledges to be inevitable. Doing so necessarily requires consideration of any appellate mechanisms made available in a State’s system of justice in the case in question. The United States accepts the Tribunal’s ruling that “conduct of an organ of the State shall be considered as an act of the State under international law, whether the organ be legislative, executive or judicial, whatever position it holds in the organisation of the State.” . . . The United States does not for purposes of this point of argument dispute that an act of an inferior court is imputable to a State, but respectfully submits that such an act cannot ordinarily form the basis for a denial of justice of claim. . . . [T]he proposition the United States advances here is a limited one based on the substantive content of the customary international law of denial of justice – that the “responsibility of the State for a denial of justice arises only if the system as a whole produces a denial of justice.” . . . That conclusion necessarily encompasses a requirement that claimants attempt (absent obvious futility) to avail themselves of the appellate and review procedures provided by the system of justice whose lower court decisions are allegedly at issue. Judicial systems are organized in a hierarchical structure, reflecting the fact that errors at lower levels, and corrections on review at higher levels, are normal occurrences. This is especially true of trial courts, which are frequently called upon to make immediate decisions, often without the benefit of briefing and with little time for deliberation. . . . Because of this hierarchical structure, and the fact that error and correction on appeal are a normal course of events, court action must be viewed as the end result of the multiple decisions resulting from the court system’s individual parts, and a denial of justice only ensues once a final decision has issued. The substantive elements of a “denial of justice” claim reflect this requirement. The TurkishAmerican Claims Commission in Pirocaco put the principle plainly: “As a general rule, a denial of justice resulting from improper action of judicial authorities can be predicated only on a decision of a court of last resort.” Christo G. Pirocaco v. Republic of Turkey (1923), reprinted in Fred K. Nielsen, American-Turkish Claims Settlement under the Agreement of December 24, 1923, 587, 599 (1937). Professor Greenwood, in his scholarly examination of substantive elements of a denial of justice claim, succinctly observes: [T]he obligation which the state owes the foreign national . . . is to provide a system of justice which affords fair, equitable and non-discriminatory treatment. So long as the system itself provides a sufficient guarantee of such treatment, the State will not be in violation of its international obligation merely because a trial court gives a defective decision which can be corrected on appeal. Greenwood Opinion ¶23. The general principle that a final judicial decision is required before the elements of a denial of justice claim are established is supported by practical considerations as well. Without it, any decision of a lower tribunal, even an interlocutory order, could be the subject of an international claim. To ensure the coherent development of a domestic legal system, higher courts must be permitted to exercise the supervisory function with which they are entrusted. “It is important for the courts, the
P1: ICD 0521750717c04
CB951-Murphy
94
0 521 75071 7
August 6, 2005
11:23
United States Practice in International Law 2002–2004 legal profession, and society at large that law develop in a harmonious and consistent manner. This requires that there be some central body to expound, clarify and harmonize it.” See, e.g., Peter E. Herzog & Delmar Karlen, Attacks on Judicial Decisions, in XVI Int’l Encycl. of Comp. L., Ch. 8 at 5 (Mauro Cappelletti, ed. 1982). The customary international law of denial of justice reflects this consideration and requires, as an element of the claim, that there be a final judicial decision. “[W]hat constitutes a denial of justice in international law is not the isolated decision . . . but only a failure of the system of justice if that system either does not correct that decision where the decision was manifestly unjust or does not offer any effective means of challenging the decision.” Greenwood opinion ¶30. It is undisputed that the United States judicial system provided a means for correcting lower-court error – including the type of lower-court errors alleged here. . . . Claimants therefore can establish a denial of justice only if they can demonstrate that appellate review was effectively unavailable to resolve their complaints. . . . Claimants cannot do so.2
The NAFTA tribunal dismissed the Loewen Group’s claim for reasons of the continuous nationality rule (discussed supra this chapter) without reaching a decision on whether there had been a denial of justice. However, the standard of justice issue was reached in the Mondev case (also discussed supra this chapter), in which the City of Boston (City) and the Boston Redevelopment Authority (BRA) concluded a commercial real estate development contract with Lafayette Place Associates (LPA), a Massachusetts limited partnership owned by Mondev International, a Canadian company (Mondev).3 Mondev asserted that various actions of the Massachusetts Supreme Judicial Court constituted “flagrant procedural deficiencies” or “gross defects in the substance of the judgment itself,” and thus constituted a denial of justice under customary international law.4 The specific actions of the Supreme Judicial Court at issue were: (1) the dismissal of LPA’s contract claim against the City; (2) the failure to remand the contract claim; (3) the failure to consider whether it was retrospectively applying a new rule for government contracts; and (4) the finding of statutory immunity for BRA. The United States responded that the denial of justice standard was not met by the actions of the Supreme Judicial Court, which were taken fully in accordance with Massachusetts law and practice. According to the United States: International law sets a high threshold in this respect, recognizing a considerable margin of appreciation on the part of national courts. Thus, it is clear that mere error alone on the part of the national court is not enough; what is required is “manifest injustice” or “gross unfairness,” “flagrant and inexcusable violation,” or “palpable violation” in which “bad faith not judicial error seems to be the heart of the matter.” Nor can mere error be transformed into a substantive denial of justice just because that error had grave consequences for the claimant.5 In its award, the NAFTA tribunal set forth the following standard for a denial of justice claim: In the ELSI case, a Chamber of the [International] Court [of Justice] described as arbitrary conduct that which displays “a wilful disregard of due process of law, . . . which shocks, or at least surprises, a sense of judicial propriety”.6 It is true that the question there was whether certain administrative conduct was “arbitrary”, contrary to the provisions of [a friendship, commerce, and navigation] treaty. Nonetheless . . . the Tribunal regards the Chamber’s criterion as useful also in the context of denial of justice, and it has been applied in that context. . . . The Tribunal would 2 Counter-Memorial of the United States of America at 125–30 (Mar. 30, 2001), Loewen Group v. United States, Award (NAFTA Ch. 11 Arb. Trib. June 26, 2003) (footnotes omitted). For NAFTA pleadings and decisions, see . 3 Mondev Int’l v. United States, Award (NAFTA Ch. 11 Arb. Trib. Oct. 11, 2002). 4 Mondev Reply on Liability and Competence at paras. 102–06 (Aug. 1, 2001), Mondev Int’l v. United States. 5 U.S. Rejoinder on Competence and Liability at 31–32 (Oct. 1, 2001), Mondev Int’l v. United States (footnotes omitted). 6 [Author’s Note: Elettronica Sicula S.p.A. (ELSI) (U.S. v. Italy), 1989 ICJ Rep. 15, para. 128 (July 20).]
P1: ICD 0521750717c04
CB951-Murphy
0 521 75071 7
August 6, 2005
11:23
State Responsibility and Liability
95
stress that the word “surprises” does not occur in isolation. The test is not whether a particular result is surprising, but whether the shock or surprise occasioned to an impartial tribunal leads, on reflection, to justified concerns as to the judicial propriety of the outcome, bearing in mind on the one hand that international tribunals are not courts of appeal, and on the other hand that Chapter 11 of NAFTA (like other treaties for the protection of investments) is intended to provide a real measure of protection. In the end the question is whether, at an international level and having regard to generally accepted standards of the administration of justice, a tribunal can conclude in the light of all the available facts that the impugned decision was clearly improper and discreditable, with the result that the investment has been subjected to unfair and inequitable treatment. This is admittedly a somewhat open-ended standard, but it may be that in practice no more precise formula can be offered to cover the range of possibilities.7 In applying this standard to Mondev’s claim, the tribunal found that the Supreme Judicial Court’s decisions either were applying settled Massachusetts contract or procedural law or, if applying new law, “fell well within the interstitial scope of law-making exercised by courts such as those of the United States.”8 As for the Court’s decision that, under Massachusetts tort law, BRA was statutorily immune from suits that are based on intentional torts, the tribunal found that the conferral of general immunity from suit for the conduct of a public authority affecting a NAFTA investment could amount to a breach of Article 1105(1). The tribunal found, however, that the type of immunity accorded in this case to this type of government authority amounted to no such breach. [R]easons can well be imagined why a legislature might decide to immunize a regulatory authority, mandated to deal with commercial redevelopment plans, from potential liability for tortious interference. Such an authority will necessarily have both detailed knowledge of the relevant contractual relations and the power to interfere in those relations by granting or not granting permissions. If sued, it will be able to plead that it was acting in good faith and in the exercise of a legitimate mandate – but such a claim may well not justify summary dismissal and will thus be a triable issue, with consequent distraction to the work of the Authority.9 Consequently, the tribunal determined that the Supreme Judicial Court had not acted unreasonably or arbitrarily; determined therefore that there was no denial of justice within the meaning of international law; and dismissed Mondev’s claim. Customary International Law Does Not Prohibit Governmental Anticompetitive Behavior The government of Canada provides a monopoly to Canada Post Corporation, a Canadian corporation, for delivering regular mail within Canada. Canada Post also operates express delivery services, called Xpresspost and Priority Courier, in competition with private express courier companies. In 1995, the government of Canada appointed an independent commission to review the operations of Canada Post. The commission found, among other things, that Canada Post was an unfair competitor in ways detrimental to private sector companies in the Canadian postal market. The commission also found that Canada Post used its profits and infrastructure from regular mail service to subsidize its express delivery services, thus giving it an unfair pricing advantage over its competitors. The government of Canada, however, determined in 1997 not to implement measures called for by the commission’s findings.1
7
Mondev Int’l v. United States, Award, para. 127 (footnotes omitted). Id., paras. 133, 136–37. Id., para. 153. 1 See UPS v. Canada, Award on Jurisdiction, paras. 6–11 (NAFTA Ch. 11 Arb. Trib. Nov. 22, 2002). For NAFTA pleadings and decisions, see . 8 9
P1: ICD 0521750717c04
CB951-Murphy
96
0 521 75071 7
August 6, 2005
11:23
United States Practice in International Law 2002–2004
United Parcel Service of America (UPS) is a Delaware corporation with various subsidiaries that engage in express mail delivery services in Canada and elsewhere. In April 2000, UPS filed a claim against the government of Canada under Chapter 11 of the North American Free Trade Agreement (NAFTA), claiming that Canada’s acts and omissions relating to Canada Post violated Canada’s obligations to accord a minimum standard of treatment under Chapter 11 to foreign investors and their investments, as well as Canada’s obligations regarding anticompetitive behavior under Chapter 15.2 Canada challenged the claim on jurisdictional grounds, arguing in part that the minimum standard of treatment required under NAFTA Article 11053 does not impose an obligation on Canada to control anticompetitive behavior as alleged by UPS. In considering whether a state is obligated under customary international law to regulate such behavior, the Arbitral Tribunal stated in its November 2002 jurisdictional award: 85. . . . Many states do not have competition laws – only 13 out of the 34 Western Hemisphere nations and about 80 of the WTO members do; more than half of the laws have been enacted in the past 10 years. Further, national legislation, for instance that of the three NAFTA Parties, differs markedly, reflecting their unique economic, social and political environment. And there is no indication in any material before the Tribunal that any of that legislation was enacted out of a sense of general international legal obligation. UPS indeed did not attempt to establish that aspect or the practice element of a customary international law rule requiring the prohibiting or regulating of anticompetitive behaviour. 86. Some reference has been made in the present context to the many bilateral treaties for the protection of investments that have been concluded over recent decades as supporting a relevant rule of customary international law. Many of them state an obligation of fair and equitable treatment to be accorded to investors independently of the treatment required by international law. But, again, UPS has not attempted to establish that that state practice reflects an understanding of the existence of a generally owed international legal obligation which, moreover, has to relate to the specific matter of requiring controls over anticompetitive behaviour. 87. . . . The WTO Ministerial Declaration of 14 November 2001 (the Doha Declaration)4 shows that WTO Members are only now beginning to address the possibility of negotiating competition rules on a multilateral basis. . . . [The determination to negotiate such rules reflects] the absence from the GATT and WTO treaties of any general set of provisions prohibiting or controlling anticompetitive behaviour. .... 92. We accordingly conclude that there is no rule of customary international law prohibiting or regulating anticompetitive behaviour.5 Consequently, the tribunal dismissed UPS’s claims as they related to Article 1105. The tribunal retained jurisdiction, however, over UPS’s claims as they related to the national-treatment standard set forth in NAFTA Article 1102; UPS was alleging that Canada Post’s express delivery services were accorded benefits from Canada Post’s monopoly over regular mail service that were not accorded to foreign express delivery services, including UPS.6 As of December 2004, litigation of the case remained ongoing. 2
Notice of Arbitration (Apr. 19, 2000), UPS v. Canada; see Amended Statement of Claim (Nov. 30, 2001), UPS v. Canada. North American Free Trade Agreement, Dec. 12, 1992, Can.-Mex.-U.S., Art. 1105, 32 ILM 289 & 605, 639 (1993). Article 1105(1) provides: “Each Party shall accord to investments of investors of another Party treatment in accordance with international law, including fair and equitable treatment and full protection and security.” 4 [Author’s Note: 41 ILM 746 (2001).] 5 UPS v. Canada, Award on Jurisdiction, paras. 85–87, 92. 6 Id., paras. 100–03. 3
P1: ICD 0521750717c04
CB951-Murphy
0 521 75071 7
August 6, 2005
11:23
State Responsibility and Liability
97
Payment of Compensation Implementation of German Holocaust Claims Agreement On February 16, 1999 – in response both to lawsuits filed in U.S. courts and to pressure by U.S. Jewish groups and the U.S. government – German companies and the German government proposed the creation under German law of the Foundation Initiative of German Enterprises: Remembrance, Responsibility and Future (Stiftungsinitiative deutscher Unternehmen: Erinnerung, Verantwortung und Zukunft) (Foundation). The goal of the initiative was to establish a fund, administered by the Foundation, for compensating the surviving “slave” and “forced” laborers and other victims of the Nazi era, and to support appropriate related projects.1 The monies to support this effort would be contributed by German banks and companies accused of benefiting from slave labor during the Second World War. On July 17, 2000, German government and industry leaders, along with representatives from the United States, Israel, and other concerned states, organizations, and law firms, signed a joint statement memorializing their agreement on the amount of the contributions to the Foundation and also on the method for distributing the funds.2 Further, in an executive agreement signed on the same day by the U.S. and German governments, the United States agreed that it would file a statement of interest with U.S. courts in all relevant pending or future cases against German companies, which (according to Annex B) would state that it would be in the foreign policy interests of the United States for the Foundation to be the exclusive forum and remedy for the resolution of all asserted claims against German companies arising from their involvement in the National Socialist era and World War II, including without limitation those relating to slave and forced labor, aryanization, medical experimentation, children’s homes/Kinderheim, other cases of personal injury, and damage to or loss of property, including banking assets and insurance policies.3 Thereafter, the U.S. government proceeded to file such statements of interest in cases involving claims against German industry and banks in U.S. courts, leading to the dismissal of those claims, often on the basis that they were nonjusticiable.4 For example, on June 18, 2001, a U.S. national (and sitting federal district court judge), Ursula Ungaro-Benages, filed suit in a Florida federal court as the heir to property allegedly expropriated by defendant German banks in cooperation with the Nazi government.5 On September 28, 2001, the defendants moved to dismiss the complaint on several grounds related to the creation of the Foundation, including nonjusticiability, international comity, and failure to state a claim for which relief can be granted under German law. On January 18, 2002, the United States filed a statement of interest asserting the U.S. foreign policy interest in dismissing this suit on any applicable legal basis.6 1 For background on the negotiations and the agreement, see Sean D. Murphy, United States Practice in International Law, Vol. 1: 1999–2001, 136–44 (2002). 2 See id. at 141–42. 3 Agreement Concerning the Foundation “Remembrance, Responsibility and the Future,” July 17, 2000, U.S.-FRG, Annex B, 39 ILM 1298, 1303 (2000). The United States concluded similar agreements with both Austria and France concerning claims against their respective industries. 4 Many such cases were consolidated before the district court in New Jersey by the Judicial Panel on Multidistrict Litigation. See, e.g., In re Nazi Era Cases Against German Defendants Litig., 334 F.Supp.2d 690 (D.N.J. 2004); In re Nazi Cases Against German Defendants Litig., 320 F.Supp.2d 235 (D.N.J. 2004); In re Cases Against German Defendants Litig., 198 F.R.D. 429 (D.N.J. 2000); In re Nazi Era Cases Against German Defendants Litig., 129 F.Supp.2d 370 (D.N.J. 2001); see also Alperin v. Vatican Bank 242 F.Supp.2d 686 (N.D. Cal. 2003) (dismissal as non-justiciable of similar claims against the Vatican Bank, even though not covered by the U.S.-German agreement). 5 Complaint (June 18, 2001), Ungaro-Benages v. Dresdner Bank, slip. op. (S.D. Fla. Feb. 14, 2003) (No. 01-2547). 6 Statement of Interest of the United States ( Jan. 18, 2002), Ungaro-Benages v. Dresdner Bank. On May 20, 2002, the plaintiff moved to strike the statement of interest, principally on grounds that the U.S.–Germany executive agreement (1) amounted to a taking in violation of the Fifth Amendment, and (2) was in derogation of a 1952 U.S.–Germany “transition agreement.” See Convention on Relations Between the Three Powers and the Federal Republic of Germany, May 26, 1952, 331 UNTS 327, as amended by Schedule I to the Protocol on the Termination of the Occupation Regime in the Federal Republic of Germany, Oct. 23 1954, 332 UNTS 219.
P1: ICD 0521750717c04
CB951-Murphy
98
0 521 75071 7
August 6, 2005
11:23
United States Practice in International Law 2002–2004 First, it is an important policy objective of the United States to bring some measure of justice to Holocaust survivors and other victims of the Nazi era, who are elderly and are dying at an accelerated rate, in their lifetimes. Over one hundred thousand Holocaust survivors, and tens of thousands of other Americans who were forced laborers during World War II, live in the United States. . . . [T]he United States believes that the best way to accomplish this goal is through negotiation and cooperation. The Foundation is an excellent example of how such cooperation can lead to a positive result. The Foundation will, without question, provide benefits to more victims, and will do so faster and with less uncertainty, than would litigation, with its attendant delays and legal hurdles. Moreover, the Foundation will employ standards of proof that are more relaxed than would be the case with litigation. . . . .... Second, “establishment of this Foundation will strengthen the [ ] ties” between the United States and its important European ally and economic partner, Germany. One of the most important reasons the United States took such an active role in facilitating a resolution of the issues raised in this litigation is that it was asked by the German Government to work as a partner in helping to make the Foundation initiative a success. Since 1945, the United States has sought to work with Germany to address the consequences of the Nazi era and World War II through political and governmental acts, beginning with the first compensation and restitution law in post-war Germany that was passed by occupation forces. . . . .... Third, the Foundation helps further the United States’ interest in maintaining good relations with Israel and with Western, Central, and Eastern European nations, from which many of those who suffered during the Nazi era and World War II come. . . . .... Fourth, . . . [t]he overwhelming majority of plaintiffs, the defendants, victims’ representatives, and various concerned governments are united in seeking dismissal of this type of litigation in favor of the remedy provided by the Foundation, and the United States strongly supports this position. The alternative to the Foundation would be years of litigation whose outcome would be uncertain at best, and which would undoubtedly last beyond the expected life span of the large majority of survivors. .... Fifth, and finally, the Foundation is a fulfillment of a half-century effort to complete the task of bringing justice to victims of the Holocaust and victims of Nazi persecution. “[I]t is in the foreign policy interests of the United States to take steps to address the consequences of the Nazi era, to learn the lessons of, and teach the world about, this dark chapter in Germany’s history and to seek to ensure that it never happens again.”7
On February 14, 2003, the district court dismissed the case, relying heavily on the representations in the U.S. statement of interest. First, taking into account the executive branch’s general role The district court declined to strike the statement of interest. The court stated that there could be no taking in violation of the Fifth Amendment since the statement of interest was only suggesting that dismissal of the action would serve the foreign policy interests of the United States if there was some basis in law that would justify a dismissal. See Ungaro-Benages v. Dresdner Bank, No. 01-CV-2547, slip. op. at 7 (S.D. Fla. Feb. 14, 2003). With respect to the 1952 transition agreement, the court noted, among other things, that the requirements of the transition agreement had “long been substantially fulfilled” by 2000 and had, in fact, “been terminated in pertinent part” by a 1990 exchange of diplomatic notes. Id. at 8–9; see Exchange of Notes, UK-FRG-Fr.-U.S., Sept. 27–28, 1990, 1556 UNTS 30. 7 Statement of Interest of the United States, supra note 6, at 14–20 (citations omitted) (the quotations are from a statement by former U.S. Secretary of State Madeleine Albright attached as exhibit four to the statement of interest).
P1: ICD 0521750717c04
CB951-Murphy
0 521 75071 7
August 6, 2005
11:23
State Responsibility and Liability
99
in negotiating foreign reparations, coupled with the particular diplomatic commitments that the government made to Germany in the context of establishing the Foundation, the court found that the plaintiff ’s claim satisfied several of the factors delineated in Baker v. Carr,8 and thus was nonjusticiable.9 Second, the court found that the claim should be dismissed as a matter of international comity. Germany regarded this matter as one of significant national concern; German law provided that the Foundation would be the exclusive forum for Nazi era claims; a “reunified Germany is clearly the most appropriate country to provide the forum and prescribe the remedy for claims asserted against German companies”; and this remedy and forum had the support of the United States.10 The court emphasized, however, that it was merely choosing not to exercise its (purported) jurisdiction over the claim, and that neither the executive agreement nor international comity operated to oust the court of its jurisdiction.11 Third, the court held that the substantive law applicable to the claim was the German Foundation law, under which any claims arising from the Nazi era against German banks and companies can be brought only in an extrajudicial proceeding before the Foundation.12 The court therefore dismissed the complaint for failure to state a claim upon which relief can be granted. The court also dismissed the claim for reasons unrelated to the creation of the Foundation. The court found that the claim was barred by the applicable German statute of limitations.13 Further, the court found that even if a governmental taking of property solely because of an owner’s religious beliefs constituted a violation of general international law, such law was not self-executing in the United States in the sense of creating a private cause of action; a U.S. statute would be required.14 Finally, the court noted that the plaintiff had not provided sufficient evidence showing that she had standing to advance a claim with respect to the property in question.15 In August 2004, the Eleventh Circuit Court of Appeals affirmed the district court’s decision, but only on the basis of international comity. The court began by noting that although it was adjudicating a state law claim, federal common law applies when there are uniquely federal interests at stake, such as when the claim implicates the nation’s foreign relations.16 Further, in the Garamendi case,17 the Supreme Court found that the Foundation Agreement between the United States and Germany preempted any contrary state law.18 The circuit court did not agree with the district court that the political question doctrine applied so as to make the case nonjusticiable. After recounting several factors that are relevant to the political question doctrine, the court stated: Here, none of the factors that advise against judicial resolution are present. Adjudication of the present claim would not interfere with the executive’s handling of foreign relations or show a lack of respect to the executive’s power in foreign affairs. Indeed, the plain text of the Foundation Agreement anticipates that federal courts will consider claims against German corporations. The entirety of Annex B of the agreement is dedicated to explaining what the United States government will include in its Statement of Interest to American courts hearing these cases. Furthermore, the agreement itself provides that it does not provide an independent legal basis for dismissal. See Foundation Agreement, Annex B, para. 7, 39 I.L.M. at 1304. Thus, the executive opted not to settle these claims or to transfer the claims to the Foundation, although it had the power to do so. As a result, federal court consideration of the present case does not reflect a lack of respect for the executive nor does it interfere with American foreign relations. The United States is in full 8
369 U.S. 186 (1962). Ungaro-Benages v. Dresdner Bank, slip op. at 10–16. Id. at 16–21. 11 Id. at 20. 12 Id. at 27–29. 13 Id. at 23–27. 14 Id. at 29–32 (citing Tel-Oren v. Libya, 726 F.2d 774 (D.C. Cir. 1984), Handel v. Artukovic, 601 F.Supp. 1421 (C.D. Cal.1985), and Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995)). 15 Id. at 32–33. 16 Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227, 1232–33 (11th Cir. 2004). 17 Am. Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003). The Garamendi case is discussed supra Ch. I. 18 Ungaro-Benages, 379 F.3d at 1233. 9
10
P1: ICD 0521750717c04
CB951-Murphy
100
0 521 75071 7
August 6, 2005
11:23
United States Practice in International Law 2002–2004
compliance with the Foundation Agreement so long as it files a statement of interest to courts urging respect for the Foundation as the exclusive forum to resolve these claims. This statement of interest from the executive is entitled to deference and we give the executive’s statement such deference in our international comity analysis. . . . The other four factors similarly do not lead us to conclude that the issue raised here is a political question. First, the issues addressed in the present litigation are not constitutionally committed to a coordinate political branch. The present litigation against two foreign corporations is subject to the political question analysis only because the executive has entered into international negotiations over this topic. Thus, the courts should look to the results of those negotiations to determine if judicial resolution of the claim would interfere with the executive’s conduct of foreign relations. The Foundation Agreement is unambiguous in its expectation that federal courts will consider these cases and should dismiss them based on ordinary principles of federal law. . . . Second, consideration of the present case will not lead to multifarious pronouncements that could potentially embarrass the executive. Quite the opposite, the governments anticipated that federal courts would consider cases against the German government or German corporations. Third, the issues raised here can be resolved through judicially discoverable and manageable standards. Federal courts adjudicate claims against foreign corporations every day and can consider the nation’s foreign policy interests and international comity concerns in their decisions. Finally, adjudication of the present case does not require the courts to make a policy determination.19 The court of appeals found, however, that the case should be dismissed on grounds of international comity. According to the court: International comity reflects “the extent to which the law of one nation, as put in force within its territory, whether by executive order, by legislative act, or by judicial decree, shall be allowed to operate within the dominion of another nation.” Hilton v. Guyot, 159 U.S. 113 (1895). It is an abstention doctrine: A federal court has jurisdiction but defers to the judgment of an alternative forum. Turner Entm’t Co. v. Degeto Film, 25 F.3d 1512, 1518 (11th Cir.1994). International comity serves as a guide to federal courts where “the issues to be resolved are entangled in international relations.” In re Maxwell Communication Corp., 93 F.3d 1036, 1047 (2d Cir.1996). . . . The doctrine of international comity can be applied retrospectively or prospectively. When applied retrospectively, domestic courts consider whether to respect the judgment of a foreign tribunal or to defer to parallel foreign proceedings. . . . When applied prospectively, domestic courts consider whether to dismiss or stay a domestic action based on the interests of our government, the foreign government and the international community in resolving the dispute in a foreign forum. . . . The analysis for both forms of international comity embody similar concerns with foreign governments’ interests, fair procedures, and American public policy, but they emphasize different issues. When applied retrospectively, federal courts evaluate three factors: (1) whether the foreign court was competent and used “proceedings consistent with civilized jurisprudence,” (2) whether the judgment was rendered by fraud, and (3) whether the foreign judgment was prejudicial because it violated American public policy notions of what is decent and just. Turner Entm’t, 25 F.3d at 1519. Courts also consider whether the central issue in dispute is a matter of foreign law and whether there is a prospect of conflicting judgments. Id. at 1521.
19
Id. at 1235–37 (footnote omitted).
P1: ICD 0521750717c04
CB951-Murphy
0 521 75071 7
August 6, 2005
11:23
State Responsibility and Liability
101
Applied prospectively, federal courts evaluate several factors, including the strength of the United States’ interest in using a foreign forum, the strength of the foreign governments’ interests, and the adequacy of the alternative forum. . . . Our determination of the adequacy of the alternative forum is informed by forum non conveniens analysis. Here, we decide to abstain based on the strength of our government’s interests in using the Foundation, the strength of the German government’s interests, and the adequacy of the Foundation as an alternative forum. The United States government has consistently supported the Foundation as the exclusive forum for the resolution of litigation against German corporations related to their acts during the National Socialist era. The President entered into negotiations with the German government and determined that the interests of American citizens, on the whole, would be best served by establishing the Foundation Agreement. The agreement offers monetary compensation to nationals who were used as slave labor and were victims of insurance fraud as well as those deprived of their property. The fund to provide this compensation was established with the expectation that all such American litigation against German corporations would be resolved at the Foundation. In creating a comprehensive compensatory scheme for all remaining victims of the Nazi era, the Foundation Agreement may end up favoring the monetary interests of some American victims more than others. International agreements, however, often favor some domestic interests over others, and the President has the constitutional authority to settle the international claims of American citizens, even if the claimants would prefer litigation in American courts. . . . Likewise, the German government has a significant interest in having the Foundation be the exclusive forum for these claims in its efforts to achieve lasting legal peace with the international community. Furthermore, the Foundation is an adequate alternative forum. The tribunal has a specialty in the relevant post-war law and has relaxed standards of proof to ease the burden for the potential plaintiffs to obtain compensation. The Foundation offers victims of the Nazi era an adequate remedy, even if the Foundation cannot provide as substantial an award as American courts.20
20
Id. at 1237–39 (footnote omitted).
P1: OYK/... P2: IWV 0521750717c05 CB951-Murphy
0 521 75071 7
August 6, 2005
19:45
Chapter V International Organizations Overview During 2002–2004, the United States remained extensively involved in the work of international organizations as a means of cooperating within the multilateral system, while at the same time forging its own path on certain issues. Among other things, the United States pursued significant initiatives for: containing the spread of weapons of mass destruction, including through the interdiction of vessels on the high seas; banning human reproductive cloning; protecting against threats to the global environment and to public health, such as from the spread of persistent organic pollutants; and combating international crime, drug trafficking, and terrorism. The United States actively supported – with funds and in-kind resources – the work of the United Nations, particularly UN agencies seeking to protect those most at risk worldwide, such as the work of the UN Children’s Fund, the UN High Commissioner for Refugees, and the World Food Program. The Bush administration viewed international economic institutions, notably the World Trade Organization and the UN Commission on International Trade Law, as a key means of promoting U.S. economic development. Further, the United States encouraged the use of multilateral bodies to set regulatory standards and arbitrate differences among countries in areas of food product safety, air safety, telecommunications, intellectual property, and others. During this period, the United States appeared before the International Court of Justice in two contentious cases (brought by Iran and Mexico), and filed a written statement in the Court’s advisory opinion on the construction of a barrier in the West Bank by Israel. The United States also presented extensive comments to the International Law Commission (ILC) on both procedural and substantive aspects of the ILC’s work. The United States continued to provide significant support for the international criminal tribunals for the former Yugoslavia and Rwanda, and the special court for Sierra Leone, but declined to ratify the statute of the new International Criminal Court.1 U.S. involvement in the work of international institutions is reflected throughout this volume in particular subject matter areas. This chapter highlights certain topics, such as peacekeeping, and certain process-oriented issues that arose during 2002–2004 between the United States and international organizations, beginning with U.S. financial support for the United Nations.
United Nations U.S. Financial Support for the United Nations In 2002–2003, the regular biennial budget of the United Nations was U.S.$1.968 billion. The United States’ assessed contribution to the UN regular budget in calendar year 2003 was U.S.$341 million, while the United States’ assessed contribution to UN specialized agencies amounted to more than U.S.$400 million. In addition to this funding, the United States was assessed and contributed U.S.$686 million to the UN peacekeeping budget; U.S.$57 million to the international criminal tribunals for Rwanda and the former Yugoslavia; and U.S.$6 million for preparatory work relating to the
1 Useful data on U.S. involvement with the United Nations and other international organizations may be found in reports submitted to the Congress each year during 2002–2004, entitled U.S. Participation in the United Nations and Voting Practices in the United Nations. The reports are published by the Department of State and most may also be accessed at the Department’s Internet site, .
102
P1: OYK/... P2: IWV 0521750717c05 CB951-Murphy
0 521 75071 7
August 6, 2005
19:45
International Organizations
103
UN Capital Master Plan.1 Moreover, the United States provided significant voluntary contributions to the United Nations and UN-affiliated organizations and activities (largely for humanitarian and development programs). All told, U.S. contributions (both in cash and in-kind) to the UN system in 2003 were more than U.S.$3 billion.2 During 2002–2004, the United States continued to urge budgetary and administrative reform at the United Nations. In 1999, the United States enacted the “Helms-Biden” legislation, designed to allow U.S. payment of its arrears to the United Nations and other international organizations upon certification by the secretary of state that certain reform goals had been achieved in the United Nations and at major specialized agencies.3 Between 1999 and 2002, the United Nations met all of the required certifications, so the United States paid more than U.S.$900 million in its arrears. Secretary-General Kofi Annan announced and the General Assembly adopted a further round of reform initiatives in late 2002,4 which the United States thereafter pressed to be implemented.5
U.S. Funding for the UN Population Fund In some instances, U.S. funding for the United Nations was restricted for particular kinds of activities. For example, each year since 1985, U.S. foreign assistance legislation has contained a provision (the “Kemp-Kasten Amendment”) forbidding the U.S. government from providing funds to the UN Population Fund (UNFPA) if the administration determines that UNFPA “supports or participates in the management of a program of coercive abortion or involuntary sterilization.”1 In 1985, the Reagan administration redirected U.S.$10 million of the U.S.$46 million that had been designated for UNFPA to other programs funded by the U.S. Agency for International Development (USAID), stating that it was concerned with UNFPA’s activities in supporting China’s coercive familyplanning programs. For the years 1986 through 1993, Presidents Reagan and George H. W. Bush redirected all funding for UNFPA to other programs. By contrast, President Clinton resumed the funding of UNFPA beginning in 1994, but stipulated that none of the funds could be used in China.2 In 2002, President Bush indicated that his administration would delay its decision on whether to release the funding for UNFPA for fiscal year 2002 pending the report of a fact-finding mission to China sponsored by the State Department.3 The fact-finding mission found “no evidence that UNFPA has knowingly supported or participated in the management of a program of coercive abortion or involuntary sterilization in the PRC,” and recommended that the designated U.S.$34 million be released to UNFPA.4 The administration nevertheless decided to withhold aid to UNFPA for 2002,
1 The UN Capital Master Plan seeks to renovate the aging UN headquarters in New York and to build a new annex to the existing complex. 2 See U.S. Dep’t of State Fact Sheet on United Nations (Aug. 31, 2004), at . 3 For background on this scheme, see Sean D. Murphy, United States Practice in International Law, Vol. 1: 1999–2001, at 113–19 (2002). 4 See G.A. Res. 57/300 (Dec. 20, 2002). 5 For details on the implementation of such reforms, see U.S. Dep’t of State, U.S. Participation in the United Nations for 2003, at 133–39 (2004), at . 1 For the original provision, see Pub. L. No. 99-88, 99 Stat. 293, 323 (1985). Whereas the “Kemp-Kasten amendment” was targeted specifically at the UN Population Fund, in 1984 the Reagan administration also established a policy – known as the “Mexico City policy” – prohibiting the United States from financing any nongovernmental organization that provided or promoted abortions abroad, regardless of its source of funds for those specific activities. U.S. Policy Statement at the United Nations International Conference on Population, 2d Sess., Mexico City (Aug 6–13, 1984), reprinted in 10 Population & Dev. Rev. (1985). Although President Clinton revoked this policy, it was reinstated by President George W. Bush on his first day in office. Memorandum on Restoration of the Mexico City Policy, 37 Weekly Comp. Pres. Doc. 216 (Jan. 22, 2001); see Mexico City Policy: Effects of Restrictions on International Family Planning Funding: Hearing Before the Senate Foreign Relations Comm., 107th Cong. (2001). 2 Larry Nowels, Population Assistance and Family Planning Programs: Issues for Congress, Issue Brief No. IB 96026, at 8–9 (Congressional Research Service, updated June 7, 2002), at . 3 See Juliet Eilperin, Family Planning Funds Put on Hold, Wash. Post, Jan. 12, 2002, at A2; U.S. Dep’t of State Press Release on Selection of U.S. Assessment Team to Visit China (May 1, 2002), at . 4 U.S. Dep’t of State, Report of the China UN Population Fund (UNFPA) Independent Assessment Team (May 29, 2002), at .
P1: OYK/... P2: IWV 0521750717c05 CB951-Murphy
104
0 521 75071 7
August 6, 2005
19:45
United States Practice in International Law 2002–2004
and to redirect the U.S.$34 million at issue to the USAID Child Survival and Health Program Fund.5 The State Department explained the decision as follows: The PRC’s coercive law and practices amount to a “program of coercive abortion” and are an integral part of the comprehensive population-control program that PRC officials at all levels of government work to advance. Regardless of the size of UNFPA’s budget in China or any benefits its programs provide, UNFPA’ s support of, and involvement in, China’s population-planning activities allows the Chinese government to implement more effectively its program of coercive abortion. .... Arguments can be made that UNFPA is undertaking good-faith educational and other efforts to improve the lives of the people of the PRC and assist them in family planning decisions. Even if this is the case, it does not provide a sufficient basis to furnish funding under [the] KempKasten [amendment]. Kemp-Kasten instead precludes further funding of that organization since it is supporting or participating in the management of a “program of coercive abortion.”6 In response to the U.S. decision to terminate funding of UNFPA, that organization’s executive director, Thoraya Obaid, released the following statement. UNFPA does not support or promote abortion anywhere in the world. The services we promote reduce the incidence of abortion. Abortion rates are actually declining in the 32 counties in China where we operate. UNFPA is strongly opposed to population control. UNFPA does NOT support the Chinese Government’s one-child policy and does not take part in managing the Government’s programme. UNFPA works to ensure that women and couples have the information and means to make informed and voluntary decisions about pregnancy and family planning. In addition to its insistence on the removal of birth quotas and acceptor targets, UNFPA continues to press China to make progress by removing economic incentives and disincentives used to encourage small or discourage large family size. . . . The United States was one of the strong supporters of the United Nations Population Fund from the very beginning and we believe a strong partnership should continue because it is good policy.7 Nevertheless, the Bush administration continued to withhold aid to UNFPA for both 2003 and 2004.8 U.S. Personnel Contributions to UN Peacekeeping Operations While U.S. financial contributions to the United Nations during 2002–2004 were substantial, U.S. contributions of personnel to UN peacekeeping operations were modest. As of the end of 2003, there were thirteen UN peacekeeping operations. For two of those operations, the United States provided 5 U.S. Dep’t of State Press Release on FY 2002 Funding for the UN Population Fund (UNFPA) (July 22, 2002), at . 6 U.S. Dep’t of State, Analysis of Determination That Kemp- Kasten Amendment Precludes Further Funding to UNFPA Under Pub. L. 107–115 (July 18, 2002), at . 7 Statement by Thoraya A. Obaid, Executive Director, United Nations Population Fund, on U.S. Funding Decision (July 22, 2002), at . 8 See Barry Schweid, U.S. Blocks Aid to U.N. Population Fund, Wash. Post, July 17, 2004, at A16.
P1: OYK/... P2: IWV 0521750717c05 CB951-Murphy
0 521 75071 7
August 6, 2005
19:45
International Organizations
105
a significant number of police: UN Interim Administration Mission in Kosovo (UNMIK) (477 U.S. police personnel); and UN Mission of Support in East Timor (UNMISET) (41 U.S. police personnel). For four of those operations, the United States provided a small number of observers: UN Mission in Liberia (UNMIL) (9 U.S. observers); UN Mission in Ethiopia and Eritrea (UNMEE) (7 U.S. observers); UN Truce Supervision Organizations (UNTSO) in the Middle East (3 U.S. observers); and UN Observer Mission in Georgia (UNOMIG) (2 U.S. observers).1 No personnel were provided for the remaining operations. In 2004, three additional peacekeeping operations were established in Burundi (ONUB),2 Cˆote d’Ivoire (UNOCI),3 and Haiti (MUNUSTAH),4 and the Security Council authorized a major expansion of the operation in the Democratic Republic of the Congo (MONUC).5 By the end of 2004, seven of the United Nations’ sixteen peacekeeping operations were based in Africa, including the two largest ones in the Congo and Liberia (UNMIL).6 All told 54,000 UN peacekeepers were authorized worldwide, with more than 37,000 in Africa. In Congressional testimony in October 2004, a U.S. State Department official indicated the scrutiny the U.S. government gives existing and proposed new peacekeeping operations. [T]he United States pays the largest share of the costs of UN peacekeeping, currently 27.1%, and as the number and scope of operations goes up, that means costs are going up for the U.S. taxpayers. . . . We approve UN peacekeeping operations only when we judge them to be absolutely necessary, in [the] United States’ interest, right-sized, with a viable exit strategy, and only after extensive consultation with the Congress. In accordance with the American Servicemen’s Protection Act,7 we also scrutinize missions to ensure that American soldiers and UN peacekeeping operations are protected from possible assertions of jurisdiction by the International Criminal Court. Through the U.S. interagency process, we examine UN reports on peacekeeping, taking them for what they are: recommendations. And the eventual resolutions voted by the Security Council often differ significantly from UN Secretariat recommendations. To take the most recent case of MONUC, the secretariat had recommended expansion of the mission from 10,800 troops to 23,900, and its extension into vast new areas in the Congo. We eventually voted in favor of an expansion of the force to 16,700, reinforcing it in problematic zones, but declining to accept that MONUC deploy into provinces where it was not already present. We regularly review ongoing UN peacekeeping operations to ensure that they are right-sized. Recent examples of downsizing in Africa as a result of such reviews include operations in Ethiopia and Sierra Leone. . . . Peacekeeping has changed dramatically over the past two decades, and the patrolling of the static cease-fire line, which was once the norm, is now the exception. UN peacekeepers are regularly charged with responsibility not only of protecting themselves, but in many cases also innocent civilians in their areas of operations. There is a tendency, once a UN mission is on the ground, to expect sometimes more from it than it can do.
1 2 3 4 5 6 7
See U.S. Dep’t of State Bureau of Public Affairs, Peacekeeping Current Missions (n.d.), at . SC Res. 1545 (May 21, 2004). SC Res. 1528 (Sept. 19, 2004). SC Res. 1542 (Apr. 30, 2004). For greater detail on the U.S. involvement in this operation, see infra this chapter. SC Res. 1565 (Oct. 1, 2004). For greater detail on the U.S. involvement in the Liberian operation, see infra this chapter. [Author’s Note: See infra Ch. IX.]
P1: OYK/... P2: IWV 0521750717c05 CB951-Murphy
106
0 521 75071 7
August 6, 2005
19:45
United States Practice in International Law 2002–2004
We need to be realistic about UN peacekeeping. We want the UN to succeed, not to fail, and we are therefore careful not to ask more of the UN than it can reasonably do. As we review proposals for new missions and extensions of existing ones, we strive to ensure the UN missions which are often being sent to operate in dangerous places are properly trained, equipped and staffed to succeed.8 Replacement of U.S.-Led Force in Haiti with UN Peacekeeping Mission One of the key values to the United States of UN peacekeeping operations was to serve as a device for extricating U.S. forces from countries where those forces had been deployed to establish peace and security. Thus, in 1994 the UN Security Council authorized the deployment of a twenty thousandperson multinational force to oust a military and police junta that had taken control of Haiti in 1991, and to return to power Haiti’s democratically elected president, Jean-Bertrand Aristide. Aristide was successfully returned to power, but a genuine democratic system was never consolidated under his rule, and human rights abuses, corruption, and economic stagnation continued. In February 2004, armed conflict broke out between opposition groups and forces loyal to Aristide, and the insurgents gradually gained control of the northern part of the country.1 On February 25, U.S. President George W. Bush notified Congress that, because of the spreading armed rebellion and the limited effectiveness of the Haitian national police, he had deployed a security force of approximately fiftyfive U.S. military personnel to Haiti to augment the embassy’s security forces.2 On February 29, Aristide resigned and fled from Haiti, taking up residence in Bangui, the capital of the Central African Republic.3 On the day Aristide fled, Haiti’s representative to the United Nations – on behalf of the new acting president of Haiti, Boniface Alexandre – requested UN assistance for Haiti, including the deployment of foreign forces.4 The same day, the Security Council adopted Resolution 1529, authorizing the deployment of a “multinational interim force” (MIF) for a period of not more than three months, for the purposes of creating a “secure and stable environment,” facilitating humanitarian assistance, and providing other support.5 On March 2, President Bush informed Congress of the deployment of U.S. forces to Haiti: On February 29, 2004, approximately 200 additional U.S. combat-equipped, military personnel from the U.S. Joint Forces Command deployed to Port-au-Prince, Haiti, to secure key facilities, to facilitate the continued repatriation of Haitian migrants, to help create conditions in the capital for the anticipated arrival of the Multinational Interim Force, to protect American citizens as may be required, and for other purposes consistent with United Nations Security Council Resolution 1529 (2004). I anticipate additional combat-equipped military personnel will be deployed to Haiti until the situation in Haiti stabilizes. The forces that the United States deployed and continues to deploy will be part of the Multinational Interim Force. .... It is anticipated U.S. forces will redeploy when the Multinational Interim Force has transitioned to a follow-on United Nations stabilization force. 8 James W. Swigert, Principal Deputy Ass’t Secretary, Bureau of International Organizations Affairs, Statement before the African Subcommittee of the House International Relations Committee (Oct. 8, 2004), at . 1 See Report of the Secretary-General on Haiti, UN Doc. S/2004/300, paras. 4–5, 9 (Apr. 16, 2004). 2 Letter to Congressional Leaders on the Deployment of U.S. Military Forces in Response to Security Concerns for United States Embassy Personnel in Haiti, 40 Weekly Comp. Pres. Doc. 284 (Feb. 25, 2004). 3 See U.S. Dep’t of State Press Release on Resignation of President Jean-Bertrand Aristide of Haiti (Feb. 29, 2004), at ; Daniel Balint Kurt, Aristide Calls for “Peaceful Resistance”; Haitian Insists He’s Still President, Wash. Post, Mar. 9, 2004, at A17. 4 Letter Dated 29 February 2004 from the Permanent Representative of Haiti to the United Nations Addressed to the President of the Security Council, UN Doc. S/2004/163 (Feb. 29, 2004). 5 SC Res. 1529, para. 2 (Feb. 29, 2004).
P1: OYK/... P2: IWV 0521750717c05 CB951-Murphy
0 521 75071 7
August 6, 2005
19:45
International Organizations
107
I have taken this action pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive. I am providing this report as part of my efforts to keep the Congress informed, consistent with the War Powers Resolution.6 Thereafter, the United States led the deployment of the MIF, which consisted of more than three thousand troops from Canada, Chile, France, and the United States.7 As the three-month period neared its end, the UN secretary-general issued a report on Haiti’s condition and the steps that needed to be taken to secure a stable environment. Among other things, the secretary-general recommended the establishment of a “multidimensional stabilization operation in Haiti, to be known as the United Nations Stabilization Mission in Haiti (MINUSTAH),” with a broad mandate to address a complex range of issues, including building and strengthening democratic institutions in Haiti, and promoting Haiti’s economic and social development.8 On April 30, the Security Council unanimously adopted Resolution 1542, which authorized the creation of MINUSTAH.9 On June 1, MINUSTAH forces, led by Brazil and including forces from Argentina, Benin, Bolivia, Canada, Chile, Croatia, France, Guatemala, Nepal, Paraguay, Peru, Rwanda, and the United States, began arriving in Haiti to replace the MIF.10 U.S. Support for Multinational Intervention in Liberia In some instances, the United States lent its support in 2002–2004 to authorizations for states to use military force to establish peace and security, such as the authorization for a Nigerian-led force to enter Liberia. In 1989, Charles Taylor, a former Liberian minister who had fallen out of favor with the repressive Liberian regime of Samuel Doe, organized a rebel force in neighboring Ivory Coast and invaded Liberia, sparking a lengthy civil war. From 1990 to 1997, the international community engaged in extensive efforts to bring peace to the country. These efforts included military intervention – by the Economic Community of West African States (ECOWAS), which established the ECOWAS Monitoring Group (ECOMOG) that was sent into Liberia – and the deployment of a UN Observer Mission in Liberia (UNOMIL). The conclusion of a series of peace agreements led, in July 1997, to multiparty elections, in which Taylor was elected president of Liberia. UNOMIL withdrew from Liberia later that same year, and ECOMOG withdrew in November 1999. Thereafter, political stability in Liberia deteriorated, largely due to the Taylor government’s “policy of exclusion and harassment of political opponents, as well as systematic abuses of human rights, especially by government militia and security agencies.”1 By May 2003, two rebel groups, Liberians United for Reconciliation and Democracy (LURD) and the Movement for Democracy in Liberia (MODEL), had gained control over two-thirds of the country and were threatening to seize the capital Monrovia and to overthrow the Taylor government. At peace talks convened by ECOWAS in Accra, Ghana, in June, President Taylor stated that he was prepared to step down in the interest of peace, which led to the signing of a cease-fire agreement on June 17.2 When violence nevertheless continued in Liberia, UN Secretary-General Kofi Annan proposed the deployment of a multinational force into Liberia to stabilize the situation, and requested that the United States consider “spearheading the deployment of that force.”3 Although in early June
6 Letter to Congressional Leaders on the Further Deployment of United States Military Forces in Haiti, 40 Weekly Comp. Pres. Doc. 317 (Mar. 2, 2004). 7 See Report of the Secretary-General on Haiti, supra note 1, para. 25. 8 Id., paras. 69–70. 9 SC Res. 1542 (Apr. 30, 2004); see also UN Doc. S/PV.4961 (Apr. 30, 2004); Colum Lynch, UN Votes to Set up Mission in Haiti, Wash. Post, May 1, 2004, at A15. 10 See United Nations Press Release on UN Launches Peacekeeping Operation in Haiti (June 1, 2004), at . 1 Report of the Secretary-General to the Security Council on Liberia, UN Doc. S/2003/875, at 2 (Sept. 11, 2003) [hereinafter Report of the Secretary-General]; see Adekeye Adebajo, Liberia’s Civil War: Nigeria, ECOMOG , and Regional Security in West Africa (2002). 2 See Report of the Secretary-General, supra note 1, at 3. 3 Id.
P1: OYK/... P2: IWV 0521750717c05 CB951-Murphy
108
0 521 75071 7
August 6, 2005
19:45
United States Practice in International Law 2002–2004
the United States had deployed combat-equipped forces to Liberia in order to augment U.S. embassy security forces and aide in the evacuation of U.S. citizens from Liberia,4 the Bush administration resisted committing substantial numbers of ground forces to Liberia at a time when U.S. forces were already significantly deployed to Afghanistan and Iraq.5 On July 25, President Bush directed the U.S. military to position a limited U.S. military force off the coast of Liberia for the purpose of supporting the deployment of Nigerian-led ECOWAS forces into Liberia.6 In a news conference on July 30, the president stated that the limited U.S. support was predicated on the Liberian parties adhering to the cease-fire agreement, including the departure of Taylor, and would end after deployment of appropriate UN peacekeeping forces.7 On July 31, ECOWAS decided that it would deploy a force into Liberia beginning August 4. The next day, on August 1, the UN Security Council passed a resolution,8 drafted by the United States,9 declaring that the situation in Liberia constituted a threat to international peace and security. Among other things, the resolution: 1. Authorizes Member States to establish a Multinational Force in Liberia to support the implementation of the 17 June 2003 ceasefire agreement, including establishing conditions for initial stages of disarmament, demobilization and reintegration activities, to help establish and maintain security in the period after the departure of the current President and the installation of a successor authority . . . and to secure the environment for the delivery of humanitarian assistance, and to prepare for the introduction of a longer-term United Nations stabilization force to relieve the Multinational Force; .... 7. Decides that current or former officials or personnel from a contributing State, which is not a party to the Rome Statute of the International Criminal Court, shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to the Multinational Force or United Nations stabilization force in Liberia, unless such exclusive jurisdiction has been expressly waived by that contributing State[.]10 Shortly after enactment of the resolution, approximately 4,350 U.S. military personnel arrived aboard U.S. warships off the coast of Liberia.11 On August 4, Nigerian troops began deploying to Monrovia as part of the ECOWAS Mission to Liberia (ECOMIL).12 On August 11, President Taylor resigned; within days, he departed the country for Nigeria.13 The United States then moved its forces into Liberian territorial waters and
4 See Letter to Congressional Leaders on the Deployment of U.S. Military Forces in Response to Security Concerns for U.S. Embassy Personnel in Liberia and Mauritania, 39 Weekly Comp. Pres. Doc. 739 (June 9, 2003). 5 See Richard W. Stevenson & Christopher Marquis, Bush Team Faces Widespread Pressure to Act on Liberia, N.Y. Times, July 23, 2003, at A3. 6 See White House Press Release on Statement on Liberia (July 25, 2003), at ; Vernon Loeb & Colum Lynch, Marines Sent to Liberian Coast, Wash. Post, July 26, 2003, at A1. 7 See The President’s News Conference, 39 Weekly Comp. Pres. Doc. 1003, 1013 (July 30, 2003); see also U.S. Dep’t of State Press Release on U.S. Secretary of State Colin L. Powell, Interview with the Washington Times Editorial Board (July 22, 2003), at . 8 SC Res. 1497 (Aug. 1, 2003). The vote was 12 in favor and 3 abstentions (France, Germany, Mexico). The abstentions were in protest of the inclusion of paragraph 7. See UN Doc. S/PV.4803, at 2–3 (Aug. 1, 2003) (Mexico statement); id. at 4 (Germany); id. at 7 (France). 9 See UN Doc. S/2003/784 (Aug. 1, 2003). 10 SC Res. 1497, supra note 8, paras. 1 & 7. 11 See Letter to Congressional Leaders on the Further Deployment of U.S. Military Forces in Liberia, 39 Weekly Comp. Pres. Doc. 1056 (Aug. 13, 2003). 12 See Somini Sengupta, Peacekeeping Unit Arrives in Liberia, N.Y. Times, Aug. 5, 2003, at A1. The deployment of Nigerian troops was initially delayed by financial shortcomings, which placed pressure on states (including the United States) to provide economic assistance. See Felicity Barringer, U.S. Offers Resolution to Approve African Force for Liberia, N.Y. Times, July 31, 2003, at A11. The United States contributed roughly U.S.$26 million to ECOMIL from the time it was deployed until October 1, 2003. See U.S. Dep’t of State Press Statement on Richard Boucher, Spokesman, UN Peacekeeping Mission in Liberia Begins Operations (Oct. 1, 2003). 13 See Somini Sengupta, Liberian President Resigns as Peacekeepers Enter Capital, N.Y. Times, Aug. 8, 2003, at A3.
P1: OYK/... P2: IWV 0521750717c05 CB951-Murphy
0 521 75071 7
August 6, 2005
19:45
International Organizations
109
deployed roughly 200 personnel ashore.14 The United States emphasized that these ground forces would remain in Liberia only until the establishment of a UN stabilization force and that their sole mission was to assist ECOMIL troops in providing humanitarian assistance and in stabilizing the Monrovia area.15 On August 18, a Comprehensive Peace Agreement was concluded in Accra.16 On September 19, the Security Council established the UN Mission in Liberia (UNMIL),17 which would assume authority from ECOMIL. UNMIL would comprise up to fifteen thousand military personnel and have a one-year mandate to support the implementation of the cease-fire agreement and the peace process, to protect UN staff and Liberian civilians, to support reforms of Liberian police and military forces, and to support the provision of humanitarian assistance.18 On October 1, UNMIL began operations in Liberia. Thereafter, the United States withdrew its last forces from Liberia (other than security personnel at the U.S. Embassy), although nine military officers were seconded to UNMIL.19 Protection of UN and Humanitarian Personnel in Conflict Zones UN personnel deployed globally are exposed to considerable threats. On August 19, 2003, after the U.S. intervention in Iraq,1 Iraqi insurgents detonated a car bomb at the UN headquarters in Baghdad, killing nearly twenty UN employees, including the UN special envoy to Iraq, and wounding more than 160 others.2 On August 26, the UN Security Council unanimously adopted a resolution condemning attacks on personnel involved in UN humanitarian and peacekeeping missions, and urging states “to ensure that crimes against such personnel do not remain unpunished.”3 In its fourth preambular paragraph, the resolution emphasized that “there are existing prohibitions under international law against attacks knowingly and intentionally directed against personnel involved in a humanitarian assistance or peacekeeping mission undertaken in accordance with the Charter of the United Nations which in situations of armed conflicts constitute war crimes,” and recalled “the need for States to end impunity for such criminal acts.”4 The resolution further stated that the Council 3. Reaffirms also the obligation of all parties involved in an armed conflict to comply fully with the rules and principles of international law applicable to them related to the protection of humanitarian personnel and United Nations and its associated personnel, in particular international humanitarian law, human rights law and refugee law; 4. Urges all those concerned as set forth in international humanitarian law, including the Geneva Conventions and the Hague Regulations, to allow full unimpeded access by humanitarian personnel 14 See Letter to Congressional Leaders on the Further Deployment of U.S. Military Forces in Liberia, supra note 11; Tim Weiner, 200 U.S. Marines Land in Liberia to Aid African Force, N.Y. Times, Aug. 15, 2003, at A4. 15 See Letter to Congressional Leaders on the Further Deployment of U.S. Military Forces in Liberia, supra note 11; Lawrence Di Rita, U.S. Acting Assistant Secretary of Defense for Public Affairs, U.S. Dep’t of Defense News Briefing (Aug. 13, 2003), at . 16 See Comprehensive Agreement Between the Government of Liberia and the Liberians United for Reconciliation and Democracy (LURO) and the Movement for Democracy in Liberia (MODEL) and Political Parties, Aug. 18, 2003, at ; see also Emily Wax & Karl Vick, Peace Deal Is Signed in Liberia, Wash. Post, Aug. 19, 2003, at A1. Among other things, the agreement provided for an immediate end to the war and the establishment of a transitional government leading to elections in October 2005. The agreement called upon ECOWAS to establish a multinational force that would secure the cease fire and assist the transitional government. The agreement also requested that the United Nations deploy a peacekeeping force to Liberia. 17 SC Res. 1509, para. 1 (Sept. 19, 2003). 18 Id., paras. 1, 3. The Security Council renewed the mandate for another year in September 2004. See SC Res. 1561 (Sept. 17, 2004); see also SC Res. 1549 (June 17, 2004). 19 See U.S. Dep’t of State Press Release on Richard Boucher, Spokesman, UN Peacekeeping Mission in Liberia Begins Operations (Oct. 1, 2003), at ; U.S. Policy Toward Liberia: Hearing Before the Subcomm. of the H. Comm. on Int’l Relations, 108th Cong. 7–11 (2003) (statement of Walter H. Kansteiner III, assistant secretary of state for African affairs), at . 1 See infra Ch. 10. 2 See Dexter Filkins & Richard A. Oppel Jr., Huge Suicide Blast Demolishes U.N. Headquarters in Baghdad; Top Aid Officials Among 17 Dead, N.Y. Times, Aug. 20, 2003, at A1. 3 SC Res. 1502, para. 2 (Aug. 26, 2003). 4 Id., pmbl.
P1: OYK/... P2: IWV 0521750717c05 CB951-Murphy
110
0 521 75071 7
August 6, 2005
19:45
United States Practice in International Law 2002–2004
to all people in need of assistance, and to make available, as far as possible, all necessary facilities for their operations, and to promote the safety, security and freedom of movement of humanitarian personnel and United Nations and its associated personnel and their assets[.]5 The resolution also requested the UN secretary-general to seek the inclusion of provisions of the 1994 Convention on the Safety of United Nations and Associated Personnel6 in status-of-forces, status-of-mission, and host-country agreements, and expressed the Council’s determination to specify UN operations, where appropriate, as falling within the scope of the Convention.7 Mexico reportedly had pursued the adoption of such a resolution earlier in 2003, but the United States had threatened to veto it because of a reference to the International Criminal Court (ICC). In August 2003, Mexico agreed to drop that reference.8 The United States had also sought to ensure, among other things, that the resolution did not affect the operation of the bilateral agreements concluded by the United States with ICC parties pursuant to which they agree not to surrender U.S. nationals to the ICC without U.S. consent.9 When the resolution was adopted, the U.S. permanent representative to the United Nations made the following observations: We note that the fourth preambular paragraph reaffirms the general rule that humanitarian and United Nations personnel should observe and respect the laws of the country in which they are operating. This paragraph makes clear that this general rule must be applied in accordance with international law, which may provide for special rules that govern the relationship between such personnel and the laws of the host State. We also note that operative paragraph 3 creates no new international legal obligations, but rather reaffirms the existing obligation of all parties involved in an armed conflict to comply fully with the rules and principles of international law applicable to them during armed conflict. Finally, we would note that operative paragraph 4 does not in itself create any new international legal obligations, but rather urges concerned parties to implement their existing international legal obligations relating to access, the provision of facilities and the promotion of safety, security and freedom of movement. In this connection, we recall that both the Hague Regulations and the Geneva Conventions recognize that, during a period of armed conflict, the extent to which a concerned party is able to allow such access, make available such facilities or promote the security of such personnel may be limited to those steps that are practicable and consistent with the security and operating environment.10 The Mexican Ambassador to the United Nations said: We regret the fact that the resolution does not explicitly mention the International Criminal Court and the Rome Statute. However, given its purpose and the vital importance of its unanimous adoption, the sponsors felt justified in reaching the difficult decisions made during the negotiation process, culminating in the adoption of this instrument.11
5
Id., paras. 3, 4. Dec. 9, 1994, 2051 UNTS 391, reprinted in 34 ILM 482 (1995). The Convention entered into force on January 15, 1999. SC Res. 1502, supra note 3, para. 5(a), (c). Article 1(c)(ii) of the 1994 Convention provides that a “United Nations operation” within the meaning of the Convention includes not only operations whose purpose is to maintain or restore international peace and security, but also operations for which the Security Council or General Assembly has declared that there is “an exceptional risk to the safety of the personnel participating in the operation.” 8 See Felicity Barringer, U.N. Condemns Attacks on Workers, N.Y. Times, Aug. 27, 2003, at A10; Security Council Makes Attacks on U.N., Aid Workers a War Crime, Wash. Post, Aug. 27, 2003, at A18. 9 For background on those agreements, see infra Ch. IX. 10 UN Doc. S/PV.4814, at 3 (Aug. 26, 2003). 11 Id. at 4. 6 7
P1: OYK/... P2: IWV 0521750717c05 CB951-Murphy
0 521 75071 7
August 6, 2005
19:45
International Organizations
111
UN Resolution on Israeli Treatment of Palestinian President While the United States played a central role in UN activities during 2002–2004, the United States was outvoted by other states on numerous occasions. For example, on September 11, 2003, the Israeli government announced that it had decided “in principle to remove Yasir Arafat,”1 the elected president of the Palestinian Authority. Subsequently, a draft resolution sponsored by Pakistan, South Africa, Sudan, and Syria was submitted to the UN Security Council. The draft resolution read, in relevant part: Reaffirming the illegality of the deportation of any Palestinian by Israel, the occupying Power, and affirming its opposition to any such deportation, Reiterating also the need for respect in all circumstances of international humanitarian law, including the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August, 1949, 1. Reiterates its demands for the complete cessation of all acts of violence, including all acts of terrorism, provocation, incitement and destruction. 2. Demands that Israel, the occupying Power, desist from any act of deportation and cease any threat to the safety of the elected President of the Palestinian Authority; 3. Expresses its full support for the efforts of the Quartet and calls for increased efforts to ensure the implementation of the road map by the two sides . . . [.]2 When taken to a vote on September 16, 2003, the resolution received eleven votes in favor, three abstentions,3 and one vote, by the United States, in opposition.4 Because of a negative vote by a permanent member, the resolution was not adopted. In explaining the U.S. vote, the U.S. permanent representative stated: The draft resolution put forward today was flawed in that it failed to include the following three elements: a robust condemnation of acts of terrorism; an explicit condemnation of Hamas, the Palestinian Islamic Jihad and the Al-Aqsa Martyrs Brigade as organizations responsible for acts of terrorism; and a call for the dismantlement of infrastructure that supports these terror operations wherever located, consistent with resolution 1373 (2001). . . . .... We note once again that the Government of Israel is already aware of the views of the Council members on the issue of Mr. Arafat. Moreover, Secretary of State Powell stated that the United States does not support either the elimination of Mr. Arafat or his forced exile. While Mr. Arafat is part of the problem, we believe that this problem is best solved through diplomatic isolation, and we have made that view clear.5 Thereafter, a resolution containing similar language was introduced before the UN General Assembly.6 On September 19, the resolution passed with 133 countries voting in favor, 4 against, and 15 1
See James Bennet, Israel Announces Official Decision to Remove Arafat, N.Y. Times, Sept. 12, 2003, at A1. UN Doc. S/2003/891 (Sept. 16, 2003). Bulgaria, Germany, and the United Kingdom abstained. 4 UN Doc. S/PV.4828, at 2 (Sept. 16, 2003); see Felicity Barringer, U.S. Uses Its Veto to Block Anti-Israel Measure in U.N., N.Y. Times, Sept. 17, 2003, at A10. 5 UN Doc. S/PV.4828, supra note 4, at 2. 6 Illegal Israeli Actions in Occupied East Jerusalem and the Rest of the Occupied Palestinian Territory, 10th Emergency Special Sess., UN Doc. A/ES-10/L.12 (Sept. 18, 2003). 2 3
P1: OYK/... P2: IWV 0521750717c05 CB951-Murphy
0 521 75071 7
112
August 6, 2005
19:45
United States Practice in International Law 2002–2004
abstaining.7 The United States was among those states voting against the resolution and reiterated the points made before the Security Council.8 Host-Country Relations In 1971, the General Assembly established the UN Committee on Relations with the Host Country to address issues relating to the presence of the United Nations and its diplomatic community in the United States. During 2002–2004, the issues of principal interest to the committee concerned the delay in the issuance of U.S. visas for persons attending official UN meetings and functions, and friction relating to the parking of diplomatic vehicles. Issuance of U.S. Visas. In the aftermath of the terrorist attacks of September 11, 2001, the United States introduced enhanced security requirements for the issuance of visas to foreign nationals coming to the United States. Those requirements created delays in the issuance of U.S. visas for persons attending UN meetings and functions. The United States acknowledged to the UN Committee on Relations with the Host Country that the United States was obligated under Article IV, section 11 of the UN Headquarters Agreement not to impose impediments on those traveling to the United Nations,1 but maintained that this obligation must be balanced against U.S. national security concerns. The United States advised the committee in February 2003 that it should anticipate at least twenty days for the United States to process visa applications.2 Dispute over parking fines. Until 1997, the City of New York did not take action against diplomatic and consular vehicles that incurred parking fines that remained unpaid. In March 1997, however, the city and the U.S. Department of State concluded a memorandum of understanding on the handling of diplomatic and consular parking, especially relating to foreign missions to the United Nations, senior UN Secretariat officials, and foreign consulates. The parking program set up under this agreement required that all diplomatic and consular personnel obey all traffic and parking laws, and that all their parking tickets be paid or adjudicated. The program also provided, among other things, for the allocation of parking spaces in front of each foreign mission and consulate, for the nonrenewal of diplomatic and consular license plates for the cars of personnel who have outstanding parking fines more than one year old, and for the towing of such vehicles to a place of safekeeping, where the plates would be removed and the vehicle would remain until the plates were renewed.3 The agreement prompted the UN Committee on Relations with the Host Country to create a working group on the matter. The committee also solicited the views of the UN legal counsel, who determined that the agreement was largely consistent with U.S. rights and obligations as the host country to the United Nations, but that the provisions for towing diplomatic vehicles and removing their plates “would appear to be enforcement measures” amounting to an impermissible exercise of jurisdiction.4 In particular, the UN legal counsel found that such an exercise of jurisdiction would be inconsistent with the Vienna Convention on Diplomatic Relations,5 the General Convention on the Privileges and Immunities of the United Nations,6 and the UN Headquarters Agreement.7 7 GA Res. ES-10/12 (Sept. 19, 2003). The resolution was opposed by Israel, the Marshall Islands, Micronesia, and the United States. Although Germany and the United Kingdom had abstained on the Security Council resolution, they voted in favor of the General Assembly resolution. 8 See U.S. Mission to the United Nations, Press Release on Statement by Ambassador John D. Negroponte, U.S. Permanent Representative to the United Nations, on the Situation in the Middle East, in the General Assembly (Sept. 19, 2003), at . 1 June 26, 1947, Art. IV, §11, 61 Stat. 3416, 11 UNTS 11 (“The federal, state or local authorities of the United States shall not impose any impediments to transit to or from the headquarters district . . .”). 2 U.S. Dep’t of State, U.S. Participation in the United Nations for 2003, at 122 (2004), at . 3 The program is described in UN Docs. A/AC.154/305 (1997) and A/AC.154/306 (1997). See United Nations Press Release on United Nations HQ /573, New York City Diplomatic Parking Programme Should Be Delayed Say Speakers in Host Country Committee (Mar. 27, 1997), at . 4 UN Doc. A/AC.154/307, para. 30 (1997). 5 Apr. 18, 1961, Art. 31, 23 UST 3227, 500 UNTS 95. 6 Feb. 13, 1946, Arts. IV, V, 21 UST 1418, 1 UNTS 15. 7 June 26, 1947, Art. V, 61 Stat. 3416, 11 UNTS 11.
P1: OYK/... P2: IWV 0521750717c05 CB951-Murphy
0 521 75071 7
August 6, 2005
19:45
International Organizations
113
Thereafter, New York City did not pursue a policy of towing delinquent vehicles, except in situations that presented safety hazards or prevented passage of emergency vehicles. Diplomatic and consular personnel continued to incur parking fines that were not paid. Consequently, in a further effort to deter the nonpayment of fines, the U.S. government began including in its annual foreign-operations appropriations law a provision stating: Of the funds appropriated under this Act that are made available for a foreign country under part I of the Foreign Assistance Act of 1961, an amount equivalent to 110 percent of the total unpaid fully adjudicated parking fines and penalties owed to the District of Columbia and New York City, New York by such country as of the date of enactment of this Act that were incurred after the first day of the fiscal year preceding the current fiscal year shall be withheld from obligation for such country until the Secretary of State certifies and reports in writing to the appropriate congressional committees that such fines and penalties are fully paid to the governments of the District of Columbia and New York City, New York.8 Despite this new federal legislation, the various missions and consulates in New York still owed a total of more than U.S.$20 million in parking fines to the City of New York as of mid-2002. Therefore, the mayor of New York threatened to commence the towing of delinquent vehicles – which led to the conclusion of another memorandum of understanding between the city and the U.S. Department of State. Finalized on August 22, 2002, the new parking program set aside for New York missions and consulates up to 530 spaces on the streets of New York, with only one parking decal issued per space.9 In an effort to collect existing fines against consular vehicles, the program authorized the immediate removal of license plates from consular vehicles for which more than 40 percent of the total parking fines remained unpaid as of September 1 (no such remedy was imposed on diplomatic vehicles).10 For fines incurred in the future (specifically, after November 1), if three or more tickets issued against a car remain unpaid after one hundred days, the U.S. Department of State will immediately remove the plates if the car is a consular vehicle, and will refuse to renew the plates if the car is a diplomatic vehicle, unless the vehicle is the sole remaining vehicle for the mission or consulate.11 If forty tickets issued against the vehicles of a particular country are unpaid, that country will lose a portion of its designated share of the 530 parking spaces, with more spaces lost as the number of unpaid tickets increases.12 A diplomatic vehicle would be towed only in the following situations: it is parked illegally in a manner that presents a hazard to health and safety; the registrant has lost his or her diplomatic accreditation; the diplomatic plates have been reported as lost or stolen; or the towing has been authorized by the U.S. Department of State.13 In an opinion on the new parking program rendered September 24, 2002, the UN Legal Counsel noted that consular vehicles were regulated under bilateral agreements directly between the relevant foreign country and the United States, and thus do not concern the United Nations. He then stated: 8. It appears clear from the terms of article 41 of the Vienna Convention, which recognizes that all persons having diplomatic privileges and immunities must respect the laws of the host State, that the host country may promulgate procedures regulating parking for diplomats. .... 8 Foreign Operations, Export Financing, and Related Programs Appropriations Act of 2002, Pub. L. No. 107-115, §545, 115 Stat. 2118, 2155 (2002). A similar provision, albeit with reference only to the District of Columbia, appeared in prior foreign-operations appropriations laws. See, e.g., Foreign Operations, Export Financing and Related Programs Act of 2001, Pub. L. No. 106-429, §550, 114 Stat. 1900, 1900A-41 (2000). 9 Memorandum of Understanding, Aug. 22, 2002, U.S. Dep’t of State–City of New York, Attachment A: Parking Program for Diplomatic and Consular Vehicles, §H [hereinafter 2002 Parking Program] (on file with author). This limitation constituted a reduction of approximately 2,100 diplomatic and consular cars allowed to park in the designated spaces. See City of New York Press Release on Mayor Michael R. Bloomberg and U.S. Ambassador Patrick F. Kennedy Announce Historic Diplomatic Parking Program (Aug. 22, 2002), at . 10 2002 Parking Program, supra note 9, §E. 11 Id. §D. 12 Id. §H, para. 48. 13 Id. §F.
P1: OYK/... P2: IWV 0521750717c05 CB951-Murphy
114
0 521 75071 7
August 6, 2005
19:45
United States Practice in International Law 2002–2004
11. On the other hand, it would seem to me that there is a legal obligation on the host country to take account of complaints by missions and to attempt in good faith to resolve problems that might arise in the actual operation of the Parking Programme. This obligation arises from article 25 of the Vienna Convention, which provides that “the receiving State shall accord full facilities for the performance of the functions of the mission.” . . . .... 25. It is my view that the non-renewal of the diplomatic plates of a vehicle at the expiration of the registration period does not constitute an enforcement measure. This is so because the issuance of the diplomatic plates was initially subject to the authorization of the host country and for a limited period of time . . . . It should also be noted that . . . each mission will always be permitted to have a least one vehicle with diplomatic plates notwithstanding the number of parking tickets accumulated under the Parking Programme. Furthermore, although a registrant may lose the diplomatic plates on a vehicle that has accumulated three or more unanswered or unsatisfied outstanding tickets, such registrant does not lose the right to drive. Considering these elements together, the measures set out in the Parking Programme do not amount to an enforcement measure equivalent to seizure of the vehicle or seizure of diplomatic plates during their period of validity. .... 27. . . . In the light of this and on the assumption that there is ample and effective opportunity to contest tickets issued unjustly or in error, it is in my view difficult to conclude that the nonrenewal or non-issuance of diplomatic plates in such circumstances violates the general obligations of facilitation set out in article 25 of the Vienna Convention and in section 27 of the Headquarters Agreement. . . . .... 32. In my view, the towing of diplomatic vehicles in circumstances of public safety is not per se objectionable. As a practical matter, it may be necessary to tow a car to a place of safe keeping, and this also is not legally objectionable. However, a diplomatic car towed to a place of safe keeping must be made available at any time it is reclaimed, and the payment of a fine or charge cannot be made a precondition for its recovery. .... 37. . . . To the extent that the Parking Programme provides two free on-street parking places to commence and as the grounds for losing these spaces are known in advance and to the extent that there is ample and effective means to contest tickets issued unjustly or in error, the fact that a mission may lose free on-street parking places is not inconsistent with the obligations of the host country under international law.14 ICJ Judge Conducts Marriage Ceremony in United States In March 2000, Thomas Buergenthal, a U.S. national, was elected to serve as a judge on the International Court of Justice (ICJ).1 On August 14, 2001, Judge Buergenthal requested authorization under District of Columbia law2 from the chief judge of the district’s superior court to conduct a civil marriage ceremony there for Hannah E. Trooboff and Brian McCollum.3 As a part of his request, 14 Letter Dated 24 September 2002 from the Chairman of the Committee on Relations with the Host Country Addressed to Members of the Committee, UN Doc. A/AC.154/358, annex (2002) (footnote omitted). 1 See Lori Fisler Damrosch, The Election of Thomas Buergenthal to the International Court of Justice, 94 AJIL 579 (2000). 2 D.C. Code §46-406 states that “[m]arriages may also be performed by any judge or justice of any court of record.” D.C. Code Ann. §46-406 (2001) (previously codified as §30-106). 3 Letter from Arthur Th. Witteveen, Acting Registrar, International Court of Justice, to Chief Judge Rufus G. King, Superior Court of the District of Columbia (Aug. 13, 2001) (on file with author).
P1: OYK/... P2: IWV 0521750717c05 CB951-Murphy
0 521 75071 7
August 6, 2005
19:45
International Organizations
115
Judge Buergenthal enclosed a copy of a letter from the ICJ’s acting registrar certifying that the judge had been elected to the ICJ and that he was in active service of that court.4 By letter of August 22, the chief of the superior court’s marriage bureau granted Judge Buergenthal’s request.5 In so doing, the superior court recognized, in effect, the ICJ as a “court of record” under District of Columbia law. On July 6, 2002, Judge Buergenthal conducted the civil marriage ceremony.
Specialized Agencies and Other International Organizations Specialized Agencies: U.S. Return to UNESCO The UN Educational, Scientific and Cultural Organization (UNESCO), a specialized agency of the United Nations, was created in November 1945 “for the purpose of advancing through the educational and scientific and cultural relations of the peoples of the world the objectives of international peace and of the common welfare of mankind.”1 Although the United States was a founding member, it notified the organization in December 1983 that it intended to withdraw from membership by the end of 1984.2 The U.S. Department of State asserted that UNESCO “has extraneously politicized virtually every subject it deals with; has exhibited a hostility toward the basic institutions of a free society, especially a free market and a free press; and has demonstrated unrestrained budgetary expansion.”3 The problems to which the United States was referring included: organizational mismanagement; the growing imbalance between the United States’ large contribution to, and its comparative lack of political influence in, UNESCO; and a perceived anti-Western tilt in the agenda and public statements of the organization under the leadership of its current director-general.4 Other U.S. critics asserted that UNESCO was engaged in “anti-family” programs in developing countries and was advocating a “new information order” as a means of countering the power of the Western media. After its withdrawal on December 31, 1984, the United States maintained observer status. Under a new director-general elected in 1987, UNESCO made significant changes in its management and policies, leading to a positive assessment by the U.S. General Accounting Office in 1993,5 and to calls by various nongovernmental organizations for the United States to return to membership.6 Further, throughout the 1990s, the United States remained significantly involved in UNESCO activities, such as by making extrabudgetary financial contributions and participating in several subsidiary
4 Letter from Judge Thomas Buergenthal, International Court of Justice, to Chief Judge Rufus G. King, Superior Court of the District of Columbia (Aug. 14, 2001) (on file with author). 5 Letter from Ionnie R. Butler, Chief of Marriage Bureau & Special Services, Superior Court of the District of Columbia, to Judge Thomas Buergenthal, International Court of Justice (Aug. 22, 2001) (on file with author). 1 Constitution of the United Nations Educational, Scientific and Cultural Organization, Nov. 16, 1945, pmbl., TIAS No. 1580, 4 UNTS 275, 276. 2 See Letter from U.S. Secretary of State George Schultz to UNESCO Director-General Amadou Mahtar M’Bow (Dec. 28, 1983), 23 ILM 220 (1984) (containing also the response by Director-General M’Bow). Article 2(6) of the UNESCO Constitution expressly permits withdrawal by a member. 3 See U.S. Statement on UNESCO, N.Y. Times, Dec. 30, 1983, at A4. 4 See U.S. Dep’t of State, U.S./UNESCO Policy Review Report (Feb. 27, 1984); U.S. Dep’t of State, The Activities of UNESCO Since U.S. Withdrawal: A Report by the Secretary of State, Pub. No. 9771 (April 1990) (providing a description of the reasons that the United States gave for its withdrawal); Bernard Gwertzman, U.S. Is Quitting UNESCO , Affirms Backing for U.N., N.Y. Times, Dec. 30, 1983, at A1; Michael Dobbs, U.S. Quits UNESCO ; Move Seen as Blow to Controversial Agency, Wash. Post, Jan. 1, 1985, at A1. For analyses of the withdrawal, see Michael J. Farley, Comment: Conflicts over Government Control of Information – The United States and UNESCO, 59 Tul. L. Rev. 1071 (1985); Peri A. Hoffer, Upheaval in the UN System: The United States’ Withdrawal from UNESCO, 12 Brook. J. Int’l L. 161 (1986); Joel H. Rosenthal, The Withdrawal from UNESCO: International Organizations and the U.S. Role, Carnegie Council on Ethics and Int’l Aff., Case Study in Ethics and International Affairs No. 10 (1990), at . 5 See U.S. General Accounting Office, UNESCO: Improvements in Management Practices, No. GAO/NSIAD-93-159 (1993), at . 6 See, e.g., Jay M. Vogelson, UN Educational, Scientific, and Cultural Organization, 30 Int’l Law. 676 (1996) (American Bar Association’s recommendation).
P1: OYK/... P2: IWV 0521750717c05 CB951-Murphy
116
0 521 75071 7
August 6, 2005
19:45
United States Practice in International Law 2002–2004
bodies of UNESCO.7 In 1995, President Clinton stated that progress had been made in addressing the concerns that motivated the 1984 U.S. withdrawal, but that U.S. budget constraints made it impossible for the United States to rejoin at that time.8 On September 12, 2002, in a speech to the UN General Assembly, President Bush announced that “[a]s a symbol of our commitment to human dignity, the United States will return to UNESCO. This organization has been reformed and America will participate fully in its mission to advance human rights, tolerance, and learning.”9 In explaining the president’s announcement, the White House emphasized “significant progress” under new leadership at UNESCO since 1999 (when Koichiro Matsuura became director-general), dramatic reform of UNESCO’s management structure, and a new dedication to freedom of the press.10 In foreign-relations legislation enacted September 30, 2002, Congress expressed its sense that the president should report to the Congress on the merits and costs of renewing U.S. membership in UNESCO.11 Thereafter, the Bush administration submitted a report to Congress on UNESCO reforms12 and requested that Congress authorize funding for that membership.13 UNESCO proposed that the United States pay in assessed contributions U.S.$15 million for the remaining months of the 2002–2003 budget, and thereafter pay approximately U.S.$60 million annually toward the UNESCO operating budget, which was expected to increase from U.S.$544 million to U.S.$610 million.14 On September 30, 2003, U.S. First Lady Laura Bush attended a ceremony at UNESCO headquarters in Paris commemorating the United States’ return to UNESCO. She stated that UNESCO, an institution born of a yearning for peace that survived years of war, can now help achieve peace by spreading the values that will help defeat terror and lead to a better and safer world: education, tolerance, respect for all human life and respect for each other’s differences. These are our common dreams for our children and these are the charge of UNESCO. Now more than ever, the nations of the world, the peoples of the world, must affirm the stated purpose of this organization: To further universal respect for justice, for the rule of law, and for the human rights and fundamental freedoms which are affirmed for the peoples of the world, without distinction of race, sex, language or religion.15 The United States officially resumed membership on October 1 as the 190th member of UNESCO. In April 2004, the United States participated as a voting member in the meeting of the UNESCO executive board, which consists of representatives from fifty-eight member states and is charged with managing UNESCO’s agenda between the biennial meetings of the general conference. 7
U.S. Dep’t of State, U.S. Participation in the United Nations (1995–2001), at . See UN Educational, Scientific and Cultural Organization, Records of the General Conference, 28th Sess., 1995, vol. 3, UNESCO Doc. No. 28/C Proceedings (1997), at ; see also U.S. Dep’t of State, U.S. Participation in the United Nations (1996), at . Similarly, the State Department asserted in 1998 that “the United States has concluded that UNESCO has satisfactorily addressed the issues that led to U.S. withdrawal in December 1984,” but that “budgetary constraints continue to impede U.S. reentry.” U.S. Dep’t of State, U.S. Participation in the United Nations (1998), at . 9 Address to the United Nations General Assembly in New York City, 38 Weekly Comp. Pres. Doc. 1529 (Sept. 16, 2002). 10 White House Fact Sheet on United States Rejoins UNESCO (Sept. 12, 2002), at <www.whitehouse.gov>. 11 See Foreign Relations Authorization Act, Fiscal Year 2003, Pub. L. No. 107-228, §407, 116 Stat. 1350, 1391 (2002). 12 See Report from the White House to Congress on United States Membership in the United Nations Educational, Scientific, and Cultural Organization (UNESCO) (n.d.) (on file with author); see also U.S. Dep’t of State Fact Sheet on The United States Rejoins UNESCO (Sept. 22, 2003), at (providing a summary of the reasons given in the report). 13 See Executive Office of the President of the U.S., Budget of the United States Government, Fiscal Year 2004, at 216 (2003), at ; see also U.S. General Accounting Office, Status of Reforms and Budgets of the United Nations Educational, Scientific, and Cultural Organization (UNESCO) 1, No. GAO-03-565R (Mar. 28, 2003), at . 14 See U.S. Dep’t of State, U.S. Participation in the United Nations for 2003, at 100 (2004), at ; Keith B. Richburg, U.S. Rejoining U.N. Agency After 19 Years, Wash. Post, Sept. 30, 2003, at A10. 15 White House Press Release on Remarks by First Lady Laura Bush to UNESCO Plenary Session (Sept. 29, 2003), at ; see U.S. Dep’t of State Fact Sheet on The United States Rejoins UNESCO, supra note 10. 8
P1: OYK/... P2: IWV 0521750717c05 CB951-Murphy
0 521 75071 7
August 6, 2005
19:45
International Organizations
117
U.S. Initiative to Oust OPCW Director-General The Chemical Weapons Convention (CWC),1 forbids parties from developing, producing, stockpiling, or using chemical weapons, and requires all parties to destroy existing chemical weapons within ten years after the Convention’s entry into force, which occurred in 1997. The CWC has two verification regimes designed to ensure compliance: one involving routine visits by teams of inspectors, and the other involving challenge inspections initiated by a member state against another member state when noncompliance is suspected. The CWC established the Organization for the Prohibition of Chemical Weapons (OPCW) in The Hague, the Netherlands. The OPCW is headed by a director-general, who – based on a recommendation of an Executive Council of forty-one member states – is appointed by the Conference of the Parties (COP) for a term of four years, which is renewable for one further term.2 There is no provision expressly providing for the removal of directors-general during their terms, although the Convention does empower the COP to “consider any questions, matters or issues within the scope of this Convention, including those relating to the powers and functions of the Executive Council and the Technical Secretariat.”3 In 1997, Jos´e M. Bustani, a Brazilian diplomat, was appointed by a COP consensus to be the OPCW’s director-general. In 2001, he was reappointed by consensus. By early 2002, however, the United States decided that Bustani could no longer effectively serve as director-general, and called upon him to resign.4 In a lengthy statement, the United States outlined its concerns, which related to Bustani’s “polarizing and confrontational conduct,” his management of the OPCW, and his advocacy of inappropriate roles for the OPCW.5 Among other things, the United States charged that, in the face of efforts by the United States and other donor states to have the OPCW act with greater fiscal discipline and also conduct more rigorous inspections, Bustani threatened to engage in punitive inspections on the donor states’ chemical industries. After pressing for his removal, the United States further alleged that Bustani offered to place a U.S. national in the deputy executive-director position in order to placate the United States.6 The United States reportedly threatened to withhold one-half of its OPCW dues until Bustani was removed from office (the United States contributes 22 percent of the organization’s annual budget of U.S.$60 million).7 At a special session of the COP, the OPCW legal adviser orally presented to the OPCW Executive Council an opinion that directors-general may not be removed from office before their terms end. The adviser noted: (1) the CWC contains no provisions concerning the removal of directors-general even though it explicitly makes the COP responsible for their appointment and reappointment; (2) directors-general may not act upon instructions from any government or take any action that might reflect on their position as international officers responsible only to the COP and the Executive Council; (3) since the responsibilities of directors-general are exclusively international in character, states parties may not (a) attempt to influence how directors-general discharge their responsibilities or (b) act in any other way that jeopardizes their independence; and (4) directorsgeneral enjoy such privileges and immunities as are necessary in the independent exercise of their functions.8 1 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Jan. 13, 1993, S. Treaty Doc. No. 103-21 (1993), reprinted in 32 ILM 800 (1993). 2 Id., Art. VIII, para. 43. 3 Id., para. 19. 4 See U.S. Ambassador Donald A. Mahley, Remarks to the 28th Regular Session of the OPCW Executive Council (Mar. 19, 2002), at . 5 See U.S. Dep’t of State Fact Sheet on Preserving the Chemical Weapons Convention: The Need for a New Organization for the Prohibition of Chemical Weapons (OPCW) (Apr. 2, 2002), at . 6 See U.S. Dep’t of State Press Release on U.S. Ambassador Donald A. Mahley, Statement to the Special Conference of the Parties to the OPCW (Apr. 21, 2002), at . 7 See Colum Lynch, Disarmament Agency Director Is Ousted, Wash. Post, Apr. 23, 2002, at A13. 8 See Note by the Director-General Forwarding the Legal Adviser’s Opinion Presented for Information to the Director-General on 15 March 2002, and Orally Presented by the Legal Adviser at the Seventeenth Meeting of the Executive Council on Whether or Not the Director-General May Be Removed from Office Before the End of His Term, OPCW Doc. C-SS-1/DG.6 (Apr. 21, 2002), at .
P1: OYK/... P2: IWV 0521750717c05 CB951-Murphy
118
0 521 75071 7
August 6, 2005
19:45
United States Practice in International Law 2002–2004
In his comments to the special session, Bustani noted that “no Director-General, of any international organization in history, has ever been dismissed during his or her term of office.” Further, adopting a U.S. draft decision on such dismissal would establish a precedent whereby the Director-General or Secretary-General of any international organisation can be removed from office at any time during his or her tenure, simply because one Member State, with or without other “major contributors”, doesn’t like his or her “management style”, or has “lost confidence” in him or her, whatever this might mean.9 Nevertheless, on April 22, 2002, the COP voted to terminate Bustani’s appointment effective immediately.10 The vote was 48 in favor, 7 against, and 43 abstentions.11
9 Statement by the Director-General at the Special Session of the Conference of the States Parties, para. 19, OPCW Doc. C-SS-1/DG.7 (Apr. 21, 2002), at . 10 See Decision Under Item Three of the Agenda of the First Special Session of the Conference on the States Parties, OPCW Doc. C-SS-1/DEC.1 (Apr. 22, 2002), at . 11 See Marlise Simons, U.S. Forces Out Head of Chemical Arms Agency, N.Y. Times. Apr. 23, 2002, at A4.
P1: OYK 0521750717c06
CB951-Murphy
0 521 75071 7
August 6, 2005
11:59
Chapter VI International Oceans, Environment, Health, and Aviation Law Overview The United States is a party to numerous bilateral and multilateral treaties in the fields of oceans, environment, health and aviation law and, during 2002–2004, those agreements operated both to empower the United States in its relations with other states, and to constrain the United States in the conduct of its own affairs. At the same time, several major ocean or environmental treaties that were signed by the United States, and that entered into force prior to 2002, remained unratified as of the end of 2004, notably the UN Convention on the Law of the Sea (entered into force Nov. 16, 1994), the amendment to that convention addressing deep sea mining (entered into force July 28, 1996), the Basel Convention on the Control of the Transboundary Movement of Hazardous Wastes (entered into force May 5, 1992), and the UN Convention on Biological Diversity (entered into force Dec. 29, 1993). Other major environmental agreements that were signed by the United States prior to 2002, and that entered into force during 2002–2004, also remained unratified by the United States, such as the Rotterdam Convention on Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (entered into force Feb. 24, 2004), the Long-Range Transboundary Air Pollution (LRTAP) Protocol on Persistent Organic Pollutants (entered into force Oct. 23, 2003), and the UN Stockholm Convention on Persistent Organic Pollutants (entered into force May 17, 2004). The Cartagena Protocol on Biosafety to the Convention on Biological Diversity (entered into force Sept. 11, 2003) remained both unsigned and unratified by the United States. Other major environmental agreements signed but not ratified by the United States were set to enter into force in 2005, such as the Kyoto Protocol to the UN Framework Convention on Climate Change (entered into force Feb. 16, 2005) and the 1997 Protocol on Air Emissions to the 1973 MARPOL Convention (Annex VI) (entered into force May 19, 2005). In the field of health law, the United States was actively engaged in the negotiation of and signed a new Framework Convention on Tobacco Control, but also did not ratify the convention as of the end of 2004. In the field of aviation law, the United States ratified a new convention on aviation liability, and U.S. courts continued on occasion to interpret U.S. obligations under such conventions.1
Law of the Sea Report of U.S. Commission on Ocean Policy The Oceans Act of 20001 established a “Commission on Ocean Policy” to make recommendations to the U.S. government for a coordinated and comprehensive national ocean policy. The commission consisted of sixteen members appointed by the president in coordination with the majority and minority leaders of Congress, and was required to submit its final report to Congress and the president after conducting extensive public meetings across the United States. The commission was chaired by Adm. James D. Watkins (U.S.N., ret’d).2
1 See, e.g., In re Air Crash at Taipei, 211 F.R.D. 374 (C.D. Cal. 2002) (interpreting the 1944 International Convention on Civil Aviation with respect to accidents occurring in non–contracting states). 1 33 U.S.C.A. §857-19 (West 2004). 2 Information on and the report of the commission may be found at .
119
P1: OYK 0521750717c06
CB951-Murphy
120
0 521 75071 7
August 6, 2005
11:59
United States Practice in International Law 2002–2004
In September 2004, the commission released its final report, entitled An Ocean Blueprint for the 21st Century.3 Several of the commission’s recommendations addressed U.S. participation in international agreements affecting the oceans. Among other things, the report stated that the United States should accede to the United Nations Convention on the Law of the Sea4 noting that the Convention “enjoys widespread backing within the United States across a broad range of stakeholders” and that the United States must be a full participant “to ensure that its interests as a maritime power and coastal state are protected.”5 The commission also urged the United States to ratify Annex VI to the 1973 International Convention for the Prevention of Pollution from Ships,6 and to promote adoption by the International Maritime Organization (IMO) of stricter air emission standards.7 Further, the commission recommended that a National Ocean Council be created within the Executive Office of the President that would be charged with, among other things, conducting an analysis of the ocean-related benefits of ratifying the UN Convention on Biological Diversity.8 An additional recommendation called on the United States to strengthen vessel pollution and safety norms by working with other nations to accelerate efforts at the IMO to enhance flag-state oversight and enforcement. According to the commission, those efforts should include: (1) “a code outlining flag state responsibilities and obligations;” (2) “a voluntary audit regime, to be followed by adoption of a mandatory external audit regime for evaluating flag state performance;” (3) “measures to ensure that responsible organizations, acting on behalf of flag states, meet established performance standards;” and (4) “increased technical assistance, where appropriate, for flag states that participate in self-assessments and audits.”9 In response to the recommendations, President Bush on December 17, 2004, signed an executive order stating that it is the policy of the U.S. government to “coordinate the activities of executive departments and agencies regarding ocean-related matters in an integrated and effective manner to advance the environmental, economic, and security interests of present and future generations of Americans,” and further to “facilitate, as appropriate, coordination and consultation regarding oceanrelated matters among Federal, State, tribal, local governments, the private sector, foreign governments, and international organizations.”10 To that end, the executive order established a cabinet-level Committee on Ocean Policy, consisting of members from government and private sector communities, to provide advice to federal, state and local governments and, when requested, to review proposed policies by those entities.11 Senate Consideration of Law of the Sea Convention In 1982, a UN-sponsored intergovernmental negotiating conference meeting at Montego Bay, Jamaica, adopted the UN Convention on the Law of the Sea (Convention) for the purpose of establishing a comprehensive legal framework governing the uses of the oceans.1 Although the United States voted in favor of adopting the Convention, the United States and several other industrialized states did not sign it due to concerns regarding Part XI (and related annexes) on the management of mineral resources of the seabed beyond national jurisdiction. In the hope of overcoming the impasse 3 U.S. Comm’n on Ocean Policy, An Ocean Blueprint, Final Report of the U.S. Commission on Ocean Policy (Sept. 2004) [hereinafter An Ocean Blueprint]. 4 Dec. 10, 1982, S. Treaty Doc. No. 103-39 (1994), 1833 UNTS 397, reprinted in 21 ILM 1261 (1982) [hereinafter LOS Convention]. 5 An Ocean Blueprint, supra note 3, at 385–86 (Recommendation 29-1). For information on Senate consideration of the LOS Convention, see infra this chapter. 6 Nov. 2, 1973, 1340 UNTS 184 (further modified in 1978). Annex VI was added by the Protocol of 1997 to Amend the International Convention for the Prevention of Pollution from Ships, Sept. 26, 1997, S. Treaty Doc. No. 108-7 (2003). For background on Annex VI and its submission to the U.S. Senate, see infra this chapter. 7 An Ocean Blueprint, supra note 3, at 203 (Recommendation 16-8). 8 Id. at 48 (Recommendation 4-1), 387. 9 Id. at 198 (Recommendation 16-3). 10 Exec. Order No. 13,366, 69 Fed. Reg. 76,589, §1 (Dec. 21, 2004). 11 Id. at §§3–4. 1 See United Nations Convention on the Law of the Sea, Dec. 10, 1982, S. Treaty Doc. No. 103-39 (1994), 1833 UNTS 397, reprinted in 21 ILM 1261 (1982) [hereinafter LOS Convention]. The Convention entered into force on November 16, 1994.
P1: OYK 0521750717c06
CB951-Murphy
0 521 75071 7
August 6, 2005
11:59
International Oceans, Environment, Health, and Aviation Law
121
with the United States and other industrialized states, the UN secretary-general informally pursued, over a four-year period, the negotiation of a further “implementing” agreement designed to reform Part XI. That implementing agreement was adopted by the General Assembly in 1994.2 In October 1994, President Clinton submitted the Convention and the 1994 implementing agreement to the Senate for advice and consent.3 The Senate Foreign Relations Committee (SFRC) did not schedule hearings on the Convention, however, until October 2003, by which time 143 states had become parties to the Convention, including virtually all North Atlantic Treaty Organization (NATO) states, China, and Russia.4 At a hearing held October 21, U.S. Department of State Legal Adviser William H. Taft IV testified before the SFRC on the background and content of the Convention. Among other things, Taft noted that the Convention provides for binding dispute-settlement procedures but further allows states,5 when joining the Convention, to submit a declaration opting out of such procedures for disputes (1) regarding maritime boundaries between neighboring states, (2) regarding military activities and certain law enforcement activities, and (3) in respect of which the UN Security Council is exercising the functions assigned to it under the UN Charter. Taft stated that the Bush administration recommended that the United States opt out of the dispute settlement procedures with regard to all three categories.6 Moreover, Taft stated that the administration recommended that the United States declare that its adherence to the Convention was conditioned on the understanding that “each Party has the exclusive right to determine which of its activities are ‘military activities’ and that such determination is not subject to review.”7 Finally, Taft addressed alleged disadvantages of U.S. adherence to the Convention, as well as the assertion that the United States may continue to rely on customary international law of the sea and thereby achieve the same benefits as becoming a party to the Convention. First, it might be argued that the United States should not join the Convention because, as a party, we would be required to make financial contributions to run the Convention’s institutions. However, payments to the Convention’s institutions are modest. For the 2003–2004 biennial budget, the U.S. assessment for the International Seabed Authority would be a little over $1 million. The U.S. assessment for the International Tribunal for the Law of the Sea for 2004 would be a little less than $2 million (24% of the total budget) and 22% of the total for the 2005–2006 budget years. We do not anticipate the budget for either institution to increase substantially in later years. Second, some would argue that we should not be joining and participating in a new bureaucracy for deep seabed mining. The International Seabed Authority has, however, now been restructured in ways that meet the objections raised by the United States and others. The United States has a guaranteed seat on the 36-member Council, an effective veto (in combination with two other consumer States) in the Council, and an absolute veto in the Finance Committee with respect to any decision with financial or budgetary implications. Moreover, as a practical matter, U.S.-based companies will not be able to engage in mining the deep seabed, without operating through another State Party, unless we are party to the Convention. 2 See Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, July 28, 1994, S. Treaty Doc. No. 103-39, at 263 (1994), 1836 UNTS 41; see also Former Legal Advisers’ Letter on Accession to the Law of the Sea Convention, 98 AJIL 307 (1994). The implementing agreement “provisionally entered into force” on November 16, 1994. For background, see Annick de Marffy-Mantuano, The Procedural Framework of the Agreement Implementing the 1982 United Nations Convention on the Law of the Sea, 89 AJIL 814 (1995). 3 See Message from the President of the United States Transmitting the United Nations Convention on the Law of the Sea, S. Treaty Doc. No. 10339, at III (1994). 4 Information on the ratification status of the Convention and the 1994 implementing agreement may be found at . Shortly after the SFRC scheduled its hearings (on November 7, 2003), Canada deposited its instrument of ratification. 5 See LOS Convention, supra note 1, Art. 298(1). 6 See Accession to the 1982 Law of the Sea Convention and Ratification of the 1994 Agreement Amending Part XI of the Law of the Sea Convention: Hearing Before the S. Comm. on Foreign Relations, 108th Cong. (2003) (testimony of William H. Taft IV, legal adviser, U.S. Department of State), at [hereinafter Taft testimony]. Other administration witnesses also testified on October 21. Nongovernment witnesses had already testified on October 14. 7 Id. at 6–7.
P1: OYK 0521750717c06
CB951-Murphy
122
0 521 75071 7
August 6, 2005
11:59
United States Practice in International Law 2002–2004
Third, it might be argued that the United States should not join the Convention because we would have to pay a contribution based on a percentage of oil/gas production beyond 200 miles from shore.8 However, the revenue-sharing provisions of the Convention are reasonable. The United States has one of the broadest shelves in the world. Roughly 14% of our shelf is beyond 200 miles, and off Alaska it extends north to 600 miles. The revenue-sharing provision was instrumental in achieving guaranteed U.S. rights to these large areas. It is important to note that this revenue-sharing obligation does not apply to areas within 200 nautical miles and thus does not affect current revenues produced from the U.S. Outer Continental Shelf. Most important, this provision was developed by the United States in close cooperation with representatives of the U.S. oil and gas industry. The industry supports this provision. Finally, with a guaranteed seat on the Finance Committee of the International Seabed Authority, we would have an absolute veto over the distribution of all revenues generated from this revenue-sharing provision. Finally, as to whether it is sufficient to continue to rely only on customary international law, the distinct advantages of joining the Convention include the following:
r r r r
r
r
U.S. accession would enhance the authoritative force of the Convention, likely inspire other States to join, and promote its provisions as the governing rules of international law relating to the oceans. The United States would be in a stronger position invoking a treaty’s provisions to which it is party, for instance in a bilateral disagreement where the other country does not understand or accept them. While we have been able to rely on diplomatic and operational challenges to excessive maritime claims, it is desirable to establish additional methods of resolving conflict. The Convention continues to be implemented in various forums, both within the Convention and outside the Convention (such as the International Maritime Organization or IMO). The United States would be in a stronger position defending its military interests and other interests in these forums if it were a party to the Convention. Becoming a party to the Convention would permit the United States to nominate members for both the Law of the Sea Tribunal and the Continental Shelf Commission. Having U.S. members on those bodies would help ensure that the Convention is being interpreted and applied in a manner consistent with U.S. interests. Becoming a party to the Convention would strengthen our ability to deflect potential proposals that would be inconsistent with U.S. interests, including freedom of navigation.
Beyond those affirmative reasons for joining the Convention, there are downside risks of not acceding to the Convention. U.S. mobility and access have been preserved and enjoyed over the past twenty years largely due to the Convention’s stable, widely accepted legal framework. It would be risky to assume that it is possible to preserve ad infinitum the stable situation that the United States currently enjoys. Customary international law may be changed by the practice of States over time and therefore does not offer the future stability that comes with being a party to the Convention.9 8 [Author’s Note: While the Convention permits a state to claim a continental shelf extending beyond 200 nautical miles from the state’s baselines (subject to certain limits), Article 82 sets forth a formula by which the “coastal State shall make payments or contributions in kind in respect of the exploitation of the non-living resources of the continental shelf beyond 200 nautical miles.” Those payments are made to the Convention’s “Authority” for distribution “on the basis of equitable sharing criteria, taking into account the interests and needs of developing States, particularly the least developed and land-locked among them.” See LOS Convention, supra note 1, Art. 82.] 9 Taft testimony, supra note 6, at 9–12.
P1: OYK 0521750717c06
CB951-Murphy
0 521 75071 7
August 6, 2005
11:59
International Oceans, Environment, Health, and Aviation Law
123
Thereafter, the SFRC reported the Convention to the full Senate with the committee’s unanimous endorsement, with the declarations and understandings proposed by the Administration.10 Conservative activists, however, urged the Senate not to consent to U.S. accession,11 and the Senate’s leadership did not schedule the Convention for a vote prior to the Senate’s recess at the end of 2004.12 U.S. Reaction to Russian Continental Shelf Claim While the United States did not accede to the UN Convention on the Law of the Sea in 2002–2004, the United States nevertheless participated in some aspects of the work of the institutions of the convention, such as work relating to the delimitation of a state’s continental shelf. Under the Convention, the “continental shelf” is legally defined as comprising the seabed and subsoil of the submarine areas that extend beyond the territorial sea throughout the natural prolongation of the land territory to the continental margin’s outer edge.1 If that natural prolongation falls short of 200 nautical miles from the baselines, the legal continental shelf is regarded as nevertheless continuing up to 200 nautical miles from the baselines. If the natural prolongation exceeds 200 nautical miles from the baselines, the coastal state’s legal continental shelf continues until the natural prolongation ends, but under no circumstances may it exceed either (1) 350 nautical miles from the baselines or (2) 100 nautical miles beyond the 2,500 meter isobath (a line connecting the depth of 2,500 meters).2 In determining where the natural prolongation ends, the coastal state may either develop a line based on the thickness of the sedimentary cover within the outer limit of the continental shelf 3 or, alternatively, based on a distance of 60 nautical miles from the foot of the continental slope.4 Where the continental shelf extends beyond 200 nautical miles, it is left to the coastal state, in the first instance, to delineate the outer limits of the continental shelf.5 The Convention provides, however, that by no later than ten years after a coastal state becomes a party to the Convention,6 the coastal state shall submit oceanographic information relevant to the limits of its continental shelf to a twenty-one person “Commission on the Limits of the Continental Shelf ” established under the Convention. The commission reviews the information and then makes recommendations to the coastal state regarding the delimitation of the continental shelf. If the coastal state establishes its continental shelf on the basis of those recommendations, then the recommendations are “final and binding.”7 On December 20, 2001, the Russian Federation proposed outer limits of its continental shelf, thereby becoming the first state to submit such information to the commission.8 The commission distributed the details of Russia’s submission to all UN member states so as to make known to them the proposed outer limits. The United States, which was one of the five states that responded with position papers, asserted that the Russian “submission has major flaws as it relates to the continental shelf claim in the Arctic.”9 The United States claimed that Russia had provided insufficient information to assess the positions of the 2,500 meter isobath and the foot of the continental slope in the Arctic. The United 10
See S. Exec. Rpt. 108–10 (2004). See, e.g., Frank Gaffney, Don’t Get LOST, Nat’l Rev. Online, Mar. 18, 2004, at (“this accord would constitute the most egregious transfer of American sovereignty, wealth, and power to the U.N. since the founding of that ‘world body.’”). 12 See Charles Babington, Criticism Deep-Sixes Senate Vote on Sea Treaty, Wash. Post, Apr. 25, 2004, at A4. 1 UN Convention on the Law of the Sea, Dec. 10, 1982, Art. 76(1), S. Treaty Doc. No. 103-39 (1994), 1833 UNTS 397, reprinted in 21 ILM 1261 (1982) [hereinafter LOS Convention]. Geologically, the seabed that slopes away from the coast typically consists of, first, a gradual slope (the continental shelf proper), then a steep slope (the continental slope), and then a more gradual slope leading to the deep seabed floor. These three areas are collectively known as the continental margin. 2 Id., Art. 76(5). 3 The thickness must be at least 1 percent of the distance from the foot of the continental slope. 4 LOS Convention, supra note 1, Art. 76(4). 5 Id., Art. 76(7). 6 This time limit was altered by a decision of the meeting of the Convention parties in May 2001, so that no state is required to submit information prior to 2009. 7 LOS Convention, supra note 1, Art. 76(8) & Annex II. The Convention does not expressly indicate whether delimitations not based on the Commission’s recommendations are to be regarded as invalid. 8 See Receipt of the Submission Made by the Russian Federation to the Commission on the Limits of the Continental Shelf, Ref. No. CLCS.01.2001.LOS (Dec. 20, 2001). For submissions by states concerning this matter, see . 9 See United States of America: Notification Regarding the Submission Made by the Russian Federation to the Commission on the Limits of the Continental Shelf, Ref. No. CLCS.01.2001.LOS/USA (Mar. 18, 2002) (attaching the U.S. submission dated February 28). 11
P1: OYK 0521750717c06
CB951-Murphy
124
0 521 75071 7
August 6, 2005
11:59
United States Practice in International Law 2002–2004
States also noted that the Convention provides that the continental margin “does not include the deep ocean floor with its oceanic ridges,”10 and yet the Russian claim included the Alpha-Mendeleev Ridge System as part of its continental shelf. The United States explained: Mounting geologic and physical evidence indicates that the Alpha-Mendeleev Ridge System is the surface expression of a single continuous geologic feature that formed on oceanic crust of the Arctic Ocean basin by volcanism over a “hot spot.” (A “hot spot” is a magma source rooted in the Earth’s mantle that is persistent for at least a few tens of millions of years and intermittently produces volcanoes on the overlying earth’s crust as it drifts across the hot spot during continental drift.) The Alpha-Mendeleev hot spot was formed by magma that was funneled from a hot spot to the spreading axis that created the Amerasia Basin of the Arctic Ocean 130 to 120 million years ago, and built a volcanic ridge about 35 km thick on the newly formed oceanic crust. Both aeromagnetic and bathymetric data show that the ridge extends entirely across the Arctic Ocean, and that its characteristic aeromagnetic expression ends at the continental margins at both ends and is absent from the adjacent continental shelves . . . . The Alpha-Mendeleev Ridge System is therefore a volcanic feature of oceanic origin that was formed on, and occurs only within the area of, the oceanic crust that underlies the Amerasia Subbasin of the deep Arctic Ocean Basin. It is not part of any State’s continental shelf.11 In a further statement to the commission in April 2002, the Russian Federation explained the hydrographic surveys and bathymetric mapping that it had undertaken in order to establish the 2,500 meter isobaths on the continental slope and the foot of the continental slope. Further, Russia detailed the methods for deep seismic sounding and seismic reflection that led it to regard the Alpha-Mendeleev Ridge System as part of the continental margin. It stated, in part: “The integrated interpretation of the deep seismic sounding and seismic reflection sounding . . . provided data on the velocity characteristics, layering and thickness of the earth’s crust which are characteristic of a continental-type crust. This conclusion is consistent with generally accepted concepts.”12 After receiving these materials, the commission created a subcommission (comprising seven commission members) to review the materials. The subcommission met several times during the spring of 2002, requesting additional materials as needed from the Russian Federation, and then reported its findings to the commission. In June 2002, the commission by consensus adopted final recommendations for transmission to Russia – which, among other things, asked the Russian Federation to make a revised submission in respect of its extended continental shelf in the Central Arctic Ocean.13 The commission’s deliberations and, pending the response of the submitting state, its recommendations are considered confidential.14 Senate Consideration of MARPOL Protocol The International Convention for the Prevention of Pollution from Ships (MARPOL)1 addresses pollution of the marine environment by ships from operational or accidental causes. The Convention originally included a general framework agreement and two obligatory technical annexes regulating particular types of pollution. Other annexes have been added, which the parties may join at their 10
LOS Convention, supra note 1, Art. 76(3). See United States of America: Notification Regarding the Submission Made by the Russian Federation to the Commission on the Limits of the Continental Shelf, supra note 9, attach. at 2. 12 Statement Made by the Deputy Minister for Natural Resources of the Russian Federation During Presentation of the Submission Made by the Russian Federation to the Commission, Made on 28 March 2002, at 5, UN Doc. CLCS/31 (Apr. 5, 2002). 13 See Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission, para. 33, UN Doc. CLCS/34 (July 1, 2002). 14 See Rules of Procedure of the Commission on the Limits of the Continental Shelf, Annex 2, Rule 4, UN Doc. CLCS/3/Rev. 3 (Feb. 6, 2001). 1 Nov. 2, 1973, 1340 UNTS 184, reprinted in 12 ILM 1319 (1973). The Convention was significantly modified by the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, Feb. 17, 1978, 1340 UNTS 61 & 1341 UNTS 3, reprinted in 17 ILM 546 (1978). 11
P1: OYK 0521750717c06
CB951-Murphy
0 521 75071 7
August 6, 2005
11:59
International Oceans, Environment, Health, and Aviation Law
125
discretion.2 On September 26, 1997, a conference of the parties adopted a protocol that would add a new annex, the sixth, on regulations for the prevention of air pollution from ships. Among other things, the annex prohibits the deliberate emission of ozone-depleting substances by vessels (regulation 12), limits the emission of nitrogen oxides (NOx) from marine diesel engines (regulation 13), regulates the sulfur content of marine diesel fuel, and creates stringent sulfur oxide emission controls in the Baltic Sea and other designated special areas (regulation 14), regulates the emission of volatile organic compounds (VOCs) during transfer of cargoes between tankers and terminals (regulation 15), and sets international standards for shipboard incinerators and fuel-oil quality (regulations 16 and 18).3 Regulation 19 specifies that Annex VI also applies to fixed and floating platforms and drilling rigs, with some exceptions.4 The United States signed the protocol in December 1998. On May 15, 2003, the president transmitted the protocol to the Senate for advice and consent.5 One of the issues addressed in the transmittal documents was whether a party may impose on vessels calling at its ports more stringent standards than those set forth in the annex. In that regard, the secretary of state asserted: As noted in the 1977 Secretary of State’s Report to the President on the International Convention for the Prevention of Pollution from Ships, 1973, recommending its transmittal to the Senate for advice and consent to ratification, the United States and other States defeated attempts at the 1973 Conference to “restrict national powers to apply domestic regulations more stringent than prevailing international standards to foreign vessels in port.” Such authority is also preserved under customary international law as reflected in the 1982 United Nations Convention on the Law of the Sea. Thus, the Protocol of 1997 does not, as a matter of international law, prohibit Parties from imposing more stringent measures as a condition of entry into their ports or internal waters, unless a particular regulation in Annex VI expressly imposes such a limitation.6 The secretary of state noted that regulation 13 contains NOx emission-control limits, but also contemplates that new technology will become available to reduce such emissions below those limits. Further, the secretary stated that such technologies are now available. As such, the secretary proposed that in ratifying the protocol, the United States include an understanding stating that “with respect to emissions of nitrogen oxides . . . , the Protocol of 1997 does not, as a matter of international law, prohibit Parties from imposing more stringent measures that those identified in the Protocol as a condition of entry into their ports or internal waters.”7 Moreover, the secretary asserted that in view of the urgent need to have the regulations keep pace with new technological developments, the United States would seek revision at the International Maritime Organization of the NOx emission-control limits defined in regulation 13. The secretary of state also noted that regulation 15 precludes parties from specifying requirements on the handling of VOCs that are inconsistent with those contained in the regulation itself. At the same time, regulation 15 does not actually establish emission standards. In order to preserve the United States’ right to set VOC-emission standards nationally for vessels calling at U.S. ports or internal waters, the secretary proposed that a declaration accompany the U.S. ratification stating that 2 All parties must abide by Annex I (regulations for the prevention of pollution by oil) and Annex II (regulations for the control of pollution by noxious liquid substances in bulk). Parties may at their discretion join Annex III (prevention of pollution by harmful substances carried by sea in packaged form), Annex IV (prevention of pollution by sewage from ships), and Annex V (prevention of pollution by garbage from ships). All of these annexes have entered into force. As of December 2004, the United States was a party to all except Annex IV. 3 See Protocol of 1997 to Amend the International Convention for the Prevention of Pollution From Ships, 1973, as Modified by the Protocol of 1978 Relating Thereto, Sept. 26, 1997 [hereinafter Protocol of 1997], reprinted in Message from the President of the United States Transmitting the Protocol of 1997 Amending the International Convention for the Prevention of Pollution from Ships, S. Treaty Doc. No. 108-7, at 103, 115–122 (2003) [hereinafter Message from the President]. 4 Message from the President, supra note 3, at 122–23. 5 See id.; see also Message to the Senate Transmitting the Protocol of 1997 to Amend the International Convention for the Prevention of Pollution from Ships, 1973, as Modified by the Protocol of 1978, 39 Weekly Comp. Pres. Doc. 609 (May 19, 2003). 6 Letter of Submittal from the Secretary of State to the President of the United States, reprinted in Message from the President, supra note 3, at V, VIII. 7 Id. at X.
P1: OYK 0521750717c06
CB951-Murphy
126
0 521 75071 7
August 6, 2005
11:59
United States Practice in International Law 2002–2004
“Regulation 15 applies only to safety aspects associated with the operation of vapor emission control systems that may be applied during cargo transfer operations between a tanker and port-side facilities and to the requirements specified in Regulation 15 for notification to the International Maritime Organization of port State regulation of such systems.”8 The protocol will enter into force twelve months after the date of accession by at least fifteen states whose combined merchant fleets constitute not less than 50 percent of the gross tonnage of the world’s merchant shipping.9 As of November 2004, eighteen states representing 60 percent of the gross tonnage of the world’s merchant shipping had ratified the protocol,10 paving the way for it to enter into force on May 19, 2005. The Senate recessed in late 2004, however, without providing consent to U.S. ratification. “Proliferation Security Initiative” for Searching Potential WMD Vessels In December 2002, U.S. and Spanish forces in the Arabian sea (some 600 miles from Yemen) stopped and boarded a North Korean vessel, the So San, which was traveling from North Korea to Yemen. The vessel was carrying fifteen Scud missiles hidden under bags of cement. After Yemen confirmed that it was purchasing the missiles, the So San was permitted to proceed. The United States, however, was reportedly unhappy with the general rule allowing the maritime transport of goods across the high seas, and wished to develop a system that allowed for seizure of weapons of mass destruction (WMD) being transported on the high seas in certain circumstances.1 On May 31, 2003, President Bush announced the launching of a multilateral effort to combat the transportation of WMD, called the “Proliferation Security Initiative” (PSI). Under the PSI, the president stated that “the United States and [its] close allies . . . have begun working on new agreements to search planes and ships carrying suspect cargo and to seize illegal weapons or missile technologies.”2 Eleven countries3 initially joined the PSI and, in September 2003, issued a statement of interdiction principles, in which they urged the adoption of procedures for information exchange, coordination of interdiction efforts, and the strengthening of “relevant national legal authorities” and “international law and frameworks” to achieve the interdiction of the transfer and transport of WMD.4 Among other things, the PSI member states committed themselves to take specific actions: to board suspicious vessels flying their own flags, to consent to the boarding of their flag vessels by other states, to stop and search suspicious vessels in their territorial or contiguous zones, to require suspicious aircraft in their airspace to land for inspection, to carry out rigorous inspections at their ports and airfields, and not to transport WMD cargoes to or from states of concern.5 Thereafter, PSI member states held several meetings to pursue implementation of the principles, and they also conducted joint interdiction exercises.6 In implementation of the PSI, by the end of 2004 the United States had concluded agreements with Liberia,7 the Marshall Islands,8 and Panama9 regarding the boarding of vessels on the high seas. 8
Id. at VIII. Protocol of 1997, supra note 3, Art. 6(1), reprinted in Message from the President, supra note 3, at 105. See International Maritime Organization, Summary of Status of Conventions as at 31 November 2004, at . 1 See Michael Byers, Policing the High Seas: The Proliferation Security Initiative, 98 AJIL 526, 526–28 (2004). 2 Remarks to the People of Poland in Krakow, Poland, 39 Weekly Comp. Pres. Doc. 700, 702 (May 31, 2003). 3 They were Australia, France, Germany, Italy, Japan, Netherlands, Poland, Portugal, Spain, United Kingdom, and United States. In the fall of 2003, Canada, Denmark, Norway, Singapore, and Turkey participated in PSI meetings. 4 White House Office of the Press Secretary Fact Sheet on Proliferation Security Initiative: Statement of Interdiction Principles (Sept. 4, 2003), at . 5 Id. 6 See Australian Department of Foreign Affairs and Trade, Proliferation Security Initiative: Lisbon, 4–5 March 2004, Chairman’s Conclusions, at ; see also Richard Boucher, Spokesman, U.S. Dep’t of State Press Statement on Proliferation Security Initiative, No. 2003/1279 (Dec. 17, 2003), at . 7 Agreement Concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials by Sea, Feb. 11, 2004, U.S.–Liber., at [hereinafter U.S.–Liberia Agreement]. 8 Agreement Concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials by Sea, Aug. 13, 2004, U.S.–Marsh. Is., at . 9 Agreement Concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials by Sea, May 12, 2004, U.S.–Pan., at . 9
10
P1: OYK 0521750717c06
CB951-Murphy
0 521 75071 7
August 6, 2005
11:59
International Oceans, Environment, Health, and Aviation Law
127
Under the agreement with Liberia10 (which is largely the same as the other agreements), the agreement defines a “suspect vessel” as a “vessel used for commercial or private purposes in respect of which there are reasonable grounds to suspect it is engaged in proliferation by sea.”11 The term “proliferation by sea” is defined as “the transportation by ship of weapons of mass destruction, their delivery systems, and related materials to or from States or non-state actors of proliferation concern.”12 Article 4 then provides: 1. Authority to Board Suspect Vessels. Whenever the Security Force Officials of one Party (“the requesting Party”) encounter a suspect vessel claiming nationality in the other Party (“the requested Party”) located seaward of any State’s territorial sea, the requesting Party may request through the Competent Authority of the requested Party that it: a. confirm the claim of nationality of the suspect vessel; and b. if such claim is confirmed: i. authorize the boarding and search of the suspect vessel, cargo and the persons found on board . . . ; and ii. if evidence of proliferation is found, authorize the Security Force Officials of the requesting party to detain the vessel, as well as items and persons on board . . . . .... 3. Responding to Requests. a. If the nationality is verified, the requested Party may: i. decide to conduct the boarding and search with its own Security Force Officials; ii. authorize the boarding and search by Security Force Officials of the requesting Party; iii. decide to conduct the boarding and search together with the requesting Party; or iv. deny permission to board and search. b. The requested party shall answer through its Competent Authority requests made for the verification of nationality within two hours of its acknowledgment of the receipt of such requests. c. If the nationality is not verified within the two hours, the requested Party may, through its Competent Authority: i. nevertheless authorize the boarding and search by the Security Force Officials of the requesting Party; or ii. refute the claim of the suspect vessel to its nationality.
10 As is the case with Panama, many vessels acquire Liberian registry as a “flag of convenience” since Liberia offers low fees and relaxed regulations for vessels, as compared to other states of registry. Of the total shipping tonnage that visits U.S. ports annually, the most tonnage is imported on Panamanian-flagged vessels, while the tonnage on Liberian-flagged vessels ranks second. See Pact with Liberia Allows U.S. to Board Ships, Wash. Post, Feb. 14, 2004, at A26. 11 U.S.–Liberia Agreement, supra note 6, Art. 1(8). 12 Id., Art. 1(1).
P1: OYK 0521750717c06
CB951-Murphy
128
0 521 75071 7
August 6, 2005
11:59
United States Practice in International Law 2002–2004 d. If there is no response from the Competent Authority of the requested Party within two hours of its acknowledgment of receipt of the request, the requesting Party will be deemed to have been authorized to board the suspect vessel for the purpose of inspecting the vessel’s documents, questioning the persons on board, and searching the vessel to determine if it is engaged in proliferation by sea.13
Article 5 of the agreement provides that the flag state has primary jurisdiction over the vessel, including seizure, forfeiture, arrest, and prosecution, but may waive that jurisdiction in favor of the state that boards the vessel. Articles 6 and 10 obligate parties to exchange operational information on suspect vessels, to notify each other of the results of boarding and searches, and to exchange information on their respective laws and policies. Articles 7 and 8 call upon security force officials to abide by national and international standards for boarding and search, and specify certain safeguards measures that each party shall take into account. The agreement permits the use of force where “reasonably necessary under the circumstances,” including “appropriate actions to stop the suspect vessel.”14 Article 11 requires parties to provide a point of contact “for communication, decision, and instructions under Articles 4 and 5, and notifications under Articles 6 and 10.” Articles 13 and 14 address the applicable law for claims of injuries to life and property from operations under the agreement, and provide for consultation in cases of alleged violations of, or disputes arising under, the agreement. In recognition that Liberia places under its flag many vessels that have much closer ownership and operational ties to other states, the agreement permits Liberia to extend “all rights concerning suspect vessels claiming its nationality under the present Agreement to such third States as it may deem appropriate, on the understanding that such third States shall likewise comply with all conditions set forth in the present Agreement for the exercise of such rights,” including the designation by such third states of a point of contact pursuant to Article 11.15 The agreement will enter into force upon an exchange of notes indicating that the parties have completed their internal procedures, but shall be applied provisionally immediately, “to the extent permitted by . . . national laws and regulations.”16 Upon signing the agreement, the United States asserted: This is a tangible example of nonproliferation cooperation. . . . Liberia has the world’s second largest ship registry and this agreement sends a strong signal to proliferators that the United States and Liberia will not allow the use of their vessels for the transport or transfer of items of proliferation concern. The conclusion of this ship boarding agreement is an important step in further operationalizing the Proliferation Security Initiative and strengthening the mechanisms that we have at our disposal to interdict suspect weapons of mass destruction–related cargoes. The ship boarding agreement is modeled after similar arrangements that exist in the counter-narcotics arena.17 Establishment of U.S. Antiterrorism Maritime Transportation System In the aftermath of the terrorist attacks on the United States of September 11, 2001, the U.S. government pursued measures to increase the security of entry points to the United States, including U.S. port facilities. There are 361 public ports in the United States through which passes some 95 percent of U.S. overseas trade, including bulk and containerized cargo. In November 2002,
13
Id., Art. 4. Id., Art. 9(3), (5). Id., Art. 18(1). 16 Id., Art. 17(1)–(2). The agreement can be terminated with one year’s notice. Id., Art. 17(3). 17 Richard Boucher, Spokesman, U.S. Dep’t of State Press Statement on Proliferation Security Initiative Ship Boarding Agreement Signed with Liberia, No. 2004/153 (Feb. 12, 2004), at . 14 15
P1: OYK 0521750717c06
CB951-Murphy
0 521 75071 7
August 6, 2005
11:59
International Oceans, Environment, Health, and Aviation Law
129
President George W. Bush signed into law the Maritime Transportation Security Act (MTSA)1 , which recognized that U.S. ports “are often very open and exposed and are susceptible to large scale acts of terrorism that could cause a large loss of life or economic disruption.”2 The new law established a broad range of programs for improving security conditions at U.S. ports and waterways, including by identifying and tracking vessels, assessing security preparedness, and limiting access to sensitive areas. Among other things, the MTSA calls for the development of an automatic identification system that would allow port officials to determine the identity and position of vessels “operating on the navigable waters of the United States.”3 All vessels within certain categories (based on type of vessel and size) that enter U.S. ports must install such tracking equipment by no later than December 2004, although in many U.S. ports the infrastructure for operating the system is not yet in place.4 Further, the MTSA requires all owners or operators of vessels operating in U.S. waters, including foreign vessels, to prepare and submit for approval to the secretary of the Department of Homeland Security a “vessel security plan” for deterring a “transportation security incident” to the maximum extent practicable.5 Unless the secretary approves the plan, the vessel may not operate in U.S. waters.6 Moreover, the MTSA requires the secretary to assess the effectiveness of antiterrorism measures maintained at foreign ports (such as screening of containerized cargo and restrictions on access to cargo) and, if such measures are found ineffective, to so notify the authorities of the foreign government and recommend steps for improvement.7 If the foreign port continues to maintain ineffective measures, then the secretary (1) may prescribe conditions of entry into the United States for any vessel arriving from that port, or any vessel carrying cargo or passengers originating from or transshipped through that port; (2) may deny entry into the United States to any vessel that does not meet such conditions; and (3) shall provide public notice for passengers of the ineffective antiterrorism measures.8 Finally, the MTSA requires the Department of Homeland Security to report to Congress on foreignflag vessels calling at U.S. ports, particularly those with questionable ownership histories.9 In the same time frame that the MTSA was being drafted and enacted, the International Maritime Organization (IMO) was pursuing a similar initiative. The IMO Assembly, meeting in London in November 2001, launched a review of IMO instruments to see if they needed to be updated to address the terrorist threat.10 At an IMO conference on maritime security in December 2002, the organization decided to adopt new regulations to enhance ship and port security, especially from international terrorism. Those new IMO regulations took the form of amendments to chapter V and chapter XI (now renumbered as chapter XI–I) of the International Convention for the Safety of Life at Sea (SOLAS),11 as well as adoption of a new chapter XI–2.12 Chapter XI–2, entitled “Special Measures to Enhance Maritime Security,” imposes detailed security-related requirements on governments – and in turn on their port authorities, flag vessels, and shipping companies – to comply
1
Pub. L. No. 107-295, 116 Stat. 2064 (2002) (codified in scattered sections of U.S.C) [hereinafter MTSA]. 46 U.S.C.A. §70101 note (West 2004). Id. §70114. 4 See U.S. General Accounting Office, Maritime Security: Progress Made in Implementing Maritime Transportation Security Act, but Concerns Remain, GAO Doc. GAO–03–1155T, at 7 (Sept. 9, 2003), at . 5 46 U.S.C.A. §70103(c)(1), (2), (3). 6 Id. §70103(c)(4), (5). 7 Id. §§70108, 70109. 8 Id. §70110. 9 Id. §70101. 10 IMO Res. A.924(22) (Jan. 22, 2002) (containing a resolution adopted on Nov. 20, 2001). 11 Nov. 1, 1974, 32 UST 47, 1184 UNTS 276 (entered into force May 25, 1980) [hereinafter SOLAS]. 12 IMO Doc. SOLAS/CONF.5/32, annex (Dec. 12, 2002) (containing Resolution 1 of the December 2002 conference, which contains in its annex the amendments), at . Information on the amendments is available at . 2 3
P1: OYK 0521750717c06
CB951-Murphy
130
0 521 75071 7
August 6, 2005
11:59
United States Practice in International Law 2002–2004
with a new “International Ship and Port Facility Security Code” (ISPS Code).13 Like the MTSA, the ISPS Code takes the approach that ensuring the security of vessels and port facilities is basically a risk management activity that entails, after assessing the risks for individual ports and vessels, identifying and undertaking appropriate security measures. To that end, the ISPS Code requires the vessels and ports to develop security plans (which are then approved by their government), hire security personnel, and obtain appropriate security equipment. Once the ISPS Code becomes operative, the IMO will publish a list of ports that have approved “Port Facility Security Plans” (PFSPs). If a vessel comes from a port that is not on the IMO “white list,” then the government responsible for a “white list” port may use this as “clear grounds” that the ship may not be in compliance with the ISPS Code.14 In such cases the ship may be subject to certain control and compliance measures under the code and, in extreme cases, may be denied entry to the port.15 Further, the IMO will publish a “white list” of vessels issued an “International Ship Security Certificate” (ISSC) by authorized shipping societies. A ship lacking a valid ISSC will, by definition, be in violation of ISPS Code requirements. The ISPS Code became operative on July 1, 2004, for the parties to SOLAS.16 On October 22, 2003, the U.S. Coast Guard – the principal U.S. maritime law enforcement authority and the lead federal agency for the maritime component of homeland security – published final regulations on maritime security in implementation of the MTSA.17 Among other things, the regulations require that vessels provide ninety-six-hour advance notice prior to entering a U.S. port.18 Although the MTSA (as discussed above) provides otherwise, the regulations “clarify” that foreign vessels from SOLAS member states need not submit security plans to the U.S. government for approval.19 Non-SOLAS foreign vessels are required to acquire Coast Guard–approved security plans, comply with an alternative security plan, or conform with measures specified in a bilateral or multilateral agreement.20 Through a program of boarding vessels seeking entry into U.S. ports, the Coast Guard is expected to examine and enforce the vessel’s compliance with the IMO rules, and vessels not in compliance may be denied such entry. The Coast Guard estimates that the cost to the U.S. government of implementing the ISPS Code and the security provisions of the MTSA will be approximately U.S.$1.5 billion for the first year and U.S.$7.3 billion over the following decade.21 U.S. Concerns Regarding UNESCO Convention on Underwater Heritage Recovery of artifacts located on the floor of the sea is increasingly feasible due to technological advances in underwater survey and recovery techniques. Since such artifacts are often valuable, states have enacted a variety of laws determining whether and subject to what conditions the recovery of artifacts is to be permitted. Under the UN Convention on the Law of the Sea (LOS Convention), coastal states have jurisdiction to regulate activity that affects “underwater cultural heritage” in areas over which they have sovereignty, including territorial seas.1 Further, coastal states have authority 13 IMO Doc. SOLAS/CONF.5/34, annex 1 (Dec. 12, 2002) (containing Resolution 2 of the December 2002 conference, which contains in its annex the ISPS Code), at [hereinafter ISPS Code]. The ISPS Code contains two parts: part A is mandatory, while part B is hortatory and contains guidance for implementation of the code. 14 ISPS Code, supra note 13, at B 4.33. 15 SOLAS, supra note 11, Art. XI–2, para. 9. 16 Article VIII of SOLAS provides for a “tacit acceptance procedure” whereby – instead of requiring that an amendment shall enter into force only after being accepted by some number of the parties – an amendment shall enter into force on a specified date unless, before that date, objections to the amendment are received from one-third of the parties or from the parties whose combined merchant fleets represent not less than 50 percent of world gross tonnage. 17 Implementation of National Maritime Security Initiatives, 68 Fed. Reg. 60,448 (Oct. 22, 2003). 18 Id. at 60,459. 19 Id. at 60,455; see U.S. General Accounting Office, supra note 4, at 10 (“MTSA does not mention any role for foreign nations in the Secretary’s required approval of vessel security plans, and some concerns have been raised about the advisability of allowing flag states – some with a history of lax regulation – to ensure the security of vessels traveling to the United States.”). 20 68 Fed. Reg. at 60,455. 21 Id. at 60,464. 1 UN Convention on the Law of the Sea, Dec. 10, 1982, Arts. 2, 7, S. Treaty Doc. No.103-39 (1994), 1833 UNTS 397, reprinted in 21 ILM 1261 (1982).
P1: OYK 0521750717c06
CB951-Murphy
0 521 75071 7
August 6, 2005
11:59
International Oceans, Environment, Health, and Aviation Law
131
over the removal of “objects of an archaeological and historical nature” in the contiguous zone.2 Beyond the contiguous zone, the Convention establishes no special role for the coastal state. All states, however, “have the duty to protect objects of an archaeological and historical nature found at sea and shall co-operate for this purpose.”3 In 1997, the UN Educational, Scientific and Cultural Organization (UNESCO) embarked on negotiation of a convention to protect underwater cultural heritage. In October/November 2001, government experts presented a draft convention, which was then adopted, to the UNESCO General Conference.4 The convention provides that within the territorial sea, the coastal state must require that any activities directed at underwater cultural heritage be in accordance with the convention’s annex, which contains rules and standards for underwater archeology.5 With respect to underwater cultural heritage located outside the territorial sea, but within a state’s continental shelf or exclusive economic zone, Article 9(1) provides that all states must require their nationals to notify the coastal state of any discoveries or planned activities regarding the artifacts.6 States may declare to the coastal state that they are interested in such artifacts based “on a verifiable link.”7 Moreover, Article 10 provides a coastal state, acting as a “coordinating state,” with extensive rights to take actions against certain activities that are directed at underwater cultural heritage within the state’s exclusive economic zone or on its continental shelf.8 With respect to underwater cultural heritage located on the deep seabed (“the Area”), under Article 11 the flag state of the vessel that locates an artifact,
2
Id., Arts. 33(1), 303(2). Id., Art. 303(1). With respect to the deep seabed or “the Area,” the Convention further provides that underwater cultural heritage “shall be preserved or disposed of for the benefit of mankind as a whole, particular regard being paid to the preferential rights of the State . . . of origin . . .” Id., Art. 149. 4 Convention on the Protection of the Underwater Cultural Heritage, Nov. 2, 2001, 41 ILM 40 (2002), at . The convention will enter into force three months after the twentieth state has ratified it. For further background on the convention, see Guido Carducci, New Developments in the Law of the Sea: The UNESCO Convention on the Protection of Underwater Cultural Heritage, 96 AJIL 419 (2002); see also Craig J. S. Forrest, Has the Application of Salvage Law to Underwater Cultural Heritage Become a Thing of the Past? 34 Mar. L. & Com. 309 (2003); Markus Rau, The UNESCO Convention on Underwater Cultural Heritage and the International Law of the Sea, 6 Max Planck Y.B. U.N.L. 387 (2002); Jean Allain, Maritime Wrecks: Where the Lex Ferenda of Underwater Cultural Heritage Collides with the Lex Lata of the Law of the Sea Convention, 38 Va. J. Int’l L. 747 (1998). 5 UNESCO Convention on the Protection of the Underwater Cultural Heritage, supra note 4, Art. 7, annex. If a state regulates such activities within its contiguous zone, then the convention’s rules and standards must also be applied. Id., Art. 8. “Underwater cultural heritage” is defined to include only artifacts that have been underwater for at least one hundred years. Id., Art. 1(1)(a). 6 Id., Art. 9(1). Vessels with sovereign immunity that are operated for noncommercial purposes and not engaged in activities directed at underwater cultural heritage are not covered by the convention’s reporting requirements. Id., Art. 13. 7 Id., Art. 9(5). 8 Article 10 provides, in part: 3
2. A State Party in whose exclusive economic zone or on whose continental shelf underwater cultural heritage is located has the right to prohibit or authorize any activity directed at such heritage to prevent interference with its sovereign rights or jurisdiction as provided for by international law including the [LOS Convention]. 3. Where there is a discovery of underwater cultural heritage or it is intended that activity shall be directed at underwater cultural heritage in a State Party’s exclusive economic zone or on its continental shelf, that State Party shall: (a) consult all other States Parties which have declared an interest . . . on how best to protect the underwater cultural heritage; (b) coordinate such consultations as “Coordinating State,” unless it expressly declares that it does not wish to do so, in which case the States Parties which have declared an interest . . . shall appoint a Coordinating State. 4. Without prejudice to the duty of all States Parties to protect underwater cultural heritage . . . , the Coordinating State may take all practicable measures, and/or issue any necessary authorizations in conformity with this Convention and, if necessary prior to consultations, to prevent any immediate danger to the underwater cultural heritage, whether arising from human activities or any other cause, including looting. . . . 5. The Coordinating State: (a) shall implement measures of protection which have been agreed by the consulting States . . . ; (b) shall issue all necessary authorizations for such agreed measures in conformity with the Rules [contained in the Annex] . . . ; (c) may conduct any necessary preliminary research on the underwater cultural heritage and shall issue all necessary authorizations therefor. . . .
P1: OYK 0521750717c06
CB951-Murphy
132
0 521 75071 7
August 6, 2005
11:59
United States Practice in International Law 2002–2004
or that is planning an activity, must notify other states and the International Seabed Authority of any discoveries or proposed activities. Under Article 12, a “coordinating state” appointed by all interested states is charged with implementing protective measures, including any authorizations for recovery, as agreed upon by the interested states.9 The United States actively participated in the negotiation of the convention. Nevertheless, at the UNESCO General Conference itself, the U.S. delegate stated that due to serious concerns with certain provisions, the United States could not support the adoption of the convention. The United States believes the draft Convention reflects substantial progress in certain important areas, notably the annexed rules, the preamble, and most of the general principles. .... In some cases, these provisions are unsatisfactory because they create new rights for coastal states in a manner that could alter the delicate balance of rights and interests set up under [the LOS Convention]. This is the case with Article 9(1)(b)(i), which requires a flag State to give direct prior notification to a coastal State of any activity to be directed at [underwater cultural heritage] in its exclusive economic zone or on its continental shelf. It is also the case with the protection scheme set out in Article 10, which creates a right of the coastal state, acting as the “coordinating State,” to take unspecified and apparently unlimited protection measures to prevent immediate danger to [underwater cultural heritage] located in its [exclusive economic zone] or on its continental shelf. Of particular concern is the fact that the coastal state may take such protection prior to consultations with the other States on whose behalf it is intended to be coordinating. Moreover, the protection measures are expressly not limited to dangers caused by “activities directed at [underwater cultural heritage]” but rather are extended to any danger “whether arising from human activities or any other cause.” In other cases, the provisions of the text are unsatisfactory because they are ambiguous. Article 3 is inadequate to resolve the concerns over jurisdiction and ambiguities in the text, because it includes a vague reference to international law in addition to [the LOS Convention].10 Nevertheless, we assume other delegations share the view that such ambiguous provisions must be interpreted in a manner consistent with international law:
r r r r
9
For example, Article 9(1)(b)(ii) can only be read as an obligation on flag States in regard to its own nationals and flag vessels. Similarly, Article 10(2) can serve only to restate the rights that states already have, as provided in [LOS Convention] parts V and VI, over the protection of natural resources; it cannot be read to create new rights over such resources. Article 2(11), which was added by a dubious procedure after the debate had concluded in July, also must be read in a manner that does not preclude a challenge to a state’s excessive maritime claims based on the provisions of the convention.11 Finally, the provisions of the convention can only be applied as among Parties to the Convention, and as among the nationals and vessels of such Parties. This is true of Article 10 and 12 in particular.
Id., Arts. 11–12. [Author’s Note: Article 3 provides: “Nothing in this Convention shall prejudice the rights, jurisdiction and duties of States under international law, including [the LOS Convention]. This Convention shall be interpreted and applied in the context of and in a manner consistent with international law, including [the LOS Convention].”] 11 [Author’s Note: Article 2(11) provides: “No act or activity undertaken on the basis of this Convention shall constitute grounds for claiming, contending or disputing any claim to national sovereignty or jurisdiction.”] 10
P1: OYK 0521750717c06
CB951-Murphy
0 521 75071 7
August 6, 2005
11:59
International Oceans, Environment, Health, and Aviation Law
133
The United States is very concerned that the provisions of the convention in regard to State vessels and aircraft are also inadequate, because they do not provide a regime under which the flag State must consent before its vessels can be the subject of recovery. The text places objectionable new restrictions on existing rights of flag States and creates new coastal State rights regarding such vessels located in the exclusive economic zone and on the continental shelf. The text does not provide for appropriate treatment and adequate protection of such vessels, many of which contain the remains of men and women who died in the service of their country. The United States notes that only a broadly ratifiable agreement will actually contribute to the goal we all share: the protection of [underwater cultural heritage]. We, therefore, hope there will be a future opportunity to revisit these provisions, so that we can build on the progress that has been made in regard to the Rules, the Preamble and other provisions that have commanded consensus. But, because of the serious concerns noted above the United States opposes adoption of the draft Convention in its present form.12 By the end of 2004, two states – Panama and Bulgaria – had ratified the Convention. The United States instead pursued bilateral agreements with states regarding specific sunken vessels, such as agreements with the United Kingdom relating to the RMS Titanic and with France relating to the La Belle. With respect to the RMS Titanic, the vessel was a British flag ocean liner on her maiden voyage in 1912 when it struck an iceberg in waters of the northwest Atlantic Ocean, approximately 325 miles southeast of Newfoundland, Canada. The vessel sank, claiming the lives of 1,523 of the 2,228 persons on board. In 1985, the wreck was discovered, and salvage expeditions began visiting the site.13 In June 2004, the United States and the United Kingdom concluded an agreement in which each state agreed to “take all reasonable measures to ensure that all artifacts recovered from RMS Titanic after entry into force of this Agreement, that are under its jurisdiction, are conserved and curated consistent with the relevant Rules and are kept together and intact as project collections.”14 Annexed to the agreement are a set of rules concerning activities “aimed at the RMS Titanic and/or its artifacts.”15 The agreement and the rules state that the preferred policy for preservation of the vessel and its artifacts is in situ preservation, and provide that all activities should avoid disturbance of human remains. Moreover, they state that activities “utilizing non-destructive techniques and non-intrusive surveys and sampling shall be preferred to those involving recovery or excavation aimed at RMS Titanic and/or its artifacts.”16 The agreement and the rules call for the parties to provide “project authorizations” for those persons within their jurisdictions who wish to undertake activities at the site of the RMS Titanic, and to keep each other informed with respect to those projects.17 The agreement also provides that “[i]f a general multilateral Convention on the protection of underwater cultural heritage enters into force for all Parties, they shall consult to discuss the relationship between this Agreement and that Convention.”18 With respect to the La Belle, in 1684, the king of France provided to the explorer, Ren´e Robert Cavelier, Sieur de La Salle, an auxiliary vessel of the French Navy, named La Belle, to establish a colony at the mouth of the Mississippi River.19 In 1686, La Belle sank following a violent storm in what 12 Statement of Robert C. Blumberg, U.S. Observer Delegate to the 31st UNESCO General Conference, Before Commission IV of the General Conference, Regarding the U.S. Views on the UNESCO Convention on the Protection of Underwater Cultural Heritage, Paris, France (Oct. 29, 2001) (on file with author). 13 For a discussion of initial U.S. court litigation on this matter and the development of an agreement between Canada, France, and the United States, see Sean D. Murphy, United States Practice in International Law, Vol. 1: 1999–2001, at 54 (2002). 14 Agreement Concerning the Shipwrecked Vessel RMS Titanic, U.S.-UK, June 18, 2004, Art. 3, at . 15 Id., Annex. 16 Id., Annex, para. I(3). 17 Id., Arts. 4, 5; Annex, para. II. 18 Id., Art. 9(2). 19 For background, see The French in Texas: History, Migration, Culture 1–20 (Franc¸ois Lagarde ed., 2003).
P1: OYK 0521750717c06
CB951-Murphy
134
0 521 75071 7
August 6, 2005
11:59
United States Practice in International Law 2002–2004
is now Matagorda Bay in Texas. In July 1995, archeologists and historians of the Texas Historical Commission (Commission) located the remains of La Belle and for two years conducted excavations, resulting in the recovery of La Belle’s hull and associated artifacts.20 France was notified in 1995 of the discovery of La Belle. The U.S. government acknowledged France’s title to the wreck in 1996, and France formally asserted ownership of it in July 1997. The State of Texas acknowledged France’s title in 2001. On March 31, 2003, the United States and France concluded an agreement stating that the “French Republic has not abandoned or transferred title of the wreck of La Belle, and continues to retain title” to it.21 Further, the agreement provided that La Belle shall remain in the custody of the Commission for a period of ninety-nine years, with automatic renewal unless otherwise agreed by the parties.22 An administrative arrangement concluded on the same day between the Commission and France’s Mus´ee National de la Marine set the conditions for the duration, research, documentation, and exhibition of La Belle, and addressed other matters, such as the Commission’s right of first publication of the results of its studies of the wreck.23 According to the Department of State, the agreement reflects an important principle of international law – that title to identifiable sunken State vessels remains vested in the Sovereign unless expressly abandoned, and is not lost by the passage of time. This principle is of great importance because it helps to ensure appropriate treatment and respect for sunken warships and aircraft around the world, many of which contain the human remains of men and women who died in the service of their country.24 The principle expressed in the agreement regarding La Belle is consistent with other recent U.S. practice with respect to sunken vessels25 and may be compared with the 1989 agreement between the United States and France concerning treatment of the U.S. Confederate vessel Alabama, which sank off the coast of France in 1864.26 Neither France nor the United States voted in favor of the adoption of the UNESCO Convention on the Protection of Underwater Cultural Heritage – in part because the convention did not recognize this principle.27
International Environmental Law Methyl Bromide Exemption to Ozone Depletion Regime Under the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer,1 the state parties agreed to the progressive reduction by specified dates of certain types of ozone-depleting chemicals listed in the annexes to the Protocol. The original Protocol did not list methyl bromide, a widely used agricultural fumigant that, when released into the atmosphere, depletes the stratospheric ozone layer. At the fourth meeting of the parties in Copenhagen in 1992, however, the Protocol was amended to include methyl bromide as a covered chemical (the list of which appears in Annex E to the
20 The Texas Historical Commission’s Internet site on its excavations of La Belle is at . 21 Agreement Regarding the Wreck of La Belle, U.S.-Fr., Mar. 31, 2003, Art. 1(2) (on file with author). 22 Id., Art. 2(2). 23 Administrative Arrangement, Texas Historical Commission–Mus´ee National de la Marine, Mar. 31, 2003 (on file with author). 24 U.S. Dep’t of State Press Release on U.S.–France “La Belle” Agreement Signed (Apr. 1, 2003), at . 25 See Murphy, supra note 13, at 57 (discussing the Sea Hunt case and a policy statement issued by President Clinton). 26 Agreement Concerning the Wreck of the CSS Alabama, Oct. 3, 1989, 20 UN Law of the Sea Bull. 26 (1992); see J. Ashley Roach, France Concedes United States Has Title to CSS Alabama, 85 AJIL 381 (1991). 27 See Remarks of His Excellency Jean-David Levitte, Ambassador of France, on Signing of Agreements Concerning “La Belle,” Wreck of Robert Cavelier de la Salle’s Expeditionary Ship (Mar. 31, 2003) (on file with author). 1 Sept. 16, 1987, S. Treaty Doc. No. 100-10 (1987), 1522 UNTS 3, reprinted in 26 ILM 1550 (1987) [hereinafter Montreal Protocol]. The texts and ratification status of the Montreal Protocol and its various amendments and adjustments are available online at the Internet site of the UN Environmental Programme’s Ozone Secretariat, .
P1: OYK 0521750717c06
CB951-Murphy
0 521 75071 7
August 6, 2005
11:59
International Oceans, Environment, Health, and Aviation Law
135
Protocol).2 As of 2004, 160 states, including the United States, had ratified the Copenhagen Amendment.3 The Montreal Protocol permits the conference of the parties to make “adjustments” to the control measures on listed chemicals without further ratification by states, provided that the adjustments are supported by two-thirds of the parties, where that two-thirds represents at least half of global consumption of the chemical in question.4 While the Copenhagen Amendment initially provided only that states not exceed their annual levels of consumption and production of methyl bromide using 1991 as a baseline, subsequent meetings of the parties decided, in a series of steps, to phase out methyl bromide completely. In particular, the 1997 London Adjustment requires states to reduce their consumption and production levels of methyl bromide to zero beginning January 2005 (although developing states are allowed an additional ten years to reach such a phaseout).5 The London Adjustment also provides that the parties can “decide to permit the level of production or consumption that is necessary to satisfy uses agreed by them to be critical uses.”6 Further, the parties issued a decision (Decision IX/6) stating that the use of methyl bromide should qualify as “critical” only if the state seeking the exemption determines both that “the lack of availability of methyl bromide for that use would result in a significant market disruption” and that there were “no technically and economically feasible alternatives.”7 Under the parties’ decision, an expert panel would review the request for an exemption and make recommendations to the meeting of the parties. In 2003, the United States requested from the fifteenth meeting of the parties a critical-use exemption in order to allow it to continue producing and consuming methyl bromide at about 39 percent of the nation’s 1991 level (ten other states also sought an exemption).8 All eleven states claimed that since technically and economically feasible alternatives to methyl bromide had not yet been developed, the chemical’s continued use was required as an essential pesticide for important crops, such as peppers, strawberries, and tomatoes. Agreement on granting the exemption could not be reached at that meeting, so the matter was taken up at an extraordinary meeting of the parties (the first ever) held in Montreal on March 24–26, 2004. The United States proposed a draft resolution that, among other things, would have allowed for an exemption covering multiple years (2005–07).9 While the extraordinary meeting did not grant multiyear exemptions, it did grant an exemption to the eleven states for 2005,10 and further agreed to consider at its next meeting “the elaboration of criteria and a methodology for authorizing multi-year exemptions.”11 The level of the U.S. exemption was set at 7,659 metric tons – which was about 35 percent of the nation’s 1991 production and consumption of methyl bromide. In response to the decision, the United States asserted: The international community continues to make great progress in phasing down the use of ozone depleting substances, including methyl bromide, and in protecting the ozone layer. For the United States, the amount of methyl bromide that has been approved for continued use in 2005 represents less than two percent of U.S. emissions of all ozone depleting substances in 1987. The decisions taken in Montreal are important because they will allow for the continued viability of important agricultural sectors in many parts of the world, including the United States, while 2 Adjustments and Amendment to the Montreal Protocol on Substances That Deplete the Ozone Layer, Annex III, Art. 1(I), 32 ILM 874, 880–81 (1993) [hereinafter Copenhagen Amendment]. 3 The United States ratified the amendment on March 2, 1994. It went into effect the following June 14. 4 See Montreal Protocol, supra note 1, Art. 2, para. 9. 5 See Report of the Ninth Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, UN Doc. UNEP/OzL.Pro.9/12, Annex III (1997). 6 Id. 7 Id., UN Doc. UNEP/OzL.Pro.9/12, Decision IX/6. 8 The other countries were Australia, Belgium, Canada, France, Greece, Italy, Japan, Portugal, Spain, and the United Kingdom. See Report of the First Extraordinary Meeting of the Parties to the Montreal Protocol on Substances That Deplete the Ozone Layer, UN Doc. UNEP/OzL.Pro.ExMP/1/3, Annex II (Mar. 27, 2004). 9 See id., Annex III (draft decision submitted by the United States). 10 Id., Annex II. 11 Id., Decision Ex.I/3.
P1: OYK 0521750717c06
CB951-Murphy
136
0 521 75071 7
August 6, 2005
11:59
United States Practice in International Law 2002–2004
continuing the international effort to minimize and eventually phase out use of this ozone depleting substance as soon as possible.12 U.S. Proposal for Reducing Greenhouse Gases In March 2001, the Bush administration announced that the United States would not seek to join the Kyoto Protocol1 to the UN Framework Convention on Climate Change (UNFCCC).2 At the resumed Sixth Session of the Conference of the Parties to the UNFCCC in July 2001 in Bonn, Germany, key compromises were reached by developed states other than the United States on implementing the Kyoto Protocol, including the use of carbon sinks as a means of earning emission credits.3 Meeting in Morocco in November 2001 for the Seventh Session of the Conference of the Parties, states reached final agreement on the details for implementing the Kyoto Protocol.4 The United States attended the session but maintained its position that its rejection of the treaty was final.5 In February 2002, President Bush announced his alternative approach for handling the problem of climate change – which involved voluntary measures only. I reaffirm America’s commitment to the United Nations Framework Convention and its central goal, to stabilize atmospheric greenhouse gas concentrations at a level that will prevent dangerous human interference with the climate. Our immediate goal is to reduce America’s greenhouse gas emissions relative to the size of our economy. My administration is committed to cutting our Nation’s greenhouse gas intensity, how much we emit per unit of economic activity, by 18 percent over the next 10 years. This will set America on a path to slow the growth of our greenhouse gas emissions and, as science justifies, to stop and then reverse the growth of emissions. .... To achieve this goal, our Nation must move forward on many fronts, looking at every sector of our economy. We will challenge American businesses to further reduce emissions. Already, agreements with the semiconductor and aluminum industries and others have dramatically cut emissions of some of the most potent greenhouse gases. We will build on these successes with new agreements and greater reductions. Our Government will also move forward immediately to create world-class standards for measuring and registering emission reductions. And we will give transferable credits to companies that can show real emission reductions. We will promote renewable energy production and clean coal technology, as well as nuclear power, which produces no greenhouse gas emissions. And we will work to safely improve fuel economy for our cars and our trucks. .... By doing all these things, by giving companies incentives to cut emissions, by diversifying our energy supply to include cleaner fuels, by increasing conservation, by increasing research and development and tax incentives for energy efficiency and clean technologies, and by increasing carbon storage, I am absolutely confident that America will reach the goal that I have set. 12 U.S. Dep’t of State Press Release on Montreal Protocol Meeting Concludes (Mar. 27, 2004), at . Additional requests by sixteen states for critical use exemptions in 2005 and 2006 to the methyl bromide phaseout were considered (but not decided upon) at the meeting of the parties held in July 2004. 1 Dec. 10, 1997, UN Doc. FCCC/CP/1997/7/Add.2 (Dec. 10, 1997), 37 ILM 22 (1998); see Clare Breidenich, Daniel Magraw, Anne Rowley, & James W. Rubin, The Kyoto Protocol to the United Nations Framework Convention on Climate Change, 92 AJIL 315 (1998). 2 May 9, 1992, S. Treaty Doc. No. 102-38 (1992), 1771 UNTS 108, reprinted in 31 ILM 849 (1992). 3 See Sean D. Murphy, United States Practice in International Law, Vol. 1: 1999–2001, at 174–77 (2002). 4 See The Marrakesh Accords & the Marrakesh Declaration (Nov. 10, 2001), at . 5 See Andrew C. Revkin, U.S. Is Taking a Back Seat in Latest Talks on Climate, N.Y. Times, Oct. 29, 2001, at A5.
P1: OYK 0521750717c06
CB951-Murphy
0 521 75071 7
August 6, 2005
11:59
International Oceans, Environment, Health, and Aviation Law
137
If, however, by 2012, our progress is not sufficient and sound science justifies further action, the United States will respond with additional measures that may include broad-based market programs as well as additional incentives and voluntary measures designed to accelerate technology development and deployment. .... The approach taken under the Kyoto Protocol would have required the United States to make deep and immediate cuts in our economy to meet an arbitrary target. It would have cost our economy up to $400 billion, and we would have lost 4.9 million jobs. As President of the United States, charged with safeguarding the welfare of the American people and American workers, I will not commit our Nation to an unsound international treaty that will throw millions of our citizens out of work.6 During the course of 2002–2004, the United States achieved some successes in its efforts to promote voluntary reductions to greenhouse gases. For example, on November 16, 2004, representatives from fourteen states7 signed a “terms of reference” to create a voluntary, non-binding international partnership to reduce methane gases from gas pipelines, and to encourage the capture and use of methane from coal mines, solid waste landfills, and oil wells.8 Among other things, the partners commit to identify and promote ways of multilateral, bilateral, and private sector cooperation for methane recovery, through use of a formal steering group and other administrative structures. As a part of this “methane to markets” initiative, the United States announced that it would commit up to $53 million over the following five years to facilitate the development and implementation of methane projects in developing states and states with economies in transition.9 The prospect of the United States not joining the Kyoto Protocol led several countries during 2002–2004 to consider whether they should ratify the agreement, since doing so might place them at a competitive disadvantage with the United States. Canada and Japan ultimately decided to ratify the Protocol in April and December 2002 respectively, but Australia decided not to do so. In November 2004, Russia ratified the Kyoto Protocol, which satisfied the requirements for the agreement to enter into force on February 16, 2005. U.S. Effort to Block Iceland’s Membership in Whaling Convention In order to help safeguard against the loss of whale stocks, the 1946 International Convention for the Regulation of Whaling (ICRW)1 established a schedule of regulations that lists particular species covered by the Convention, as well as the controls on each of those species. Amendments to the schedule require a three-fourths majority vote of the International Whaling Commission (IWC) created by the Convention.2 Once adopted, an amendment is binding on all parties except those that have filed objections with the IWC within ninety days.3 In 1982, the IWC voted to amend the schedule in order to phase out commercial whaling, leading to a complete moratorium in 1986 – except for aboriginal whaling and whaling for scientific research. Japan and three other states lodged objections to the moratorium, stating that the purpose of the 6 Remarks Announcing the Clear Skies and Global Climate Change Initiatives in Silver Spring, Maryland, 38 Weekly Comp. Pres. Docs. 232, 234–35 (Feb. 14, 2002). For reactions from other states, see Bush Climate Plan Gets Cold Shoulder, Wash. Post, Feb. 16, 2002, at A22. 7 Argentina, Australia, Brazil, China, Colombia, India, Italy, Japan, Mexico, Nigeria, Russia, Ukraine, United Kingdom, and United States. 8 See Terms of Reference for the Methane to Markets Partnership (Nov. 16, 2004), at . Methane is a greenhouse gas twenty-three times more potent than carbon dioxide in trapping global heat in the atmosphere. See Fourteen Countries Sign Pact to Reduce Methane Leaks, Increase Landfill Gas Use, 27 BNA Int’l Env. Rep. 979 (2004). 9 See EPA Press Release on 13 Countries Join United States in Launching Methane to Markets Partnership (Nov. 16, 2004), at . 1 International Convention for the Regulation of Whaling, with Schedule of Whaling Regulations, Dec. 2, 1946, 62 Stat. 1716, 161 UNTS 72 [hereinafter Whaling Convention]. The Convention is implemented in U.S. law by the Whaling Convention Act of 1949, 16 U.S.C. §§916–916l (2000). 2 Whaling Convention, supra note 1, Arts. III(2), V. 3 Id., Art. V(3).
P1: OYK 0521750717c06
CB951-Murphy
138
0 521 75071 7
August 6, 2005
11:59
United States Practice in International Law 2002–2004
ICRW was to promote and maintain whale fishery stocks, not to ban whaling completely.4 Iceland (a party to the ICRW since its inception) did not file an objection and honored the moratorium. Nevertheless, after the IWC began extending the moratorium annually – even in the face of scientific evidence that certain whale stocks were recovering or had recovered – Iceland officially withdrew from the IWC on June 30, 1992. According to Iceland, the IWC had wholly disregarded the ICRW’s purpose and requirements. In 1994, the IWC adopted a “revised management procedure” (RMP) for calculating allowable catches of whales based on population data and taking into account uncertainties. The IWC chose not to take the steps required to implement the RMP, however, and the moratorium on commercial whaling therefore remained in place.5 Instead, the Commission embarked on the development of a “revised management scheme” (RMS) that would contain appropriate measures for ensuring that states adhered to the RMP. In June 2001, Iceland deposited with the United States (the ICRW depositary government) a new instrument of adherence to the ICRW, which was conditioned on a reservation to the commercial whaling moratorium found in paragraph 10(e) of the ICRW. At the IWC’s July 2001 annual meeting in London, states parties differed as to whether the IWC should accept Iceland’s reservation and whether the IWC had the competence to decide the issue. The IWC decided by a 19-18 vote (with 1 state party being absent for the vote) that it had the competence to determine the legal status of Iceland’s reservation. After that vote, the IWC rejected Iceland’s reservation by a 19-0 vote (with 3 abstentions and 16 states parties refusing to participate in the vote, believing it to be illegal). Thereafter, the IWC chairman ruled that Iceland could assist in the meeting as an observer.6 In advance of the IWC’s May 2002 annual meeting in Shimonoseki, Japan, Iceland filed another instrument of adherence with the United States. In the instrument, dated May 10, the president of Iceland proclaimed: That having seen and examined the International Convention for the Regulation of Whaling which was done at Washington on 2 December 1946 and the Protocol to the Convention which was done at Washington on 19 November 1956, I hereby declare that Iceland through this instrument adheres to the aforesaid Convention and Protocol with a reservation with respect to paragraph 10(e) of the Schedule attached to the Convention. The reservation forms an integral part of this instrument of adherence. Notwithstanding the aforementioned reservation, the Government of Iceland will not authorize whaling for commercial purposes by Icelandic vessels while progress is being made in negotiations within the International Whaling Commission on the Revised Management Scheme. This does not apply, however, in case of the so-called moratorium on whaling for commercial purposes, contained in paragraph 10(e) of the Schedule, not being lifted within reasonable time after the completion of the Revised Management Scheme. Under no circumstances will whaling for commercial purposes be authorized in Iceland without a sound scientific basis and an effective management and enforcement scheme.7 At the May 2002 meeting itself, the United States circulated a statement presenting its legal view of Iceland’s purported adherence. The statement, which drew upon the Vienna Convention on the Law of Treaties (VCLT)8 as “the authoritative guide to current treaty law and practice,”9 declared, in part:
4 See 2 Patricia Birnie, International Regulation of Whaling: From Conservation of Whaling to Conservation of Whales and Regulation of Whale-Watching 615, 713 (1985). 5 See David D. Caron, The International Whaling Commission and the North Atlantic Marine Mammal Commission: The Institutional Risks of Coercion in Consensual Structures, 89 AJIL 154, 160–61 (1995). 6 See IWC Final Press Release, 53rd Annual Meeting (2001), at . 7 Diplomatic Note from Iceland to the United States, with Attachment (May 10, 2002) (English translation) (on file with author). 8 May 23, 1969, 1155 UNTS 331, reprinted in 8 ILM 679 (1969) (entered into force Jan. 27, 1980). The United States has not ratified the Convention. 9 U.S. Dep’t of State, Iceland’s Adherence to the IWC Convention: U.S. Legal Views, at 2 (2002) (position paper distributed to delegations attending the IWC’s 2002 annual meeting; on file with author).
P1: OYK 0521750717c06
CB951-Murphy
0 521 75071 7
August 6, 2005
11:59
International Oceans, Environment, Health, and Aviation Law
139
Summary of U.S. Legal Views The United States considers the Icelandic reservation to constitute a proposed amendment to the Schedule. In accordance with the terms of the IWC Convention, we view that reservation as having no legal effect until it has been accepted by a three-fourths majority of those members of the International Whaling Commission (IWC) voting. If the IWC were to fail to accept the reservation, since Iceland made it an integral part of its instrument of adherence, Iceland would not be considered a contracting party to the IWC Convention. Legal Analysis .... International Law – Applicability of Vienna Convention .... Looking at the VCLT provisions, three provisions provide possible standards for assessing Iceland’s reservation: VCLT Articles 5, 19(c) and 20(3). Although problems exist with the application of the latter two articles, application of Article 5 directs us to take account [of ] the practice of the IWC in interpreting the Convention. Such a review (as described below) reveals the existence of a specific procedure for addressing reservations to the Schedule of the Convention. Article 19(c) – Object and Purpose of Convention Article 19(c) provides that a state adhering to a treaty may do so with reservations unless the reservation is “incompatible with the object and purpose of the treaty.” Following the ICJ Advisory Opinion in the Genocide Convention Case, 1951 Int’l Law Reports 364, the provision is now generally considered to codify customary international law. Notwithstanding this, the scope of what constitutes a treaty’s object and purpose as well as the principle’s application to specific treaties have been the subject of much debate. Given the terms of the IWC Convention, some may argue that it is difficult to construct an argument that a reservation to the IWC Schedule’s commercial whaling moratorium is incompatible with the Convention’s object and purpose. Indeed, under Article V(3) of the IWC Convention, a party may object to a schedule obligation and thereby relieve itself of that obligation until such time as it withdraws its objection. The Schedule paragraph detailing the commercial whaling moratorium is already subject to two such objections by Norway and Russia. (Japan and Peru also originally objected to the moratorium, but subsequently withdrew their objections.) Accordingly, in light of the fact that two of the original parties to the IWC Convention are not bound by the moratorium, some may argue that it is problematic to conclude that a state adhering to the Convention may not opt-out of that moratorium without violating the Convention’s object and purpose. Article 20(3) of the VCLT – Competent Organ Simply because a reservation may not be incompatible with the Convention’s object and purpose does not, however[,] necessarily mean that the reservation is legally valid. Article 20(3) of the VCLT provides that “[w]hen a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organization.”
P1: OYK 0521750717c06
CB951-Murphy
140
0 521 75071 7
August 6, 2005
11:59
United States Practice in International Law 2002–2004
This provision was introduced by the UN International Law Commission (and adopted during the VCLT negotiations) to resolve the question of how parties to an international organization (IO) would accept reservations to a treaty creating an IO. Prior to the VCLT, some international actors, such as the UN Secretary-General, had followed a practice of seeking a decision from the competent organ of the organization with respect to a reservation’s validity. On the other hand, states like the United States, had, in a number of cases, followed the principle of unanimity, requiring that all parties to the treaty creating the IO consent to the reservation in order for it to have legal effect. Article 20(3) attempted to resolve the debate in favor of the competent organ having the right to determine the reservation’s validity. The difficulty with invoking Article 20(3) with respect to Iceland’s reservation lies in determining whether that article has become customary international law. Such a determination is difficult in light of the paucity of recent practice following the conclusion of the VCLT. There is little evidence of states making reservations to treaties that establish IOs or that when they do, that states believe that the competent organ must take action to accept such reservations as a matter of customary international law. Indeed, in the context of the IWC Convention, three states (Peru, Chile and Ecuador) have all attached reservations to their instruments of adherence in recent years without any action by the IWC. Some contracting parties (e.g., Russia, Germany, the U.S.) did object separately to these reservations and the depositary communicated those objections to the other contracting parties by circular note. Thus, it is unclear whether the states parties to the IWC Convention consider the contracting parties or the IWC to constitute the organization’s “competent organ,” or even if they regard the provision of Article 20(3) to be applicable at all. Article 5 of the VCLT Article 5 provides in part that the VCLT applies to any treaty which is the constituent instrument of an international organization “without prejudice” to any relevant rules of the organization. In this instance there are relevant rules that are applicable to Iceland’s reservation, so it is unnecessary to address the application of Article 19(c) and Article 20(3). These relevant rules are the provisions of the treaty that deal with amending the Schedule. The Terms of the IWC Convention Iceland’s reservation by its terms would amend paragraph 10(e) of the Schedule to modify its legal effect. Currently, zero catch limits for commercial whaling apply to all contracting parties except for those states that filed timely objections to Paragraph 10(e) in accordance with Article V(3) of the Convention (e.g. Norway and Russia). Iceland’s reservation would amend paragraph 10(e) by permanently exempting Iceland from such zero catch limits. The fact that the scope of Iceland’s reservation is limited in application to Iceland does not undermine the conclusion that the reservation constitutes an amendment to the Schedule. Indeed, Iceland’s reservation amends the Schedule because it will modify the current scope of application of Paragraph 10(e) with respect to all parties. Instead of all states being bound to the commercial moratorium except for those states that objected, the commercial moratorium will apply to all states except those that objected and Iceland.10 10
Id. at 2–5.
P1: OYK 0521750717c06
CB951-Murphy
0 521 75071 7
August 6, 2005
11:59
International Oceans, Environment, Health, and Aviation Law
141
As before, there was at the annual meeting significant disagreement about whether the IWC should accept Iceland’s reservation. Ultimately, the IWC voted 25-20 to uphold its 2001 decision that Iceland should be allowed to participate in the meeting only as an observer. After the vote, Iceland left the meeting, asserting that the vote was illegal.11 In October 2002, Iceland once again filed with the United States an instrument of adherence to the Convention, this time with a time-limit before which commercial whaling would not resume. The relevant paragraph stated: Notwithstanding this [reservation], the Government of Iceland will not authorise whaling for commercial purposes by Icelandic vessels before 2006 and, thereafter, will not authorise such whaling while progress is being made in negotiations within the IWC on the RMS. This does not apply, however, in case of the so-called moratorium on whaling for commercial purposes, contained in paragraph 10(e) of the Schedule not being lifted within a reasonable time after the completion of the RMS. Under no circumstances will whaling for commercial purposes be authorised without a sound scientific basis and an effective management and enforcement scheme.12 Thereafter, a special meeting was held in Cambridge, United Kingdom, in October 2002. After a series of procedural votes, the Commission agreed, by 19 votes to 18, that Iceland was a member of the Commission.13 The United States voted against Iceland’s resumption of membership. After the vote, the United States asserted: [W]e’ve consistently urged Iceland to join the International Whaling Commission, but our problem has been with a reservation to the commercial moratorium that Iceland wanted. [Our c]oncern is based on the belief that all Whaling Commission members should be bound by the same rules and on the potential precedent that could be created. Now that the Commission has taken this decision, we expect Iceland to be a constructive participant[. I]t’s certainly our hope that Iceland will not authorize whaling unless and until the International Whaling Commission lifts the moratorium on commercial whaling.14 In August 2003, Iceland resumed whale hunting for the first time in fourteen years. Iceland asserted that it was allowing a hunt for thirty-eight minke whales for purposes of scientific research, but the United States and the United Kingdom characterized such research as unnecessary. The U.S. National Oceanic and Atmospheric Administration (NOAA), an agency under the Commerce Department, then launched a review of whether the kills undermined the effectiveness of the ICRW. Under U.S. law (“Pelly Amendment”), if the secretary of commerce certifies to the president that nationals of a foreign state are diminishing the effectiveness of an international fishery-conservation program – such as the ICRW – the president has the discretion to ban the importation of fishing products from that state, provided that U.S. trade obligations are not thereby violated. Further, the president must report on his action (or inaction) to Congress within sixty days of the certification.15 11
See IWC Final Press Release, 54th Annual Meeting (2002), at . See . In essence, the ruling of the meeting’s chair that prior IWC decisions were to be upheld (in other words, the decisions that the IWC had the competence to determine the legal status of Iceland’s reservation, that the IWC did not accept Iceland’s reservation, and that Iceland be invited to assist as an observer) was defeated by 18 votes in favor and 19 against. Hence, Iceland was accepted as a member of the Commission. The procedural maneuvering was so complicated that Sweden apparently voted in a manner that allowed Iceland to resume membership, even though Sweden opposed it. See Walter Gibbs, Iceland Joins Whale Panel, Giving Whalers Stronger Say, N.Y. Times, Oct. 21, 2002, at A2. 14 Richard Boucher, Spokesman, U.S. Dep’t of State Daily Press Briefing (Oct. 15, 2002), at . 15 The Pelly Amendment of 1971, 22 U.S.C. §1978 (2000), amended the Fishermen’s Protective Act of 1967, 22 U.S.C. §§1979–80 (2000). U.S. law also provides (under the “Packwood-Magnuson Amendment”) that if the secretary of commerce certifies to the president that the nationals of a foreign state are engaged in action “which diminishes the effectiveness” of the ICRW, the secretary of state must reduce the foreign state’s fishing quota in the U.S. fishery-conservation zone by at least 50 percent. The Packwood-Magnuson Amendment of 1979, 16 U.S.C. §1821(e)(2) (2000), amended the Fishery Conservation and Management Act of 1976, 16 U.S.C. §§1801–82 (2000). 12 13
P1: OYK 0521750717c06
CB951-Murphy
142
0 521 75071 7
August 6, 2005
11:59
United States Practice in International Law 2002–2004
In June 2004, the Department of Commerce certified under the Pelly Amendment that Iceland’s program diminished the effectiveness of the ICRW.16 President Bush, however, decided that he would not imposed trade sanctions against Iceland for the research because the “use of trade sanctions is not a course of action needed to resolve our current differences with Iceland over research whaling activities.”17 U.S.–Russia Polar Bear Agreement After eight years of negotiations, Russia and the United States signed on October 16, 2000, the bilateral Agreement on the Conservation and Management of the Alaska-Chukotka Polar Bear Population.1 The agreement, which builds on conservation measures established in a 1973 multilateral agreement on polar bears,2 addresses the polar bear population in the waters and adjacent coastal areas of the Chukchi, East Siberian, and Bering Seas. Among other things, the agreement states that native peoples may take polar bears for subsistence purposes, subject to certain restrictions: (1) the take must be consistent with the 1973 agreement; (2) the taking of females with cubs, of cubs less than one year of age, and of bears in dens, including bears preparing to enter dens or who have just left dens, is prohibited; (3) the use of aircraft, large motorized vessels, and large motorized vehicles for the purpose of taking polar bears is prohibited; and (4) the use of poisons, traps, and snares for the purpose of taking polar bears is prohibited. Further, polar bears may be taken for the conduct of scientific research, for the purpose of rescuing or rehabilitating orphaned, sick, or injured animals, or when human life is threatened.3 When transmitting the agreement to the president on July 5, 2002, the secretary of state asserted: The U.S.–Russia Agreement will establish a common legal, scientific and administrative framework for the conservation and management of the Alaska-Chukotka polar bear population, which is shared by the United States and the Russian Federation. Unified and binding protection is needed to ensure that the taking of polar bears by native people in Alaska and the Chukotka region and other activities do not adversely affect this polar bear population. The 1973 Agreement allows the taking of polar bears for subsistence purposes by native people, as does our domestic legislation – the Marine Mammal Protection Act (MMPA)4 – in respect to Alaska natives. The U.S.–Russia Agreement advances the 1973 Agreement in several ways. For example, it provides a definition of “sustainable harvest” that will help the United States and Russia to implement polar bear conservation measures.5 In addition, the U.S.–Russia Agreement establishes the “U.S.–Russia Polar Bear Commission,” which would function as the bilateral managing authority to make scientific determinations, establish harvest limits and carry out other responsibilities under the terms of the bilateral agreement.6 The Agreement would strengthen the capability of our countries to implement coordinated conservation measures for our shared polar bear population.7 16 Dep’t of Commerce Press Release on Commerce Secretary Evans Certifies Iceland for Its Whale Hunt, No. 2004-65 (June 22, 2004), at . 17 Message to the Congress Reporting on Iceland’s Lethal Research Whaling Program, 40 Weekly Comp. Pres. Doc. 1134, 1135 (June 22, 2004). 1 Oct. 16, 2000, U.S.–Russ., S. Treaty Doc. No. 107-10, at 5 (2002) [hereinafter Alaska-Chukotka Polar Bear Agreement]. 2 Agreement on the Conservation of Polar Bears, Nov. 15, 1973, 27 UST 3918, 13 ILM 13 (1974). Russia and the United States, as well as Canada, Denmark, and Norway, are parties to the 1973 agreement. 3 Alaska-Chukotka Polar Bear Agreement, supra note 1, Art. 6. 4 [Author’s Note: Marine Mammal Protection Act of 1972, Pub. L. No. 95-522, 86 Stat. 1027 (codified as amended in scattered sections of 16 U.S.C.).] 5 [Author’s Note: Article 1 of the agreement defines “sustainable harvest level” to mean “a harvest level which does not exceed net annual recruitment to the population and maintains the population at or near its current level, taking into account all forms of removal, and considers the status and trend of the population, based on reliable scientific information.”] 6 [Author’s Note: See Alaska-Chukotka Polar Bear Agreement, supra note 1, Art. 8. Under Article 9 of the agreement, each party has the right to one-half of the annual taking limit of polar bears determined by the commission.] 7 S. Treaty Doc. No. 107-10, at V (2002).
P1: OYK 0521750717c06
CB951-Murphy
0 521 75071 7
August 6, 2005
11:59
International Oceans, Environment, Health, and Aviation Law
143
The agreement will enter into force thirty days after the date on which the United States and Russia have exchanged written notification through diplomatic channels that they have completed their respective domestic legal procedures necessary to bring the agreement into force.8 Exemption of U.S. Military from Migratory Bird Treaty Act For decades, the United States has been a party, along with neighboring states, to treaties that seek to protect migratory birds.1 These conventions generally call upon the United States, through its national laws, to enact appropriate hunting seasons and other measures for the protection of some 850 listed species of migratory birds, but the treaties do not directly impose detailed requirements for doing so. The United States has implemented these obligations by the 1918 Migratory Bird Treaty Act (MBTA)2 and regulations promulgated thereunder.3 Section 2 of the MBTA states that it is “unlawful at any time, by any means or in any manner” to kill migratory birds listed under the treaties unless permitted by regulation.4 The statute has no exception for acts taken as a matter of U.S. national security. Current U.S. regulations, however, allow the Department of the Interior Fish and Wildlife Service (FWS) to issue, in compelling circumstances but after careful consideration of the anticipated biological loss, permits for the killing of listed migratory birds or the destruction of their habitats.5 Since the early 1970s, the U.S. government has leased and conducted military training exercises on Farallon de Medinilla (FDM), an island of the Commonwealth of the Northern Marianas Islands. A 1996 survey by the FWS determined that those military activities kill birds protected by the MBTA. Thereafter, the U.S. Navy applied to FWS for a permit under the MBTA regulations that would allow the Navy to “take” migratory birds on FDM as a result of the military exercises. In August 1996, the FWS denied the request, stating that there were no provisions for permits that authorize unintended conduct. Thereafter, the U.S. military continued its military training exercises on FDM. In May 2002, a U.S. district court enjoined the U.S. Navy from conducting such exercises at FDM,6 stating that the exercises incidentally killed migratory birds in violation of the MBTA and the Administrative Procedure Act.7 Concerned that this decision would inhibit military training and bombing exercises on the twenty-five million acres of military-controlled land in the United States, the Bush administration proposed that section 2 of the Migratory Bird Treaty Act not apply to the incidental taking of a migratory bird by a member of the U.S. military during an authorized militaryreadiness activity.8 Some members of Congress expressed concern that enactment of the proposal would jeopardize U.S. treaty obligations,9 but the conference of lawmakers responsible for resolving differences between the House and the Senate over the entire legislation determined that the provision was “entirely consistent with the underlying terms of all treaty obligations of the United States.”10 8 Alaska-Chukotka Polar Bear Agreement, supra note 1, Art. 13. On implementation issues under U.S. law, see Marine Mammal Protection Act: Oversight Hearing Before the House Subcomm. on Fisheries Conservation, Wildlife & Oceans of the Comm. on Research, 107th Cong 22 (2001) (prepared statement of Marshall Jones, Acting Director, U.S. Fish & Wildlife Serv., U.S. Dep’t of the Interior). 1 See Convention for the Protection of Migratory Birds, U.S.–UK, Aug. 16, 1916, 39 Stat. 1702 (relating to U.S.–Canada migrations); Convention for the Protection of Migratory Birds and Game Mammals, U.S.–Mex., Feb. 7, 1936, 50 Stat. 1311; Convention for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment, U.S.–Jap., Mar. 4, 1972, 25 UST 3329; Convention Concerning the Conservation of Migratory Birds and Their Environment, U.S.–U.S.S.R., Nov. 19, 1976, 29 UST 4647. 2 16 U.S.C. §§703–711 (2000). This statute and the 1916 Treaty with the United Kingdom, see supra note 1, were the focus of Missouri v. Holland, 252 U.S. 416 (1920). 3 50 C.F.R.§§10, 12–14, 20–22 (2004). 4 16 U.S.C. §703 (2000). 5 See 50 C.F.R. §21.11 (2004). 6 Ctr. for Biological Diversity v. Pirie, 191 F.Supp.2d 161 (D.D.C. 2002) (issuing summary judgment with respect to liability); Ctr. for Biological Diversity v. Pirie, 201 F.Supp.2d 113 (D.D.C. 2002) (issuing injunction). 7 Administrative Procedure Act of 1946, 60 Stat. 237 (codified as amended in scattered sections of 5 U.S.C.). 8 See Eric Pianin, Bird Nests and Bomb Ranges, Wash. Post, Oct. 23, 2002, at A9. 9 See, e.g., 148 Cong. Rec. H2254 (daily ed. May 9, 2002) (congressmen stating that the unilateral exemption of military-readiness activities “would compromise U.S. international treaty obligations and could establish a negative precedent for other signatory nations to exempt their own activities from such obligations or consider other forms of retaliation”). 10 148 Cong. Rec. H8450 (daily ed. Nov. 12, 2000).
P1: OYK 0521750717c06
CB951-Murphy
144
0 521 75071 7
August 6, 2005
11:59
United States Practice in International Law 2002–2004
Thereafter, the legislation passed both houses of Congress and on December 2, 2002, was signed into law by President Bush.11 Environmental Torts Do Not Violate Customary International Law In December 2000, eight residents of Ilo, Peru, brought suit in a U.S. federal court against Southern Peru Copper Corporation (SPCC), a U.S. corporation that has operated copper mining, refining, and smelting operations in and around Ilo since 1960. The plaintiffs alleged that they had contracted asthma and lung disease as a result of environmental pollution from SPCC’s operations. Further, they asserted that the court had jurisdiction on the basis of the Alien Tort Claims Act (ATCA),1 stating that SPCC violated their rights under customary international law to life, health, and sustainable development.2 In July 2002, the court granted the SPCC’s motion to dismiss the claim, concluding that “plaintiffs have not demonstrated that high levels of environmental pollution, causing harm to human life, health, and sustainable development within a nation’s borders, violate any well-established rules of customary international law.”3 In August 2003, the Second Circuit Court of Appeals affirmed.4 After reviewing its decisions in Filartiga 5 and Kadic,6 along with the reception of those cases in the Ninth and D.C. Circuits, the Second Circuit discussed at length the nature and the sources of customary international law, emphasizing the superior authority of state practice and opinio juris over broad principles, unilateral declarations, and the writings of legal scholars.7 The court rejected as inconsistent with its holding in Filartiga plaintiffs’ suggestion that in order to distinguish torts that violate customary international law from ordinary torts, all that the court needed to do was to determine whether the allegations were “shockingly egregious.” While accepting that only shockingly egregious acts were likely to be regarded as universally prohibited, and thus to achieve the status of customary international law, the court did not accept that its prior jurisprudence supported the position that shockingly egregious acts were ipso facto prohibited under customary international law. Indeed, such a standard would undermine that body of law by (1) displacing “the agreement of nations as the source of customary international law and substitute for it the consciences and sensibilities of individual judges,” (2) shifting “the subject matter of customary international law from matters of mutual concern between States . . . to any matter in respect of which ‘egregious’ conduct could occur,” and (3) diverting attention from clear, unambiguous, and “universally accepted standards to concepts . . . that are easily subject to differing interpretation by the courts of different nations.”8 The court then considered whether the rights of the plaintiffs allegedly infringed by the SPCC could be said to constitute rights under customary international law. After reviewing provisions pleaded by the plaintiffs concerning the “right to life” or “right to health” in the Universal Declaration of Human Rights,9 the International Covenant on Economic, Social and Cultural Rights,10 and the Rio Declaration on Environment and Development,11 the court stated that the provisions embodied
11
Bob Stump National Defense Authorization Act for Fiscal Year 2003, Pub. L. 107-314, §315, 116 Stat. 2458, 2509–10 (2002). 28 U.S.C. §1350 (2000). The ATCA provides for a civil action in U.S. federal court by an alien “for a tort only, committed in violation of the law of nations or a treaty of the United States.” 2 Flores v. S. Peru Copper Corp., 253 F.Supp.2d 510, 512–14 (S.D.N.Y. 2002). 3 Id. at 525. The court alternatively dismissed the claim on grounds of forum non conveniens. Id. at 525–44. 4 Flores v. S. Peru Copper Corp., 343 F.3d 140, 172 (2d Cir. 2003). 5 Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). 6 Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995). 7 343 F.3d at 149–58. 8 Id. at 159–60 (citations omitted) (footnote omitted). 9 See Universal Declaration of Human Rights, GA Res. 217A (III), Art. 25, UN Doc. A/810, at 71 (1948) (“Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family . . .”). 10 See International Covenant on Economic, Social and Cultural Rights, Dec. 19, 1966, Art. 12, 993 UNTS 3, 8, reprinted in 6 ILM 360, 363 (1967) (“The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”). 11 See Rio Declaration on Environment and Development, UN Doc. A/CONF.151/5/Rev.1, princ. 1 (1992), 31 ILM 874, 876 (1992) (“Human beings are . . . entitled to a healthy and productive life in harmony with nature.”). 1
P1: OYK 0521750717c06
CB951-Murphy
0 521 75071 7
August 6, 2005
11:59
International Oceans, Environment, Health, and Aviation Law
145
“principles [that] are boundless and indeterminate” and that specify “virtuous goals understandably expressed at a level of abstraction needed to secure the adherence of States that disagree on many of the particulars regarding how actually to achieve them.”12 The court considered whether a more narrowly construed right against “intranational pollution”13 could be said to exist in customary international law. In this context, the court reviewed various treaties14 but found in each instance that the treaty had not been ratified by the United States (or, if ratified, was not self-executing in the United States), had not passed into customary international law, or, in any event, did not contain clear and definitive provisions supporting a prohibition on intranational pollution, let alone such pollution when committed by nonstate actors.15 Thus, while Article 12 of the International Covenant on Economic, Social and Cultural Rights instructs States to take steps to abate environmental pollution within their borders, it does not mandate particular measures or specify what levels of pollution are acceptable. Instead, it is vague and aspirational, and there is no evidence that States parties have taken significant uniform steps to put it into practice. Finally, even if this provision were sufficient to create a rule of customary international law, the rule would apply only to state actors because the provision addresses only “the steps to be taken by the States Parties” and does not profess to govern the conduct of private actors such as defendant SPCC.16 The court also reviewed General Assembly and other declarations, jurisprudence of multilateral tribunals, and legal scholarship invoked by plaintiffs, and in each instance found that those sources also did not establish a prohibition under customary international law against intranational pollution.17 Thus, since the scholarly affidavits submitted in support of the plaintiffs’ position “serve[d] essentially as supplemental briefs,” the court refused to give them evidentiary weight. Further, while the work of jurists was valuable in “identifying and recording the practices of States and thereby revealing the development of customary international law,” the court found that plaintiffs’ affidavits, rather than being descriptive of existing law, were policy-driven “speculations . . . about what the law ought to be.”18
International Health Law U.S. Signing of Framework Convention on Tobacco Control On May 25, 1996, the World Health Assembly (WHA) of the World Health Organization (WHO) requested the WHO director-general to initiate the development of a framework convention on tobacco control.1 On May 24, 1999, after receiving the report of the director-general and the views of member states, the WHA established both a working group of member states to develop a draft text of such a convention, and an intergovernmental negotiating body (INB) to negotiate and adopt the convention.2 Over the course of four years, the working group met twice, and the INB six times, before adopting a final text on March 1, 2003. On May 21, the 192 members of the WHA unanimously
12
343 F.3d at 160–61. Id. at 161. The treaties were the American Convention on Human Rights, Nov. 22, 1969, 1144 UNTS 123, reprinted in 9 ILM 673 (1970), the International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 UNTS 171, reprinted in 6 ILM 368 (1967), the International Covenant on Economic, Social and Cultural Rights, supra note 10, and the United Nations Convention on the Rights of the Child, Nov. 20, 1989, 1577 UNTS 3, reprinted in 28 ILM 1448 (1989). 15 343 F.3d at 162–65. 16 Id. at 164 (citations omitted). 17 Id. at 165–72. 18 Id. at 170–71. 1 WHA Res. 49.17 (May 25, 1996). 2 WHA Res. 52.18 (May 24, 1999). 13 14
P1: OYK 0521750717c06
CB951-Murphy
146
0 521 75071 7
August 6, 2005
11:59
United States Practice in International Law 2002–2004
adopted by voice vote the Framework Convention on Tobacco Control (FCTC),3 marking the first time that the WHO has adopted a treaty under Article 19 of the WHO Constitution.4 The FCTC addresses a wide range of issues relating to tobacco and smoking, such as tax and nonprice-related measures to reduce tobacco demand (Articles 6 & 7), protections for nonsmokers from exposure to smoke (“passive smoking”) (Article 8), regulation of tobacco contents and packaging (Articles 9 & 11), public awareness of the consequences of smoking (Article 12), restrictions on tobacco advertising and sponsorship (Article 13), addiction and cessation programs (Article 14), illicit trade in tobacco products (Article 15), sales to minors (Article 16), and tobacco-related research and information sharing among parties (Articles 20, 21, & 22). Structurally, the draft FCTC establishes a conference of the parties (Article 23), appoints the WHO as the secretariat (Article 24), and calls for financial assistance to developing country parties and parties with transitional economies (Article 26). Prior to the conclusion of the negotiations, the United States succeeded in changing certain provisions that it had opposed.5 For example, the United States opposed a mandatory ban on the distribution of free tobacco samples, which had been included in Article 16 of the draft convention.6 The final text of the convention makes that ban optional.7 The United States also opposed a prohibition on the sale of tobacco products to any “minor,” a term defined as “human beings below the age of eighteen years unless under the national law applicable to the child, majority is attained earlier.”8 The United States argued that national law should determine whether sales of such products may be made to minors, and the final text of the convention replaces the word “minor” with “persons under the age set by domestic law, national law, or eighteen.”9 The United States also opposed language in the draft convention that would have obligated each party, “in accordance with its capabilities,” to “adopt and implement effective legislative, administrative or other measures to reduce, with the view to gradually eliminating, the advertising, promotion, and sponsorship of tobacco products,” including sponsorship of sporting and cultural events.10 The draft convention defined “tobacco advertising” as “any form of communication, recommendation or action that promotes a tobacco product;” defined “tobacco promotion” as “stimulating the demand for goods by publicity and advertising, as well as by special events to draw the attention and interest of consumers;” and defined “tobacco sponsorship” as “any form of contribution to any event, activity or individual that promotes a tobacco product.”11 The United States argued that implementing such broad language would violate the First Amendment of the U.S. Constitution,12 and sought instead to place such provisions in a protocol to the FCTC that individual states could opt to ratify separately. The final text of the convention provides that “[e]ach party shall, in accordance with its constitution or constitutional principles, undertake a comprehensive ban of all tobacco advertising, promotion and
3 Framework Convention on Tobacco Control, May 21, 2003, 42 ILM 518 (2003) [hereinafter FCTC]. The FCTC was adopted by WHA Res. 56.1 (May 21, 2003). The convention and associated WHO press releases and fact sheets are available at . 4 For background on the negotiations, see WHO, The Framework Convention on Tobacco Control – A Primer (2003); WHO Press Release on World Health Organization Adopts Historic Tobacco Control Pact (May 21, 2003); see also Alison Langley, World Health Meeting Approves Treaty to Discourage Smoking, N.Y. Times, May 22, 2003, at A13. 5 For U.S. congressional commentary discussing and criticizing certain U.S. government positions during the negotiations, see Letter from Rep. Henry A. Waxman, Ranking Minority Member, House Committee on Government Reform, to President George W. Bush (Apr. 29, 2003), at ; Minority Staff of the House Committee on Government Reform, 107th Cong., U.S. Positions on Selected Issues at the Third Negotiating Session of the Framework Convention on Tobacco Control (Mar. 5, 2002), at ; see also Henry Waxman, The Future of the Global Tobacco Treaty Negotiations, 346 New Eng. J. Med. 936 (2002). For views by a nongovernmental organization called the Framework Convention Alliance, which favors the adoption of strict controls on tobacco and tobacco products, see . 6 Chair’s Text of a Framework Convention on Tobacco Control (Revised), Art. 16(2), WHO Doc. A/FCTC/INB6/2 (Jan. 13, 2003) [hereinafter Chair’s Text]. 7 FCTC, supra note 3, Art. 16(2). 8 Chair’s Text, supra note 6, Arts. 1(b), 16(1). 9 FCTC, supra note 3, Art. 16(1). The understanding of the parties appears to be that the lowest of these three ages is the controlling one. 10 New Chair’s Text of a Framework Agreement on Tobacco Control, Art. 13, WHO Doc. A/FCTC/INB5/2 (June 25, 2002). 11 Id., Art. 1(e), (i), (j). 12 See, e.g., Imogen Foulkes, Anti-tobacco Treaty Agreed, BBC News, Mar. 1, 2003, at .
P1: OYK 0521750717c06
CB951-Murphy
0 521 75071 7
August 6, 2005
11:59
International Oceans, Environment, Health, and Aviation Law
147
sponsorship.”13 The express requirement to phase out tobacco sponsorship of sporting and cultural events was removed, but the definitions were retained and, to a certain extent, broadened in scope.14 The United States continued to express its concern that the final version of the convention might unconstitutionally infringe on free speech.15 The United States was not successful in obtaining other changes to the convention. For example, the United States unsuccessfully opposed language in Article 11(3) that would require warning labels on tobacco products to be written in the language of the country where the tobacco products are being sold.16 The United States also unsuccessfully opposed Article 11’s mandatory minimum size of health warnings on tobacco products, and its prohibition on misleading or deceptive descriptors such as “low tar” and “ultra-light.”17 Although the United States argued that such provisions might infringe on trademark protections,18 the provisions were retained. At the end of the intergovernmental negotiations the United States criticized the convention19 and thereafter sought to reopen negotiations,20 but in the weeks leading up to the adoption of the FCTC in May 2003, the United States announced that it would support the convention and vote in favor of it, albeit without indicating whether U.S. constitutional concerns had been resolved. At the same time, the United States asserted that it had not yet decided whether it would sign the convention and send it to the Senate for advice and consent.21 The convention was open for signature through June 2004.22 By May 2004, 107 states had signed the agreement. On May 12, the United States signed the convention as well, but indicated that there would need to be “further interagency review” before submission to the Senate for advice and consent.23 As of December 2004, 168 states had signed and 42 states had ratified the convention, which was set to enter into force in early 2005. “Revenue Rule” Barring Foreign Suits Concerning Cigarette Smuggling During 2002–2004, various governments brought suit in U.S. courts seeking to recover damages incurred as a result of alleged conspiracies by U.S. tobacco companies to smuggle cigarettes abroad.1 U.S. courts dismissed such cases on grounds that the “revenue rule” in U.S. common law precludes the courts of one nation from enforcing the tax judgments or claims of other nations.2 Such decisions relied in part on a decision by the Second Circuit Court of Appeals in 2001 in the case of Attorney
13
FCTC, supra note 3, Art. 13(2) (emphasis added). Id., Art. 1(c), (g). See, e.g., Marc Kaufman, U.S. Seeks to Alter Anti-tobacco Treaty; “Reservations” Clause Sought as Way Out of Some Provisions, Wash. Post, Apr. 30, 2003, at A1 (quoting Department of Health and Human Services spokesman as saying that “the primary concern of the U.S. negotiators is that . . . the treaty could . . . be unconstitutional by interfering, for instance, with free speech rights”). 16 See United States, Textual Proposals Made at the Second Meeting of Working Group 1, WHO Framework Convention on Tobacco Control, WHO Doc. A/FCTC/INB2/WG1/Conf. Paper No. 2 (May 1, 2001) (on file with author). 17 Id. 18 Such arguments had been pressed by the U.S. tobacco industry. See, e.g., Philip Morris International, Inc. & Philip Morris USA, Detailed Paper on the WHO’s Proposed FCTC (undated) (on file with author); see generally Alison Langley, Anti-tobacco Pact Gains Despite Firms’ Lobbying, N.Y. Times, May 20, 2003, at A11. 19 See Press Release on Framework Convention for Tobacco Control, INB6, Statement of the United States of America (Mar. 1, 2003), at . 20 See Alison Langley, U.S. Wants to Reopen Talks on Global Anti-tobacco Pact, N.Y. Times, May 1, 2003, at A6 (reporting that the United States sought removal of Article 30 of the convention, which prohibits reservations); Marc Kaufman, U.S. Seeks to Alter Anti-tobacco Treaty, Wash. Post, Apr. 30, 2003, at A1. 21 See Alison Langley, U.S. to Support World Tobacco-Control Treaty, N.Y. Times, May 19, 2003, at A2. Although the United States did not explain why it was voting for FCTC adoption, it did state that it was interested in a preparatory meeting on the issue of illicit trade in cigarettes, and attendance at that meeting requires a state to have voted for FCTC adoption. See Rob Stein & Marc Kaufman, U.S. Backs Pact Curbing Tobacco Use Worldwide, Wash. Post, May 19, 2003, at A1. 22 See FCTC, supra note 3, Arts. 34, 36. 23 Health & Human Services Dep’t Press Release on United States Signs Tobacco Control Treaty (May 11, 2004), at . 1 Other suits involving foreign states have concerned alleged conspiracies by tobacco companies to misrepresent the health effects of tobacco products. See, e.g., Sean D. Murphy, United States Practice in International Law, Vol. 1: 1999–2001, at 186 (2002). 2 See European Community v. Japan Tobacco, 186 F.Supp.2d 231 (E.D.N.Y. 2002), aff’d sub nom. European Community v. RJR Nabisco, Inc., 355 F.3d 123 (2d Cir. 2004); Ecuador v. Philip Morris Cos., 188 F.Supp.2d 1359 (S.D. Fla. 2002), aff’d sub nom. Honduras v. Philip Morris Cos., 341 F.3d 1253 (11th Cir. 2003). 14 15
P1: OYK 0521750717c06
CB951-Murphy
148
0 521 75071 7
August 6, 2005
11:59
United States Practice in International Law 2002–2004
General of Canada v. R.J. Reynolds Tobacco Holdings. In that case, Canada claimed that the defendants had facilitated a scheme to avoid various Canadian cigarette taxes by smuggling cigarettes across the U.S.–Canadian border for sale on the Canadian black market. Canada sought to recover, in U.S. court, damages based on lost tax revenue and law enforcement costs. In dismissing the case, the Court of Appeals for the Second Circuit stated: The revenue rule is a longstanding common law doctrine providing that courts of one sovereign will not enforce final tax judgments or unadjudicated tax claims of other sovereigns. It has been defended on several grounds, including respect for sovereignty, concern for judicial role and competence, and separation of powers. Examination of both the policies underlying the revenue rule, and the rule’s congruence with the international tax policies pursued by the political branches of our government, supports the conclusion that the revenue rule is applicable to the particular facts of the case at hand. Although the United States Supreme Court and this Circuit have not ruled on the precise scope of the rule, they have acknowledged its continuing vitality in the international context. See Sun Oil Co. v. Wortman, 486 U.S. 717, 740 n.3 (1988) (Brennan, J., concurring) (noting the rule’s continued existence in the nation-to-nation setting) . . . . .... The rule has its origin in eighteenth-century English court decisions seeking to protect British trade from the oppressiveness of foreign customs. . . . Since then, the rule has entered United States common law, international law and the national law of other common law jurisdictions. We note that the international acceptance of the revenue rule extends to Canada’s Supreme Court and provincial courts. .... Tax laws embody a sovereign’s political will. They create property rights and affect each individual’s relationship to his or her sovereign. They mirror the moral and social sensibilities of a society. Sales taxes, for example, may enforce political and moral judgments about certain products. Import and export taxes may reflect a country’s ideological leanings and the political goals of its commercial relationships with other nations. In defense of the revenue rule, some courts have observed that the rule prevents foreign sovereigns from asserting their sovereignty within the borders of other nations, thereby helping nations maintain their mutual respect and security. . . . Other courts have suggested that it is too sensitive and difficult for courts to determine whether such foreign revenue laws should be enforced by another sovereign. . . . The case before us illustrates the point. Canada asserts that the revenue laws at issue were the product of an assessment of its public health priorities. In its complaint, Canada alleged: To protect its youth from the health hazards of smoking, and to implement anti-tobacco programs and other public benefits, Canada doubled tobacco duties and taxes in February 1991. Tobacco duty and tax increases, and the resulting higher tobacco prices, held the promise of deterring young people from becoming addicted to a harmful drug. Tobacco duty and tax increases also held the promise of encouraging established smokers to quit. The tenor of the times, at least among many people in the states of this judicial circuit, is antismoking. It is unlikely that enforcing a foreign tax regime aimed at deterring smoking would
P1: OYK 0521750717c06
CB951-Murphy
0 521 75071 7
August 6, 2005
11:59
International Oceans, Environment, Health, and Aviation Law
149
offend most citizens of New York, Connecticut or Vermont, whatever our personal habits or vices. (Of course, citizens of United States tobacco-growing states might vehemently object to Canada’s taxation scheme.) But consider, for example, other possibilities involving a foreign sovereign’s taxes. How would we respond if a foreign sovereign asked us to help enforce a tax designed to render it very expensive to sell United States newspapers in that nation? Or to make the inclusion of United States–made content in machinery built in that foreign country prohibitively expensive? Suppose it were a tax that had been raised to deter the sale of United States pharmaceuticals in that country? Or if a foreign nation imposed an immigration tax on members of a particular religious group or racial minority? It is much less likely that United States citizens would be kindly disposed towards tolerating such taxes, let alone providing judicial resources to enforce them. These hypotheticals – and we do not suggest that they are anything but hypotheticals – demonstrate the sensitive nature of the issues that can be raised through a foreign sovereign’s exercise of its taxation powers. . . . Addressing the public policy concerns raised by the imposition of such foreign taxes could embroil United States courts in delicate issues in which they have little expertise or capacity.3
Air and Space Law Ratification of the 1999 Montreal Convention on Aviation Liability The 1929 Convention for the Unification of Certain Rules Relating to International Transportation by Air (commonly referred to as the Warsaw Convention)1 provided for a system whereby air carriers were responsible for damaged luggage and cargo, and were “liable for damage sustained in the event of the death or wounding of a passenger . . . if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”2 In essence, the air carriers accepted liability for certain kinds of damages up to limits established in Article 22,3 even without a showing of negligence, in exchange for a framework that rationalized jurisdictional and conflict-of-law problems. Under Article 25, however, the liability limits did not apply if the claimant could establish that the carrier’s “willful misconduct” caused the injury.4 Over time, the United States and other countries came to view these limits as too low. In 1955, the Hague Protocol5 to the Warsaw Convention increased the per-passenger liability limitation to U.S.$16,600, but the United States still regarded this limit as too low and therefore did not ratify the Protocol.6 Instead, the United States and certain other countries insisted that air carriers wishing to operate in their territories agree contractually with passengers to increase the passenger liability limits 3
Attorney General of Canada v. R. J. Reynolds Tobacco Holdings, 268 F.3d 103, 109–13 (2d Cir. 2001) (footnotes omitted). Oct. 12, 1929, 49 Stat. 3000 (1936), 137 LNTS 11, reprinted in note following 49 U.S.C. §40105 (2000) [hereinafter Warsaw Convention]. 2 Warsaw Convention, supra note 1, Art. 17. 3 The limits on recovery originally were approximately U.S.$8,300 for personal injuries and U.S.$9.07 per pound (U.S.$20 per kilo) for damaged cargo or luggage. Id., Art. 22. 4 In 1998, the United States adopted Montreal Protocol No. 4 to the Warsaw Convention, which replaced the term “willful misconduct” in Article 25 of the Convention with language as used in the Hague Protocol, infra note 5. See Montreal Protocol No. 4 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, as Amended by the Protocol Done at The Hague on September 8, 1955 [hereinafter Montreal Protocol No. 4], S. Exec. Rep. No. 105-20, at 21–32 (1998). 5 Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, Sept. 28, 1955, 478 UNTS 371 [hereinafter Hague Protocol]. 6 In Chubb & Son, Inc. v. Asiana Airlines, 214 F.3d 301, 310–13 (2d Cir. 2000), the Second Circuit held that since the United States had ratified the Warsaw Convention but had not ratified the Hague Protocol, and the Republic of Korea had ratified the Hague Protocol but had not ratified the Warsaw Convention, there were no relevant treaty relations between the United States and Korea. Consequently, the Bush administration requested in July 2002 that the Senate grant advice and consent to ratification of the Hague Protocol as a means of addressing relations with those states that are neither parties to the Warsaw Convention nor yet parties to the new 1999 Montreal Convention, infra note 8, but are party to the Hague Protocol. See Message from the President of the United States Transmitting Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, S. Treaty Doc. No. 107-14 (2002). The Senate granted advice and consent on July 31, 2003. See 14 Cong. Rec. S10870 (daily ed. July 31, 2003). The United States deposited its instrument of ratification on September 15, 2003, and the Protocol entered into force for the United States on December 14. 1
P1: OYK 0521750717c06
CB951-Murphy
150
0 521 75071 7
August 6, 2005
11:59
United States Practice in International Law 2002–2004
of the Warsaw Convention and its related instruments. Later, those countries insisted that the liability limits be waived in their entirety.7 This creation of a patchwork of liability regimes worldwide prompted the International Civil Aviation Organization (ICAO) to launch negotiations in 1997 for a new convention, which was adopted and opened for signature in 1999. When transmitting to the Senate this Convention for the Unification of Certain Rules for International Carriage by Air8 (known as the “Montreal Convention”), the Department of State noted: The Convention, at Article 21, eliminates all arbitrary limits on air carrier liability with respect to accident victims. The carrier may avoid liability for the full amount of damages only if it proves that it was not negligent or that a third party was solely responsible for the damages. Thus, victims or their heirs may recover all provable damages allowed under applicable State law, in contrast to the arbitrary caps under the Warsaw Convention and its related instruments. As a further benefit for accident victims, Article 21 holds carriers strictly liable for the first 100,000 [Special Drawing Rights9 ] of proven damages for each passenger, i.e., the carrier may not avoid liability for this amount, even if the carrier can prove that the harm was not caused by its negligence. The only exception to this strict liability is that the carrier may be able to avoid paying any damages under the exoneration (i.e., contributory negligence) provisions of Article 20. Article 22 generally preserves limits on liability in relation to delay, baggage, and cargo. These limits – 4,150 SDR (approximately $5,600) for delay of passengers; 1,000 SDR (approximately $1,350) per passenger for claims related to baggage; 17 SDR (approximately $23) per kilogram for cargo – follow precedents set by the Warsaw Convention, as amended. . . . .... The Convention’s provision on jurisdiction, Article 33, reflects the U.S. success in achieving a key U.S. objective with regard to the Convention – the creation of a “fifth jurisdiction” to supplement the four bases of jurisdiction provided under the Warsaw Convention. Article 33(1), like the Warsaw Convention, allows a suit to be brought against a carrier in the country: (1) of its incorporation, (2) of its principal place of business, (3) where the ticket was purchased, and (4) of destination of the passenger. Article 33(2) of the new Convention allows cases involving the death or injury of a passenger to be brought in the country of the passenger’s principal and permanent residence, so long as the carrier provides service to that country, either directly or via a code share or other similar arrangement with another carrier, and the carrier conducts business there from premises leased or owned by it or by a carrier with which it has a commercial arrangement, for example, a code-share arrangement. Given the number of carriers whose operations in the United States satisfy these criteria, this fifth jurisdiction provision should ensure that nearly all U.S. citizens and other permanent residents of the United States have access to U.S. courts to pursue claims under the Convention.10 On July 31, 2003, the U.S. Senate consented to the ratification of the convention, subject to the following reservation: Pursuant to Article 57 of the Convention, the United States of America declares that the Convention shall not apply to international carriage by air performed and operated directly by the 7 See Tory A. Weigand, Accident, Exclusivity, and Passenger Disturbances Under the Warsaw Convention, 16 Am. U. Int’l L. Rev. 891, 902–10 (2001). 8 Convention for the Unification of Certain Rules for International Carriage by Air, Montreal, May 28, 1999, S. Treaty Doc. No. 106-45, at 28 (2000). 9 The Special Drawing Right (SDR) is an artificial “basket” currency developed by the International Monetary Fund for internal accounting purposes. See International Monetary Fund, Special Drawing Rights (SDRs): A Factsheet (2003), at . The value of SDR 100,000 as of December 2004 was about U.S.$153,000. 10 Message from the President of the United States Transmitting the Convention for the Unification of Certain Rules for International Carriage by Air, Montreal, May 28, 1999, S. Treaty Doc. No. 106-45, at X–XII (2000).
P1: OYK 0521750717c06
CB951-Murphy
0 521 75071 7
August 6, 2005
11:59
International Oceans, Environment, Health, and Aviation Law
151
United States of America for non-commercial purposes in respect to the functions and duties of the United States of America as a sovereign State.11 On September 5, the United States deposited its instrument of ratification (containing the abovestated reservation) with ICAO, becoming the thirtieth state to do so.12 Pursuant to Article 53(6) of the convention, it entered into force sixty days later.
11 See 149 Cong. Rec. S10870 (daily ed. July 31, 2003). For the Senate Foreign Relations Committee’s report on the convention, which concluded that no implementing legislation was required, see S. Exec. Rep. No. 108-8 (2003). 12 See U.S. Dep’t of State Press Release on Ratification of the 1999 Montreal Convention (Sept. 5, 2003), at .
P1: OYK 0521750717c07
CB951-Murphy
0 521 75071 7
August 6, 2005
19:14
Chapter VII International Economic Law Overview During the course of 2002–2004, the United States remained fully engaged in the work of multilateral financial institutions. The Bush Administration evinced interest in reducing the debt of developing states and initiated a unique program for extensive foreign aid to those states identified as best likely to use the aid wisely, a program known as the “Millennium Challenge Account.” In the area of trade, the United States concluded many bilateral free trade agreements, several of which contained important new provisions on protections for foreign investment. These new approaches to foreign investment were then captured in a new “model” U.S. bilateral investment treaty, which was used for the first time with Uruguay. The United States also concluded a regional free trade agreement with Central American states (known as CAFTA), and continued its efforts to achieve a Free Trade Agreement of the Americas (FTAA). The existing North American Free Trade Agreement (NAFTA)1 continued to operate among Canada, Mexico, and the United States, and led to several decisions by dispute resolution panels on issues relevant to the law of state responsibility. With respect to global trade, the United States experience with World Trade Organization dispute settlement continued to prove largely favorable, although on certain occasions the United States incurred sanctions or was forced to alter its laws when found noncompliant with U.S. obligations under WTO agreements. Several of the main themes of U.S. approaches to international economic law in this period were captured in the December 2003 trade policy review of the United States written by the WTO secretariat. 1. The United States has overcome several shocks since its last Trade Policy Review in 2001, helped by the contribution of its open and transparent trade regime to the highly efficient U.S. economy. Forceful counter-cyclical policies made a recession in 2001 short and shallow, and underpinned subsequent growth. However, barriers to market access persisted in a few, but important areas, which detracts from the market-based solutions that have promoted U.S. welfare so well. Assistance to selected activities such as agriculture and steel has burdened U.S. consumers and taxpayers, and affected global trade because of the importance of the U.S. economy. 2. Since 2001, the United States has taken further steps to liberalize its trade regime, both unilaterally and through negotiations; liberalization has been carried out on both [most-favorednation] and preferential bases. Competition in many domestic markets has thus increased, and helped maintain the drive for structural change and efficient resource allocation, which characterizes the economy as a whole. Trading partners have benefited as well, as the United States remains the world’s largest single importer and a main engine of growth. Deepening and securing such beneficial interdependency has historically played a central role in U.S. trade policy; achieving this through the multilateral system offers the United States unique advantages in view of the distinctive global reach of its trade and investment interests. The United States thus has a major stake and a key role in bringing about a successful conclusion to the Doha Development Agenda, and thereby also contributing to the stability of international trade relations and to growth in the world economy. .... 1 North American Free Trade Agreement, Dec. 17, 1992, U.S.–Can.–Mex., 32 ILM 289 & 605 (1993). NAFTA was implemented by the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057 (1993) (codified as amended at 19 U.S.C. §§3301–3473 (2000)).
152
P1: OYK 0521750717c07
CB951-Murphy
0 521 75071 7
August 6, 2005
19:14
International Economic Law
153
6. The United States considers the multilateral trading system as the core of its current commitments in U.S. international trade relations. In the ongoing multilateral negotiations, the United States has made contributions or proposals in a majority of trade topics discussed in the WTO, including agriculture, industrial goods and services. The United States has also continued to be an active complainant and respondent in the WTO dispute settlement mechanism. From mid-2001 to mid-2003, out of around 60 new consultations requested, the United States was a complainant in one tenth of cases and respondent in nearly half. Many cases related to its application of trade remedy laws to steel imports. . . . 7. The Trade Promotion Authority (TPA) Act of 2002, a successor to “fast-track” authority, brings greater predictability to trade negotiations, because Congress, when considering legislation for a new trade agreement, can approve or reject the legislation but must do so without amendment and within a fixed period. . . . 8. The United States has stated its intention to work also on regional and bilateral initiatives to promote free trade, thus exerting its leverage for openness and creating a climate for “competitive liberalization.” As a result, in addition to the two free-trade agreements (FTAs) in force at the time of its previous review, as of June 2003 the United States had concluded three FTAs and was negotiating new agreements with several countries. Unilateral preferences in favour of developing countries have also been expanded; these preferences may be conditional on compliance with various U.S. policy objectives. . . . 9. In the aftermath of the September 2001 attacks, security consideration[s] have become an essential component of trade and investment policy. . . . It is important that the new U.S. securityrelated policies and practices do not become unnecessary trade or investment barriers.2
International Finance and Tax U.S. “Millennium Challenge Account” for Foreign Aid At a meeting in Monterrey, Mexico, in March 2002, some 170 states (including the United States) adopted by acclamation the “Monterrey Consensus” on financing for development.1 Noting the recent shortfalls in resources available to achieve developmental goals, the document focused on means for increasing the effective use of such resources, and provided, for example, that development financing should seek to facilitate direct investment flows. 20. Private international capital flows, particularly foreign direct investment, along with international financial stability, are vital complements to national and international development efforts. Foreign direct investment contributes toward financing sustained economic growth over the long term. It is especially important for its potential to transfer knowledge and technology, create jobs, boost overall productivity, enhance competitiveness and entrepreneurship, and ultimately eradicate poverty through economic growth and development. A central challenge, therefore, is to create the necessary domestic and international conditions to facilitate direct investment flows, conducive to achieving national development priorities, to developing countries, particularly Africa, least developed countries, small island developing States, and landlocked developing countries, and also to countries with economies in transition. 21. To attract and enhance inflows of productive capital, countries need to continue their efforts to achieve a transparent, stable and predictable investment climate, with proper contract 2
Trade Policy Review, United States: Report by the Secretariat, WTO Doc. WT/TPR/S/126 (Dec. 17, 2003). Final Outcome of the International Conference on Financing for Development, UN Doc. A/CONF/198/3 (Mar. 1, 2002) (“Monterrey Consensus”). 1
P1: OYK 0521750717c07
CB951-Murphy
154
0 521 75071 7
August 6, 2005
19:14
United States Practice in International Law 2002–2004
enforcement and respect for property rights, embedded in sound macroeconomic policies and institutions that allow businesses, both domestic and international, to operate efficiently and profitably and with maximum development impact.2 In the lead-up to the conference, the United States advocated that as much as 50 percent of development loans be converted to grants, reasoning that it was preferable to donate funds for health, education, and sanitation projects than to burden developing countries with debts. Other states resisted such a conversion of debt, however, because giving away so much capital would purportedly undermine international financing institutions such as the World Bank.3 In a speech on the closing day of the conference, President Bush announced that he would ask Congress to increase the U.S. budget for foreign aid from its current U.S.$10 billion per year to U.S.$15 billion per year by 2006. He also called for a “new compact” for such development aid – namely, that the United States would provide it contingent upon political, economic, and legal reforms by recipient countries. For decades, the success of development aid was measured only in the resources spent, not the results achieved. Yet pouring money into a failed status quo does little to help the poor and can actually delay the progress of reform. We must accept a higher, more difficult, more promising call. Developed nations have a duty not only to share our wealth, but also to encourage sources that produce wealth: economic freedom, political liberty, the rule of law, and human rights. The lesson of our time is clear: When nations close their markets and opportunity is hoarded by a privileged few, no amount – no amount – of development aid is ever enough. When nations respect their people, open markets, invest in better health and education, every dollar of aid, every dollar of trade revenue and domestic capital is used more effectively.4 President Bush stated that the increased U.S. foreign aid would be channeled through a new “Millennium Challenge Account” (MCA), which would be “devoted to projects in nations that govern justly, invest in their people, and encourage economic freedom.”5 In January 2004, Congress passed and President Bush signed into law the Millennium Challenge Act of 2003,6 which among other things authorized the creation of a “Millennium Challenge Corporation” (MCC) to administer the MCA. The MCC is a government corporation headed by a chief executive officer and overseen by a board of directors chaired by the secretary of state (other board members include the secretary of the treasury, the U.S. trade representative, and the administrator of the U.S. Agency for International Development).7 A developing state may be eligible for assistance if it has a demonstrated commitment to three broad criteria: good governance; health and education for its people; and sound economic policies that foster enterprise and entrepreneurship. To that end, the MCC uses sixteen “indicators” drawn from reputable sources (e.g., Freedom House, World Bank Institute) to measure country performance on the three criteria. To qualify, candidate countries are expected to score above the median on half of the indicators in each of three criteria areas, and above the median on a “corruption” indicator. The board of directors reviews the results developed by the MCC, takes into account factors such as data gaps or lags and other matters that Congress has indicated should receive consideration, and selects the countries that will be eligible for MCA assistance.8 2
Id., annex, 5–6, paras. 20–21. See Joseph Kahn, Treasury Chief Accuses World Bank of Harming Poor Countries, N.Y. Times, Feb. 21, 2002, at A11. Remarks to the United Nations Financing for Development Conference, Cintermex Convention Center, Monterrey, Mexico, 38 Weekly Comp. Pres. Doc. 483, 483 (Mar. 22, 2002). 5 Id. 6 The law was enacted as Division D, Title VI, of the Consolidated Appropriations Act for 2004, Pub. L. No. 108-199, 118 Stat. 3, 211-26 (2004) (to be codified at 22 U.S.C. §§7701–18). 7 Information on the MCC may be found at . 8 See MCC Report to Congress on the Selection of MCA Eligible Countries for FY 2004 (2004), at . 3 4
P1: OYK 0521750717c07
CB951-Murphy
0 521 75071 7
August 6, 2005
19:14
International Economic Law
155
The selection of a developing state as eligible does not ensure that the state will receive MCA funding. After the Board determines that a state is eligible, the MCC works with the potential recipient to develop a “compact” that sets forth a commitment by the recipient to meet agreed performance benchmarks. Developing states are expected to identify their own highest priorities for achieving sustainable economic growth and poverty reduction. If agreement is reached on funding for particular projects, the government of the recipient state signs the compact agreement with the MCC and then manages the implementation of the projects. The compact is then monitored by MCC staff, its administrator within the recipient state, and by independent experts employed by the MCC. Congress appropriated U.S.$1 billion in initial funding for fiscal year 2004. (President Bush pledged to seek increased funding for the MCA to U.S.$5 billion a year starting in fiscal year 2006 which, if done, would be roughly a 50 percent increase over 2002 U.S. core development assistance.) In May 2004, the board of directors announced the first sixteen states who were eligible to apply for MCA assistance for fiscal year 2004. In November, the board selected sixteen states as eligible for assistance using fiscal year 2005 funding.9 U.S.–Japan Tax Treaty The United States has developed a series of bilateral tax treaties with other states setting forth rules concerning the taxation of income that arises in one state but is received by residents of the other state. Such agreements typically provide for maximum source-state tax rates for various types of income and seek to protect individuals from paying taxes to both states on the same income (double taxation). As of 1994, the United States had concluded a network of fifty-six bilateral income tax treaties covering sixty-four countries (including all twenty-nine countries of the Organisation for Economic Co-operation and Development). Moreover, in 1996, the United States developed a model income tax convention,1 which has since been used to develop tax treaties with various states. The U.S. and Japanese economies are the two largest in the world, accounting for approximately 40 percent of its gross domestic product.2 In 1971, the United States and Japan signed a tax treaty, which entered into force in 1972.3 Over time, however, both U.S. and Japanese tax laws and policies changed significantly, leading the United States to seek a new treaty with Japan. On November 6, 2003, the United States and Japan signed just such a treaty,4 which was transmitted to the Senate in December.5 In testimony before the Senate Foreign Relations Committee on February 25, 2004, the chief negotiator of the new treaty, Barbara Angus, explained the overall purpose and operation of such tax treaties. One of the primary functions of tax treaties is to provide certainty to taxpayers regarding the threshold question with respect to international taxation: whether the taxpayer’s cross-border activities will subject it to taxation by two or more countries. Treaties answer this question by establishing the minimum level of economic activity that must be engaged in within a country by a resident of the other country before the first country may tax any resulting business profits. In general terms, tax treaties provide that if the branch operations in a foreign country have sufficient 9 See MCC Report to Congress on the Selection of MCA Eligible Countries for FY 2005 (2004), at . 1 U.S. Model Income Tax Convention (Sept. 20, 1996), at ; see also Richard L. Doernberg & Kees Van Raad, The 1996 US Model Income Tax Convention: Analysis, Commentary & Comparison (1997). The 1996 model convention was preceded by a 1981 U.S. Model Tax Convention and a 1995 OECD Model Tax Convention. 2 See Statement of Chairman Richard G. Lugar, Hearing Before the Senate Foreign Relations Comm. on Pending Income Tax Agreements (Feb. 25, 2004), at . 3 Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income with Related Notes, Mar. 8, 1971, U.S.–Japan, 23 UST 967. 4 Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, Nov. 6, 2003, U.S.–Japan, S. Treaty Doc. No. 108-14, at 1 (2003) [hereinafter “U.S.–Japan Tax Treaty”]. 5 Message from the President of the United States Transmitting the Taxation Convention with Japan, S. Treaty Doc. No. 108-14, at III (2003).
P1: OYK 0521750717c07
CB951-Murphy
156
0 521 75071 7
August 6, 2005
19:14
United States Practice in International Law 2002–2004
substance and continuity, the country where those activities occur will have primary (but not exclusive) jurisdiction to tax. In other cases, where the operations in the foreign country are relatively minor, the home country retains the sole jurisdiction to tax its residents. In the absence of a tax treaty, a U.S. company operating a branch or division or providing services in another country might be subject to income tax in both the United States and the other country on the income generated by such operations. Although the United States generally provides a credit against U.S. tax liability for foreign taxes paid, there remains potential for resulting double taxation that could make an otherwise attractive investment opportunity unprofitable, depriving both countries of the benefits of increased cross-border investment. Tax treaties protect taxpayers from potential double taxation through the allocation of taxing rights between the two countries. This allocation takes several forms. First, the treaty has a mechanism for resolving the issue of residence in the case of a taxpayer that otherwise would be considered to be a resident of both countries. Second, with respect to each category of income, the treaty assigns the “primary” right to tax to one country, usually (but not always) the country in which the income arises (the “source” country), and the “residual” right to tax to the other country, usually (but not always) the country of residence of the taxpayer. Third, the treaty provides rules for determining which country will be treated as the source country for each category of income. Finally, the treaty provides rules limiting the amount of tax that the source country can impose on each category of income and establishes the obligation of the residence country to eliminate double taxation that otherwise would arise from the exercise of concurrent taxing jurisdiction by the two countries. .... In addition to reducing potential double taxation, treaties also reduce “excessive” taxation by reducing withholding taxes that are imposed at source. Under U.S. domestic law, payments to non-U.S. persons of dividends and royalties as well as certain payments of interest are subject to withholding tax equal to 30 percent of the gross amount paid. Most of our trading partners impose similar levels of withholding tax on these types of income. This tax is imposed on a gross, rather than net, amount. Because the withholding tax does not take into account expenses incurred in generating the income, the taxpayer frequently will be subject to an effective rate of tax that is significantly higher than the tax rate that would be applicable to net income in either the source or residence country. The taxpayer may be viewed, therefore, as having suffered “excessive” taxation. Tax treaties alleviate this burden by setting maximum levels for the withholding tax that the treaty partners may impose on these types of income or by providing for exclusive residence-country taxation of such income through the elimination of source-country withholding tax. Because of the excessive taxation that withholding taxes can represent, the United States seeks to include in tax treaties provisions that substantially reduce or eliminate source-country withholding taxes. Our tax treaties also include provisions intended to ensure that cross-border investors do not suffer discrimination in the application of the tax laws of the other country. This is similar to a basic investor protection provided in other types of agreements, but the non-discrimination provisions of tax treaties are specifically tailored to tax matters and therefore are the most effective means of addressing potential discrimination in the tax context. The relevant tax treaty provisions provide guidance about what “national treatment” means in the tax context by explicitly prohibiting types of discriminatory measures that once were common in some tax systems. At the same time, tax treaties clarify the manner in which possible discrimination is to be tested in the tax context. Particular rules are needed here, for example, to reflect the fact that foreign persons that are subject to tax in the host country only on certain income may not be in the same position as domestic taxpayers that may be subject to tax in such country on all their income.6
6 Testimony of Barbara M. Angus, International Tax Counsel, U.S. Dep’t of the Treasury, Hearing Before the Senate Foreign Relations Comm. on Pending Income Tax Agreements (Feb. 25, 2004), at .
P1: OYK 0521750717c07
CB951-Murphy
0 521 75071 7
August 6, 2005
19:14
International Economic Law
157
Angus noted that, as compared with the existing U.S.–Japan tax treaty, the new treaty would substantially lower the maximum rates for withholding taxes on cross-border interest, royalty, and dividend payments, bringing the limits in line with current U.S. policy preferences.7 Further, the new treaty would significantly reduce withholding taxes with respect to cross-border dividends. The new treaty would completely eliminate source-country withholding taxes of royalties8 – the first time that Japan has agreed to such elimination. Instead, royalties would be taxed exclusively by the state of residence on a net basis in the same manner as business profits. Finally, the new treaty eliminates source-country withholding taxes for significant categories of interest, including interest earned by financial institutions.9 In March 2004, the Senate Foreign Relations Committee reported favorably on the new tax treaty to the full Senate,10 which then approved the treaty by unanimous consent. On March 30, the new treaty entered into force upon the exchange of the instruments of ratification.
Bilateral Trade 2002 Enactment of Trade-Promotion Authority In 1974, Congress enacted legislation providing the president with the authority to negotiate trade agreements that could then be submitted to both houses of Congress under special procedures for an expedited “up-or-down” majority vote with no amendments. The authority strengthened the president’s ability to assert to trade partners that he was empowered to negotiate such agreements on behalf of the United States, since there would be no risk of Congress altering the proposed agreement (at most, Congress could simply reject it). The authority also ensured that an agreement would be acted on without delay by Congress. Originally referred to as “fast-track” authority, the authority lapsed in 1994 and was not reenacted despite the efforts of President Clinton.1 On August 6, 2002, President Bush signed into law a “trade-promotion” authority act providing for the same procedures.2 The measure was very closely contested in the House of Representatives, where it passed by only a three-vote margin, 215 to 2123 (versus the Senate, where the margin was 64 to 34). In order to gain the support of some members of Congress, the law included new trade-adjustment benefits, such as health insurance subsidies to workers who lose their jobs because of shifts in imports and exports, or because their companies shift production overseas.4 The law sets forth overall trade-negotiating objectives, including: “to obtain more open, equitable, and reciprocal access;” “to ensure that trade and environmental policies are mutually supportive;” and “to promote respect for worker rights and the rights of children consistent with the core labor standards of the [International Labour Organization].”5 The law also sets forth more detailed negotiating objectives specific to issues such as trade in services, foreign investment, intellectual property, transparency, electronic commerce, agriculture, textiles, labor, and the environment.6 The president is authorized to conclude agreements regarding tariff and nontariff barriers,7 but must notify Congress of his intent to do so at least ninety days before initiating negotiations, and must consult with Congress before commencing and also before concluding the negotiations.8 Further, ninety days before the president 7
Id.; see U.S.–Japan Tax Treaty, supra note 4, Art. 10. U.S.–Japan Tax Treaty, supra note 4, Art. 12. Id., Art. 11. 10 Taxation Convention with Japan (Treaty Doc. 108-14), S. Exec. Rep. No. 108-9 (2004). 1 See Sean D. Murphy, United States Practice in International Law, Vol. 1: 1999–2001, at 219 (2002). 2 Bipartisan Trade Promotion Authority Act of 2002, Div. B, Title XXI, Trade Act of 2002, Pub. L. No. 107-210, 116 Stat. 933 (2002). 3 148 Cong. Rec. H5986 (daily ed. July 26, 2002); Mike Allen & Juliet Eilperin, House Backs Trade Power for President, Wash. Post, July 28, 2002, at A1. 4 The law also includes Customs Service reauthorization provisions and renewals of the Generalized System of Preferences and the Andean Trade Preference Act. 5 Bipartisan Trade Promotion Authority Act of 2002, supra note 2, §2102(a). 6 Id. §2102(b). 7 Id. §2103(b). 8 Id. §2104(a) & (d). 8 9
P1: OYK 0521750717c07
CB951-Murphy
158
0 521 75071 7
August 6, 2005
19:14
United States Practice in International Law 2002–2004
enters into the trade agreement, he must notify Congress of his intention to do so and must publish the proposed agreement in the Federal Register.9 The president may then enter into the agreement but must thereafter propose to Congress the implementing legislation necessary to bring the United States into compliance with it. Both houses of Congress then consider the agreement and the proposed implementing legislation pursuant to the “trade authorities procedures” contained in section 151 of the Trade Act of 1974 (involving the expedited “up-or-down” vote).10 The trade agreement enters into force for the United States only after the implementing legislation is enacted into law.11 This new trade-promotion authority has been granted initially through June 1, 2005, but will be automatically extended for two years unless Congress adopts a resolution of disapproval.12 When signing the new law, President Bush stated: Trade promotion authority gives the United States an important tool to break down trade barriers with all countries. We’ll move quickly to build free trade relationships with individual nations, such as Chile and Singapore and Morocco. We’ll explore free trade relationships with others, such as Australia. The United States will negotiate a Free Trade Area of the Americas, and pursue regional agreements with the nations of Central America and the Southern Africa Customs Union. We’ll move forward globally, working with all nations to make the negotiations begun last year in Doha a success.13 U.S.–Chile Free Trade Agreement In December 2000, the United States and Chile commenced negotiation of a bilateral free trade agreement. After fourteen negotiating sessions, the two countries completed an 800-page text in December 2002,1 the first comprehensive trade agreement between the United States and a South American country. More than 85 percent of bilateral trade in consumer and industrial products will become tariff free as soon as the agreement enters into force, and most remaining tariffs will be eliminated within four years thereafter.2 In addition, approximately 75 percent of bilateral trade in farm goods will become tariff free within that same four-year period, with all remaining tariffs on such goods eliminated after twelve years.3 The agreement provides for bilateral access by services industries, such as banks, insurance and telecommunications companies, express-delivery companies, and professional firms.4 Various protections and obligations for nondiscriminatory treatment are included with respect to intellectual property rights, covering products such as software, music, and videos.5 Both parties commit to enforce their national labor and environmental laws,6 and the agreement creates a system for monetary assessments as a means of enforcing the parties’ labor and environmental obligations.7 The agreement’s core obligations are subject to dispute settlement provisions, which initially call for compliance through consultation and then, as necessary, for submission of the dispute to a panel of experts for binding arbitration.8
9
Id. §2105(a)(1). Id. §2103(b)(3). Id. §2105(a)(1)(D). 12 Id. §2103(a)(1)(A), (c). 13 Remarks by the President at Signing of the Trade Act of 2002, 38 Weekly Comp. Pres. Doc. 1317, 1319 (Aug. 6, 2002). 1 Free Trade Agreement, U.S.–Chile, June 6, 2003, at [hereinafter U.S.–Chile FTA]. 2 Id., ch. 3. 3 Id. 4 Id., ch. 11. 5 Id., ch. 17. 6 Id., chs. 18–19. 7 Id., Art. 22.16. 8 Id., ch. 10, sec. B (investor-state disputes); ch. 22 (interstate disputes). The dispute settlement provisions are based largely on chapters 11 and 20 of the North American Free Trade Agreement (NAFTA), but with certain modifications. See NAFTA, Dec. 17, 1992, Can. – Mex.–U.S., 32 ILM 289 & 605, 639, 693 (1993) (entered into force Jan. 1, 1994). 10 11
P1: OYK 0521750717c07
CB951-Murphy
0 521 75071 7
August 6, 2005
19:14
International Economic Law
159
For the purpose of providing a secure, predictable legal environment for investors, the agreement’s chapter on investment provides detailed provisions on “national treatment” and “most-favored-nation treatment” for investors.9 Moreover, in calling for a “minimum standard of treatment” for investors, the chapter on investment expressly clarifies that such treatment is that which is required under customary international law; in other words, stating that such law includes “fair and equitable treatment” and “full security and protection” does not call for treatment beyond the requirements of customary international law.10 Further, the investment chapter defines those phrases as follows: (a) “fair and equitable treatment” includes the obligation not to deny justice in criminal, civil, or administrative adjudicatory proceedings in accordance with the principle of due process embodied in the principal legal systems of the world; and (b) “full protection and security” requires each Party to provide the level of police protection required under customary international law.11 Article 10.9(1) of the investment chapter prohibits expropriation or nationalization of an investment, “directly or indirectly through measures equivalent to expropriation or nationalization,”12 except for a public purpose, in a nondiscriminatory manner, on payment of prompt, adequate and effective compensation, and in accordance with due process of law.13 An annex to the chapter interprets what is meant by “direct” and “indirect” expropriation: 3. Article 10.9(1) addresses two situations. The first is direct expropriation, where an investment is nationalized or otherwise directly expropriated through formal transfer of title or outright seizure. 4. The second situation addressed by Article 10.9(1) is indirect expropriation, where an action or series of actions by a Party has an effect equivalent to direct expropriation without formal transfer of title or outright seizure. (a) The determination of whether an action or series of actions by a Party, in a specific fact situation, constitutes an indirect expropriation, requires a case-by-case, fact-based inquiry that considers, among other factors: (i) the economic impact of the government action, although the fact that an action or series of actions by a Party has an adverse effect on the economic value of an investment, standing alone, does not establish that an indirect expropriation has occurred; (ii) the extent to which the government action interferes with distinct, reasonable investmentbacked expectations; and (iii) the character of the government action. 9
U.S.–Chile FTA, supra note 1, Arts. 10.2, 10.3. Id., Art. 10.4. This clarification is a U.S. reaction to the decision by a NAFTA panel that NAFTA Article 1105(1) establishing a minimum standard of treatment calls for protections beyond those contained in customary international law. See Sean D. Murphy, United States Practice in International Law, Vol. 1: 1999–2001, at 237–38, 241 (2002); see also Mondev Int’l v. United States, Award, para. 120 (NAFTA Ch. 11 Arb. Trib. Oct. 11, 2002), at . 11 U.S.–Chile FTA, supra note 1, Art. 10.4(2)(a), (b). 12 This language differs from the comparable language in NAFTA, which states that “no Party may directly or indirectly nationalize or expropriate an investment of an investor of another Party in its territory or take a measure tantamount to nationalization or expropriation of such an investment.” NAFTA, Art. 1110(1) (emphasis added). Some parties in NAFTA dispute resolution cases have argued that the NAFTA language encompassed actions falling outside traditional law on expropriation. Although NAFTA panels did not embrace that interpretation, see Metalclad Corp. v. Mexico, Award, para. 103 (NAFTA Ch. 11 Arb. Trib. Aug. 30, 2000), Pope & Talbot, Interim Award, para. 104 (NAFTA Ch. 11 Arb. Trib. June 26, 2000), S. D. Myers, Inc. v. Canada, Partial Award, paras. 279–88 (NAFTA Ch. 11 Arb. Trib. Nov. 13, 2000), excluding the reference to “measures tantamount” in the agreement with Chile is expected to provide greater clarity in the scope of measures at issue. 13 U.S.–Chile FTA, supra note 1, Art. 10.9(1). 10
P1: OYK 0521750717c07
CB951-Murphy
160
0 521 75071 7
August 6, 2005
19:14
United States Practice in International Law 2002–2004 (b) Except in rare circumstances, nondiscriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety, and the environment, do not constitute indirect expropriations.14
Further, the chapter on investment states that it shall not be “construed to prevent a Party from adopting, maintaining, or enforcing any measure otherwise consistent with this Chapter that it considers appropriate to ensure that investment activity in its territory is undertaken in a manner sensitive to environmental concerns.”15 In accordance with the Trade Act of 200216 and its 90-day-notice requirement, President Bush notified Congress in January 2003 of his intention to enter into the agreement with Chile.17 On June 6, the United States and Chile signed the agreement.18 On June 9, the International Trade Commission (ITC) reported to the president and to Congress regarding the agreement’s likely impact on U.S. industrial sectors and the economy as a whole, concluding that the impact would probably be “negligible to very small.”19 The president then submitted the agreement to Congress for approval – along with the proposed implementing legislation, a description of administrative changes needed to carry out the agreement, and other supporting documentation. After receiving the agreement and additional materials, the House and Senate in mid-2003 reviewed the implementing package on an expedited basis, and took an “up-or-down” majority vote (no amendments) on whether to join the agreement. The agreement was approved in July by the U.S. House of Representatives (270 to 156) and by the Senate (65 to 32). In September, President Bush signed the necessary implementing legislation for the agreement.20 In January 2004 – sixty days after the two governments notified each other that their respective national procedures had been completed21 – the agreement entered into force. In the three months following entry into force of the agreement, total U.S. exports to Chile increased by 24 percent compared to the same period of 2003 (growing from U.S.$617.29 million to U.S.$766.79 million), as compared with an increase of 13 percent in U.S. exports to the world in the first quarter of 2004.22 In 2001, during the negotiation of the agreement, nongovernmental organizations asked the Office of the U.S. Trade Representative (USTR) for certain records pertaining to the negotiations. USTR had released some records, but it withheld others based on exemptions contained in the Freedom of Information Act (FOIA)23 for documents that are classified or that are “intra-agency” or “interagency” documents revealing an agency’s deliberative process. In December 2002, the district court permitted the withholding of the classified documents but also found that communications between the United States and Chile, in the course of treaty negotiations, are not interagency communications within the meaning of the FOIA exemption. Moreover, the factual portions of documents summarizing those communications are also not exempted as intra- or interagency documents.24 Consequently, the court ordered that those documents be released, but stayed its decision pending an appeal.25 Thereafter, U.S. officials asserted that U.S. trade-negotiation documents are now being routinely classified for 14
Id., Annex 10-D, paras. 3–4. Id., Art. 10.12. 16 Trade Act of 2002, Pub. L. No. 107-210, 116 Stat. 933 (2002) (contains as Division B the Bipartisan Trade Promotion Authority Act of 2002). 17 See Message to the Congress Transmitting Notification of Intention to Enter into a Free Trade Agreement with Chile, 39 Weekly Comp. Pres. Doc. 126 ( Jan. 30, 2003). 18 See USTR Press Release on U.S. and Chile Sign Historic Free Trade Agreement ( June 6, 2003), at . 19 Int’l Trade Comm., U.S.-Chile Free Trade Agreement: Potential Economywide and Selected Sectoral Effects, at x ( June 2003), at . 20 See United States-Chile Free Trade Agreement Implementation Act, Pub. L. No. 108-77, 117 Stat. 909 (2003). 21 See U.S.–Chile FTA, supra note 1, Art. 24.4. 22 USTR Press Release on The U.S.–Chile Free Trade Agreement: An Early Record of Success ( June 4, 2004), at . 23 5 U.S.C. §552 (2000). 24 Ctr. for Int’l Envtl. Law v. U.S.T.R., 237 F.Supp.2d 17 (D.D.C. 2002). 25 Ctr. for Int’l Envtl. Law v. U.S.T.R., 240 F.Supp.2d 21 (D.D.C. 2003). 15
P1: OYK 0521750717c07
CB951-Murphy
0 521 75071 7
August 6, 2005
19:14
International Economic Law
161
national security reasons as a means of preventing their disclosure. Consequently, as a result of the district court’s decision, even fewer documents than before are subject to disclosure.26 U.S.–Singapore Free Trade Agreement In December 2000, the United States and Singapore commenced negotiation of a bilateral free trade agreement. In January 2003, after eleven negotiating sessions, the two countries completed a 1,400page text,1 the first comprehensive trade agreement between the United States and an Asian country.2 Under the agreement, Singapore will eliminate its tariffs on imports of U.S. goods immediately, while the United States will eliminate tariffs on imports of Singapore goods over time, with the least sensitive products entering the United States duty free upon the agreement’s entry into force and the most sensitive products entering duty free after a ten-year period.3 Many of the agreement’s provisions are similar to those included in the U.S.–Chile free trade agreement (discussed above). In accordance with the Trade Act of 2002 and its 90-day-notice requirement,4 President Bush notified Congress in January 2003 of his intention to enter into the agreement with Singapore.5 On May 6, the United States and Singapore signed the agreement. On June 9, the International Trade Commission (ITC) reported to the president and to Congress regarding the agreement’s likely impact on U.S. industrial sectors and the economy as a whole, concluding that the impact would probably be “negligible to very small.”6 The agreement was approved in July by the U.S. House of Representatives (272 to 155) and by the Senate (66 to 32). In September, President Bush signed the necessary implementing legislation for the agreement.7 The agreement then entered into force in January 2004. U.S.–Australia Free Trade Agreement In 2002, Australia was the ninth largest export market for U.S. goods (if the European Union is considered a single destination). The total volume of trade in goods and services between the two countries was U.S.$28 billion.1 In November 2002, President Bush authorized the U.S. Trade Representative to notify Congress of his intention to enter into negotiations for a free trade agreement with Australia.2 On February 8, 2004, the United States and Australia concluded negotiations on such an agreement, consisting of twenty-three chapters and four annexes.3 The agreement is the first free trade agreement between the United States and a developed country since 1988, when the U.S.–Canada Free Trade Agreement was concluded. According to the Office of the U.S. Trade Representative, once the accord enters into force, more than 99 percent of U.S. manufactured goods exported to Australia will become tariff free, the most significant immediate reduction of industrial tariffs ever achieved in a U.S. free trade agreement.4 26
See Rosella Brevetti, Trade Officials Say FOIA Case Has Had Chilling Effect on Disclosure, 20 Int’l Trade Rep. (BNA) 705 (2003). Free Trade Agreement, U.S.–Sing., May 6, 2003, at [hereinafter U.S.–Sing. FTA]. 2 See USTR Fact Sheet on Quick Facts: U.S.–Singapore Free Trade Agreement (May 6, 2003). 3 See U.S.–Sing. FTA, supra note 1, ch. 2. 4 Trade Act of 2002, Pub. L. No. 107-210, 116 Stat. 933 (2002) (contains as Division B the Bipartisan Trade Promotion Authority Act of 2002). 5 See Message to the Congress Transmitting Notification of Intention to Enter into a Free Trade Agreement with Singapore, 39 Weekly Comp. Pres. Doc. 127 ( Jan. 30, 2003). 6 Int’l Trade Comm., U.S.-Singapore Free Trade Agreement: Potential Economywide and Selected Sectoral Effects, at x ( June 2003), at . 7 See United States – Singapore Free Trade Agreement Implementation Act, Pub. L. No. 108-78, 117 Stat. 948 (2003). 1 See USTR Press Release on U.S. and Australia Complete Free Trade Agreement (Feb. 8, 2004), at . 2 See Memorandum on Notification to Congress of Trade Negotiation, 38 Weekly Comp. Pres. Doc. 2034 (Nov. 13, 2002). 3 Free Trade Agreement, U.S.–Austl., Mar. 1, 2004, at [hereinafter U.S.–Austl. FTA]. 4 See USTR Press Release on U.S. and Australia Complete Free Trade Agreement, supra note 1. By some estimates, since Australia had been charging about ten times more in tariffs on U.S. manufactured goods than the United States was charging on Australian manufactured goods, eliminating the tariffs may boast U.S. exports of such goods to Australia by about U.S.$2 billion per year. See Elizabeth Becker, U.S. and Australians Reach Wide-Ranging Trade Accord, N.Y. Times, Feb. 9, 2004, at A5. 1
P1: OYK 0521750717c07
CB951-Murphy
162
0 521 75071 7
August 6, 2005
19:14
United States Practice in International Law 2002–2004
Moreover, U.S. agricultural exports to Australia (roughly U.S.$400 million per year) will also receive immediate tariff-free access. While the U.S. market will be further opened up to Australian agricultural exports, the United States will maintain quotas and above-quota tariffs on Australian beef imports; over time, however, the quotas will increase and the tariffs will decrease, subject to certain safeguards. The United States will also maintain quotas and above-quota tariffs on Australian dairy imports. U.S. tariffs on Australian wines will be eliminated within eleven years. Various other provisions of the agreement address access to services and investment, intellectual property rights, government procurement, workers’ rights, and environmental protection.5 The agreement was approved in July 2004 by the U.S. House of Representatives (314 to 109) and the Senate (of 80 to 16).6 In August, President Bush signed the necessary implementing legislation for the agreement.7 In November 2004, the United States and Australia notified each other that their respective internal requirements had been completed, such that the agreement could enter into force in January 2005.8 U.S.–Morocco Free Trade Agreement In 2003, the United States exported approximately U.S.$475 million in goods to Morocco, including aircraft, corn, and machinery. Moroccan tariffs on those goods average more than 20 percent, as compared with an average U.S. tariff on Moroccan imports of 4 percent.1 In October 2002, President Bush authorized the U.S. trade representative to notify Congress of his intention to enter into negotiations for a free trade agreement with Morocco.2 Throughout 2003 and early 2004, the two states engaged in negotiations, which concluded in March 2004. On June 15, the two states signed an agreement consisting of twenty-two chapters and four annexes3 largely tracking provisions contained in the U.S. free trade agreements with Australia, Chile, and Singapore. In addition, the two sides completed various side letters and joint statements on environmental, labor, tax, and other issues. On July 15, the president transmitted to Congress legislation necessary for implementing the agreement.4 On July 21, the Senate approved both the agreement and its implementing legislation by a vote of 85 to 13.5 On the following day the House of Representatives approved the same by a vote of 323 to 99.6 The president signed the implementing legislation on August 17.7 According to the Office of the U.S. Trade Representative, more than 95 percent of bilateral trade in consumer and industrial products will become duty free under the accord, with a phaseout of all other duties within nine years. Duty-free access is provided immediately or over a period of years for most agricultural products, but some U.S. agricultural exports to Morocco will remain exposed to tariffs.8 Further, the agreement with Morocco provides broad access to either state’s market for service industries, using a “negative list” approach whereby all sectors are covered unless specifically excluded. U.S.–Bahrain Free Trade Agreement In 2003, the United States exported approximately U.S.$509 million in goods to Bahrain, including aircraft, machinery, vehicles, and pharmaceutical products. Foreign direct investment between the two 5
See USTR Press Release on U.S. and Australia Complete Free Trade Agreement, supra note 1. See USTR Press Release on Statement of U.S. Trade Representative Robert B. Zoellick Following Senate Approval of the U.S.– Australia Free Trade Agreement ( July 15, 2004), at . 7 See United States–Australia Free Trade Agreement Implementation Act, Pub. L. No. 108-286, 118 Stat. 919 (2004). 8 See USTR Press Release on U.S. and Australia Address FTA Implementation Issues (Nov. 17, 2004), at . 1 See USTR Press Release on United States and Morocco Sign Historic Free Trade Agreement ( June 15, 2004), at . 2 See Memorandum on Notification to Congress of Trade Negotiation, 38 Weekly Comp. Pres. Doc. 1678 (Oct. 1, 2002). 3 Free Trade Agreement, June 15, 2004, U.S.–Morocco, at . 4 See Message to Congress Transmitting Legislation to Implement the United States–Morocco Free Trade Agreement, 40 Weekly Comp. Pres. Doc. 1308 ( July 15, 2004). 5 See 150 Cong. Rec. S8506, S8510 (daily rep. July 21, 2004). 6 See id. at H6615, H6649 (daily rep. July 22, 2004). 7 United States–Morocco Free Trade Agreement Implementation Act, Pub. L. No. 108-302, 118 Stat. 1103 (2004). 8 See USTR Press Release on Free Trade with Morocco (Mar. 2, 2004), at . 6
P1: OYK 0521750717c07
CB951-Murphy
0 521 75071 7
August 6, 2005
19:14
International Economic Law
163
states was approximately U.S.$195 million.1 In August 2003, the U.S. trade representative notified Congress of the president’s intention to enter into negotiations for a free trade agreement with Bahrain2 – the first with a member of the six-nation Gulf Cooperation Council.3 In January 2004, the two states commenced negotiations, which concluded in May. On June 15, the president notified Congress of his intention to sign the agreement.4 On September 14, the two states signed an agreement consisting of twenty-one chapters and four annexes,5 which largely track provisions contained in the U.S. free trade agreements with Australia, Chile, and Singapore. In addition, the two sides completed a draft Memorandum of Understanding on Environmental Cooperation, which highlights existing and intended areas of environmental cooperation between the two states.6 As of the end of 2004, the agreement had not been approved by the Congress. According to the Office of the U.S. Trade Representative, once the accord enters into force (after the passage of implementing legislation), all bilateral trade in consumer and industrial products, all trade in textiles and apparel, and virtually all agricultural trade will become duty free, with a phaseout of all other duties within ten years.7 Further, like the Morocco agreement, the Bahrain agreement provides broad access to either state’s market for service industries, using a “negative list” approach whereby all sectors are covered unless specifically excluded. New U.S. “Model” Bilateral Investment Treaty As of 2004, the United States was party to forty bilateral investment treaties (BITs) and to several trade agreements that contain investment chapters similar to BITs.1 The overall objective in such agreements is to impose restrictions on host governments regarding the treatment of foreign investors and their investments, and to provide a means for binding dispute settlement in the event that disputes arise relating to such treatment. The United States developed a “model” BIT in 1982 to serve as a prototype for the negotiation of new BITs,2 and that model was further updated in 1994. As part of the trade promotion authority (TPA) legislation adopted in 2002, however, Congress issued certain new directives on the negotiation of trade agreements that protect U.S. investment abroad.3 Moreover, in the recent U.S. trade agreements with Chile and Singapore, the U.S. government began deviating from some of the standards of protection contained in the 1994 model BIT – in particular, by including certain provisions not contained in the model BIT, such as on transparency. Consequently, during 2003–2004, the U.S. government pursued a revision of that model and, on February 5, 2004, released a draft of a new model BIT, consisting of thirty-six articles and four annexes.4 The new model contains far more detailed provisions on certain procedural matters, such as access to investor-state dispute settlement (Articles 23–34) and transparency of national laws and proceedings (Article 11), and on certain substantive protections accorded to investors, such as the minimum
1
See USTR Press Release on U.S. and Bahrain Conclude Free Trade Agreement (May 27, 2004), at . See Request for Comments and Notice of Public Hearing Concerning Proposed United States–Bahrain Free Trade Agreement, 68 Fed. Reg. 51,062, 51,063 (Aug. 25, 2003). 3 The other Gulf Cooperation Council members are Kuwait, Oman, Qatar, Saudi Arabia, and United Arab Emirates. 4 See Memorandum on Notification to Congress of Trade Negotiation, 40 Weekly Comp. Pres. Doc. 1083 ( June 18, 2004). 5 Free Trade Agreement, Sept. 14, 2004, U.S.–Bahr., at . 6 Memorandum of Understanding on Environmental Cooperation, Sept. 14, 2004, U.S.–Bahrain, at . 7 See USTR Press Release on Free Trade with Bahrain (May 27, 2004), at . 1 For a listing of U.S. BITs, see U.S. Dep’t of State Fact Sheet on U.S. Bilateral Investment Treaty Program ( July 1, 2003), at . 2 See Mark S. Bergmann, Bilateral Investment Protection Treaties: An Examination of the Evolution and Significance of the U.S. Prototype Treaty, 16 N.Y.U.J. Int’l L. & Pol. 1 (1983); Kathleen Kunzer, Developing a Model Bilateral Investment Treaty, 15 L. & Pol’y Int’l Bus. 273 (1983). 3 See Bipartisan Trade Promotion Authority Act, 19 U.S.C. §3802(b)(3) (Supp. 2002). 4 U.S. Dep’t of State, [Draft] Treaty Between the Government of the United States of America and the Government of Concerning the Encouragement and Reciprocal Protection of Investment (Feb. 5, 2004), at . 2
P1: OYK 0521750717c07
CB951-Murphy
164
0 521 75071 7
August 6, 2005
19:14
United States Practice in International Law 2002–2004
standard of treatment (Article 5 and Annex A) and the applicable standard for expropriation (Article 6 and Annex B).5 New articles also address the inappropriateness of encouraging foreign investment at the expense of protections afforded in national environmental and labor laws (Articles 12 and 13). The Department of State requested that its Advisory Committee on International Economic Policy, a committee of nongovernmental experts representing a wide range of groups, review and comment on the draft model BIT. On January 30, 2004, the advisory committee’s subcommittee on investment issued a report outlining the views of its members, which it summarized as follows: [T]he Members who represent investors do not believe that the 1994 model BIT needs to be or should be changed. The 1994 model BIT offers strong protections against the substantial risks that face U.S. investors abroad, as demonstrated by ten years of case law, and it continues to reflect modern international law and investment practice. These Members believe that the draft model BIT circulated in December [2003], by contrast, represents a substantial weakening of investor protections that in large part are not compelled by the TPA legislation nor justified by any reasonable assessment of risk to the United States as a defendant against potential claims. These Members believe that foreign investors already enjoy under U.S. law protections comparable to those found in the 1994 model BIT. By contrast, U.S. investors abroad often confront undeveloped legal systems without independent judiciaries. These Members therefore believe that adapting the model BIT to the investment chapters of the recent FTAs serves only to perpetuate a downward trend in protection for U.S. investors, while their European competitors continue to benefit from BITs that now set the standard for investor protection. On the other hand, the Members who represent environmental and labor organizations are concerned that even with the new provisions, the draft model BIT fails to protect adequately the authority of governments to adopt and maintain measures that protect important public interests. According to these Members, there has not been much case law under the 1994 model BIT, but, in their view, the 1994 model BIT abrogates long-standing rules of customary international law and provides inadequate transparency and opportunity for public participation. These Members believe that these flaws should be remedied but that the draft model BIT does not do so. These Members remain concerned that foreign investors would enjoy greater rights under the draft model BIT than they would enjoy under U.S. law. In addition, these Members believe that the model BIT should include obligations to change domestic laws to raise standards, when necessary, for environmental protection and the protection of workers’ rights. Further, these Members believe that the draft model BIT should obligate investors to meet those standards. Members who represent labor groups object to any treaty that would facilitate outbound investment that would cause jobs or production to be transferred out of the United States.6 Despite these concerns, the U.S. government announced in November 2004 that it had completed the new model BIT.7 Moreover, the government used the “2004 Model BIT” to negotiate a bilateral investment treaty with Uruguay, which was signed on October 25, 2004.8 As such, the BIT with Uruguay is substantively similar to the investment chapters of the free trade agreements the United States concluded during 2002–2004. 5 For a brief discussion of these new standards as set forth in the U.S.–Chile free trade agreement, which are replicated in the model BIT, see supra this chapter. 6 Subcommittee on Investment of the U.S. Dep’t of State Advisory Comm. on International Economic Policy (ACIEP), Report Regarding the Draft Model Bilateral Investment Treaty at 2–3 ( Jan. 30, 2004), at . 7 See Treaty Between the Government of the United States of America and the Government of Concerning the Encouragement and Reciprocal Protection of Investment (Nov. 2004), at . 8 Treaty Concerning the Encouragement and Reciprocal Protection of Investment, Oct. 25, 2004, U.S.–Uru., at .
P1: OYK 0521750717c07
CB951-Murphy
0 521 75071 7
August 6, 2005
19:14
International Economic Law
165
Amendment of Treaty on Customs Procedures In 1973, states participating in the intergovernmental Customs Cooperation Council1 (CCC) adopted the International Convention on the Simplification and Harmonization of Customs Procedures,2 which entered into force in 1974. The Convention consists principally of thirty-one annexes containing substantive obligations on customs matters, such as the types of documentation that may be required to prove the origin of a good. Under the Convention, a state may accept all or only some of the annexes and may also file reservations with respect to annexes that it accepts. When the United States acceded to the Convention in October 1983, it accepted only twenty of the annexes and, with respect to those, filed reservations to the effect that no new U.S. implementing legislation would be necessary.3 As of 2004, there were sixty-two parties to the Convention. In 1994, the CCC’s successor – the World Customs Organization (WCO) – commenced a five-year review of the Convention. In June 1999, the WCO adopted a protocol amending the Convention to include a general annex defining standards for core customs functions that are binding on all parties.4 Among those functions are the collection of duties and taxes, risk management, the use of standardized information technology (which allows tracking of dangerous goods and potential terrorist threats), and transparency of customs regulations (which promotes anticorruption initiatives). Most standards relating to these functions must be implemented within three years after the Convention enters into force for a party. The protocol to amend the Convention contained, in addition to the general annex, ten “specific” annexes5 addressing specialized customs procedures, such as rules on warehousing of goods, transit, and temporary admission of goods. Parties may choose which of these annexes to join. In April 2003, President Bush transmitted the revised protocol to the Senate for advice and consent. He proposed that the United States accept the general annex, seven of the specific annexes in their entirety, and most of the provisions contained in two further annexes. He also proposed that the United States not accept the specific annex on rules of origin. By acceding in this manner, no new implementing legislation would be necessary.6 According to the president: Accession to the Protocol by the United States would contribute to important U.S. interests. First, accession by the United States would benefit the United States and U.S. businesses by facilitating greater economic growth, increasing foreign investment, and stimulating U.S. exports through more predictable, standard, and harmonized customs procedures governing cross-border trade transactions. Setting forth standardized and simplified methods for conducting customs business is important for U.S. trade interests in light of the demands of increased trade flows, as is the use of modernized technology and techniques for customs facilitation. These achievements can best be pursued by the United States as a Party to the Amended Convention. Second, through early
1 The Customs Cooperation Council, which was established by treaty in 1950 to promote international cooperation in customs matters, is now known as the World Customs Organization. It is the only global international organization focused on customs matters, is based in Brussels, and has 161 member states. The organization’s Internet site is . 2 May 18, 1973, S. Treaty Doc. No. 97-23, 950 UNTS 270. The Convention is often referred to as the “Kyoto Convention.” 3 See International Convention on the Simplification and Harmonization of Customs Procedures, S. Treaty Doc. No. 97-23, at V (1982) (secretary of state’s letter of submittal to the president). 4 See Protocol of Amendment to International Convention on Simplification and Harmonization of Customs Procedures, June 26, 1999, S. Treaty Doc. 108-6, at 9 (2003). The general annex contains ten chapters on: general principles and definitions (chs. 1 and 2); clearance and other customs formalities (ch. 3); assessment and collection and payment of duties and taxes (ch. 4); security to ensure fulfillment of customs-related obligations (ch. 5); customs control, including risk management (ch. 6); information technology (ch. 7); rights of third parties (ch. 8); transparency (ch. 9); and appeals (ch. 10). 5 The “specific” annexes are enumerated “A” through “K” (there is no annex “I”). They cover the arrival of goods in a customs territory and formalities prior to the lodgment of the “goods declaration,” as well as the temporary storage of goods (Annex A); general customs procedures relating to importation and exportation (Annexes B and C); customs warehouses and free zones (Annex D); transit of goods (Annex E); goods imported or exported for processing (Annex F); temporary admission (Annex G); due process and customs law matters (Annex H); special customs procedures, such as for emergency aid (Annex J); and rules of origin (Annex K). 6 See Message from the President of the United States Transmitting Protocol of Amendment to International Convention on Simplification and Harmonization of Customs Procedures, S. Treaty Doc. No. 108-6, at III (2003).
P1: OYK 0521750717c07
CB951-Murphy
166
0 521 75071 7
August 6, 2005
19:14
United States Practice in International Law 2002–2004
accession, the United States can continue to take a leadership role in the areas of customs and international trade facilitation as the U.S. accession would encourage other nations, particularly developing nations, to accede as well.7 In June 2004, the Senate Foreign Relations Committee held a hearing on the protocol and several other pending treaties. By the time Congress recessed at the end of 2004, however, the committee had not recommended favorably on the Convention, and the Senate had not given consent to ratification. Bioterrorism Act’s Notice Requirements for Food Imports As part of a bioterrorism preparedness law adopted in 2002, Congress directed that the secretary of commerce require prior notification of foreign food shipments arriving at U.S. ports, for the purpose of allowing those shipments to be inspected more effectively for biological agents.1 In 2003, the U.S. Food and Drug Administration (FDA) began promulgating regulations and rules to implement the legislation.2 Under the regulations, foreign food facilities that anticipate shipping food to the United States must register with the FDA, providing their names, locations, and contact information.3 Further, the regulations require such facilities to maintain certain records to allow tracing of the food’s origin in the event that contamination is detected.4 Depending upon the mode of transportation, from two to eight hours prior to a shipment’s arrival at its port of entry, a person “with knowledge of the required information” must provide notice of the shipment.5 Certain shipments, such as meat and poultry products that are subject to the exclusive jurisdiction of the Department of Agriculture, are excluded from the prior notice requirement.6 Electronic notification can be submitted in most instances.7 In December 2003, the European Commission issued a report on U.S. barriers to trade and investment. The commission identified the new food-notification requirement as a nontariff barrier to trade. The Commission has made representations to the US on all measures [relating to the new law], highlighting the lack of a specific risk assessment and severe burdens on trade. US authorities have predicted that the measures on registration of foreign facilities will reduce by as much as 16% the number of firms exporting food and feed to the US. In addition, FDA estimates that the financial burden of other measures will fall disproportionately on foreign suppliers. In its comments, the Commission has argued that the US should use the full scope of its capacity for flexibility to reduce the impact of the measures on trade and set up an urgent review of the parent legislation from the beginning of its operation. Particular concern has been noted in respect of the purported extraterritorial effect of the measure on record-keeping (which cannot be enforced outside US territory) and a manifest lack of communication between US agencies . . . , which already receive much of the information demanded.8
7
Id. at III–IV. Public Health Security and Bioterrorism Preparedness and Response Act of 2002, Pub. L. No. 107-188, §307, 21 U.S.C.A. §381 (West 2004). 2 See Registration of Food Facilities Under the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, 68 Fed. Reg. 58,894 (Oct. 10, 2003). For links to the FDA’s regulations and rules, see . 3 Id. at 58,895. 4 Id. at 58,922. 5 Prior Notice of Imported Food Under the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, 68 Fed. Reg. 58,974, 58,977 (Oct. 10, 2003). Shipments by truck require two hours’ prior notice; by air or train, four hours’ notice; by ship, eight hours’ notice. 6 Id. at 59,024. 7 Id. at 58,974. 8 European Commission, Report on United States Barriers to Trade and Investment, 2003, at 19 (Dec. 2003), at . 1
P1: OYK 0521750717c07
CB951-Murphy
0 521 75071 7
August 6, 2005
19:14
International Economic Law
167
The U.S. Customs Service began in December 2003 to implement the law in phases; initially, exporters to the United States were notified of noncompliance without holds on the shipments.9 On August 12, 2004, the FDA and the Customs Service commenced full enforcement of the new law except for certain kinds of violations (such as those in which the registration number submitted for the manufacturing facility was inaccurate or invalid, or the registration number for the shipper was not provided). For such violations, the two agencies stated that they would continue to exercise enforcement discretion until November 1, after which full enforcement would occur.10
NAFTA Chapter 11 Investor-State Disputes The North American Free Trade Agreement (NAFTA)1 entered into force on January 1, 1994 for Canada, Mexico, and the United States. In 2003, the United States traded U.S.$629 billion in goods with Canada and Mexico, bringing trade close to the levels achieved prior to the terrorist attacks of September 11, 2001.2 Chapter 11 of the NAFTA provides for arbitration by an investor from one NAFTA state – on behalf either of itself or an enterprise that it owns or controls – against the government of another NAFTA state for breaches of obligations owed to the investor under the NAFTA. Chapter 11 contemplates arbitration under the International Centre for Settlement of Investment Disputes (ICSID) Convention and its associated arbitration rules,3 the ICSID Additional Facility Rules,4 or the UN Commission on International Trade Law Arbitration (UNCITRAL) Rules,5 as modified by Chapter 11.6 The final award may provide for monetary damages and interest. During 2002–2004, several cases were addressed by Chapter 11 arbitral tribunals.7 In some instances, the U.S. government made statements before NAFTA dispute resolution panels that spoke broadly to the U.S. conception of rules of state responsibility (see supra Chapter IV), while decisions issued by the panels led to changes in U.S. treaty practice with other states (see supra this chapter). Some arbitrations decided on the merits prior to 2002–2004 resulted in awards of compensation during 2002–2004, such as S.D. Myers Inc. v. Canada8 and Pope & Talbot v. Canada.9 Some arbitrations 9 See U.S. Food & Drug Administration, Compliance Policy Guide: Guidance for FDA and CBP Staff – Prior Notice of Imported Food Under the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (rev’d June & Aug. 2004), at . 10 See U.S. Food & Drug Administration Press Release on FDA and CBP Announce Revised Compliance Schedule for Enforcement of the Prior Notice Interim Final Rule and Contingency Plan for Prior Notice System Outages (Aug. 12, 2004), at . 1 North American Free Trade Agreement, Dec. 17, 1992, U.S.–Can.– Mex., 32 ILM 289 & 605 (1993). NAFTA was implemented by the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057 (1993) (codified as amended at 19 U.S.C. §§3301–3473 (2000)). 2 See 2003 Trade with NAFTA Near Pre-Sept. 11 Level, 21 BNA Int’l Trade Rep. (BNA) 1692 (2004). 3 See Convention on the Settlement of Investment Disputes between States and Nationals of Other States, Mar. 18, 1965, 17 UST 1270, 575 UNTS 159; ICSID, Rules of Procedure for Arbitration Proceedings (Arbitration Rules), at . 4 See ICSID, Arbitration (Additional Facility) Rules, at . 5 15 ILM 701 (1976), at . 6 NAFTA, Art. 1102(1), (2). 7 Many of the pleadings and decisions in NAFTA cases may be found at . Further, the United States maintains an Internet site on NAFTA claims, at , as does Canada, at . The International Centre for Settlement of Investment Disputes also maintains documentation on the cases arbitrated under its auspices, at . 8 For a discussion of the November 2000 decision on the merits of the claim, see Sean D. Murphy, United States Practice in International Law, Vol. 1: 1999–2001, at 231 (2002). In October 2002, the NAFTA tribunal awarded S.D. Myers U.S.$3.87 million plus interest as compensation for Canada’s ban on cross-border movements of hazardous wastes. S.D. Myers, Inc. v. Canada, Partial Award (NAFTA Ch. 11 Arb. Trib. Oct. 21, 2002). In February 2001, the government of Canada filed an application with the Federal Court of Canada seeking review of the tribunal’s merits decision, on the grounds that elements of the decision exceeded the tribunal’s jurisdiction and were made in conflict with Canada’s public policy. The Federal Court held hearings in December 2003, and on January 13, 2004, dismissed Canada’s application. 9 For a discussion of the June 2000 and April 2001 decisions on the merits of the claim, see Sean D. Murphy, United States Practice in International Law, Vol. 1: 1999–2001, at 233–34 (2002). In May 2002, the NAFTA tribunal awarded Pope & Talbot, a U.S. lumber producer, U.S.$461,566 in damages and interest. Pope & Talbot v. Canada, Award in Respect of Damages (NAFTA Ch. 11 Arb. Trib. May 31, 2002).
P1: OYK 0521750717c07
CB951-Murphy
168
0 521 75071 7
August 6, 2005
19:14
United States Practice in International Law 2002–2004
initiated during 2002–2004 were robustly litigated but not yet completed as of December 2004, such as Canfor Corp. v. United States (a claim concerning U.S. imposition of countervailing duties on Canadian softwood lumber). Other arbitrations initiated during this period were resolved or stayed by actions taken by the respondent government, such as in Kenex Ltd. v. United States.10 The following are some of the more interesting developments relating to NAFTA Chapter 11 dispute resolution for the United States during 2002–2004. Methanex v. United States. Methanex Corporation is a Canadian producer and marketer of methanol, which is used to create a fuel additive known as methyl tertiary butyl ether (MTBE). Methanex supplied methanol to Californian and other MTBE producers. On March 25, 1999, the governor of California signed an executive order for the phasing out of MTBE. The basis for the order was that there was, on balance, a significant risk to the environment from using MTBE in gasoline in California. This phaseout was codified in October 1999. In December 1999, Methanex initiated NAFTA Chapter 11 arbitration, claiming that California’s actions constituted violations by the United States of its obligations regarding both minimum standards of treatment and expropriation.11 The United States contested the tribunal’s jurisdiction and the admissibility of the claim. The United States noted, among other things, that NAFTA Article 1101 states that Chapter 11 “applies to measures adopted or maintained by a Party relating to . . . investors of another Party.”12 The phrase “relating to” required, the United States argued, a legally significant connection between the disputed measure and the foreign investor or its investment. Measures of general application, such as those aimed at the protection of human health and the environment, affect a vast range of actors and economic interests. According to the United States, it would be unreasonable to infer that the NAFTA parties intended to subject themselves to arbitration by investors who were only incidentally affected by a local, state, or federal regulation.13 By contrast, Methanex asserted that it was sufficient that the measures “affect” the investor or its investment. In a partial award on jurisdiction and admissibility rendered in August 2002, the Arbitral Tribunal found that the phrase “relating to” signified “something more than the mere effect of a measure on an investor or an investment and that it requires a legally significant connection between them, as the USA contends.”14 After reviewing the facts and inferences advanced by Methanex regarding the measures taken by California, the tribunal found that it was “doubtful that the essential requirement of Article 1101(1) is met.”15 The tribunal stated: It could be said with force that the intent behind the measures would be, at its highest, to harm foreign MTBE producers with no specific intent to harm suppliers of goods and services to such MTBE producers. If so, the measures would not relate to methanol suppliers such as Methanex; and accordingly, even with such intent as alleged by Methanex, we would have no jurisdiction to decide Methanex’s amended claim.16 Consequently, the tribunal dismissed most of Methanex’s claim for lack of jurisdiction. The only portion of the claim not dismissed concerned an allegation that the governor of California specifically 10 In Kenex, a Canadian company that manufactured and distributed hemp products initiated a NAFTA arbitration in 2002 claiming that the United States violated the company’s NAFTA rights when the U.S. Drug Enforcement Administration (DEA) issued a rule banning all naturally-occurring tetrahydrocannabinols (THC), including that found in hemp seed and oil. THC is the active ingredient in marijuana. Thereafter, however, an association of companies that purchased and sold consumable products containing sterilized hemp seeds and oil filed a petition in U.S. federal court for review challenging the validity of the DEA rule. In an opinion rendered June 2003, the Ninth Circuit Court of Appeals held that the association had standing to challenge the validity of the DEA rule, and that the rule was procedurally invalid since DEA failed to comply with the Administrative Procedure Act’s (APA) notice-and-comment requirements. See Hemp Industries Ass’n v. Drug Enforcement Admin., 333 F.3d 1082 (9th Cir. 2003). 11 Notice of a Submission of a Claim to Arbitration (Dec. 3, 1999), Methanex Corp. v. United States, First Partial Award (NAFTA Ch. 11 Arb. Trib. Aug. 7, 2002); see Amended Statement of Claim (Feb. 12, 2001), Methanex Corp. v. United States. 12 NAFTA, Art. 1101 (emphasis added). 13 See U.S. Memorial on Jurisdiction and Admissibility at 48–49 (Nov. 3, 2000), Methanex Corp. v. United States. 14 Methanex Corp. v. United States, First Partial Award, para. 147 (NAFTA Ch. 11 Arb. Trib. Aug. 7, 2002), at . 15 Id., para. 154. 16 Id.
P1: OYK 0521750717c07
CB951-Murphy
0 521 75071 7
August 6, 2005
19:14
International Economic Law
169
intended to harm Methanex’s business interests. Since insufficient evidence was before the tribunal to assess its jurisdiction over that allegation, the case continues with pleadings by the parties on the issue of intentional harm.17 In the course of the pleadings in the Methanex case, Methanex sought to limit amicus submissions solely to legal, as opposed to factual, issues. According to Methanex, presenting factual evidence is the role not of amici, but of experts. Further, amici should have no greater rights in the proceeding than the governments of Canada and Mexico, which were limited under NAFTA Article 1128 to submissions on “a question of interpretation” of NAFTA. Finally, Methanex argued it would be unfair and inequitable to require Methanex to respond to factual allegations and evidence introduced by third parties.18 The U.S. government responded in April 2003 that amici should not be permitted to submit new evidence but should able to address both factual and legal issues, as amici are allowed to do in both international and national practice.19 In October 2003, the representatives of the three NAFTA governments – acting in unison as the Free Trade Commission – jointly issued a statement affirming the authority of Chapter 11 tribunals to accept written submissions by nonparties and recommending certain procedures for tribunals on the handling of such submissions. Among other things, the procedures (set forth in part B of the statement) provide that the nonparty should be a person of a NAFTA state “or that has a significant presence” in a NAFTA state.20 The nonparty must file a written application of no more than five pages for leave to submit a pleading, describing who or what it is, whether any other entity has provided it with “financial or other assistance” in preparing its submission, and the nature of its interest in the arbitration.21 The nonparty’s actual submission, to be filed separately, must be no longer than twenty pages and may discuss only “matters within the scope of the dispute.”22 After the disputing parties comment on the application, the Tribunal will decide whether to grant it, based on the extent to which (a) the non-disputing party submission would assist the Tribunal in the determination of a factual or legal issue related to the arbitration by bringing a perspective, particular knowledge or insight that is different from that of the disputing parties; (b) the non-disputing party submission would address matters within the scope of the dispute; (c) the non-disputing party has a significant interest in the arbitration; and (d) there is a public interest in the subject-matter of the arbitration.23 Further, the statement provides that the tribunal must ensure that the submission does not disrupt the proceedings and that neither party “is unduly burdened or unfairly prejudiced by such submissions.”24 If leave is granted to submit the pleading, both the parties in the dispute and – with respect to any issues of interpretation of the NAFTA – the nondisputing parties (that is, the two governments that are not the respondent) would be given an opportunity to comment on the submission.25
17
Id., para. 172. Claimant Methanex Corporation’s Request to Limit Amicus Curiae Submissions to Legal Issues Raised by the Parties (Apr. 15, 2003), Methanex Corp. v. United States (NAFTA Ch. 11 Arb. Trib.). 19 Response of Respondent United States of America to Methanex’s Request to Limit Amicus Curiae Submissions to Legal Issues Raised by the Parties (Apr. 28, 2003), Methanex Corp. v. United States (NAFTA Ch. 11 Arb. Trib.). 20 NAFTA Free Trade Commission, Statement of the Free Trade Commission on Non-disputing Party Participation, para. B(1) (Oct. 7, 2003), at . 21 Id., para. B(2). 22 Id., para. B(3). 23 Id., para. B(6). 24 Id., para. B(7). 25 Id., para. B(8). 18
P1: OYK 0521750717c07
CB951-Murphy
170
0 521 75071 7
August 6, 2005
19:14
United States Practice in International Law 2002–2004
In a letter dated October 31, 2003, the parties in the Methanex case suggested that the tribunal adopt the procedures set forth in the commission’s statement, subject to two understandings. First, in the application for leave to file, a non-disputing party should be required to identify any entity with which it has collaborated in the preparation of its submission. This understanding reflects the disputing parties’ view that the phrase “or other assistance” encompasses the scenario where a non-disputing party receives advice from or otherwise collaborates with another non-disputing party in preparing its submission.26 Second, the Methanex parties requested the opportunity to comment on any submissions made by Canada and Mexico in relation to the amicus submission. On December 30, the tribunal adopted the procedures for nondisputing party participation set out in part B of the NAFTA Free Trade Commission statement, “in line with the understanding of the Disputing Parties, as set out in” their letter.27 On March 9, 2004, applications for leave to file amicus submissions, as well as the submissions themselves, were transmitted to the tribunal by the International Institute for Sustainable Development and by a group of three other organizations (Bluewater Network, Communities for a Better Environment, and Center for International Environmental Law). Thereafter, both parties in the dispute informed the tribunal that they had no objection to the amici’s applications for leave to file, and the tribunal granted the applications. ADF Group v. United States. The Canadian corporation ADF Group Inc. (ADF) and its U.S. subsidiary, ADF International Inc. (ADFI), design, engineer, fabricate, and erect structural steel. In 1999, ADFI was awarded a subcontract to construct and deliver portions of the Springfield Interchange Project, a major highway-construction project in Northern Virginia. The subcontract incorporated by reference a requirement in the main contract that materials for the project be subject to the “Buy America” requirements of federal procurement law28 – which needed to be satisfied in order for the project to receive federal funding.29 When ADFI informed the contractor that it intended to purchase U.S. steel materials but then to fabricate the project’s structural steel products in Canada, ADFI was informed that such operations were not in compliance with the “Buy America” requirements of the subcontract. ADFI then fulfilled the subcontract using facilities in the United States, but at much higher cost.30 In 2000, ADF commenced NAFTA Chapter 11 arbitration, claiming that the United States had violated not only its obligations to accord a minimum standard of treatment under Chapter 11 to foreign investors and their investments, but also the prohibition against performance requirements.31 ADF asserted, among other things, that the application of the “Buy America” requirements to its subcontract violated the United States’ obligation to accord to Canadian investors and their investments a national standard of treatment under NAFTA Article 1102.32
26 Letter from Christopher F. Dugan, Counsel for Methanex, to the Members of the Methanex v. United States Chapter 11 Tribunal (Oct. 31, 2003). The letter further contained a footnote to this statement, which said:
The disputing parties note that disclosure of any such collaboration may be relevant to a determination of whether the non-disputing party has attempted to evade the page limits provided in ¶3(b) of the FTC statement or whether the submission will disrupt, unduly burden or unfairly prejudice either disputing party in contravention of ¶7 of that statement. If it appears that that has happened, the parties view ¶7 of the FTC statement as requiring the Tribunal to take appropriate action. 27 See ICSID Press Release on Methanex v. United States of America: NAFTA/UNCITRAL Arbitration Rules Proceeding ( Jan. 30, 2004), at. 28 See 23 C.F.R. §635.410 (2004). 29 See Surface Transportation Assistance Act of 1982, §165, 23 U.S.C. §101 note (2000). 30 See ADF Group v. United States, Award, paras. 44–55 (NAFTA Ch. 11 Arb. Trib. Jan. 9, 2003). 31 See Notice of Arbitration ( July 1, 2000), ADF Group v. United States. 32 Article 1102(1) provides: “Each Party shall accord to investors of another Party treatment no less favorable than that it accords, in like circumstances, to its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments.”
P1: OYK 0521750717c07
CB951-Murphy
0 521 75071 7
August 6, 2005
19:14
International Economic Law
171
The United States responded by arguing, among other things, that Article 1102 had not been violated. The same “Buy America” requirements were applied to U.S. steel manufacturers and to U.S. steel fabricators bidding on the Springfield Interchange Project, as well as on other federally funded highway-construction projects.33 In an award issued January 2003, the Arbitral Tribunal agreed with this argument, noting: Both steel of the Canadian Investor and of a U.S. investor must be fabricated in the United States. Moreover, steel fabricated in the United States is not treated differently, depending on the nationality of the investor owning such steel. Indeed, the Canadian investor’s steel and a U.S. investor’s steel, if fabricated in Canada, are treated in the same manner and both are excluded from use in the Springfield Interchange Project. . . . [T]he Investor did not try to show that some U.S. construction and fabrication company, similarly situated as the Investor, had been accorded treatment different from and more favorable than that given to the Investor, in respect of the provision and use of structural steel products in Federal-aid highway construction projects.34 Consequently, after reviewing other aspects of the ADF claim, the tribunal dismissed the claim in its entirety. Feldman v. Mexico. In April 1999, Marvin Roy Feldman Karpa (Feldman), a U.S. national, submitted a claim on behalf of Corporaci´on de Exportaciones Mexicanas (CEMSA), a Mexican registered foreign trading company and exporter of cigarettes from Mexico that was controlled by Feldman. Feldman alleged that a Mexican law denied CEMSA certain tax refund benefits typically provided to Mexican exporters, in violation of NAFTA Articles 1102 (national treatment), 1105 (minimum level of treatment), and 1110 (expropriation). In an interim decision issued in December 2000, the tribunal disposed of various jurisdictional issues, finding, among other things, that Feldman had standing to bring the claim.35 In December 2002, the tribunal issued its award on the merits and on damages.36 The tribunal declined to find that Mexico’s actions constituted an expropriation, noting various relevant factors: (1) “not every business problem experienced by a foreign investor is an expropriation;” (2) “NAFTA and principles of customary international law do not require a state to permit ‘gray market’ exports of cigarettes;” (3) at no time has Mexican law afforded Mexican cigarette resellers a “right” to export cigarettes; and (4) the claimant’s business remains under the complete control of the claimant.37 The tribunal did find, however, that Mexico had violated its national treatment obligations under the NAFTA. According to the tribunal, CEMSA received differential and less favorable treatment as compared with other Mexican exporters in like circumstances.38 The tribunal calculated the rebates that should have been received by CEMSA, added simple interest from the time of the failure to pay the rebates to the date of the tribunal’s decision, and, with some adjustments, awarded Feldman 9.5 million Mexican pesos as principal and 7.5 million Mexican pesos as interest.39 Thereafter, Mexico initiated a statutory review of the award in the Ontario Superior Court of Justice to set aside parts of the tribunal’s award. In a decision rendered in late 2003, the Canadian court dismissed Mexico’s application.40 Mexico has filed an appeal of this decision with the Court of Appeal for Ontario. Fireman’s Fund v. Mexico. In October 2001, Fireman’s Fund Insurance Company, a U.S. corporation that sells personal and business insurance, filed a NAFTA claim against Mexico alleging that the Mexican government violated NAFTA Articles 1102 (national treatment), 1105 (minimum standard 33
U.S. Rejoinder on Competence and Liability at 25–27 (Mar. 29, 2002), ADF Group v. United States. ADF Group v. United States, Award, para. 156. Feldman v. Mexico, Preliminary Award on Jurisdiction (NAFTA Ch. 11 Arb. Trib. Dec. 6, 2000). 36 Feldman v. Mexico, Award (NAFTA Ch. 11 Arb. Trib. Dec. 16, 2002). 37 Id., para. 111. 38 Id., para. 187. 39 Id., para. 211. 40 Arbitration Pursuant to Chapter Eleven of the North American Free Trade Agreement (“NAFTA”), Between Marin Roy Feldman Karpa and the United Mexican States, No. 03-CV-23500 (Sup. Ct. Ontario Nov. 4, 2003), reprinted in 43 ILM 880 (2004). 34 35
P1: OYK 0521750717c07
CB951-Murphy
172
0 521 75071 7
August 6, 2005
19:14
United States Practice in International Law 2002–2004
of treatment), 1110 (expropriation) and 1405 (national treatment) by facilitating the repurchase of convertible debentures (i.e., debt securities) denominated in Mexican pesos and owned by Mexican investors, but not facilitating the repurchase of debentures denominated in U.S. dollars and owned by Fireman’s Fund. Both series of debentures had been offered simultaneously by the same Mexican financial holding company, and both were issued for a total amount of U.S.$50 million. Mexico challenged the competence of the tribunal to hear the claims based on Articles 1102, 1105, and 1405, on grounds that the measure at issue (treatment of the sale of debentures) was governed exclusively by Chapter 14 of the NAFTA, not Chapter 11 under which the tribunal operated. Mexico did not object to the tribunal’s competence to hear the alleged violation of Article 1110, since that article was incorporated into Chapter 14 by virtue of NAFTA Article 1401. The claimant responded that the conditions for the application of Chapter 14 had not been met. The tribunal agreed to hear this issue as the first phase of its proceedings. Both parties submitted pleadings on the preliminary question. Further, in February 2003, the U.S. Government filed a submission with the tribunal as permitted under NAFTA Article 1128. In it, the United States asserted that under U.S. law, a “bank holding company” should be regarded as a “financial institution” within the meaning of NAFTA Chapter 14.41 In July 2003, the tribunal issued its decision. First, the tribunal found that if the measures alleged to have been taken by the Mexican government are covered by Chapter 14, then the tribunal lacks jurisdiction over the claims based on Chapter 11.42 Second, the tribunal found that “financial holding companies (sociedades controladoras) established in Mexico are financial institutions under the laws of Mexico,” and thus are within the scope of NAFTA Chapter 14.43 Third, the tribunal found that the capital of a sociedad controladora, of which the debentures in question formed a part, were “regulatory capital” in Mexico within the meaning of Chapter 14.44 Consequently, the tribunal dismissed all of the claimant’s claims except that relating to expropriation.45 Litigation of the expropriation claim remained ongoing as of December 2004. Waste Management v. Mexico. In 1998, a U.S. company, Waste Management, Inc., filed notice of a NAFTA Chapter 11 arbitration, charging that Mexico violated its rights under that Agreement. The arbitral tribunal, however, dismissed the case for lack of jurisdiction, on the ground that Waste Management had not waived its right to initiate or to continue the claim before national courts or tribunals, as required under NAFTA Article 1121(1).46 In 2000, Waste Management filed a second NAFTA Chapter 11 arbitration claim, seeking more than U.S.$36 million in damages. This time the company provided information to the panel establishing that it waived any claims in national courts or tribunals. The Mexican City of Acapulco entered into a 1995 contract with Acaverde (a Mexican company indirectly owned by Waste Management) for the provision of waste disposal services within the city for a period of fifteen years.47 Acaverde was granted exclusive rights to service a particular area of the city, and was entitled both to receive monthly payments from the city government and to develop a base of paying customers. Further, the contract provided that Acaverde would construct a permanent solid waste landfill for the city. In a separate line-of-credit arrangement, a local development bank provided certain guarantees regarding the city government’s payments to Acaverde. Acaverde expended considerable funds to embark on the project but experienced substantial difficulties in receiving regular payments from the city government and in developing a commercially viable client base. Moreover, the city government did not make available certain land that had been promised for the landfill. The city government, in turn, began charging that Acaverde was failing 41 Submission of the United States of America (Feb. 27, 2003), Firemen’s Fund v. Mexico, Decision on the Preliminary Question (NAFTA Ch. 11 Arb. Trib. July 17, 2003). 42 Firemen’s Fund v. Mexico, Decision on the Preliminary Question, para. 66 (NAFTA Ch. 11 Arb. Trib. July 17, 2003). 43 Id., para. 91. 44 Id., para. 109. 45 Id., para. 112. 46 Waste Mgmt., Inc. v. Mexico, Award (NAFTA Ch. 11 Arb. Trib. June 2, 2000), reprinted in 40 ILM 56 (2001). For a more detailed discussion of this case, see William S. Dodge, Case Report: Waste Management, Inc. v. Mexico, 95 AJIL 186 (2001). 47 For the factual background of the case, see Waste Mgmt., Inc. v. Mexico, Award, paras. 40–72 (NAFTA Ch. 11 Arb. Trib. Apr. 30, 2004).
P1: OYK 0521750717c07
CB951-Murphy
0 521 75071 7
August 6, 2005
19:14
International Economic Law
173
in its performance obligations, which the NAFTA panel ultimately attributed to various problems: Acaverde was not collecting trash from addresses that had not retained its services; there was illegal dumping by trash “pirates”; and there were “inevitable boundary problems of a partial concession in a large city.”48 By 1997, Waste Management decided to withdraw from its investment. Operations by Acaverde ended in November of that year, with some 80 percent of its invoices to the city still unpaid.49 Before the NAFTA tribunal, Mexico raised a procedural defense, asserting that Waste Management did not have the status of an “investor” under NAFTA Chapter 11 because it did not have a direct interest in the investment in Mexico. Prior to the 1995 contract, Acaverde (a Mexican company) was owned through a Cayman Islands holding company (AcaVerde Holdings Ltd.) by a Cayman Islands company (Sun Investment Co.). The holding company was then purchased in 1995 by a U.S. company (Sanifill), which merged with Waste Management in 1996.50 Thus, at the time of the contract underlying the case, Acaverde was owned by a Cayman Islands holding company that was owned, in turn, by a U.S. company, which eventually became Waste Management. In a decision rendered on April 30, 2004, the NAFTA panel found that Waste Management could pursue a NAFTA Chapter 11 claim based on harm to Acaverde, since the latter was an “enterprise owned or controlled indirectly by the Claimant, an investor of the United States” within the meaning of NAFTA Articles 201 and 1139.51 According to Waste Management, the acts of Mexico violated NAFTA Article 1105(1), which requires that investors receive an international minimum standard of treatment. Specifically, Waste Management asserted that the investment was subject to arbitrary acts – by the government of the State of Guerrero, by the Alcapulco city government, and by a local development bank – that rendered the investment valueless. Further, Waste Management asserted that it was denied justice by those Mexican entities since they conspired to obstruct access to Mexican judicial and arbitral forums. The NAFTA panel reviewed recent decisions by other NAFTA panels in the S. D. Myers,52 Mondev,53 ADF,54 and Loewen55 cases and asserted that a “general standard for Article 1105 is emerging” as follows: [T]he minimum standard of treatment of fair and equitable treatment is infringed by conduct attributable to the State and harmful to the claimant if the conduct is arbitrary, grossly unfair, unjust or idiosyncratic, is discriminatory and exposes the claimant to sectional or racial prejudice, or involves a lack of due process leading to an outcome which offends judicial propriety – as might be the case with a manifest failure of natural justice in judicial proceedings or a complete lack of transparency and candour in an administrative process. In applying this standard it is relevant that the treatment is in breach of representations made by the host State which were reasonably relied on by the claimant.56 In applying this standard to the facts of the present case, the tribunal found that Mexico had not denied Waste Management the international standard of treatment. The financial guarantees provided by the local development bank (assuming that its conduct was attributable to the Mexican government) were limited in nature by the terms of its line-of-credit agreement.57 The state of Guerrero was neither a party to the underlying agreements nor a financial guarantor.58 Although the city government had failed in various ways to fulfill its contractual obligations, it had actually taken steps to fulfill them, and the core problems in the dispute could be traced to weaknesses in the original business plan (for 48 49 50 51 52 53 54 55 56 57 58
Id., para. 63. Id., paras. 68–69. Id., para. 77. Id., para. 85. S. D. Myers, Inc. v. Canada, Partial Award (NAFTA Ch. 11 Arb. Trib. Nov. 13, 2000). Mondev Int’l v. United States, Award (NAFTA Ch. 11 Arb. Trib. Oct. 11, 2002). ADF Group v. United States, Award (NAFTA Ch. 11 Arb. Trib. Jan. 9, 2003). Loewen Group v. United States, Award (NAFTA Ch. 11 Arb. Trib. June 26, 2003). Waste Mgmt., Inc. v. Mexico, Award, para. 98 (NAFTA Ch. 11 Arb. Trib. Apr. 30, 2004), reprinted in 43 ILM 967 (2004). Id., paras. 102–05. Id., paras. 106–07.
P1: OYK 0521750717c07
CB951-Murphy
174
0 521 75071 7
August 6, 2005
19:14
United States Practice in International Law 2002–2004
example, failing to anticipate resistance by the local populace to payment for waste removal services) and the emergence of a Mexican financial crisis.59 In the tribunal’s view, the city did not act “in a wholly arbitrary way or in a way that was grossly unfair.”60 Moreover, after reviewing Mexican judicial proceedings brought by Acaverde, the tribunal found that “the Mexican court decisions were not, either ex facie or on closer examination, evidently arbitrary, unjust or idiosyncratic. There is no trace of discrimination on account of the foreign ownership of Acaverde, and no evident failure of due process. The decisions were reasoned and were promptly arrived at.”61 Waste Management separately argued that the acts of Mexico violated NAFTA Article 1110, which prohibits expropriation without compensation. In particular, the city government’s failure to enforce the exclusivity provisions of the contract, its efforts at frustrating the construction and operation of the landfill, and its obstruction of efforts at dispute settlement – both collectively and in conjunction with the acts of the State of Guerrero and the local development bank – constituted a “creeping expropriation” for which no compensation was paid.62 The tribunal also rejected this claim, noting that “Acaverde at all times had the control and use of its property” and “was able to service its customers and earn collection fees from them.”63 In the Tribunal’s view, an enterprise is not expropriated just because its debts are not paid or other contractual obligations towards it are breached. There was no outright repudiation of the transaction in the present case, and if the City entered into the Concession Agreement on the basis of an over-optimistic assessment of the possibilities, so did Acaverde. It is not the function of Article 1110 to compensate for failed business ventures, absent arbitrary intervention by the State amounting to a virtual taking or sterilising of the enterprise.64 GAMI Investments v. Mexico. In June 2002, GAMI Investments Inc. (GAMI), a U.S. corporation, submitted a NAFTA Chapter 11 claim against Mexico. GAMI held a 14 percent interest in Grupo Azucarero M´exico (GAM), a Mexican holding company whose remaining shareholders are Mexican. GAM and its predecessors acquired five sugar mills from the government of Mexico in the context of a privatization program. Thereafter, the Mexican government issued a decree expropriating many, but not all, sugar mills in Mexico, and undertook several other regulatory measures. GAMI claimed that Mexico breached its obligations under NAFTA Article 1102 (national treatment), 1105 (fair and equitable treatment), and 1110 (expropriation) by expropriating sugar mills owned by five GAM subsidiaries, and by regulating the sugar industry in a discriminatory and arbitrary manner.65 In an award rendered in November 2004, the tribunal found no violation of Article 1102. The Arbitral Tribunal has not been persuaded that GAM’s circumstances were demonstrably so “like” those of non-expropriated mill owners that it was wrong to treat GAM differently. Mexico determined that nearly half of the mills in the country should be expropriated in the public interest. The reason was not that they were prosperous and the Government was greedy. To the contrary: Mexico perceived that mills operating in conditions of effective insolvency needed public participation in the interest on the national economy in a broad sense. . . . The Government may have been clumsy in its analysis of the relevant criteria for the cutoff line between candidates and non-candidates for expropriation. Its understanding of corporate finance may have been deficient. But ineffectiveness is not discrimination.66
59 60 61 62 63 64 65 66
Id., paras. 108–15. Id., para. 115. Id., para. 130. Id., para. 158. Id., para. 159. Id., para. 160. GAMI Investments, Inc. v. Mexico, Final Award (NAFTA Ch. 11 Arb. Trib. Nov. 15, 2004). Id., para. 114.
P1: OYK 0521750717c07
CB951-Murphy
0 521 75071 7
August 6, 2005
19:14
International Economic Law
175
The tribunal also concluded that an unlawful expropriation of GAMI ’s property had not occurred. GAM was and remains in the hands of its owners. Its principal assets had been taken. But Mexican law gave it substantial protections. GAM could sue for the reversal of the taking. Or it could accept the taking and claim for compensation. . . . GAMI may have had subjective apprehensions that Mexican judicial remedies would be insufficient. But this Tribunal can only act on the basis of objective findings justified by evidence that GAM’s value as an enterprise had been destroyed or impaired.67 Finally, the tribunal found no violation of Article 1105, since the general failures in the Mexican sugar program were not shown to be “directly attributable to the government” or “directly causative of GAMI’s alleged injury.”68 Thus, the tribunal dismissed the claims in their entirety. Chapter 19 Anti-dumping and Countervailing Duty Disputes Prior to the entry into force of the U.S.–Canada Free Trade Agreement, and then the NAFTA, final determinations of a government regarding anti-dumping and countervailing duty matters could only be appealed within national structures. Thus, in the United States, appeals could be taken to the U.S. Court of International Trade. In Mexico, appeals could be taken to the Tribunal Fiscal de la Federaci´on. In Canada, appeals could be taken to the Federal Court of Appeal or, for some revenue decisions, to the Canadian International Trade Tribunal. Chapter 19 of the NAFTA, however, provides for a system of binational panel review of final national judicial decisions regarding anti-dumping and countervailing duty matters.1 During 2002–2004, several reviews were conducted by Chapter 19 panels. In many instances, the panels acted as a means of forcing U.S. decision-makers to provide better reasoning for their decisions, such as decisions that U.S. industry is threatened by foreign dumping of goods. Thus, in the matter of Corrosion-Resistant Carbon Steel Flat Products from Canada, a NAFTA panel in October 2004 ruled that the International Trade Commission (ITC) had improperly conducted its 1999 “sunset reviews” of countervailing and antidumping duty orders against corrosion-resistant carbon steel flat products from Canada. A “sunset review”is a procedure for determining whether the imposition of such orders remains necessary. In this case, the NAFTA panel found that the ITC had improperly cumulated Canadian steel imports despite evidence of high capacity utilization rates in the Canadian steel industry (i.e., evidence that Canadian producers did not have available capacity to increase their shipments to the United States and thus have an adverse impact on U.S. industry). Further, the tribunal found that the ITC had improperly accepted the U.S. steel industry’s rationale for why such duties were necessary.2 The panel remanded the case back to the ITC for further review.3 Similarly, in Certain Softwood Lumber Products from Canada,4 a NAFTA panel in August 2004 ordered the ITC to revoke its threat of material injury finding in antidumping and countervailing duty cases on Canadian softwood lumber, marking the third time the NAFTA panel had considered the case.5 The ITC revoked its threat of injury determination in September. 67
Id., para. 132. Id., para. 110. Administrative support to Chapter 19 and Chapter 20 panels is provided by the Canadian, Mexican, and U.S. national sections of the NAFTA secretariat. 2 Corrosion-Resistant Carbon Steel Flat Products from Canada, Full Sunset Review (NAFTA Ch. 19 Panel Oct. 19, 2004). 3 For similar cases concerning U.S. “sunset reviews” before the World Trade Organization during 2002–2004, see United States – Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Germany: Report of the Panel, WTO Doc. WT/DS213/R ( July 3, 2002); United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan: Report of the Panel, WTO Doc. WT/DS244/R (Aug. 14, 2003); United States – Sunset Reviews of Anti-dumping Measures on Oil Country Tubular Goods From Argentina, WTO Doc. WT/DS268/R ( July 16, 2004); United States – Sunset Reviews of Anti-dumping Measures on Oil Country Tubular Goods From Argentina, WTO Doc. WT/DS268/AB/R (Nov. 29, 2004); United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan: Report of the Appellate Body, WTO Doc. WT/DS244/AB/R (Dec. 15, 2004). 4 Certain Softwood Lumber Products from Canada: Final Affirmative Threat of Injury Determination (NAFTA Ch. 19 Panel Aug. 31, 2004). 5 See Certain Softwood Lumber Products from Canada: Final Affirmative Threat of Injury Determination (NAFTA Ch. 19 Panel Apr. 19, 2004); Certain Softwood Lumber Products from Canada: Final Affirmative Threat of Injury Determination (NAFTA Ch. 19 Panel Sept. 5, 2003). 68 1
P1: OYK 0521750717c07
CB951-Murphy
176
0 521 75071 7
August 6, 2005
19:14
United States Practice in International Law 2002–2004
Such panel decisions may be appealed to an “extraordinary challenge committee” (ECC), but the ECC can only reverse the panel on narrow grounds set out in NAFTA Article 1904.13. In essence, the NAFTA party must show that (1) a member of the panel was guilty of gross misconduct, bias or serious conflict of interest; (2) the panel departed from a fundamental rule of procedure; or (3) the panel manifestly exceeded its powers, authority, or jurisdiction. Further, the NAFTA party must show that such action “materially affected” the panel decision and that it threatened “the integrity of the binational review process.” During 2002–2004, the United States appealed the first two panel decisions to the EEC, in the cases concerning Gray Portland Cement and Clinker from Mexico6 and Pure Magnesium from Canada.7 In both cases the United States did not prevail, for similar reasons. For example, in the Pure Magnesium from Canada case, the United States successfully demonstrated that the panel manifestly exceeded its powers by failing to apply the correct standard of review, and that such action materially affected the panel’s decision, but failed to establish that the panel’s action threatened the integrity of the binational review process.8 Chapter 20 General Dispute Resolution In addition to the specialized dispute resolution procedures under Chapters 11 and 19, Chapter 20 of the NAFTA contains provisions relating to the avoidance or settlement of all disputes regarding the interpretation or application of the NAFTA.1 An example of such a dispute that was resolved during 2001–2002 was the matter of Cross-Border Trucking Services. In 1982, Congress passed the Bus Regulatory Reform Act, which imposed a moratorium on the issuance by the U.S. Interstate Commerce Commission of new authorizations to foreign motor carriers in a “contiguous foreign country” for operating in the United States.2 The act also placed significant restrictions on existing authorizations. The Interstate Commerce Commission Termination Act of 1995 maintained these restrictions but empowered the president to modify the moratorium for reasons specified in the act, such as “obligations of the United States under a trade agreement.”3 Although NAFTA provides that commercial trucks and buses from Mexico would achieve access to U.S. border states by 1995 and to the remainder of the United States by 2000, the United States continued to deny access except in commercial zones near the Mexico-U.S. border.4 On September 22, 1998, Mexico initiated arbitral proceedings under NAFTA Chapter 20 claiming that the United States violated NAFTA by failing to phase out restrictions on cross-border trucking services (as well as on Mexican investment in the U.S. trucking industry) as required under NAFTA Annex I, and that the failure to do so violated NAFTA national treatment and most-favored-nation provisions.5 The United States responded that because safety standards for motor carriers were lower in Mexico than the United States, NAFTA allowed the United States to impose the restrictions in order to address the legitimate regulatory objective of safety.6 On February 6, 2001, the NAFTA panel unanimously determined that the United States’ blanket restrictions were a breach of its NAFTA obligations, that Mexico’s regulatory “inadequacies” were not a legally sufficient basis for the United States to maintain the blanket restrictions, and that the United States had not pursued alternatives 6 Gray Portland Cement and Clinker from Mexico, Opinion and Order of the Extraordinary Challenge Committee (NAFTA EEC Oct. 30, 2003). 7 Pure Magnesium from Canada, Decision and Order of the Extraordinary Challenge Committee (NAFTA EEC Oct. 7, 2004). 8 Id., para. 42. 1 In addition to the special rules for disputes under Chapter 11 (investment) and Chapter 19 (anti-dumping and countervailing duties), there are special rules for disputes under Chapter 14 (financial services), as demonstrated in the Firemen’s Fund case, discussed supra this chapter. 2 Bus Regulatory Reform Act of 1982, Pub. L. No. 97-261, §6(g), 96 Stat. 1102, 1107–08 (1982). The moratorium with respect to Canada was lifted in 1982 on the basis of a bilateral agreement that gave U.S. carriers access to Canadian markets. 3 Interstate Commerce Commission Termination Act of 1995, Pub. L. No. 104-88, §13902(c)(3), 109 Stat. 803, 882 (1995) (codified at 49 U.S.C. §13902(c)). 4 The NAFTA implementing legislation expressly provided that in the case of a conflict between NAFTA and other U.S. federal law, the latter would prevail. See 19 U.S.C. §3312(a)(1) (2000). 5 See Cross-border Trucking Services, paras. 2–6 (NAFTA Ch. 20 Arb. Trib. Feb. 6, 2001), at . 6 Id., paras. 7–10.
P1: OYK 0521750717c07
CB951-Murphy
0 521 75071 7
August 6, 2005
19:14
International Economic Law
177
that would have been less restrictive of trade.7 The NAFTA panel stated, however, that the United States was not required to allow access for all Mexican trucking firms without regard to safety or other concerns; applications from Mexican operators could be reviewed, instead, on a case-by-case basis.8 During the 2000 presidential campaign, Governor George W. Bush stated that the United States should honor its NAFTA commitments regarding cross-border trucking and passenger services. Once in office, President Bush called upon Congress to enact legislation that would address any safety concerns over those services. In November 2001, Congress passed Department of Transportation appropriations legislation for 2002 that required the department’s Federal Motor Carrier Safety Administration (FMCSA) to establish an extensive program for inspecting, certifying, and verifying Mexican carriers to be both safe and insured for operation in the United States.9 In addition to this broad program, the act contains provisions with more specific aims, such as forbidding Mexican vehicles that “carry[] hazardous materials in a placardable quantity” from operating in the United States “until the United States has completed an agreement with the Government of Mexico which ensures that drivers of such vehicles carrying such . . . materials meet substantially the same requirements as United States drivers carrying such materials.”10 President Bush praised the act as a “victory for safety and free trade” in “permitting our border to be open in a timely manner and ensuring that all United States safety standards will be applied to every truck and bus operating on our highways.”11 Thereafter, the FMCSA adopted regulations for an application process and safety-monitoring program to certify Mexican carriers for operation in the United States.12 In November 2002, President Bush modified the U.S. moratorium to allow carrier-by-carrier review of Mexican vehicles operating between Mexico and the United States,13 and the FMCSA began processing applications from Mexican carriers. In May 2002, certain activist and labor groups filed petitions in U.S. federal court alleging that the promulgation of the new regulations violated the procedural requirements of the National Environmental Policy Act14 (NEPA) and the Clean Air Act15 (CAA). Specifically, the petitioners alleged that the Department of Transportation failed under NEPA to prepare an in-depth environmental impact statement prior to issuing the regulations, and under the CAA to conduct a “conformity determination” to ensure that the regulations did not disrupt CAA implementation plans of the several states.16 In January 2003, the Ninth Circuit Court of Appeals upheld the petitions and remanded the matter to the Department of Transportation for further action in accordance with NEPA and CAA. The court noted, “Although we agree with the importance of the United States’ compliance with its treaty obligations with its southern neighbor, Mexico, such compliance cannot come at the cost of violating United States law.”17 In June 2004, however, the Supreme Court reversed. The Court found that because FMCSA lacked discretion to prevent cross-border operations of Mexican motor carriers, neither NEPA nor CAA required FMCSA to evaluate the environmental effects of such operations.18 Other than noting that U.S. law was altered to accommodate U.S. obligations under NAFTA, the Court’s opinion did not analyze and interpret those obligations, and focused instead on an analysis of U.S. laws and regulations.
7
Id., paras. 295–98. Id., paras. 300–01. Department of Transportation and Related Agencies Appropriations Act, 2002, Pub. L. No. 107-87, §350, 115 Stat. 833 (2001) (codified at 49 U.S.C. 13902 note (West. Supp. 2002)). 10 Id. §350(b). 11 Statement on Congressional Action on Mexican Motor Carrier Legislation, 37 Weekly Comp. Pres. Doc. 1732, 1732 (Nov. 30, 2001). 12 See 67 Fed. Reg. 12,702 (Mar. 19, 2002) (rules on application); 67 Fed. Reg. 12,758 (Mar. 19, 2002) (rules on safety); 67 Fed. Reg. 12,776 (Mar. 19, 2002) (rules on certification). 13 See Memorandum for the Secretary of Transportation on Determination Under the Interstate Commerce Commission Termination Act of 1995 (Nov. 27, 2002), at . 14 National Environmental Policy Act of 1969, 42 U.S.C. §§4321–4370d (2000). 15 Clean Air Act, 42 U.S.C. §§7401–7671q (2000). 16 See Pub. Citizen v. Dep’t of Transp., 316 F.3d 1002, 1009 (9th Cir. 2003). 17 Id. 18 Dep’t of Transp. v. Public Citizen, 541 U.S. 752 (2004). 8 9
P1: OYK 0521750717c07
CB951-Murphy
178
0 521 75071 7
August 6, 2005
19:14
United States Practice in International Law 2002–2004
Regional Trade Adoption of Central American Free Trade Agreement In January 2002, President Bush announced his intention to negotiate a free trade agreement with Central American countries.1 On October 1, the president authorized the U.S. Trade Representative (USTR) to notify Congress of the impending negotiations of a Central American Free Trade Agreement (CAFTA) – which subsequently began in January 2003.2 The following December 17, after nine negotiating sessions, El Salvador, Guatemala, Honduras, Nicaragua, and the United States concluded the negotiations for CAFTA, which consisted of twenty-two articles and three annexes.3 In January 2004, Costa Rica, which had participated in the negotiations, declared that it would also join CAFTA,4 and in March, the Dominican Republic announced its intention to join the agreement as well.5 The USTR noted that once the agreement enters into force, it will have the following important consequences for the United States: • More than 80 percent of U.S. exports of consumer and industrial products to Central America will become tariff free immediately, and all remaining tariffs will be removed within eleven years thereafter (chapter 3). • More than 50 percent of current U.S. farm exports to Central America will become tariff free immediately, and tariffs on all remaining farm products will be removed within fifteen years thereafter (chapter 3). • Textiles and apparel exported from the United States will be tariff free and quota free immediately, so long as they meet the agreement’s rule of origin. A unique provision will also give tariff-free benefits to some apparel imported from Central America that has been made there with fabric from Mexico and Canada, thus encouraging integration of North and Central American textile industries (chapters 3 and 4). • Substantial market access will be accorded to services industries, including telecommunications, express delivery, computer and related services, and financial services (chapters 11 to 14). • Certain protections and nondiscriminatory treatment are accorded to digital products, including software, music, text, and videos, while the protections for patents, trademarks, and trade secrets are strengthened (chapter 15). • A three-part strategy on workers’ rights is included so as to (1) promote effective enforcement of national labor laws, (2) establish a cooperative program to improve labor laws and enforcement, and (3) build the capacity of Central American states to monitor and enforce labor rights (chapter 16). • A public-submissions process is created to ensure that views of civil society are appropriately considered in implementing the agreement (including with respect to environmental issues) (chapter 17).
1
Remarks to the World Affairs Council of America Conference, 38 Weekly Comp. Pres. Doc. 77, 80 ( Jan. 16, 2002). See Memorandum on Notification to the Congress of Trade Negotiations, 38 Weekly Comp. Pres. Doc. 1677, 1678 (Oct. 1, 2002). 3 Central American Free Trade Agreement, Jan. 28, 2004 (Draft), at [hereinafter CAFTA]. 4 See USTR Press Release on U.S. and Costa Rica Reach Agreement on Free Trade ( Jan. 25, 2004). USTR press releases are available at . 5 See USTR Press Release on U.S. & Dominican Republic Conclude Trade Talks Integrating the Dominican Republic into the Central American Free Trade Agreement (Mar. 15, 2003). 2
P1: OYK 0521750717c07
CB951-Murphy
0 521 75071 7
August 6, 2005
19:14
International Economic Law
179
• A predictable legal framework for investors is created (chapter 10). • Anticorruption measures for government contracting are established (chapter 9).6 Certain U.S. protectionist policies were not addressed in CAFTA. The U.S.$19 billion in annual farm subsidies remain intact.7 Quotas on sugar imports remain in place, although they will rise over fifteen years to 236,000 tons per year, with high tariffs (about 100 percent of the value) levied on imports above the quota level.8 In accordance with the 2002 Trade Act,9 the president notified the Congress ninety days in advance of signing CAFTA.10 On May 28, 2004, Costa Rica, El Salvador, Guatemala, Nicaragua, Honduras, and the United States signed the CAFTA in Washington, D.C. (the Dominican Republic joined the CAFTA by separate agreement on August 5). Thereafter, the International Trade Commission (ITC) reported to the president and to Congress regarding the agreement’s likely impact on U.S. industrial sectors and the economy as a whole.11 By December 2004, the Congress was expected to vote on the CAFTA in 2005. Trade Developments Between the United States and Sub-Saharan Africa In May 2000, Congress passed the Trade and Development Act of 2000,1 Title I of which contained the African Growth and Opportunity Act (AGOA). AGOA is designed principally to reduce or eliminate U.S. tariffs and quotas on goods from forty-eight sub-Saharan African countries. Further, AGOA requires annual reports to Congress on the administration’s trade policy in relation to subSaharan Africa.2 The 2002 report asserted: Since its enactment in 2000, AGOA has helped transform the economic landscape of subSaharan Africa – stimulating new trading opportunities for African businesses and entrepreneurs, creating new jobs, and bringing hundreds of millions of dollars in much-needed investment to the region. U.S. imports from sub-Saharan Africa have increased 61.5 percent over the last two years. Substantially all products from sub-Saharan Africa are now eligible to enter the United States dutyfree. The United States imported $8.2 billion of duty-free goods in 2001 under AGOA, including the Act’s Generalized System of Preferences (GSP) provisions, representing almost 40 percent of all U.S. imports from sub-Saharan Africa. Imports from every major industry group are entering the United States duty-free under AGOA. The United States is sub-Saharan Africa’s largest single market, purchasing 27 percent of the region’s exports in 2000.3
6 See USTR Press Release on U.S. & Central American Countries Conclude Historic Free Trade Agreement (Dec. 17, 2003). In 2001, the United States exported goods worth U.S.$9 billion to the initial five CAFTA states, which constituted 40 percent of all imported goods in those countries. See USTR Fact Sheet on Free Trade with Central America ( Jan. 8, 2003). The value of such U.S. exports is roughly equivalent to the total value of U.S. exports to India, Indonesia, and Russia. Further, the United States imports from those five countries approximately U.S.$11 billion worth of goods. See Elizabeth Becker, Costa Rica to Be 5th Country in New Trade Pact with U.S., N.Y. Times, Jan. 26, 2004, at A6. 7 See Becker, supra note 6. 8 See Jonathan Weisman, Accord Reached on Free Trade, Wash. Post, Dec. 18, 2003, at A1. 9 Bipartisan Trade Promotion Authority Act of 2002, Pub. L. No. 107-210, 116 Stat. 933 (2002). 10 Notice of Intention To Enter Into a Free Trade Agreement With Costa Rica, El Salvador, Honduras, Guatemala, and Nicaragua (the “CAFTA Countries”), 40 Weekly Comp. Pres. Doc. 263 (Feb. 20, 2004). 11 See U.S.–Central American–Dominican Republic Free Trade Agreement: Potential Economywide and Selected Sectoral Effects, Investigation No. TA-2104-13 (Aug. 2004), at . 1 Trade and Development Act of 2000, Pub. L. No. 106-200, 114 Stat. 251, 256 (2000). The legislation was the first substantial trade measure enacted in the United States since the U.S. adherence to the Uruguay Round trade agreements in 1994 establishing the World Trade Organization. The Trade and Development Act of 2000 also included the United States–Caribbean Basin Trade Partnership Act, which also sought to reduce or eliminate U.S. tariffs and quotas for goods from the Caribbean region. For information on AGOA, see . 2 Trade and Development Act of 2000 §106. 3 2002 Comprehensive Report of the President on U.S. Trade and Investment Policy Toward Sub-Saharan Africa and Implementation of the African Growth and Opportunity Act at 1 (May 2002), at .
P1: OYK 0521750717c07a
CB951-Murphy
180
0 521 75071 7
August 6, 2005
12:25
United States Practice in International Law 2002–2004
In addition to implementing AGOA, the report addressed various U.S. initiatives, through institutions and international agreements, to promote trade and investment with and within sub-Saharan Africa. First, the report described U.S. efforts to facilitate and promote regional economic integration through the African Trade and Investment Policy (ATRIP) program and technical assistance to organizations such as the Economic Community of West African States (ECOWAS), the West African Economic and Monetary Union (WAEMU), and the Common Market for Eastern and Southern Africa (COMESA). Second, the report noted that the Office of the U.S. Trade Representative had recently concluded regional trade and investment framework agreements (TIFAs) with COMESA (signed October 2001)4 and WAEMU (signed April 2002). Each TIFA established a Council on Trade and Investment – comprising representatives of the U.S. government and the African entity – as a formal mechanism to expand trade and remove impediments to trade and investment flows. The councils were also charged with negotiating trade-related agreements where appropriate, and with addressing trade-related topics such as protection of intellectual property rights.5 In addition to entering into these regional TIFAs, the United States signed bilateral TIFAs in sub-Saharan Africa with Ghana and South Africa in 1999, and with Nigeria in 2000.6 Third, the report described how the United States allows “cumulation” among AGOA beneficiary countries, meaning that AGOA beneficiaries may include inputs from other AGOA beneficiaries in meeting the 35 percent valueadded rule-of-origin requirement under the act’s GSP. The report also noted, however, various factors hindering progress: “the lack of adequate transportation and communication infrastructure; varying levels of development, policy orientations, and political priorities; and overlapping and sometimes conflicting regional entities with relatively little cooperation between them.”7 In 2004, Congress passed and the president signed into law the AGOA Acceleration Act,8 which expands AGOA to new areas, such as agriculture, and extends the trade preference program for qualifying sub-Saharan African states from 2008 to 2015.
World Trade Organization Overview Between 2002 and 2004, the United States was actively engaged in an array of negotiations and disputes before the World Trade Organization, far more than is possible to summarize within this volume. Of particular importance, the United States remained engaged in the “Doha Round” of trade negotiations, although that round was not brought to a successful conclusion by December 2004. Other negotiations were successful, on matters such as the treatment of intellectual property rights in pharmaceuticals. Further, the United States was involved in numerous cases before World Trade Organization dispute resolution panels, on issues concerning the imposition by the United States of safeguard measures, anti-dumping measures, and countervailing duties to protect U.S. industry from foreign imports;1 and, conversely, on issues concerning the same actions by foreign governments 4 Agreement Concerning the Development of Trade and Investment Relations, Oct. 29, 2001, U.S.-COMESA, at . Twenty African states are members of COMESA. 5 See United States Trade Representative Press Release on United States and West African Nations Sign Agreement Promoting Trade (Apr. 24, 2002), at . 6 Agreement Concerning the Development of Trade and Investment Relations, Feb. 26. 1999, U.S.–Ghana; Agreement Concerning the Development of Trade and Investment Relations, Feb. 18, 1999, U.S.–S. Afr.; Agreement Concerning the Development of Trade and Investment Relations, Feb. 16, 2000, U.S.–Nig. These agreements are available at . 7 2002 Comprehensive Report, supra note 3, at 36. 8 Pub. L. No. 108-274, 118 Stat. 820 (2004). 1 See, e.g., United States–Final Dumping Determination on Softwood Lumber from Canada: Report of the Panel, WTO Doc. WT/DS264/R (Apr. 13, 2004); United States – Final Dumping Determination on Softwood Lumber from Canada: Report of the Appellate Body, WTO Doc. WT/DS264/AB/R (Aug. 11, 2004); United States – Anti-Dumping and Countervailing Measures on Steel Plate from India, WTO Doc. WT/DS206/R ( June 28, 2002); United States – Countervailing Measures Concerning Certain Products from European Communities, WTO Doc. WT/DS212/R ( July 31, 2002); United States – Countervailing Measures Concerning Certain Products from European Communities, WTO Doc. WT/DS212/AB/R (Dec. 9, 2002); United States – Final Countervailing Duty Determination With Respect to Certain Softwood Lumber From Canada: Report of the Panel, WTO Doc. WT/DS257/R (Aug. 29, 2003); United States – Final Countervailing Duty Determination With Respect to Certain Softwood Lumber From Canada: Report of the Appellate Body, WTO Doc. WT/DS257/AB/R ( Jan. 19, 2004).
P1: OYK 0521750717c07a
CB951-Murphy
0 521 75071 7
August 6, 2005
12:25
International Economic Law
181
against U.S. exports.2 Some cases initiated in this time period had not yet resulted in a WTO panel decision as of December 2004, such as the complaint by Argentina, Canada, and the United States against the European Communities for a de facto moratorium on allowing imports of genetically engineered food products,3 or the complaint by the European Communities against the United States for its “zeroing” practice.4 A variety of cases, however, were decided in this time period. In one case, a WTO panel found for the first time that a member state’s agricultural subsidies were causing serious harm to producers in other member states, and called upon the United States to end the subsidies by July 2005.5 Many disputes concerned important agreements associated with the General Agreement on Tariffs and Trade 1994, such as the General Agreement on Trade in Services.6 With respect to WTO decisions that found the United States non-compliant, the United States typically pursued changes to U.S. laws or regulations in an effort to bring the United States into compliance with WTO rules, such as with respect to the steel safeguard measures or foreign sales corporation decisions, as discussed below. However, in some situations, the United States did not bring its conduct into conformance with the WTO decision, resulting in WTO-blessed sanctions against the United States.7 U.S. Participation in Doha Round Negotiations In November 2001, WTO member states met at Doha, Qatar, for a WTO ministerial meeting. After several day of negotiations, the ministers succeeded in approving a declaration launching new global trade negotiations and a work program, a declaration on intellectual property protection and public health (including access to medicines), and a decision on implementation-related issues and concerns raised by developing states.1 In general, the new round of negotiations – referred 2 See, e.g., Canada – Measures Affecting the Importation of Milk and the Exportation of Dairy Products, WTO Doc. WT/DS103/ AB/RW2, WT/DS113/AB/RW2 (Dec. 12, 2002); Japan – Measures Affecting the Importation of Apples, WTO Doc. WT/DS245/AB/R (Nov. 26, 2003); Canada – Measures Relating to Exports of Wheat and Treatment of Imported Grain, WTO Doc. WT/DS276/R (Apr. 6, 2004); Canada – Measures Relating to Exports of Wheat and Treatment of Imported Grain, WTO Doc. WT/DS276/AB/R (Aug. 30, 2004). 3 See European Communities – Measures Affecting the Approval and Marketing of Biotech Products: Request for Consultations by the United States, WTO Doc. WT/DS291/1 (May 20, 2003). The WTO panel announced that it would not be able to issue a ruling until mid-2005. See Daniel Pruzin, WTO Panel Announces Further Delay in Decision on EU’s GMO Restrictions, 21 Int’l Trade Rep. (BNA) 1827 (2004). 4 See United States – Laws, Regulations and Methodology for Calculating Dumping Margins (“Zeroing”): Constitution of the Panel Established at the Request of the European Communities, WTO Doc. WT/DS294/8 (Nov. 2, 2004). “Zeroing” occurs when a government’s investigating authority makes multiple comparisons of the export price of an allegedly dumped good with its normal value, and then aggregates the results of those comparisons to calculate a dumping margin for the product as a whole. The issue in WTO disputes typically concerns whether the comparisons took full account of the prices of all comparable export transactions, so as to satisfy the “fair comparison” standard set forth in Articles 2.4 and 2.4.2 of the Anti-Dumping Agreement. See Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, in The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts 168 (1994), reprinted in 33 ILM 81 (1994). For an example of a zeroing case lost by the United States in this time period, see United States – Final Dumping Determination on Softwood Lumber from Canada: Report of the Panel, WTO Doc. WT/DS264/R (Apr. 13, 2004); United States – Final Dumping Determination on Softwood Lumber from Canada: Report of the Appellate Body, WTO Doc. WT/DS264/AB/R (Aug. 11, 2004). In January 2004, the U.S. Court of Appeals for the Federal Circuit found that the U.S. Department of Commerce’s practice of zeroing was a reasonable interpretation of the U.S. anti-dumping statute, despite a WTO Appellate Body decision finding a comparable zeroing practice of the European Communities as impermissible. See European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India: Recourse to Article 21.5 of the DSU by India, WTO Doc. WT/DS141/RW (Nov. 29, 2002), as modified by WTO Doc. WT/DS141/AB/RW (Apr. 8, 2003). According to the Federal Circuit, the WTO panel’s decision “is not binding on the United States” and is not “sufficiently persuasive to find [the Commerce Department’s] practice unreasonable.” Timken Co. v. United States, 354 F.3d 1334, 1344 (Fed. Cir. 2004). 5 See United States – Subsidies on Upland Cotton, WTO Doc. WT/DS267/R (Sept. 8, 2004); see also Paul Blustein, U.S. Farmers Get a Lesson in Global Trade, Wash. Post, Apr. 28, 2004, at A1. 6 See, e.g., Mexico – Measures Affecting Telecommunications Services, WTO Doc. WT/DS204/R (Apr. 2, 2004); United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WTO Doc. WT/DS285/R (Nov. 10, 2004). After winning the Telecommunications Services case against Mexico, the United States and Mexico entered into an agreement regarding Mexican compliance with the panel’s decision, such that Mexico ended excessively high interconnection rates to foreign firms for the use of its telecommunications infrastructure. See Mexico – Measures Affecting Telecommunications Services, Notification of an Agreement, WTO Doc. WT/DS204/7, S/L/161 ( June 2, 2004). 7 See, e.g., United States – Anti-dumping Act of 1916 (Original Complaint by the European Communities): Recourse to Arbitration by the United States under Article 22.6 of the DSU, WTO Doc. WT/DS217/ARB/BRA (Feb. 24, 2004). For background on this dispute, see Sean D. Murphy, United States Practice in International Law, Vol. 1: 1999–2001, at 250 (2002). 1 The declarations and decision are available at .
P1: OYK 0521750717c07a
CB951-Murphy
182
0 521 75071 7
August 6, 2005
12:25
United States Practice in International Law 2002–2004
to as the Doha Development Agenda (DDA) – would comprise further trade liberalization and new rule-making, underpinned by commitments to strengthen substantially assistance to developing states. Under the work program for the new round, the negotiations would consider or address (1) implementation-related issues and concerns; (2) agriculture; (3) services; (4) market-access for non-agricultural products; (5) trade-related aspects of intellectual property rights; (6) the relationship between trade and investment; (7) the interaction between trade and competition policy; (8) transparency in government procurement; (9) trade facilitation; (10) clarification of WTO rules; (11) improvement of dispute settlement; (12) trade and environment; (13) electronic commerce; (14) small economies; (15) trade, debt, and finance issues; (16) trade and transfer of technology; (17) technical cooperation and capacity building; (18) concerns of the least-developed countries; and (19) special and differential treatment. The original schedule for the Doha Round called for its completion by not later than January 1, 2005. However, in September 2003, at the Cancun, Mexico ministerial meeting, progress in the negotiations stalled when a group of developing states, led by Brazil and India, pushed aback against the European Union and the United States over lack of progress in agreement on eliminating farm subsidies and on certain other issues. While developed states expressed a willingness to reduce farm subsidies, basic agreement could not be reached on the formula by which subsidies would be reduced (ranging from aggressive to modest reductions, and from uniform to disparate reductions across states), nor on the timetable for doing so. In order to put the negotiations back on track, US Trade Representative Robert B. Zoellick sent a letter on January 11, 2004, to all WTO trade ministers setting forth his views for advancing the Doha round. At the most fundamental level, I think we are most likely to succeed if we focus our work on the core market access topics: agriculture; goods; and services. These areas offer the most significant gains both for the world economy and our individual economies. Improved market access is particularly critical for meeting the needs of the developing countries. These topics also involve enough diversity to permit economic synergies and balanced results. . . . .... I believe that we will not be able to solve the puzzle of DDA unless we have an agreement to eliminate export subsidies [for agriculture] by a date certain. Export subsidies distort trade more than any other measure. The final elimination of these subsidies would underscore our common commitment, especially for developing economies. .... In the area of agricultural market access, all of us have been struggling to find a compromise between those that favor an ambitious (i.e., Swiss) formula for tariff cuts and those that want to continue the modest Uruguay Round methodology. The various frameworks produced in August and September of last year suggested compromise amalgams. We should be open to all ideas on how to develop a blend that applies fairly to all and provides meaningful market access commitments that provide real export opportunities. These should be guided by three principles. One, we need substantial openings in markets of developed and developing countries, especially those that are competitive in sectors of agriculture and with stronger economies. Two, if a blended formula still permits extremely high tariffs, we need the principle of a cap on high tariffs and significant growing access to create a basis for true access to markets over time. Three, we need a common methodology, or else the DDA and even the WTO will be driven by divergent disciplines that will undermine our ability to press forward together, even if at different speeds. Of course, a common methodology can incorporate different degrees of reduction of barriers and longer staging for developing countries that need more time to adjust. . . . .... My assessment is that we will need to achieve more concrete understanding in agriculture before the negotiations on market access for manufactured goods can move ahead. When they do, I think
P1: OYK 0521750717c07a
CB951-Murphy
0 521 75071 7
August 6, 2005
12:25
International Economic Law
183
we will need to recognize that the current technical debate over the complexities of the formula cut is obscuring a basic point: we need an ambitious formula for cutting tariffs on manufactured goods that includes sufficient flexibility so that the methodology will work for all. If our discussions on agricultural market access succeed, we may wish to explore whether the “blended” concept would work for industrial goods, too. For less competitive developing economies, a blended methodology could give flexibility for sensitive items while enabling the WTO to proceed with an ambitious formula that significantly narrows the larger gaps in tariffs.2 After sending his letter, Zoellick traveled extensively in the first half of 2004, meeting with more than forty of his counterparts on how to put the Doha negotiations back on track.3 In July 2004, WTO members meeting in Geneva agreed on a framework package for advancing the Doha Round, which was then adopted by the WTO General Council.4 Under the framework, developed states agreed to cut their subsidies to farmers, especially payments that tend to lead to overproduction and hence excessive global supply. Such subsidies would be reduced at “harmonized” levels,5 meaning that governments with higher amounts of subsidies (such as the European Union) would be subject to deeper cuts. Moreover, developed states would commit to eliminate all such subsidies “by a credible end date.”6 In return, developing states would lower their high tariffs on agricultural and non-agricultural goods, although the formula for doing so with respect to the latter goods was not determined.7 Indeed, many of the details for implementing this framework remained uncertain. Consequently, the negotiations thereafter in 2004 focused on implementation issues, such as the conversion of non-ad valorem tariffs to ad valorem equivalents. By the end of 2004, it was expected that negotiations would continue at least until the next WTO ministerial conference in Hong Kong in December 2005. Modification of WTO Rules on Protection of Pharmaceuticals The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) provides that all parties are to accord protections for “any inventions, whether products or processes, in all fields of technology, provided they are new, involve an inventive step and are capable of industrial application.”1 Thus, among other things, TRIPS generally provides protection in one country for pharmaceuticals that have been patented in another country. At the same time, TRIPS allows a party to authorize under a compulsory license (that is, without the consent of a foreign patent holder) the production of a patented pharmaceutical under certain limited conditions, including – pursuant to TRIPS Article 31(f ) – authorizations “predominantly for the supply of the domestic market.”2 This limitation was designed to prevent parties who have pharmaceutical industries (such as Brazil and India) from authorizing their industries to produce inexpensive, generic versions of patented drugs for export to states that lack such industries. Since 1994, the inability of developing countries to import inexpensive, generic drugs to combat widespread and growing epidemics, including infectious diseases such as AIDS and malaria, led to calls for a revision of the TRIPS rules. Consequently, at the ministerial meeting of the World Trade Organization at Doha in November 2001, WTO parties agreed that the TRIPS Council3 should draft 2 Letter of U.S. Trade Representative Robert B. Zoellick to WTO Ministers ( Jan. 11, 2004), at . 3 See USTR Press Release on USTR Zoellick to Attend Key Meetings in Geneva July 27–28 To Advance Doha Negotiations ( July 26, 2004), at . 4 See Doha Work Programme: Decision Adopted by the General Council on 1 August 2004, WTO Doc. WT/L/579 (Aug. 2, 2004). 5 Id., Annex A, para. 6. 6 Id., Annex A, para. 17. 7 For non-agricultural goods, see id., Annex B. 1 Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Art. 27(1), Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, in World Trade Organization, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations 365 (1999), reprinted in 33 ILM 81 (1994). 2 Id., Art. 31(f ). 3 See id., Art. 68.
P1: OYK 0521750717c07a
CB951-Murphy
184
0 521 75071 7
August 6, 2005
12:25
United States Practice in International Law 2002–2004
more flexible rules concerning patented pharmaceuticals.4 Thereafter, in protracted negotiations, the U.S. government and the U.S. pharmaceutical industry resisted the adoption of new rules unless they were narrowly tailored to specific diseases and limited to certain importing states.5 In August 2003, the United States backed off from insisting on narrow rules, reportedly in the hope that doing so would assist in achieving success on other WTO issues at the ministerial meeting in Cancun, Mexico, in September. Nevertheless, the United States maintained that importing states must be precluded from taken unfair advantage of the new rules and that the new rules must allow for the possibility of monitoring whether the pharmaceuticals are surreptitiously being shipped to markets other than the importing state. On August 30, the WTO General Council issued a decision in the form of an interim waiver until an amendment to TRIPS can be completed. It provides, in part: 2. The obligations of an exporting Member under Article 31(f ) of the TRIPS Agreement shall be waived with respect to the grant by it of a compulsory license to the extent necessary for the purposes of production of a pharmaceutical product(s) and its export to an eligible importing Member(s) in accordance with the terms set out below in this paragraph: (a) the eligible importing Member(s) has made a notification to the Council for TRIPS, that: (i) specifies the names and expected quantities of the product(s) needed; (ii) confirms that the eligible importing Member in question, other than a least developed country Member, has established that it has insufficient or no manufacturing capacities in the pharmaceutical sector for the product(s) in question . . . ; and (iii) confirms that, where a pharmaceutical product is patented in its territory, it has granted or intends to grant a compulsory license in accordance with Article 31 of the TRIPS Agreement and the provisions of this Decision; (b) the compulsory license issued by the exporting Member under this Decision shall contain the following conditions: (i) only the amount necessary to meet the needs of the eligible importing Member(s) may be manufactured under the license and the entirety of this production shall be exported to the Member(s) which has notified its needs to the Council for TRIPS; (ii) products produced under the license shall be clearly identified as being produced under the system set out in this Decision through specific labelling or marking. Suppliers should also distinguish such products through special packaging and/or special colouring/shaping of the products themselves, provided that such distinction is feasible and does not have a significant impact on price; and (iii) before shipment begins, the licensee shall post on a website the . . . quantities being supplied to each destination . . . and . . . the distinguishing features of the product(s). . . . 3. Where a compulsory license is granted by an exporting Member under the system set out in this Decision, adequate renumeration pursuant to Article 31(h) of the TRIPS Agreement
4 Declaration on the TRIPS Agreement and Public Health, para. 6, WTO Doc. WT/Min(01)/Dec/2 (Nov. 20, 2001), reprinted in 41 ILM 755 (2002), at . 5 See Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health – Second Communication from the United States, WTO Doc. IP/C/W/358 ( July 9, 2002), at ; see also Elizabeth Becker, Poor Nations Can Purchase Cheap Drugs Under Accord, N.Y. Times, Aug. 31, 2003, at 6.
P1: OYK 0521750717c07a
CB951-Murphy
0 521 75071 7
August 6, 2005
12:25
International Economic Law
185
shall be paid in that Member [to the patent holder] taking into account the economic value to the importing Member of the use that has been authorized in the exporting Member. Where a compulsory licence is granted for the same products in the eligible importing Member, the obligation of that Member under Article 31(h) shall be waived in respect of those products for which renumeration in accordance with the first sentence of this paragraph is paid in the exporting Member. 4. In order to ensure that the products imported under the system set out in this Decision are used for the public health purposes underlying their importation, eligible importing Members shall take reasonable measures within their means, proportionate to their administrative capacities and to the risk of trade diversion to prevent re-exportation of the products that have actually been imported into their territories under the system.6 A separate statement by the chairperson of the WTO General Council recorded “key shared understandings of Members” on the interpretation and implementation of the decision. In addition to stating that the decision “should be used in good faith to protect public health,” should “not be an instrument to pursue industrial or commercial policy objectives,” and should not result in products being “diverted from the markets for which they are intended,” the statement provided that “[a]ny Member may bring any matter related to the interpretation or implementation of the Decision, including issues related to diversion, to the TRIPS Council for expeditious review, with a view to taking appropriate action.”7 The United States characterized the accord as “a constructive balance that ensures access to medicines by those most in need while not undermining intellectual property rights that foster the research and development necessary to produce life saving drugs.”8 Several developed states, including the United States, agreed not to take advantage of the new rules as importers.9 Several other states agreed that they would use the new rules as importers only in situations of national emergency or other circumstances of extreme urgency.10 U.S. Conformance with Shrimp-Turtle Decision On October 12, 1998, the WTO Appellate Body issued a report1 in a dispute brought by India, Malaysia, Pakistan, and Thailand against the United States concerning a U.S. law (section 609 of a 1989 appropriations act) designed to protect endangered sea turtles by restricting imports of shrimp and shrimp products when not harvested using turtle-friendly methods.2 The report provisionally found that the United States could restrict imports of shrimp and shrimp products under the General Agreement on Tariffs and Trade (GATT)3 if such measures related to the conservation of exhaustible natural resources and were made effective in conjunction with restrictions on domestic production or consumption.4 Yet the report also found that the United States violated the GATT when prohibiting the import of certain shrimp and shrimp products for environmental reasons because it did so in 6 WTO General Council, Decision of 30 August 2003, WTO Doc. IP/C/W/405 (Aug. 30, 2003) (footnotes omitted), at . 7 WTO Press Release on the General Council Chairperson’s Statement (Aug. 30, 2003), at . 8 Office of the U.S. Trade Representative Press Release on Statement of Ambassador Linnet F. Deily, Permanent Representative to the World Trade Organization and Deputy U.S. Trade Representative, Following Agreement in WTO on Access to Medicines (Aug. 30, 2003), at . 9 These states included Australia, Canada, Iceland, Japan, New Zealand, Norway, Switzerland, and the United States, as well as current and soon-to-accede members of the European Union. 10 Among these states were China (including Hong Kong and Macao), Israel, Korea, Kuwait, Mexico, Qatar, Singapore, Turkey, and United Arab Emirates, as well as Chinese Taipei. 1 Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WTO Doc. WT/DS58/AB/R (Oct. 12, 1998) (adopted, with modifications, Nov. 6, 1998) [hereinafter Appellate Body Report]. For a discussion of the case, see Gregory Shaffer, Case Report: United States – Import Prohibition of Certain Shrimp and Shrimp Products, 93 AJIL 507 (1999). 2 See Pub. L. No. 101-162, §609, 103 Stat. 988, 1037–38 (1989) (codified at 16 U.S.C. §1537 note (2000)). 3 General Agreement on Tariffs and Trade, Oct. 30, 1947, TIAS 1700, 55 UNTS 187. 4 Id., Art. XX(b), (g).
P1: OYK 0521750717c07a
CB951-Murphy
186
0 521 75071 7
August 6, 2005
12:25
United States Practice in International Law 2002–2004
a manner that constituted arbitrary and unjustifiable discrimination.5 Part of this discrimination derived from the bar on imports of shrimp harvested by the commercial shrimp trawlers of noncertified countries even though those vessels were using turtle-excluder devices (TEDs) comparable to those considered acceptable for U.S. vessels.6 Furthermore, the report cited various international environmental instruments in finding that such conservation measures call for cooperative efforts among countries, not unilateral action, although it did not completely foreclose the possibility of unilateral action.7 It recommended that the United States bring its manner of implementing import restrictions into conformity with its WTO obligations but allowed the United States to determine exactly how to respond. Thereafter, the Department of State instituted a broad range of procedural changes to the certification process under section 609, thereby creating a more transparent and predictable process for reviewing foreign programs.8 Moreover, the Department of State allowed greater flexibility for the importation of shrimp harvested by vessels using TEDs in uncertified nations, subject to certain safeguards and conditions designed to minimize fraud and to maintain sea turtle protection. Nevertheless, in October 2000, Malaysia challenged the U.S. implementation of the Appellate Body report as still being too restrictive in allowing imports of shrimp and shrimp products to the United States. On June 15, 2001, the WTO dispute settlement panel released a report finding that the U.S. implementation of its sea turtle protection law was fully consistent with WTO rules and complied with the earlier recommendations of the WTO Appellate Body.9 On appeal, the Appellate Body upheld the panel’s decision.10 While the WTO proceeding was ongoing, the Turtle Island Restoration Network and other environmental groups sued the U.S. government before the U.S. Court of International Trade, asserting that section 609 prohibits all importation of shrimp or shrimp products from countries that have not been certified as having taken adequate measures to protect sea turtles. The Court of International Trade agreed,11 but on appeal the U.S. Court of Appeals for the Federal Circuit upheld the Department of State guidelines.12 The U.S. government had argued, in part, that deference should be granted to the Department of State concerning the interpretation of section 609 and also concerning the question of whether that interpretation minimizes potential conflicts with international trade agreements. The appeals court found it unnecessary to reach such issues, however, since it held that the plain language of section 609, its legislative history, and comparison with other statutes supported the Department of State’s guidelines.13 On April 7, 2003, the U.S. Supreme Court denied the plaintiffs’ petition for writ of certiorari.14 U.S. Conformance with Steel Safeguards Decision In June 2001, President Bush asked the International Trade Commission (ITC) to investigate the effects of imports on the U.S. steel industry and its workers. In December 2001, the ITC transmitted a report to the president determining that certain types of steel were being imported in such increased quantities as to cause serious injury, or threat thereof, to the U.S. steel industry.1 On March 5, 2002, 5 Appellate Body Report, supra note 1, para. 187(c). Article XX of the GATT requires that the environmental and conservation measures be nondiscriminatory and nonarbitrary. 6 Id., para. 165. 7 Id. 8 See Revised Guidelines for the Implementation of Section 609 of Public Law 101–162 Relating to the Protection of Sea Turtles in Shrimp Trawl Fishing Operations, 64 Fed. Reg. 36,946 ( July 8, 1999). 9 See Panel Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products – Recourse to Article 21.5 by Malaysia, WTO Doc. WT/DS58/RW ( June 15, 2001) (adopted Nov. 21, 2001). 10 See Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia, WTO Doc. WT/DS58/AB/RW (Oct. 22, 2001) (adopted Nov. 26, 2001), reprinted in 41 ILM 149 (2002). For a discussion of the case, see 96 AJIL 685 (2002). 11 Turtle Island Restoration Network, 110 F.Supp.2d 1005 (Ct. Int’l Trade 2000). 12 Turtle Island Restoration Network v. Evans, 284 F.3d 1282 (Fed. Cir. 2002). 13 Id. at 1297. 14 Turtle Island Restoration Network v. Evans, 538 U.S. 960 (2003). 1 See ITC Ruling in Steel Safeguard Case Clears Way for Import Relief for Some Products, 18 Int’l Trade Rep. (BNA) 1681 (2001); Joseph Kahn, U.S. Trade Panel Backs Putting Hefty Duties on Imported Steel, N.Y. Times, Dec. 8, 2001, at C1.
P1: OYK 0521750717c07a
CB951-Murphy
0 521 75071 7
August 6, 2005
12:25
International Economic Law
187
President Bush announced that the United States would impose three-year tariffs ranging as high as 30 percent on some imported steel as a means of providing safeguards for the U.S. steel industry.2 The president authorized the U.S. trade representative to consider requests for certain products to be excluded from the tariffs;3 requests covering hundreds of products were granted over the course of 2002.4 In a report to Congress required under U.S. trade law,5 the Bush administration explained the reasons for the president’s action: Foreign steel producers, often nurtured by government subsidies that have allowed them to build huge amounts of excess capacity, have flooded the U.S. market with imports. The Asian financial crisis further compounded distortions in global steel markets and precipitated a massive surge of imports. This combination of factors seriously affected U.S. steel producers, workers and communities. Since 1998, firms accounting for thirty percent of U.S. steel-making capacity have filed for bankruptcy. Domestic steel prices in the last quarter of 2001 were at their lowest levels in 20 years, and a number of integrated and mini-mill producers posted significant fourth-quarter financial losses last year. World Trade Organization (WTO) rules recognize that sudden and large increases of imports can overwhelm even the most competitive domestic industries, and that countries may need to take temporary actions to provide relief. . . . .... . . . Many of our major trading partners – including the European Union, Japan, Korea, Brazil, and India – have imposed safeguard measures covering a wide range of products.
This relief does not end the Section 201 process. The President will impose an import licensing system to allow the U.S. government to obtain more timely information about changes in steel trade trends for products covered by this action. The President will monitor the extent to which other nations are eliminating global excess steel capacity. The President will also monitor economic conditions and the state of the U.S. steel industry to ensure that the industry is taking steps to restructure and increase its competitiveness. The President retains the right to modify or terminate the safeguard measures as appropriate. The relief is intended to last for three years. Consistent with America’s free trade obligations and WTO rules, the Administration is excluding our free trade agreement partners. In addition, consistent with WTO rules, we are excluding developing countries that ship relatively small quantities of imports. .... . . . Many governments have long believed the development of a domestic steel industry is the cornerstone of industrial development, and most countries’ steel industries have benefited from direct or indirect subsidies and other assistance. Longstanding and far-reaching government intervention 2 See Proclamation 7529 – To Facilitate Positive Adjustment to Competition from Imports of Certain Steel Products, 67 Fed. Reg. 10,553 (Mar. 7, 2002); Action Under Section 203 of the Trade Act of 1974 Concerning Steel Products, 67 Fed. Reg. 10,593 (Mar. 7, 2002); see also David E. Sanger, Bush Puts Tariffs of as Much as 30% on Steel Imports; Allies See a Trade Fight, N.Y. Times, Mar. 6, 2002, at A1. The statutory authority for this action derives from the Trade Act of 1974, §§201–204, 19 U.S.C. §§2251–2254 (2000) (collectively referred to as “Section 201”). 3 See Proclamation 7576 – To Provide for the Efficient and Fair Administration of Safeguard Measures on Imports of Certain Steel Products, 67 Fed. Reg. 45,285 ( July 8, 2002). 4 See, e.g., John M. Berry, U.S. Announces Exemptions to Steel Tariffs; Trade Officials Say Excluded Products Constitute Less Than 1 Percent of Imports, Wash. Post, June 8, 2002, at A8. For information and the lists of products excluded, see . 5 See 19 U.S.C. §2253(b) (2000).
P1: OYK 0521750717c07a
CB951-Murphy
188
0 521 75071 7
August 6, 2005
12:25
United States Practice in International Law 2002–2004
by other nations in the steel market has subsidized capacity expansion, and distorted competition to such an extent that the international market no longer works as it should. Eliminating these foreign market-distorting practices is perhaps the single most important step in addressing the long-term problems of America’s steel industry. Consequently the U.S. has launched international talks with nearly 40 major steel-producing countries aimed at eliminating subsidies and developing greater disciplines on market-distorting practices in the global steel industry.6 Shortly after the president’s announcement, Brazil, China, the European Communities, Japan, New Zealand, Norway, South Korea, and Switzerland requested consultations at the World Trade Organization. Unsatisfied with the consultations, on May 8 they requested the establishment of dispute panels7 on grounds that the U.S. safeguards were not consistent with the General Agreement on Tariffs and Trade 19948 and with the Agreement on Safeguards.9 In a decision issued July 11, 2003,10 a WTO panel agreed with the European Communities that the U.S. measures violated the WTO Safeguards Agreement and Article XIX of the General Agreement on Tariffs and Trade. In particular, the panel concluded that the measures were not taken in response to unforeseen developments or to an increase in imports; that the United States had not demonstrated that increased imports were causing (or threatening to cause) serious injury to U.S. industry; and that the United States had unfairly included imports from its NAFTA partners, Canada and Mexico, when considering the harm to U.S. industry, but had then excluded those imports from the safeguard measures. On November 10, the WTO Appellate Body generally upheld the panel’s decision.11 The European Commission then threatened to impose tariffs on about U.S.$2 billion of U.S. exports to Europe.12 On December 4, President Bush signed a proclamation ending the steel safeguard measures.13 The president issued a statement asserting that he was lifting the safeguard measures because they were no longer needed; he made no reference to the WTO’s decisions. The U.S. steel industry wisely used the 21 months of breathing space we provided to consolidate and restructure. The industry made progress increasing productivity, lowering production costs, and making America more competitive with foreign steel producers. Steel producers and workers have negotiated new groundbreaking labor agreements that allow greater flexibility and increase job stability. The Pension Benefit Guaranty Corporation has guaranteed the pensions of eligible steelworkers and retirees and relieved the high pension costs that burdened some companies. My jobs-and-growth plan has also created more favorable economic conditions for the industry, and the improving economy will help further stimulate demand.14
6 Report Submitted to the United States Congress, Pursuant to Section 203(B)(1) of the Trade Act of 1974, as Amended (Mar. 3, 2002), at . 7 The panels were consolidated. See United States – Definitive Safeguard Measures on Imports of Certain Steel Products, WT/DS/248, 249, 251, 252, 253, 254, 258, 259, at . 8 Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization [hereinafter WTO Agreement], Annex 1A, in World Trade Organization, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations 17 (1999), reprinted in 33 ILM 81 (1994). 9 WTO Agreement, supra note 8, Annex 1A, in The Legal Texts, supra note 8, at 275. 10 See Panel Report, United States – Definitive Safeguard Measures on Imports of Certain Steel Products, WTO Doc. WT/DS248/R ( July 11, 2003). 11 See Appellate Body Report, United States – Definitive Safeguard Measures on Imports of Certain Steel Products, WTO Doc. WT/DS248/AB/R (Nov. 10, 2003). 12 See European Commission Press Release IP/03/1518 (Nov. 10, 2003) ( Joint press statement by the EC, Brazil, China, Japan, Korea, New Zealand, Norway, and Switzerland), at ; Elizabeth Becker, U.S. Tariffs Are Illegal, World Trade Organization Says, N.Y. Times, Nov. 11, 2003, at A1. 13 Proclamation No. 7741, 68 Fed. Reg. 68,483 (Dec. 4, 2003). 14 Statement on Signing the Proclamation to Provide for the Termination of Action Taken with Regard to Imports of Certain Steel Products, 39 Weekly Comp. Pres. Doc. 1749, 1750 (Dec. 4, 2003). The president’s advisers reportedly concluded that the safeguard measure was costing more jobs in the steel-consuming industry than it was saving in the steel-production industry. See Jonathan Weisman, Bush Rescinds Tariffs on Steel, Wash. Post, Dec. 5, 2003, at A1.
P1: OYK 0521750717c07a
CB951-Murphy
0 521 75071 7
August 6, 2005
12:25
International Economic Law
189
U.S. Efforts to Conform to Foreign Sales Corporation Decision For several years the United States provided tax exemptions for income associated with “foreign sales corporations” (FSCs), which are non-U.S. corporations responsible for certain sales-related activities in connection with the sale or leasing of goods produced in the United States for export. The FSC program served as a key tool of U.S. export promotion, providing tax advantages of some U.S.$4 billion per year for U.S. exporters.1 On February 24, 2000, the WTO appellate body2 upheld in large part an October 1999 WTO panel report that found such tax exemptions to be prohibited export subsidies, in violation of both the Agreement on Subsidies and Countervailing Measures (ASCM) and the Agreement on Agriculture (AA) associated with the General Agreement on Tariffs and Trade 1994.3 The dispute had been brought by the European Communities.4 The United States then amended its law in November 2000 so as to repeal the provisions in the U.S. Internal Revenue Code (IRC) relating to taxation of foreign sales corporations, subject to certain transitional provisions.5 At the same time, a new section was inserted into the IRC excluding from taxation “extraterritorial income” that is “qualifying foreign trade income.” Extraterritorial income is defined to mean gross income of a taxpayer attributable to foreign trading gross receipts (i.e., gross receipts generated by certain qualifying transactions involving the sale or lease of “qualifying foreign trade property” not for use in the United States). “Qualifying foreign trade income” for any given transaction is determined based on certain percentages set forth in the new law. “Qualifying foreign trade property” is defined as property held primarily for sale, lease, or rental for use outside the United States, where not more than 50 percent of the fair market value of the property is attributable to articles and labor produced outside the United States. The European Communities challenged this new tax scheme before the WTO as still constituting subsidies prohibited by the ASCM and AA. In reports issued in the fall of 2001, the WTO panel and the appellate body both agreed that the amended U.S. law still violated the WTO obligations of the United States.6 In January 2002, the reports were adopted by the WTO Dispute Settlement Body. Further, the European Communities pursued authorization to take appropriate countermeasures and to suspend concessions to the United States in the amount of U.S.$4.043 billion per year. On August 30, 2002, a WTO arbitration found such countermeasures and suspension of concessions to be appropriate, rejecting a U.S. argument that the amount should be just U.S.$1 billion.7 After the states of the European Communities agreed in April 2003 upon the list of imported U.S. goods that would be sanctioned, and the WTO Dispute Settlement Body approved in May of those sanctions, the European Communities informed the United States that the sanctions would be imposed starting January 1, 2004, unless the United States complied with the WTO decisions.8 By early 2004, the United States had not yet further altered its law on foreign sales corporations. Consequently, on March 1 the European Communities imposed a retaliatory tariff of five percent on 1
See John Burgess, U.S. Seeks to Recover from WTO Decision, Wash. Post, Feb. 25, 2000, at E1. United States – Tax Treatment for “Foreign Sales Corporations,” WTO Doc. WT/DS108/AB/R (Feb. 24, 2000). The WTO dispute settlement body adopted the appellate body report on March 20, 2000. For a detailed discussion of this case, see Stanley I. Langbein, Case Report: United States – Tax Treatment for Foreign Sales Corporations, 94 AJIL 546 (2000). 3 See Agreement on Agriculture & Agreement on Subsidies and Countervailing Measures, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, in World Trade Organization, The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts 6, 39, 264 (1999), reprinted in 33 ILM 81 (1994). 4 In simplified terms, WTO trade rules preclude the refunding of income taxes associated with goods that are exported, but permit the refund of excise taxes associated with exports. U.S. federal tax revenue derives primarily from income taxes, while European states derive much of their revenues from excise taxes, such as the “value added” tax (VAT). Thus, European states can refund to their exporters the VAT levied on exports, but the United States cannot refund to its exporters the income tax levied on U.S. exports. To help level the playing field, the United States over time enacted several tax laws aimed at allowing U.S. companies to receive a federal income tax benefit by establishing an overseas subsidiary to export its products. Hence, the “foreign sales corporation” program. 5 FSC Repeal and Extraterritorial Income Exclusion Act of 2000, Pub. L. No. 106-519, 114 Stat. 2423 (2000). 6 United States – Tax Treatment for “Foreign Sales Corporations,” WTO Doc. WT/DS108/RW (Aug. 20, 2001); United States – Tax Treatment for “Foreign Sales Corporations,” WTO Doc. WT/DS108/21/AB/RW (Nov. 20, 2001); see William Drozdiak, EU May Hit U.S. With $4 Billion In Penalties, Wash. Post, Aug. 21, 2001, at E1. 7 United States – Tax Treatment for Foreign Sales Corporations – Recourse to Arbitration by the United States under Article 22.6 of the DSU and Article 4.11 of the SCM Agreement – Decision of the Arbitrator, WTO Doc. WT/DS108/ARB (Aug. 30, 2002). 8 See Daniel Pruzin & Gary G. Yerkey, EU Threatens to Impose Sanctions Over FSC By Jan. 1 if U.S. Fails to Move on Compliance, 20 Int’l Trade Rep. (BNA) 798 (2003). 2
P1: OYK 0521750717c07a
CB951-Murphy
190
0 521 75071 7
August 6, 2005
12:25
United States Practice in International Law 2002–2004
U.S.$4 billion worth of U.S. products, with the tariff set to increase by one percent each month until alteration of the U.S. law. The imposition of such sanctions led to lobbying of Congress for a repeal of the FSC program.9 In late 2004, Congress adopted and President Bush signed into law the American Jobs Creation Act,10 which in Title I repealed the foreign sales corporation provisions, and replaced them with a mix of tax relief for U.S. manufacturing and reforms intended to help the overseas operations of multinational corporations. Of particular note, the new law included “transitional provisions” that allowed U.S. exporters to continue to benefit from the existing law in the years 2005 and 2006 with respect to all export transactions, and for an indefinite period with respect to certain binding contracts.11 After passage of the new law, the European Communities announced that it would end its sanctions against U.S. exports on January 1, 2005, but also announced that it would appeal to the WTO the transitional provisions of the new law as incompatible with the WTO’s rulings.12 Failure to Conform with Decision on “Byrd Amendment” In October 2000, the United States enacted the Continued Dumping and Subsidy Offset Act, also known as the “Byrd Amendment.”1 The Byrd Amendment required U.S. customs authorities to forward duties collected from anti-dumping or countervailing duty orders to U.S. companies that had petitioned the U.S. government for relief, so as to “off-set” the harm incurred by those companies. Prior to enactment of the law, such duties had been retained by the U.S. Department of Treasury. In January 2001, Australia, Brazil, Chile, the European Communities, India, Indonesia, Japan, Korea, and Thailand,2 joined by Argentina, Canada, and Mexico, sought consultations with the United States about the compatibility of the law with U.S. WTO obligations. After those consultations failed to resolve the matter, the complaining states filed in July for creation of a WTO dispute panel. According to the complaining states: The “offsets” constitute a specific action against dumping and subsidisation that is not contemplated in the GATT, the [Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the “ADA”)] or the [Agreement on Subsidies and Countervailing Measures (the “ASCM”)].3 Moreover, the “offsets” provide a strong incentive to the domestic producers to file or support petitions for anti-dumping or anti-subsidy measures, thereby distorting the application of the standing requirements provided for in the ADA and the ASCM. In addition, the Act makes it more difficult for exporters subject to an antidumping or countervailing duty order to secure an undertaking with the competent authorities, since the affected domestic producers will have a vested interest in opposing such undertakings in favour of the collection of anti-dumping or countervailing duties. In the view of Australia, Brazil, Chile, the EC, India, Indonesia, Japan, Korea, and Thailand this is not a reasonable and impartial administration of the US laws and regulations implementing the provisions of the ADA and the ASCM regarding standing determinations and undertakings.4 In September 2002, the panel found against the United States on a majority of the claims,5 finding that the disbursement of the duties to domestic producers constitutes a “non-permissible specific 9
See Alison Bennett, Senate Passes Export Tax Repeal; New Shelter Promoter Penalties Added, 21 Int’l Trade Rep. (BNA) 806 (2004). Pub. L. No. 108-357, 118 Stat. 1418 (2004). Id., §101. 12 See United States – Tax Treatment for Foreign Sales Corporations: Second Recourse to Article 21.5 of the DSU by the European Communities – Request for Consultations, WTO Doc. WT/DS108/7 (Nov. 10, 2004). 1 Continued Dumping and Subsidy Offset Act, Pub. L. No. 106-387, Title X, 114 Stat. 1549A, 72–75 (2000). 2 See United States – Continued Dumping and Subsidy Offset Act of 2000 – Request for Consultations by Australia, Brazil, Chile, the European Communities, India, Indonesia, Japan, Korea and Thailand, WTO Doc. WT/217/1 ( Jan. 9, 2001). 3 [Author’s Note: See Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, and Agreement on Subsidies and Countervailing Measures, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, in World Trade Organization, The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts 168, 264 (1999), reprinted in 33 ILM 81 (1994).] 4 United States – Continued Dumping and Subsidy Offset Act of 2000 – Request for Establishment of a Panel by Australia, Brazil, Chile, the European Communities, India, Indonesia, Japan, Korea and Thailand, WTO Doc. WT/217/5 ( July 13, 2001). 5 United States – Continued Dumping and Subsidy Offset Act of 2000 – Report of the Panel, WTO Doc. WT/DS217/R, WT/DS234/R (Sept. 16, 2002). 10 11
P1: OYK 0521750717c07a
CB951-Murphy
0 521 75071 7
August 6, 2005
12:25
International Economic Law
191
action against dumping or a subsidy” contrary to U.S. obligations under the ADA and ASCM. The panel’s decision was upheld by the WTO Appellate Body in January 2003,6 and the United States was given until December 27, 2003 to repeal the Byrd Amendment.7 In his budget proposal to the Congress for fiscal year 2004, President Bush called for the repeal of the Byrd Amendment, stating that “[t]hese corporate subsidies effectively provide a significant ‘doubledip’ benefit to industries that already gain protection from the increased import prices provided by countervailing tariffs.”8 Congress, however, did not adopt such a repeal in either 2003 or 2004, so the complaining states initiated the process for obtaining WTO authorized countermeasures. In August 2004, a WTO arbitrator ruled that the complainants had the right to impose sanctions on U.S. imports up to a level equivalent to the amount of antidumping and countervailing duties collected by the United States on their imports (for the most recent year where figures are available), multiplied by 0.72, a coefficient that the arbitrators said accurately reflected the value of trade negatively impacted by the Byrd Amendment.9 Since estimated U.S. disbursements for 2003 were U.S.$240 million, the ruling would allow imposition by the complaining states of more than U.S.$150 million in annual retaliatory duties.10 In late 2004, several of the complaining states proceeded to seek authorization from the WTO Dispute Settlement Body to impose specific counter-measures.11
6 United States – Continued Dumping and Subsidy Offset Act of 2000 – Report of the Appellate Body, WTO Doc. WT/DS217/AB/R, WT/DS234/AB/R ( Jan. 16, 2003). 7 United States – Continued Dumping and Subsidy Offset Act of 2000 – Arbitration under Article 21.3(3) of the Understanding on Rules and Procedures Governing the Settlement of Disputes: Award of the Arbitrator, WTO Doc. WT/DS217/14, WT/DS234/22 ( June 13, 2003). 8 See U.S. Office of Management and Budget, Budget of the United States Government: Fiscal Year 2004, at 240 & Appendix at 784 (2003), at . 9 See United States – Continued Dumping and Subsidy Offset Act of 2000 (Original Complaint by Brazil): Recourse to Arbitration by the United States Under Article 22.6 of the DSU, WTO Doc. WT/DS217/ARB/BRA (Aug. 31, 2004) (and associated decisions issued on the same date). 10 See Daniel Pruzin, EU, Japan to Seek WTO Clearance To Impose Sanctions on U.S. Imports, 21 Int’l Trade Rep. (BNA) 1839 (2004). 11 See, e.g., United States – Continued Dumping and Subsidy Offset Act of 2000: Recourse by Japan to Article 22.7 of the DSU, WTO Doc. WT/DS217/41 (Nov. 11, 2004).
P1: JtR 0521750717c08
CB951-Murphy
0 521 75071 7
August 6, 2005
12:49
Chapter VIII International Human Rights Overview During 2002–2004, the United States adhered to some new treaties and instruments in the field of human rights, such as two protocols to the Rights of the Child Convention, but resisted developing or committing the United States to instruments that would alter existing U.S. laws and obligations, such as a Torture Convention Protocol on Preventive Visits. To assist in implementation of existing human rights norms, the United States issued reports on human rights compliance by other countries, ranging from the basic annual Department of State human rights reports to more specialized reports, such as on religious freedom. U.S. treatment of enemy aliens in the “war on terrorism” exposed the United States to criticism in the global community on human rights grounds, criticism that may have affected the ability of the United States to advance other aspects of its foreign policy, such as in trying to prevent condemnation of Israel at multinational fora. The United States sought to use such fora, however, to promote human rights in strife-ridden lands, such as by pressing the United Nations to find that genocide was occurring in the Sudan. Recognizing the value of such fora, the United States actively participated in, and pursued election of U.S. representatives to, human rights bodies (winning election to the UN Human Rights Commission, but losing at the Inter-American Commission on Human Rights). The intersection of international human rights law and immigration law remained an ongoing issue, both with respect to the return of U.S. nationals to the United States to face the death penalty, and with respect to the possible removal or deportation of foreign nationals from the United States to countries where they might face torture or inhumane treatment. One of the most robust areas of U.S. involvement in human rights law in this time period continued to be litigation in U.S. courts involving the Alien Tort Claims Act (ATCA) and the Torture Victim Protection Act (TVPA). Both statutes provided avenues of redress for persons seeking to vindicate in U.S. court human rights violations that occurred abroad, including violations in which corporations were allegedly complicit. The highlight in this area during 2002–2004 was the Supreme Court’s decision in the Sosa case, which clarified that the ATCA was a jurisdictional statute only, but that causes of action relevant to the statute could arise under customary international law where that law was universally accepted and defined with specificity.
New Treaties and Instruments Ratification of Protocols to Rights of the Child Convention The United States signed in 1995, but has yet to ratify, the UN Convention on the Rights of the Child.1 On May 25, 2000, the UN General Assembly adopted two optional protocols to the Convention, entitled Optional Protocol on the Involvement of Children in Armed Conflict and Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography.2 In transmitting the two protocols to the Senate, the Clinton administration described the protocols as follows: The Children in Armed Conflict Protocol deals realistically and reasonably with the difficult issue of minimum ages for compulsory recruitment, voluntary recruitment, and participation in
1 2
192
Nov. 20, 1989, 1577 UNTS 3. For background, see Michael J. Dennis, Newly Adopted Protocols to the Convention on the Rights of the Child, 94 AJIL 789 (2000).
P1: JtR 0521750717c08
CB951-Murphy
0 521 75071 7
August 6, 2005
12:49
International Human Rights
193
hostilities, while fully protecting the military recruitment and readiness requirements of the United States. The Protocol raises the age for military conscription to 18 years; international law had previously set this at only 15 years. The Protocol also calls for governments to set a minimum age for voluntary recruitment above the current international standard of 15 years and to report on measures to ensure that recruitment is truly voluntary. States must take “all feasible measures” to ensure that members of their armed forces who are not yet 18 do not take a “direct” part in hostilities. States that become party to the Protocol also agree to “take all feasible measures to prevent” the recruitment and use of persons younger than 18 in hostilities by non-governmental armed groups, including by adopting legal measures to prohibit and criminalize such practices. .... No implementing legislation would be required with respect to U.S. ratification of the Children in Armed Conflict Protocol because current U.S. law meets the standards in the Protocol. The United States does not permit compulsory recruitment of any person under 18 for any type of military service. While inactive, the selective service system remains established in law and provides for involuntary induction at and after age 18. The United States also does not accept voluntary recruits below the age of 17 pursuant to 10 U.S.C. §505(a) (1994). Additionally, the United States will take “all feasible measures” to ensure that members of its armed forces [under the age of 18] do not take “a direct part in hostilities” without necessitating any change in U.S. law. U.S. law already prohibits insurgent activities by non-government actors against the United States, irrespective of age, under 18 U.S.C. §2381, et seq. .... The Sale of Children Protocol takes a vital step forward in our efforts to combat crimes of trafficking in children. Those who traffic in children prey on the most vulnerable children, who are most in need of legal and other protections. The Protocol is the first international instrument to define the terms “sale of children,” “child pornography,” and “child prostitution.” The Protocol requires these offenses to be treated as criminal acts, and provides law enforcement and cooperation tools to help guarantee that offenders will not go unpunished. Additionally, the Protocol establishes stronger, clearer grounds for jurisdiction and extradition, to better ensure that offenders can be prosecuted regardless of where they are found. Moreover, its extensive provisions on prevention and cooperation will help child victims receive protection and assistance.3 In addition, the Clinton administration recommended that advice and consent be subject to certain understandings and a declaration. On June 18, 2002, the Senate unanimously provided advice and consent to ratification. With respect to the Children in Armed Conflict Protocol, the Senate added two additional understandings, including one that provides “that nothing in the Protocol establishes a basis for jurisdiction by any international tribunal, including the international criminal court.”4 With respect to the Sale of Children Protocol, the Senate added a declaration that virtually all of the provisions of the protocol are non-self-executing and are fulfilled by current U.S. law, and added a further understanding concerning the implementation of the protocol in the U.S. federal system.5 On December 23, 2002, the United States deposited with the United Nations the instruments of ratification for the two protocols.6
3
Protocols to the Convention on the Rights of the Child, S. Treaty Doc. No. 106-37 at V, VI, VIII (2000). 148 Cong. Rec. S5717 (daily ed. June 18, 2002). Id. at S5718–19. 6 See U.S. Dep’t of State Press Release on Ratification of Optional Protocols to the Convention on the Rights of the Child (Dec. 23, 2002), at . 4 5
P1: JtR 0521750717c08
CB951-Murphy
194
0 521 75071 7
August 6, 2005
12:49
United States Practice in International Law 2002–2004
U.S. View on Pursuing a Torture Convention Protocol The UN Torture Convention1 was adopted in 1984 and entered into force in 1987. In 1992, the UN Commission on Human Rights adopted a resolution establishing an open-ended working group to elaborate a draft optional protocol to the Convention that would create a preventive system of regular visits to places of detention by independent national and international bodies.2 In 2002, the working group issued a report containing the text of an optional protocol.3 Among other things, the protocol would establish a subcommittee of the Convention’s Committee Against Torture (referred to as the Subcommittee on Prevention) – consisting of ten members with experience in the field of the administration of justice – with a mandate to visit any place under a Convention state’s “jurisdiction and control where persons are or may be deprived of their liberty, either by virtue of an order given by a public authority or at its instigation or with its consent or acquiescence.”4 In April 2002, the UN Human Rights Commission adopted a resolution by a vote of 29 to 10 (with 14 abstentions) approving the draft optional protocol and recommending that the Economic and Social Council (ECOSOC) likewise adopt the protocol and transmit it to the General Assembly for adoption.5 At a meeting of ECOSOC in July 2002, the United States proposed that rather than adopting the draft protocol, ECOSOC should recommend that the General Assembly form a working group to continue considering the text of such a protocol.6 The U.S. proposal was rejected by a vote of 15 to 29 (with 8 abstentions). Instead, ECOSOC voted 35 to 8 (with 10 abstentions) to approve the draft protocol and transmit it to the General Assembly.7 In explaining its decision to abstain on the second vote, the United States noted: [T]he current text of the Draft Optional Protocol before ECOSOC has serious flaws. In some respects, its overall approach and certain specific provisions are contrary to our Constitution, particularly with respect to matters of search and seizure. Furthermore, in view of our Federal system of government, the regime established by the draft would be overly intrusive. Moreover, the draft is before ECOSOC as the result of a premature vote by the Commission on Human Rights that represents a significant departure from the longstanding preference for consensus in formulating new human rights instruments. In addition, the credibility of this draft instrument is greatly undermined by the fact that, despite originally being intended as a universal instrument, it was adopted in a Commission vote with nearly as many negative votes and abstentions as votes in favor (29-10-14). Finally, there are financial implications potentially involving millions of dollars annually if the current text of the draft optional protocol is adopted. We and others have repeatedly requested that a cost analysis of the draft be carried out by the secretariat, followed by a detailed report to Member States concerning the impact on the UN budget of implementation of this draft instrument if it enters into force.8
1 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 UNTS 85. On November 20, 1994, the United States became a party to the Convention. 2 See Question of a Draft Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Comm’n H.R., UN ESCOR, 48th Sess., 52nd mtg., Supp. No. 2, UN Doc. E/CN.4/RES/1992/43 (1992). 3 See UN Doc. E/CN.4/2002/78 (Feb. 20, 2002). 4 UN Comm’n H.R., Draft Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Res. 2002/33, annex, Art. 4 (Apr. 22, 2002), at . 5 Id. 6 See UN Doc. E/2002/L.23 ( July 23, 2002) (U.S. proposal). 7 See ECOSOC Press Release No. 6026 on Following Vote, Economic and Social Council Recommends General Assembly Adoption of Optional Protocol to Convention Against Torture ( July 24, 2002), at . 8 John Davison, Deputy U.S. Representative on the United Nations Economic and Social Council, Explanation of Vote on Draft Optional Protocol on Torture (July 24, 2002), at .
P1: JtR 0521750717c08
CB951-Murphy
0 521 75071 7
August 6, 2005
12:49
International Human Rights
195
Senate Consideration of CEDAW In December 1979, the UN General Assembly adopted the Convention on the Elimination of All Forms of Discrimination Against Women1 (CEDAW). The United States signed CEDAW in July 1980, and President Carter submitted the treaty to the U.S. Senate for advice and consent later that year. Although the Senate Foreign Relations Committee (SFRC) held hearings on CEDAW in 1988 and 1990, the committee did not act on the treaty. In 1994, the SFRC recommended that the full Senate grant advice and consent, subject to certain reservations, understandings, and declarations,2 but the Senate took no action. In 2002, the SFRC again held hearings on a proposed Senate resolution to grant advice and consent to CEDAW.3 In his opening statement, SFRC Chairman Joseph R. Biden, Jr., stated that the treaty is a landmark document. It sets forth a set of basic obligations to advance and protect equality for women. Most nations of the world – 169 nations in all – have become party to the treaty. For the United States, the treaty will impose a minimal burden. The U.S. Constitution and existing federal laws will satisfy the obligations of the treaty. The United States will need to enter a handful of reservations to the treaty where it is inconsistent with the Constitution or current federal law. But the United States will not need to enact any new laws. The only new burden the treaty will impose will be a duty to file a periodic report on U.S. implementation with a UN committee. For the United States, the treaty can be a powerful tool to support women around the world in the fight for equal rights. Our voice on women’s rights will be enhanced by becoming a party, because we will be empowered to call nations to account on their compliance with the treaty.4 In the wake of those hearings, Bush administration officials sent letters to the committee indicating why they did not yet support ratification of CEDAW. Secretary of State Colin Powell stated: As you are aware, the Committee on the Elimination of Discrimination against Women prepares reports and recommendations to State Parties. Portions of some of these reports and recommendations have addressed serious problems in useful and positive ways, such as women and girls who are victims of terrorism (Algeria) and trafficking in women and girls (Burma). However, other reports and recommendations have raised troubling questions in their substance and analysis, such as the Committee’s reports on Belarus (addressing Mother’s Day),5 China (legalized prostitution),6 and Croatia (abortion).7
1 Dec. 18, 1979, 1249 UNTS 13. The Convention entered into force in 1981. For information on the Convention, see . 2 See Marian Nash, Contemporary Practice of the United States, 89 AJIL 96, 102 (1995). 3 See Treaty Doc. 96-53: Convention on the Elimination of All Forms of Discrimination Against Women, Adopted by the U.N. General Assembly on December 18, 1979, and Signed on Behalf of the United States of America on July 17, 1980: Hearing Before the Senate Comm. on Foreign Relations, 107th Cong. (2002). 4 Id. (statement of Senator Joseph R. Biden, Jr.). 5 [Author’s Note: See Concluding Observations on the Committee on the Elimination of Discrimination Against Women: Belarus, para. 361, UN Doc. A/55/38 ( Jan. 31, 2000), which states: “The Committee is concerned by the continuing prevalence of sex-role stereotypes and by the reintroduction of such symbols as a Mothers’ Day and a Mothers’ Award, which it sees as encouraging women’s traditional roles.”] 6 [Author’s Note: See Concluding Observations on the Committee on the Elimination of Discrimination Against Women: China, paras. 288–89, UN Doc. A/54/38 (Feb. 3, 1999), which states: “The Committee is concerned that prostitution, which is often a result of poverty and economic deprivation, is illegal in China. . . . The Committee recommends decriminalization of prostitution.”] 7 [Author’s Note: See Concluding Observations on the Committee on the Elimination of Discrimination Against Women: Croatia, paras. 109, 117, UN Doc. A/53/38 (May 14, 1998), which states:
In the area of health, the Committee is particularly concerned that services pertaining to women’s reproductive health are the first to be affected as a result of the Government’s financial constraints. It is also concerned about information regarding the refusal, by some hospitals, to provide abortions on the basis of conscientious objection of donors. The Committee considers this to be an infringement of women’s reproductive rights. ....
P1: JtR 0521750717c08
CB951-Murphy
196
0 521 75071 7
August 6, 2005
12:49
United States Practice in International Law 2002–2004
State Parties have always retained the discretion on whether to implement any recommendations made by the Committee. The existence of this body of reports, however, has led us to review both the treaty and the Committee’s comments to understand the basis, practical effect, and any possible implications of the reports.8 The Department of Justice noted these concerns and further asserted that the Senate committee’s proposed resolution on ratification does not, for example, address whether other interpretive bodies, whether foreign, international, or, indeed, domestic, could adopt similarly bizarre interpretations of CEDAW’s vague text, or what deference, if any, these bodies would accord the official U.N. implementation committee. (As we have recently witnessed in the Pledge of Allegiance case,9 there are, regrettably, judges who will engage in aggressively counterintuitive interpretations of legal texts.) The implementation committee, moreover, has now begun “[t]he process of interpreting the substantive articles of the Convention” and to “formally . . . interpret the rights guaranteed in the Convention.” Your draft resolution, however, does not address the effect of these formal interpretations on domestic and international law. These concerns remain regardless of whether, in the words of your draft resolution, the implementation committee has the “authority to compel actions by State Parties.”10 Notwithstanding these concerns, on July 30, 2002, the SFRC recommended that the full Senate provide advice and consent to CEDAW, subject to certain reservations, understandings, and declarations.11 Thereafter, the full Senate did not act on the recommendation.
Implementation of Human Rights Reporting on Human Rights By U.S. law, the Department of State annually must submit to the Congress a “full and complete report regarding the status of internationally recognized human rights” for all UN member states and all states receiving U.S. foreign assistance.1 Consequently, the United States submitted to Congress in 2002–2004 country reports on human rights practices for 2001,2 2002,3 and 2003.4 When releasing the report for 2003, Secretary of State Colin L. Powell stated: As President Bush put it in his State of the Union Message in January: “Our aim is a democratic peace, a peace founded upon the dignity and rights of every man and woman.” A world in which
The Committee strongly recommends that the Government take steps to secure the enjoyment by women of their reproductive rights by, inter alia, guaranteeing them access to abortion services in public hospitals.] 8 Letter from Secretary of State Colin L. Powell to Senator Joseph R. Biden, Jr. ( July 8, 2002), at (footnotes omitted). 9 [Author’s Note: Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002), as amended, 328 F.3d 466 (9th Cir. 2003) (finding that requiring public school children to recite the words “under God” in the pledge of allegiance violates the First Amendment’s separation of church and state), rev’d, Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) (finding that plaintiff father lacked standing to file the case).] 10 Letter from U.S. Dep’t of Justice Assistant Attorney General for Legislative Affairs Daniel Bryant to Senator Joseph R. Biden, Jr. ( July 26, 2002) (footnotes omitted), at . 11 See 148 Cong. Rec. D853 (daily ed. July 30, 2002); see also James Dao, Senate Panel Approves Treaty Banning Bias Against Women, N.Y. Times, July 31, 2002, at A3. 1 The reports are submitted to Congress by the Department of State in compliance with the Foreign Assistance Act of 1961, Pub. L. No. 87-195, §§116(d), 502B, 75 Stat. 424 (current version at 22 U.S.C. §2151n (2000)), and the Trade Act of 1974, Pub. L. No. 93-618, §504, 88 Stat. 1978, 2070–71 (current version at 19 U.S.C. §2464 (2000)). 2 U.S. Dep’t of State, Country Reports on Human Rights Practices for 2001, 107th Cong., 2d Sess. ( Joint Comm. Print 2002) (released March 2002). 3 U.S. Dep’t of State, Country Reports on Human Rights Practices for 2002, 108th Cong., 1st Sess. ( Joint Comm. Print 2003) (released March 2003). 4 U.S. Dep’t of State, Country Reports on Human Rights Practices for 2003, 108th Cong., 2d Sess. ( Joint Comm. Print 2004) (released February 2004).
P1: JtR 0521750717c08
CB951-Murphy
0 521 75071 7
August 6, 2005
12:49
International Human Rights
197
human rights and fundamental freedoms are respected and defended is a world of peace in which tyrants and terrorists cannot thrive. President Bush regards the defense and advancement of human rights as America’s special calling, and he has made the promotion of human rights an integral and active part of his foreign policy agenda. That is why the annual Country Reports are more than a valuable informational tool, they are a vital policy instrument. The Country Reports help us to identify and close gaps between principles and practices, between internationally agreed human rights standards and the actual enjoyment of such rights by a country’s citizens. The United States is strongly committed to working with other governments and civil society around the world to expose and end existing human rights violations, and to foster the legal and democratic reforms that can prevent further violations from occurring. We have done our utmost to ensure that these Country Reports are accurate and objective. We trust that they will provide as useful set of a information to other governments as they do for our own government.5 Separately, the U.S. government also continued its reporting to Congress under the International Religious Freedom Act6 regarding the status of such freedom in countries worldwide. The executive summary of the 2004 report states: Religious liberty lies at the heart of a just and free society. Enshrined as both a foundational American value and a universal principle, the right to freedom of religion is also a cornerstone of democracy. It is a vital measure in the creation and maintenance of a stable political system. Conversely, the failure to protect freedom of religion and other fundamental human rights can undermine social order, foster extremism, and lead to instability and violence. Assessing the status of religious freedom can often serve as one helpful diagnostic for the overall health and stability of a nation. For these reasons and others, promoting religious freedom continues to be an essential element of United States foreign policy. President Bush has observed that “successful societies guarantee religious liberty,” and the Administration’s National Security Strategy declares that the U.S. will “take special efforts to promote freedom of religion and conscience and defend it from encroachment by repressive governments.”7 The United States is not alone in this commitment. Religious freedom is a universal value, and almost all of the world’s nations have signed one or more international agreements committing them to respect individual freedom of thought, conscience and belief. Beginning with the 1948 adoption by the United Nations General Assembly of the Universal Declaration of Human Rights8 and continuing with the nearly global ratification of the International Covenant on Civil and Political Rights,9 the nations of the world have affirmed the principle that governments have a fundamental responsibility to protect freedom of religion. . . . In practice, however, this freedom is often restricted, abused or denied, and many people continue to suffer solely for following the dictates of conscience.
5 U.S. Dep’t of State Press Release on Remarks on the Country Reports on Human Rights Practices for 2003: Secretary Colin L. Powell (Feb. 25, 2004), at . 6 See 22 U.S.C. §6412(b) (2000). 7 [Author’s Note: See White House, The National Security Strategy of the United States of America 4 (Sept. 17, 2002), at .] 8 [Author’s Note: Dec. 10, 1948, GA Res. 217 (III 1948).] 9 [Author’s Note: Dec. 16, 1966, 999 UNTS 171.]
P1: JtR 0521750717c08
CB951-Murphy
198
0 521 75071 7
August 6, 2005
12:49
United States Practice in International Law 2002–2004
Ultimately, each nation’s policies and practices regarding religious freedom must be measured against international norms. The United States acknowledges its own responsibility with respect to these norms in the safeguarding and protection of religious liberty. In this summary of the status of religious freedom around the world, we examine barriers to religious freedom, note countries where religious freedom conditions have improved, and describe U.S. actions to promote international religious freedom.10 U.S. Opposition to Measures Condemning Israel On March 22, 2004, Israeli helicopter gunships fired three missiles at Hamas leader Sheik Ahmed Yassin while he was being wheeled out of an early-morning prayer session in the northern Gaza Strip. Sheik Yassin died instantly, along with eight others, and more than a dozen people were injured in the attack, including two of the sheik’s sons.1 Israel stated that its action was self-defense, given the dozens of suicide bombings by Hamas against Israeli civilians.2 Algeria and Libya immediately introduced a resolution before the UN Security Council that would have condemned Israel’s action as an “extrajudicial execution” and further condemned “all terrorist attacks against any civilians as well as all acts of violence and destruction.”3 At a meeting of the Security Council on March 25, the United States voted against the resolution, principally because “it is silent about the terrorist atrocities committed by Hamas; because it does not reflect the realities of the conflict in the Middle East; and because it will not further the goals of peace and security in the region.”4 Consequently, the resolution failed owing to the negative vote of a permanent member of the Council. On March 24, 2004, the fifty-three members of the Commission on Human Rights, meeting in Geneva, passed a resolution that “[s]trongly condemns the continuing grave violations of human rights in the Occupied Palestinian Territory, in particular the tragic assassination of Sheikh Ahmad Yassin on 22 March 2004, in contravention of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949.”5 The resolution was adopted by a vote of thirty-one in favor, two against (Australia and the United States), and eighteen abstentions. The United States described the resolution as lacking “balance because it made no mention of Palestinian terror attacks.”6 U.S. Declaration on Sudan Genocide In the last two decades of the twentieth century, the Sudanese civil war resulted in the deaths of more than two million persons and the displacement of some four million others. According to the U.S. Department of State, serious human rights abuses continued to occur in Sudan at the beginning of 2002 despite national and international attempts to end the violence. The abuses included: government abductions; forced and child labor; slavery; discrimination and violence against religious minorities,
10 U.S. Dep’t of State, International Religious Freedom Report for 2004, exec. sum. (2004) (released September 2004); see U.S. Dep’t of State, International Religious Freedom Report for 2002 (2002) (released October 2002); U.S. Dep’t of State, International Religious Freedom Report for 2003 (2003) (released December 2003). The reports are available at . 1 John Ward Anderson & Molly Moore, Hamas Leader Killed in Gaza; Founder of Militant Palestinian Group Is Targeted in Airstrike, Wash. Post, Mar. 22, 2004, at A1. 2 UN Doc. S/PV.4929, at 5–7 (Mar. 23, 2004) (statement by Israel). 3 Algeria and Libyan Arab Jamahiriya: Draft Resolution, UN Doc. S/2004/240, paras. 1–2 (Mar. 24, 2004). 4 UN Doc. S/PV.4934, at 2 (Mar. 25, 2004) (statement by the United States); see also USUN Press Release on Explanation of Position by Ambassador John D. Negroponte, U.S. Representative to the United Nations, on the Situation in the Middle East, Including the Palestinian Question, in the Security Council (Mar. 25, 2004), at . Eleven states voted in favor of the resolution. Germany, Romania, and the United Kingdom abstained. 5 UN Comm’n H.R. Res. 2004/1, para. 1, UN Doc. E/CN.4/2004/L.11, at 3 (Apr. 9, 2004). 6 Warren Hoge, U.N. Rights Panel Condemns Israel’s Killing of Hamas Leader, N.Y. Times, Mar. 25, 2004, at A11.
P1: JtR 0521750717c08
CB951-Murphy
0 521 75071 7
August 6, 2005
12:49
International Human Rights
199
women, and ethnic minorities; and government restrictions on freedoms of speech, press, assembly, association, religion, and movement.1 On October 21, 2002, President Bush signed into law the Sudan Peace Act.2 The act authorized U.S.$100 million to be appropriated to provide assistance to Sudan in geographical areas not controlled by the Sudanese government, with the goal of “preparing the population for peace and democratic governance, including support for civil administration, communications infrastructure, education, health, and agriculture.”3 Further, the act required the president to determine and certify in writing to Congress within six months and every six months thereafter that the government of Sudan and the principal rebel faction – the Sudan People’s Liberation Movement (SPLM) – “are negotiating in good faith and that negotiations should continue.”4 If the president determines “that the Government of Sudan has not engaged in good faith negotiations to achieve a permanent, just, and equitable peace agreement, or has unreasonably interfered with humanitarian efforts,” then the president, after consultation with Congress,5 (A) shall, through the Secretary of the Treasury, instruct the United States executive directors to each international financial institution to continue to vote against and actively oppose any extension by the respective institution of any loan, credit, or guarantee to the Government of Sudan; (B) should consider downgrading or suspending diplomatic relations between the United States and the Government of Sudan; (C) shall take all necessary and appropriate steps, including through multilateral efforts, to deny the Government of Sudan access to oil revenues to ensure that the Government of Sudan neither directly nor indirectly utilizes any oil revenues to purchase or acquire military equipment or to finance any military activities; and (D) shall seek a United Nations Security Council Resolution to impose an arms embargo on the Government of Sudan.6 The president, when signing the law, referred to these actions as “advisory because such provisions, if construed as mandatory, would impermissibly interfere with the President’s exercise of his constitutional authorities to conduct the Nation’s foreign affairs, participate in international negotiations, and supervise the unitary executive branch.”7 The president also qualified his signing of the act by stating that requirements that the executive regularly submit reports to Congress shall be construed “in a manner consistent with the President’s constitutional authority to withhold information, the disclosure of which could impair the foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive’s constitutional duties.”8 Nevertheless, the president proceeded every six months to “determine and certify that the Government of Sudan and the Sudan People’s Liberation Movement are negotiating in good faith and that negotiations should continue.”9 Among other things, the new law required the secretary of state to “collect information about incidents which may constitute crimes against humanity, genocide, war crimes, and other violations
1 See U.S. Dep’t of State, Country Reports on Human Rights Practices for 2001, 107th Cong., 2d Sess. ( Joint Comm. Print 2002) (released March 2002). 2 Pub. L. No. 107-245, 116 Stat. 1504 (2002) [hereinafter Sudan Peace Act]. 3 Id. §5(a), (b)(1), 116 Stat. at 1506. 4 Id. §6(b)(1)(A), 116 Stat. at 1507. 5 Id. §6(b)(1)(B), 116 Stat. at 1507. 6 Id. §6(b)(2)(A)–(D), 116 Stat. at 1508. 7 Statement on Signing the Sudan Peace Act, 38 Weekly Comp. Pres. Doc. 1819, 1819 (Oct. 21, 2002). 8 Id. at 1819–20. 9 See Presidential Determination No. 2003-21 (Apr. 21, 2003); Presidential Determination No. 2003-1077 (Oct. 22, 2003); Presidential Determination No. 2004-29 (Apr. 21, 2004). In October 2004, the president delegated this responsibility to the secretary of state. See Memorandum on Delegation of Certain Functions Related to the Sudan Peace Act, 40 Weekly Comp. Pres. Doc. 2521 (Oct. 21, 2004).
P1: JtR 0521750717c08
CB951-Murphy
200
0 521 75071 7
August 6, 2005
12:49
United States Practice in International Law 2002–2004
of international humanitarian law by all parties to the conflict in Sudan, including slavery, rape and aerial bombardment of civilian targets,” and to submit a detailed report on such matters to Congress.10 In a report submitted to Congress in April 2004, the Department of State stated: The situation in the Darfur region of western Sudan has opened a new chapter of tragedy in Sudan’s troubled history. Large-scale attacks by GOS-supported Arab “jingaweit” militia against African civilians has created a major humanitarian emergency in Darfur, with estimates of almost one million people displaced. We have strongly condemned these atrocities. While the conflict in Darfur is not specifically linked to the negotiations between the GOS and SPLM, it has serious implications, and threatens to overshadow the north-south peace process. Moreover, the government’s actions in Darfur weaken our confidence that it is committed to achieve peace throughout the country. The President made it clear in a recent statement that he “continues to hope for peace for the people of Sudan and for normalization of relations between Sudan and the United States. However, the Government of Sudan must not remain complicit in the brutalization of Darfur.” Working with the African Union and European Union, the United States helped bring about a ceasefire agreement in Darfur on April 8. The United States continues to call upon the Government to ensure an end to all violence and to allow unrestricted access for humanitarian assistance. It appears that the violence there has somewhat diminished; we are determined to establish an effective international monitoring mechanism. All the parties must actively engage in the established process for reversing the situation in Darfur.11 President Bush condemned the fighting in Darfur, stating that the “Sudanese Government must immediately stop local militias from committing atrocities against the local population and must provide unrestricted access to humanitarian aid agencies. I condemn these atrocities, which are displacing hundreds of thousands of civilians, and I have expressed my views directly to President Bashir of Sudan.”12 Nevertheless, the fighting continued. In July 2004, Congress adopted a concurrent resolution declaring that genocide was occurring in Darfur. The resolution referred to the definition of genocide in the 1948 Genocide Convention13 and further stated that “in Darfur, Sudan, an estimated 30,000 innocent civilians have been brutally murdered, more than 130,000 people have been forced from their homes and have fled to neighboring Chad, and more than 1,000,000 people have been internally displaced. . . .”14 The resolution declared that atrocities in Darfur “are genocide” and that the government of Sudan had violated the Genocide Convention.15 The resolution called upon both the Bush Administration and the international community to take steps to end the genocide. Both the United States and the European Union proceeded to threaten Sudan with economic sanctions if the atrocities did not end.16 The United States introduced a Security Council resolution that would impose sanctions on Sudan if it failed within thirty days to arrest and prosecute Arab militia leaders who were responsible for the atrocities.17 In July 2004, the Security Council adopted Resolution 1556,18 which condemned the atrocities, demanded under Chapter VII that the government of Sudan disarm the militias, and expressed its intention to impose sanctions if after thirty days the SecretaryGeneral reported that such steps had not been taken.
10
Sudan Peace Act, supra note 2, §11(a)–(b), 116 Stat. at 1509–10. U.S. Dep’t of State Bureau of African Affairs, Sudan Peace Act Report to Congress (Apr. 21, 2004), at . 12 Statement on the Fighting in the Darfur Region of Sudan, 40 Weekly Comp. Pres. Doc. 561 (Apr. 7, 2004). 13 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, Art. 2, 78 UNTS 277, 280. 14 S. Con. Res. 133 pmbl, 108th Cong. (2004). The resolution garnered unanimous support in the House and passed by a voice vote in the Senate. 15 Id., paras. 1–2. 16 See Paul Geitner, E.U. Threatens Sanctions On Sudan if Crisis Persists, Wash. Post, July 26, 2004, at A16. 17 See Colum Lynch, U.S. Seeks U.N. Pressure on Sudan, Wash. Post, July 23, 2004, at A25. 18 SC Res. 1556 ( July 30, 2004). 11
P1: JtR 0521750717c08
CB951-Murphy
0 521 75071 7
August 6, 2005
12:49
International Human Rights
201
That report indicated that the government of Sudan had not fulfilled the entirety of its obligations.19 Moreover, over the course of several months, the United States conducted its own extensive investigation of the atrocities in Darfur. On September 9, U.S. Secretary of State Colin Powell declared before the Senate Foreign Relations Committee that the atrocities in Darfur constituted genocide. Since the United States became aware of atrocities occurring in Sudan, we have been reviewing the Genocide Convention and the obligations it places on the Government of Sudan. In July, we launched a limited investigation by sending a team to refugee camps in Chad. They worked closely with the American Bar Association and the Coalition for International Justice and were able to interview 1,136 of the 2.2 million people the UN estimates have been affected by this horrible violence. Those interviews indicated:
r r r
A consistent and widespread pattern of atrocities (killings, rapes, burning of villages) committed by jingaweit and government forces against non-Arab villagers; Three-fourths (74%) of those interviewed reported that the Sudanese military forces were involved in the attacks; Villages often experienced multiple attacks over a prolonged period before they were destroyed by burning, shelling or bombing, making it impossible for villagers to return.
When we reviewed the evidence compiled by our team, along with other information available to the State Department, we concluded that genocide has been committed in Darfur and that the Government of Sudan and the jingaweit bear responsibility – and genocide may still be occurring. . . . We believe in order to confirm the true nature, scope and totality of the crimes our evidence reveals, a full-blown and unfettered investigation needs to occur. Sudan is a contracting party to the Genocide Convention and is obliged under the Convention to prevent and to punish acts of genocide. To us, at this time, it appears that Sudan has failed to do so. Article VIII of the Genocide Convention provides that Contracting Parties “may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article III.” Today, the U.S. is calling on the United Nations to initiate a full investigation. To this end, the United States will propose that the next UN Security Council Resolution on Sudan request a UN investigation into all violations of international humanitarian law and human rights law that have occurred in Darfur, with a view to ensuring accountability. [W]e believe the evidence corroborates the specific intent of the perpetrators to destroy “a group in whole or in part.” This intent may be inferred from their deliberate conduct. We believe other elements of the convention have been met as well.20 19 Report of the Secretary-General Pursuant to Paragraphs 6 and 13 to 16 of Security Council Resolution 1556 (2004), UN Doc. S/2004/703 (Aug. 30, 2004). For subsequent reports, see UN. Doc. S/2004/763 (Sept. 28, 2004) and UN Doc. S/2004/881 (Nov. 2, 2004). 20 Secretary of State Colin L. Powell, The Crisis in Darfur, Written Remarks before the Senate Foreign Relations Committee (Sept. 9, 2004), at ; see also Statement on the Situation in Sudan, 40 Weekly Comp. Pres. Doc. 2521 (Sept. 9, 2004) (statement by President Bush that “we have concluded that genocide has taken place in Darfur”); Glenn Kessler & Colum Lynch, U.S. Calls Killings in Sudan Genocide, Wash. Post, Sept. 10, 2004, at A1.
P1: JtR 0521750717c08
CB951-Murphy
202
0 521 75071 7
August 6, 2005
12:49
United States Practice in International Law 2002–2004
The United States distributed a draft Security Council resolution providing, among other things, for the creation of a commission to investigate the atrocities in Darfur and to determine whether they constituted genocide.21 On September 19, after several revisions were made to the U.S. draft, the Security Council adopted such a resolution,22 and again threatened Sudan with economic sanctions. Thereafter, in October, the Secretary-General established an International Commission of Inquiry,23 which was charged with: (1) investigating reports of serious violations of international humanitarian law and human rights law committed in Darfur by all parties in the conflict; (2) determining whether or not acts of genocide have occurred or are still occurring; and (3) determining responsibility and identify the individual perpetrators responsible for the commission of such violations, and recommend accountability mechanisms before which those allegedly responsible would be brought to account. The Secretary-General requested an initial report from the commission within ninety days. In late 2004, Congress passed and President Bush signed into law the Comprehensive Peace in Sudan Act.24 The new law amended the Sudan Peace Act so as to authorize the President to assist Sudan in the implementation of a comprehensive peace agreement that applies to all regions of Sudan, including the Darfur region, and to address the humanitarian and human rights crisis in the Darfur region and eastern Chad. The law made assistance for a comprehensive peace agreement contingent upon a continuing certification to Congress that the government of Sudan was acting to ensure that the armed forces and militias were not committing atrocities or blocking humanitarian assistance, were demobilizing militias, and were allowing the international investigation of the actions that occurred in Darfur. The law required suspension of assistance to the government if it ceased to take such actions, and to the SPLM (other than health, education, and humanitarian assistance) if it failed to engage in good faith negotiations or honor agreements.25 Section 6 of the new law directed the president to implement specified sanctions in support of peace in Darfur, including blocking the assets of senior Sudanese officials, although it authorized the suspension of the sanctions for purposes of U.S. national interest, or if Sudan complied with certain actions under the Sudan Peace Act.26 When signing the law, President Bush stated that “Section 6 of the Act includes provisions that, if construed as mandatory, would impermissibly interfere with the President’s exercise of his constitutional authorities to conduct the Nation’s foreign affairs, participate in international negotiations, and supervise the unitary executive branch. . . . When necessary to avoid such unconstitutional interference, the executive branch shall construe the provisions of section 6 as advisory.”27 Election of United States to UN Human Rights Commission From 1947 to 2001, the United States held a seat on the UN Human Rights Commission. Although the United States then lost its reelection bid in 2001,1 the Western European and Others (WEOG) regional group reached a consensus in 2002 on its slate of candidates to fill the open seats allocated to WEOG – a slate that included a seat for the United States. Consequently, on April 29, 2002, the United States was elected to a three-year term on the Commission. After the election, the U.S.
21
See Colum Lynch, U.S. Drafts Resolution On Sudan Sanctions, Wash. Post, Sept. 9, 2004, at A21. See SC Res. 1564, para. 12 (Sept. 18, 2004); see Warren Hoge, Authority is Approved for Sanctions Against Sudan, N.Y. Times, Sept. 19, 2004, at 4. Resolution 1564 passed by a vote of 11 to 0, with Algeria, China, Pakistan, and Russia abstaining. 23 See Letter dated 4 October 2004 from the Secretary-General addressed to the President of the Security Council, UN Doc. S/2004/812 (Oct. 11, 2004). The Commission comprised five members: Antonio Cassese of Italy, as chairman; Mohammed Fayek of Egypt, Diego Garci´a-Say´an of Peru, Hani Jilani of Pakistan, and Th´erse Striggner Scott of Ghana. 24 Pub. L. No. 108-497, 118 Stat. 4012 (2004). 25 Id., §5. 26 Id., §6. 27 Statement on Signing the Comprehensive Peace in Sudan Act of 2004, 40 Weekly Comp. Pres. Doc. 3013, 3013–14 (Dec. 23, 2004). 1 For background on the U.S. failure to retain a seat, see Sean D. Murphy, United States Practice in International Law, Vol. 1: 1999–2001, at 298 (2002). 22
P1: JtR 0521750717c08
CB951-Murphy
0 521 75071 7
August 6, 2005
12:49
International Human Rights
203
Department of State spokesman reacted to the vote and the one-year absence of the United States: We wish to express our thanks to the members of the Economic and Social Council who voted for the United States, and especially to the members of the Western European and Others Group (WEOG), who agreed on a consensus slate. The Commission on Human Rights has a serious responsibility to support people who have been deprived of their fundamental freedoms. When the Commission fails to examine certain human rights situations, it sends the wrong signal to those struggling daily to fight for freedom. In this past session, the Commission failed to address gross violations of human rights in China, Chechnya, Iran and Zimbabwe. On the other hand, we were encouraged and pleased to see that the countries of Latin America stood up for human rights and democracy in their own region, especially with regard to Cuba. The Commission can and should support UN member states that work to uphold universal standards of human rights in their own region. Experience has shown that the Commission works best when the U.S. is a full, voting member.2 Failure to Elect U.S. Candidate to Inter-American Human Rights Commission The Inter-American Commission on Human Rights, based in Washington, D.C., is an organ of both the Organization of American States (OAS)1 and the American Convention on Human Rights.2 The seven members of the commission are elected in their personal capacity by the OAS General Assembly for four-year terms from a list of candidates proposed by OAS governments.3 Members are to be “persons of high moral character and recognized competence in the field of human rights.”4 Ever since the commission’s inception in 1959, a U.S. national has served on it.5 In 2003, the United States nominated Rafael E. Martinez – a Florida lawyer reportedly known for expertise in medical malpractice and health law – to serve on the commission.6 On June 10, 2003, the OAS General Assembly elected four new members to the commission but did not elect Martinez.7 The U.S. Department of State expressed its disappointment with the election but stated that “[w]e remain very strong supporters of the Commission and the Inter-American Human Rights system in general, and we’ll look for every other opportunity to advance human rights and to work with the Commission.”8 Resistance to Decisions of Inter-American Human Rights Commission During the course of 2002–2004, several individuals filed petitions before the Inter-American Commission on Human Rights against the United States, many of which dealt with the imposition of the death penalty in the United States. In some instances, those petitions were dismissed by the
2 U.S. Dep’t of State Press Release on U.S. Election to the UN Commission on Human Rights (Apr. 29, 2002), at . 1 See Charter of the Organization of American States, Apr. 30, 1948, 2 UST 2394, 119 UNTS 3, as amended Feb. 27, 1967, Arts. 51(e), 112, 21 UST 607, 674, 691. The United States is a party to the Charter. The principal function of the commission under the Charter is to promote compliance with the American Declaration of the Rights and Duties of Man, which the OAS adopted in 1948 in the form of a nonbinding resolution. 2 Nov. 22, 1969, Arts. 33–51, 1144 UNTS 123, 153–57, reprinted in 9 ILM 673, 685–89 (1970). The United States is not a party to this Convention. The principal function of the commission under the Convention is to deal with petitions by individuals (and, in certain circumstances, states) charging violations of the rights guaranteed under the Convention. 3 See id., Art. 36. 4 Id., Art. 34. 5 Previous U.S. members of the commission were Sandifer (1960–1972), Woodward (1972–1976), Farer (1976–1983), McColm (1984–1988), Stevenson (1988–1991), Reisman (1992–1995), and Goldman (1996–2003). 6 See Larry Rohter, O.A.S. Votes Against U.S. Candidate for Human Rights Group, N.Y. Times, June 12, 2003, at A7. 7 See OAS Press Release on General Assembly Elects New Members to OAS Bodies ( June 10, 2003), at . The members elected came from Brazil, El Salvador, Paraguay, and Venezuela. 8 Richard Boucher, Spokesman, U.S. Dep’t of State Daily Press Briefing at 15–16 ( June 12, 2003), at .
P1: JtR 0521750717c08
CB951-Murphy
204
0 521 75071 7
August 6, 2005
12:49
United States Practice in International Law 2002–2004
commission as inadmissible, such as for failure to exhaust local remedies or failure to state facts tending to establish a violation of rights under the American Declaration1 or other relevant instruments.2 In other cases, however, the commission found the petition to be admissible, and further found that the United States had violated its obligations under international law. For example, in February 2002 a petition was filed before the commission on behalf of Napoleon Beazley, a U.S. national on death row for an offense committed when he was seventeen years old.3 The commission issued precautionary measures on February 27 requesting the United States not to execute Beazley pending the outcome of the commission’s proceedings, but Beazley nevertheless was executed by the state of Texas on May 28. In December 2003, the commission determined that, in executing a juvenile offender, the United States had violated an international norm of jus cogens as encompassed in the right to life, as set forth in Article 1 of the American Declaration. Consequently, the commission recommended that the United States provide a remedy (including compensation) for Beazley’s next of kin. The commission also found that the United States violated its obligations as a member of the Organization of American States by failing to abide by the commission’s request that Beazley not be executed.4 The commission’s conclusion in the Beazley case was in accord with the Commission’s position in a similar case, involving a man named Michael Domingues.5 In the Domingues case, the United States rejected the commission’s preliminary conclusion that international law prohibited the execution of juveniles. In its Report the Commission concludes that the prohibition of the death penalty with respect to individuals under 18 years of age in the American Convention on Human Rights (Article 4.5), in the International Covenant on Civil and Political Rights (Article 6.5), [in] the Convention on the Rights of the Child (Article 37) [(CRC)], and in the Fourth Geneva Convention (Article 68) demonstrates a pattern of practice, which establishes a jus cogens norm. These instruments create no such pattern, nor are they sufficient to establish the existence of a jus cogens norm of international law. As accurately stated by a member of the Commission in Roach,6 “the fact that prohibition of the death penalty appears in these treaties . . . does not mean that these treaties have declared an existing custom or have crystallized or reflected a custom.” Indeed, the negotiating histories of each of these conventions reflects that the inclusion of the provision concerning the juvenile death penalty was neither based upon custom, nor even by consensus:
r r
Article 4(5) of the American Convention on Human Rights was approved only with a two-vote margin, with 40% of the assembled States abstaining from voting in favor of the provision. Article 6(5) of the International Covenant on Civil and Political Rights was adopted by fifty-three votes to five, with fourteen abstentions.
1 The American Declaration of the Rights and Duties of Man was adopted by the Organization of American States (OAS) on May 2, 1948 in the form of a non-binding resolution. At the same time, the commission and the Inter-American Court of Human Rights have asserted that a state’s obligations under the OAS Charter are reflected in the American Declaration. See, e.g., Advisory Opinion on Interpretation of the American Declaration of the Rights and Duties of Man, Inter-Am. Court H.R. (ser. A) No. 10, para., 45 (1990) (declaring that the American Declaration is “a source of international obligations related to the Charter of the Organization” for member states of the OAS ). The United States is an OAS member state. 2 See Case Rep. No. 19/02, Inter-Am. Comm. H.R. (Feb. 27, 2002); Case Rep. No. 62/03, Inter-Am. Comm. H.R. (Oct. 10, 2003). Decisions of the commission are available at . 3 For background on the Beazley case in U.S. courts, see Sean D. Murphy, United States Practice in International Law, Vol. 1: 1999–2001, at 275–77 (2002). 4 See Case Rep. No. 101/03, Inter-Am. Comm. H.R. (Dec. 29, 2003); see also Case Rep. No. 100/03, Inter-Am. Comm. H.R. (Dec. 29, 2003) (also concerning execution of a seventeen-year-old); Case Rep. No. 97/03, Inter-Am. Comm. H.R. (Dec. 29, 2003) (concerning execution of a seventeen-year-old and other issues); Case Rep. No. 99/03, Inter-Am. Comm. H.R. (Dec. 29, 2003) (concerning execution of person not informed of his right to consular notification); Case Rep. No. 52/02, Inter-Am. Comm. H.R. (Dec. 29, 2003) (concerning execution of person not informed of his right to consular notification and other issues). 5 See Case Rep. No. 116/01, Inter-Am. Comm. H.R. (Oct. 15, 2001). 6 [Author’s Note: See Case Rep. No. 3/87, Inter-Am. Comm. H.R. (Sept. 22, 1987).]
P1: JtR 0521750717c08
CB951-Murphy
0 521 75071 7
August 6, 2005
12:49
International Human Rights
r
205
Article 37 of the Convention on the Rights of the Child was adopted with the express understanding that States retained the right to ratify the Convention with a reservation on this article.
.... In any event, it is common knowledge that many States ratify treaties, but fail to implement the obligations they have assumed thereunder. Indeed, the UN Secretary General has reported that there appear to be at least 14 countries which have ratified the CRC, but have not amended their laws to exclude the imposition of the death penalty on persons who committed the capital offense when under the age of 18. Hence, reference to treaties that establish prohibitions on the use of the death penalty is not sufficient to establish state practice sufficient for customary international law, particularly where, as is the case here, those provisions were not adopted by consensus.7 Notwithstanding the U.S. position, in October 2002 the Commission confirmed its view that the execution of juvenile offenders violates a jus cogens norm of international law.8 Not all the petitions that came before the commission during this period concerned the death penalty. In the Statehood Solidarity Committee case, the commission concluded that the United States had violated Articles II (right to equality before the law) and XX (right to vote and to participate in government) of the American Declaration by denying residents of the District of Columbia the opportunity to vote for members of the U.S. Congress.9 In the Mary and Carrie Dann case, the commission considered a petition by members of a U.S. Indian tribe, who asserted that the U.S. government interfered with their use and occupation of ancestral lands, in violation of the American Declaration. In response, the United States asserted that the issue raised by the petitioners was not one of human rights, but of land title and land use questions that had been fully and fairly litigated in U.S. courts. As made clear by the submissions of both parties, the Dann sisters litigated their claims to the public lands at issue for many years in the U.S. federal courts, including the U.S. Supreme Court,10 which found that their claims had been extinguished and that compensation for the taking of the Western Shoshone lands by the United States had been paid. Finally, on June 6, 1991, before the U.S. District Court for the District of Nevada, Mary and Carrie Dann withdrew all remaining claims to title based on individual aboriginal rights. The Dann sisters were represented before the court in this proceeding by competent counsel of their own choosing. Accordingly, the Dann sisters have clearly had full access to the U.S. courts and a full and fair hearing of their claims. Although the courts ultimately found the Danns’ legal arguments to be incorrect after lengthy proceedings and careful consideration, that cannot be considered a lack of respect for their legal rights.11 Nevertheless, the commission concluded in December 2002 that the United States had violated the American Declaration by failing to ensure the petitioners’ right to property under conditions of equality.12
7 Observations of the United States Government on the Report of the Inter-American Commission Made on October 15, 2001 Re. Case No. 12.185, at §II(A) (Michael Domingues) (n.d.) (citations and footnotes omitted), at . 8 See Case Rep. No. 62/02, Inter-Am. Comm. H.R. (Oct. 22, 2002). 9 See Case Rep. No. 98/03, Inter-Am. Comm. H.R. (Dec. 29, 2003). 10 [Author’s Note: See United States v. Dann, 470 U.S. 39 (1985).] 11 Response of the Government of the United States to October 10, 2002 Report No. 53/02, Case No. 11.140 (Mary and Carrie Dann) (n.d.), at . 12 See Case Rep. No. 75/02, Inter-Am. Comm. H.R. (Dec. 27, 2002).
P1: JtR 0521750717c08
CB951-Murphy
206
0 521 75071 7
August 6, 2005
12:49
United States Practice in International Law 2002–2004
Alien Tort Claims Act and Torture Victim Protection Act Cases Background During 2002–2004, several human rights cases under the Alien Tort Claims Act (ATCA)1 and the Torture Victim Protection Act of 1991 (TVPA)2 were considered in U.S. courts.3 Enacted in 1789 as part of the First Judiciary Act, the ATCA provides: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” To succeed on an ATCA claim, three key elements must exist: the claim must be filed by an alien (i.e., not a citizen or national of the United States); the claim must be for a tort; and the action in controversy must have violated international law. With respect to the last element, ATCA claims generally have been limited to suits against individuals acting under “color of state authority,” since it generally is assumed that only states can violate international law, but U.S. case law also supports claims when based on a handful of egregious offenses (namely, piracy, slave trading, and certain war crimes) that lead to individual liability under international law.4 The TVPA provides for a civil action in U.S. court by U.S. nationals “against an individual who, under actual or apparent authority, or color of law, of any foreign nation,” subjects another individual to torture or extrajudicial killing. Unlike the ATCA, U.S. nationals may bring claims under the TVPA, but those claims are limited to torture and extrajudicial killing. In 2002–2004, U.S. courts continued to address procedural issues relating to the two statutes, such as on forum non conveniens, statute of limitations, and exhaustion of local remedies. The most interesting development in this period, however, concerned efforts by the Bush Administration to convince U.S. courts to narrowly interpret the scope and meaning of the ATCA, and the U.S. Supreme Court’s reaction to those efforts in the Sosa case. Other interesting developments concerned the application of the ATCA or TVPA: to corporations who allegedly collaborate with a government in human rights abuses, such as in the Unocal case; to alleged commission of “environmental torts,” such as in the Flores case;5 and to aliens detained at Guant´anamo Bay, Cuba, in the Odah and Rasul cases.6 Interesting issues also arose with respect to the doctrine of command responsibility and the application of immunity to government officials in such cases. Forum Non Conveniens One hurdle for plaintiffs to surmount in ATCA cases are motions to dismiss on grounds of forum non conveniens. In Aguinda v. Texaco, Inc.,1 the Seventh Circuit Court of Appeals affirmed a district court decision to dismiss on such grounds. In that case, the plaintiffs were citizens of Peru and Ecuador who brought a class action suit alleging that the defendant, in consortium with an Ecuadorean government enterprise, had polluted rain forests and rivers in their countries, causing environmental damage and personal injuries. The circuit court found that Ecuadorian courts were receptive to tort claims and that other U.S. courts had found Ecuadorian courts to be an adequate forum for hosting tort suits.2 While Ecuador does not allow class actions, the circuit court noted that Ecuador permits litigants 1
28 U.S.C. §1350 (2000). The ATCA is also referred to as the Alien Tort Statute (ATS). 28 U.S.C. §1350 note (2000). For other ATCA and TVPA cases during 2002–2004 not discussed below, see Doe v. Qi, 349 F.Supp.2d 1258 (N.D. Cal. 2004); Mohammad v. Bin Tarraf, 2004 WL 2164314 (2d Cir. Sept. 21, 2004); Bano v. Union Carbide Corp., 361 F.3d 696 (2d Cir. 2004); Estate of Valmore Lacarno v. Drummond Co., 256 F.Supp.2d 1250 (N.D. Ala. 2003); Doe v. Islamic Salvation Front, 257 F.Supp.2d 115 (D.D.C. 2003); Mehinovic v. Vuckovic, 198 F.Supp.2d 1322 (N.D. Ga. 2002); Villeda Aldana v. Fresh del Monte Produce, Inc., 305 F.Supp.2d 1285 (S.D. Fla. 2003); Burnett v. Al Baraka Inv. & Dev. Co., 274 F.Supp.2d 86 (D.D.C. 2003); Sinaltrainal v. Coca-Cola Co., 256 F.Supp.2d 1345 (S.D. Fla. 2003); Bieregu v. Ashcroft, 259 F.Supp.2d 342 (D.N.J. 2003). 4 See, e.g., Wiwa v. Royal Dutch Petroleum Co., No. 96-8386, 2002 WL 319887, at ∗ 12–15 (S.D.N.Y. Feb. 28, 2002). 5 See supra Ch. VII. 6 See infra Ch. X. 1 303 F.3d 470 (7th Cir. 2002). 2 Id. at 477–78. 2 3
P1: JtR 0521750717c08
CB951-Murphy
0 521 75071 7
August 6, 2005
12:49
International Human Rights
207
with similar causes of action to join together in a single lawsuit. The circuit court found no abuse of discretion by the district court3 in the weighing of private interest factors (e.g., the burden on U.S. courts in managing translations of evidence and testimony) and public interest factors (e.g., the interest in having localized controversies decided at their home).4 Statute of Limitations U.S. courts during 2002–2004 continued to apply a ten-year statute of limitations to claims brought under the ATCA. For example, in Van Tu v. Koster, residents of a Vietnamese village sued (on behalf of themselves and their deceased relatives) several U.S. soldiers for the “My Lai massacre” of 1968.1 During this incident, the U.S. soldiers allegedly committed murder and other law of war violations against civilians during the course of the war in Vietnam. The complaint was filed thirty-two years after the massacre and the defendants move to dismiss on statute-of-limitations grounds. The district court dismissed the complaint on this basis and the Tenth Circuit Court of Appeals affirmed. Although we have not previously decided what statute of limitations applies to an action under the Statute, most other courts considering the issue have borrowed the ten-year statute of limitations contained in the Torture Victim Protection Act of 1991, Pub. L. 102–256, 106 Stat. 73 (1992), 28 U.S.C. §1350 note, §2(c) (TVPA), as the most analogous federal statute of limitations. . . . Plaintiffs argue that it is inappropriate to borrow the statute of limitations associated with the TVPA, because they have not filed their action as torture victims. Beyond this general observation, they provide no discussion of the governing principle, the “most closely analogous statute of limitations rule.” See Deutsch [v. Turner], 324 F.3d at 717 n. 18 [(9th Cir. 2003)]. Once again, they merely assert that Vietnamese law, which contains no statute of limitations, is more appropriate because the tort occurred in Vietnam. We conclude that the TVPA is more closely analogous to the Alien Tort Statute action than the law of Vietnam. The district court properly determined that plaintiffs were required to bring their action within the ten-year statute of limitations, and that they failed to do so. .... Plaintiffs argue that the aforementioned statutes of limitations should be tolled because of exceptional circumstances. We agree with the district court that even if some degree of equitable tolling were appropriate on the basis of plaintiffs’ poverty, their status as subjects of a Communist government, the Vietnam War, and their inability to travel, plaintiffs have made no showing sufficient to justify tolling . . . their Alien Tort Statute claim for twenty-two [years]. We therefore reject their equitable tolling argument.2 Exhaustion of Local Remedies The TVPA requires that the plaintiff exhaust all “available and adequate remedies in the place in which the conduct giving rise to the claim occurred” before a claim may be brought in U.S. court.1 Consequently, TVPA cases during 2002–2004 entailed consideration by the court as to whether local remedies had been exhausted. For example, in the Wiwa case, the district court found that there were no available and adequate remedies for the plaintiffs in Nigeria.2 In that case, four Nigerian emigres in 1999 sued – under both the ATCA and the TVPA – the Royal Dutch Petroleum Company
3
See Aguinda v. Texaco, Inc., 142 F.Supp.2d 534 (S.D.N.Y. 2001). 303 F.3d at 479–80. Van Tu v. Koster, 364 F.3d 1196 (10th Cir. 2004). 2 Id. at 1199–1200; see also Wiwa v. Royal Dutch Petroleum Co., No. 96-8386, 2002 WL 319887, at ∗ 18–19 (S.D.N.Y. Feb. 28, 2002). 1 28 U.S.C. §1350 note, §2(b) (2000). 2 Wiwa v. Royal Dutch Petroleum Co., No. 96-8386, 2002 WL 319887, at ∗ 17–18 (S.D.N.Y. Feb. 28, 2002). 4 1
P1: JtR 0521750717c08
CB951-Murphy
0 521 75071 7
208
August 6, 2005
12:49
United States Practice in International Law 2002–2004
(Royal Dutch) and Shell Transport and Trading Company (Shell Transport), as well as the former managing director of the Nigerian subsidiary of the oil companies (who claimed to be a citizen of the United Kingdom, and a resident of France and Hong Kong). The plaintiffs alleged that the defendants directly or indirectly engaged in human rights abuses, including summary execution, crimes against humanity, and torture, inflicted by the Nigerian government on the plaintiffs (or their deceased relatives) in reprisal for their political opposition to the defendants’ oil exploration activities in Nigeria.3 The defendant managing director moved to dismiss the TVPA claim. After reviewing the legislative history of the TVPA, the district court determined that the defendant (and not the plaintiffs) had the burden of demonstrating that local remedies had not been exhausted. Here, the defendant had failed to carry this burden. Moreover, even if the defendant had demonstrated that a Nigerian court could exercise jurisdiction over a suit for violations of international law brought against a non-citizen, non-resident of Nigeria, the court found that the plaintiffs had provided sufficient evidence of the inadequacy of a Nigerian forum. Citing to the U.S. Department of State annual human rights country reports, the district court noted that “Nigerian courts remain an uncertain forum for justice.”4 Diplomatic Immunity ATCA suits against government officials present certain difficulties if diplomatic immunities apply to the defendant or to the person being served process on behalf of the defendant. For example, in 2000, several Zimbabwe nationals filed a civil action in a New York federal court under the TVPA seeking U.S.$68.5 million in compensatory and punitive damages against various defendants, including Zimbabwean President Robert Mugabe, Foreign Minister Stan Mudenge, and the Zimbabwe National Union-Patriotic Front (ZANU-PF). The plaintiffs alleged that they or their deceased relatives had been subject to murder, torture, or other acts of violence under orders from President Mugabe and Minister Mudenge as part of a widespread campaign to intimidate his political opponents. The alleged victims were associated with a Zimbabwean opposition party known as the Movement for Democratic Change, which had sought to end the twenty year rule of President Mugabe.1 Service of process was made on President Mugabe and Minister Mudenge, and through them on ZANU-PF, in September 1999 while they were visiting the United Nations. In decisions rendered in 2001–2002, the district court found that President Mugabe and Minister Mudenge were immune from the court’s jurisdiction,2 but that the ZANU-PF was not so immune.3 Moreover, the court issued a default judgment against the ZANU-PF for U.S.$71.2 million in compensatory damages and U.S.$51 million in punitive damages.4 On appeal, the Second Circuit Court of Appeals found in 2004 that immunity existed for both the individuals and the ZANU-PF. The court agreed5 that Mugabe and Mudenge were immune as temporary representatives visiting the United States for a UN conference, under section 11 of the General Convention on Privileges and Immunities of the United Nations,6 which provides immunities “as diplomatic envoys enjoy,” such as under the Vienna Convention on Diplomatic Relations.7 Moreover, the court held that Article 29 of the Vienna Convention8 (as applied through the General Convention) protected President Mugabe and Minister Mudenge from service of process as agents for ZANU-PF. Since ZANU-PF was not properly served, the district court should have dismissed the claims against it.9 Consequently, the circuit court remanded the case with instructions for the district court to dismiss the claims. 3 4 1 2 3 4 5 6 7 8 9
For prior consideration of this case, see Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000). 2002 WL 319887, at ∗ 17. See Jillian Reilly, Let Them Pursue at Least Symbolic Justice, Wash. Post, Feb. 18, 2001, at B5. Tachiona v. Mugabe, 169 F.Supp.2d 259 (S.D.N.Y. 2001). Tachiona v. Mugabe, 216 F.Supp.2d 262 (S.D.N.Y. 2002). Tachiona v. Mugabe, 234 F.Supp.2d 401 (S.D.N.Y. 2002). Tachiona v. United States, 386 F.3d 205, 214–20 (2d Cir. 2004). Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946, §11, 21 UST 1418, 1 UNTS 16. Apr. 18, 1961, Art. 31, 23 UST 3227, 500 UNTS 95. Article 29 provides, in part, that the “person of a diplomatic agent shall be inviolable.” 386 F.3d at 221–24.
P1: JtR 0521750717c08
CB951-Murphy
0 521 75071 7
August 6, 2005
12:49
International Human Rights
209
Justice Department ATCA Position in Unocal Case In 1996, fifteen villagers from the Tenasserim region of Burma (Myanmar) filed a class action lawsuit in a U.S. federal court against various defendants involved in a joint venture to extract natural gas from oil fields off the coast of Burma and to transport the gas to the Thai border via a pipeline. The defendants included a U.S. corporation, Unocal Corporation. The plaintiffs alleged that the defendants were responsible under the ATCA, as well as other federal and state laws, for international human rights violations, including forced labor, perpetrated by the Burmese military in furtherance of the pipeline portion of the project. The federal district court dismissed the plaintiffs’ state law claim without ruling on them. Those claims were refiled in California state superior court in October 2000. In August 2001, Unocal’s motion to dismiss the state claims was rejected, including Unocal’s argument that hearing the claims would intrude upon U.S. foreign relations and that the claims were preempted by federal law sanctions against Burma.1 In June 2002, the state court also rejected Unocal’s motion for summary judgment. The court found that there were material issues of fact with respect to whether Unocal was responsible for the alleged human rights violations, such that the case had to be tried before a jury. Specifically, the court found that there was evidence that could allow a jury to find that Unocal’s joint venture hired the military and that Unocal was therefore vicariously liable for the military’s human rights abuses. If proven, then Unocal could be shown in breach of California constitutional and statutory law.2 In the first phase of the state trial, the court in September 2004 concluded that Unocal’s subsidiaries were not sham entities, and therefore Unocal could not be found liable for the subsidiaries’ involvement in the pipeline.3 However, the court ruled that the plaintiffs were entitled to a trial on their other theories of liability, such as whether the subsidiaries acted as Unocal’s agent, whether Unocal was unjustly enriched by abuses on the project, or whether Unocal’s involvement in the project using the Burmese military was an unfair business practice. In federal court, the district court initially declined to dismiss the federal claims against Unocal, finding that corporations are within the ambit of the ATCA when they engage in cooperative behavior with governments engaged in human rights violations.4 After three years of discovery, however, the court granted Unocal’s motion for summary judgment because the court found that – as a factual matter – the corporation was not sufficiently connected to the construction and operation of the gas pipeline to sustain a claim that it violated the ATCA.5 In September 2002, a three-judge panel of the Ninth Circuit Court of Appeals held that the district court erred in determining that the plaintiffs had to show that Unocal controlled the Burmese military’s actions in order to establish Unocal’s liability. Rather, the court of appeals stated that the plaintiffs needed to show only that Unocal “knowingly assisted” the military in perpetrating the abuses. The court of appeals further stated that the plaintiffs had produced sufficient evidence under this standard for the case to proceed to trial, although it found that the evidence was insufficient to support claims for torture.6 In February 2003, the Ninth Circuit decided to rehear the appeal before the full eleven-judge court, and thus vacated the decision of the three-judge panel.7 In anticipation of the en banc hearing, the U.S. Department of Justice submitted an amicus curiae brief asserting that panels in the Ninth Circuit have made several fundamental analytical errors regarding the [ATCA]. The Court has construed a statute that on its face merely confers subject matter jurisdiction as also affording an implied private right of action. Recent Supreme Court precedent, however, prohibits finding an implied 1
Doe v. Unocal Corp., Nos. BC 237 980 & BC 237 679 (Sup. Ct. Cal. Aug. 20, 2001). Doe v. Unocal Corp., Nos. BC 237 980 & BC 237 679 (Sup. Ct. Cal. June 11, 2002). Doe v. Unocal Corp., Nos. BC 237 980 & BC 237 679 (Sup. Ct. Cal. Sept. 14, 2004). 4 Doe v. Unocal Corp., 963 F.Supp. 880, 889–92 (C.D. Cal. 1997). For a discussion of the case, see William J. Aceves, Case Report, 92 AJIL 309 (1998). 5 Doe v. Unocal Corp., 110 F.Supp.2d 1294 (C.D. Cal. 2000). 6 Doe v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002). 7 Doe v. Unocal Corp., 395 F.3d 978 (9th Cir. 2003). 2 3
P1: JtR 0521750717c08
CB951-Murphy
210
0 521 75071 7
August 6, 2005
12:49
United States Practice in International Law 2002–2004
right of action in this jurisdictional grant. Moreover, it is clearly error to infer a right of action to enforce unratified or non-self-executing treaties, and non-binding United Nations General Assembly resolutions. Finally, contrary to the long-established presumption against extraterritorial application of a statute, this Court has extended the causes of action recognized under the [ATCA] to conduct occurring wholly within the boundaries of other nations, involving only foreign sovereigns or nationals, and causing no direct or substantial impact in the United States. Under this new view of the [ATCA], it has become the role of the federal courts to discern, and enforce through money damage actions, norms of international law from unratified or non-selfexecuting treaties, non-binding United Nations General Assembly resolutions, and purely political statements. Although often asserted against rogues and terrorists, these claims are without bounds, and can easily be asserted against allies of our Nation. . . . This Court’s approach to the [ATCA] bears serious implications for our current war against terrorism, and permits [ATCA] claims to be easily asserted against our allies in that war. . . . Wide-ranging claims the courts have entertained regarding the acts of aliens in foreign countries necessarily call upon our courts to render judgments over matters that implicate our Nation’s foreign affairs. In the view of the United States, the assumption of this role by the courts under the [ATCA] not only has no historical basis, but, more important, raises significant potential for serious interference with the important foreign policy interests of the United States, and is contrary to our constitutional framework and democratic principles. While the United States unequivocably deplores and strongly condemns the anti-democratic policies and blatant human rights abuses of the Burmese (Myanmar) military government, it is the function of the political Branches, not the courts, to respond (as the U.S. Government actively is) to bring about change in such situations. Although it may be tempting to open our courts to right every wrong all over the world, that function has not been assigned to the federal courts. When Congress wants the courts to play such a role, it enacts specific and carefully crafted rules, such as the Torture Victim Protection Act of 1991 (“TVPA”), 28 U.S.C. §1350 note. The [ATCA], which is a simple grant of jurisdiction, cannot properly be construed as a broad grant of authority for the courts to decipher and enforce their own concepts of international law.8 With regard to the question of whether the ATCA provides a cause of action, the Department of Justice considered the statute’s language, original intent, and subsequent judicial interpretation in arguing that the statute was merely jurisdictional in nature. 1. It is a fundamental mistake to read the [ATCA] as anything but a jurisdictional provision. See Casto, The Federal Courts’ Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467, 479–480 (1986) (“any suggestion that the statute creates a federal cause of action is simply frivolous”). . . . This jurisdictional statute remained virtually dormant for almost 200 years, until the Second Circuit, in 1980, for the first time gave it an expansive construction. See Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). That court held that the [ATCA] conferred subject-matter jurisdiction on federal courts to hear a dispute between citizens of Paraguay regarding torture allegedly committed in Paraguay. The court did not opine, however, on whether the [ATCA] itself provided a cause of action. Thereafter, in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir.), cert. denied, 470 U.S. 1003 (1984), both Judges Bork and Robb disagreed with Filartiga insofar as it allowed such a suit 8
Brief for the United States of America, as Amicus Curiae at 2–4 (May 8, 2003), Doe v. Unocal, Nos. 00-56603 & 00-56628.
P1: JtR 0521750717c08
CB951-Murphy
0 521 75071 7
August 6, 2005
12:49
International Human Rights
211
to proceed. Judge Bork explained that the [ATCA] was a jurisdictional statute only and did not provide plaintiffs a cause of action. Id. at 801–823. Judge Robb stated that the Filartiga’s approach was “fundamentally at odds with the reality of the international structure and with the role of United States courts within that structure.” Id. at 826 n.5. .... 2. By its terms, the [ATCA] vests federal courts with “original jurisdiction” over a particular type of action; it does not purport to create any private cause of action. An examination of the Judiciary Act of 1789 strongly supports that view. That Act in Sections 1 through 13 establishes the federal courts and delineates the jurisdiction of those courts. The [ATCA] is set out in Section 9, adjacent to provisions establishing jurisdiction over crimes on the high seas, admiralty issues, and suits against consuls. See 1 Stat. 76 (1789). In context, the [ATCA] is thus properly read as being solely a jurisdictional provision. . . . Although there is no direct legislative history regarding the [ATCA], many scholars agree that Congress passed this jurisdictional provision, in part, in response to two high profile incidents of the time concerning assaults upon foreign ambassadors on domestic soil (Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111 (1784); Report of the Secretary for Foreign Affairs on Complaint of Minister of United Netherlands, 34 J. Cont. Cong. 109, 111 (1788). . . . These two cases raised serious questions of whether the then-new federal institutions would be adequate to avoid international incidents that could arise if such matters were left to the state courts. . . . .... Article III jurisdiction is not self-vesting. Congress did not enact a general federal question statute until much later. The [ATCA], however, permitted the federal courts to hear one subset of “arising under” cases – i.e., those arising under Acts of Congress incorporating principles of the “law of nations” into the laws of the United States or under “treaties of the United States.” In this way, the First Judiciary Act ensured that the federal courts would have jurisdiction over any claim brought by an ambassador, or other alien, seeking redress for a violation of such traditional law of nations protections. Then, the next year, invoking its constitutional authority to define and punish violations of the “Law of Nations,” see Article I, Sec. 8, Cl. 10, Congress made assaults on ambassadors (as well as the two other traditional violations of the “law of nations” identified by Blackstone (piracy and violating the right of safe conduct)) offenses under the federal law. 1 Stat. 113–115, 117–118. Thus, the origins of the [ATCA] are consistent with an understanding that it grants the federal courts subject matter jurisdiction over only those claims brought to enforce the “law of nations” insofar as that law has been affirmatively incorporated into the laws of the United States.9 The en banc court did not issue its opinion prior to the consideration of the ATCA by the Supreme Court in the Sosa case, discussed below. ATCA Supporters Amicus Brief in Talisman Case The Department of Justice (DOJ) brief in Unocal was also submitted by defendant Talisman Energy, Inc., in a federal district court case in New York – a class action concerning alleged ethnic cleansing of Christian and other non-Muslim minorities in areas of southern Sudan where Talisman was exploring for oil.1 In response to the Justice Department brief, a group of international law 9
Id. at 5–11 (footnote omitted). For the facts of this case, and the district court’s decision not to dismiss the action on the basis of a lack of subject matter or personal jurisdiction or on other grounds, see Presbyterian Church of Sudan v. Talisman, 244 F.Supp.2d 289 (S.D.N.Y. 2003). This decision was issued in March 2003. The law professors/human rights organizations amicus brief was filed in the context of Talisman’s motion for reconsideration, which was denied in June 2003. In August 2004, the district court in the Talisman case rejected Talisman’s renewed 1
P1: JtR 0521750717c08
CB951-Murphy
212
0 521 75071 7
August 6, 2005
12:49
United States Practice in International Law 2002–2004
professors and human rights organizations filed their own amicus brief addressing their view of the meaning of the ATCA. The DOJ’s Brief is at least the seventh filing since 1980 in which the government has offered its interpretation of the ATCA amicus curiae.1 Taken together, the government’s amicus submissions offer no coherent vision of the Act; indeed, the Justice Department’s most recent analysis flatly contradicts the position it expressed to the Second Circuit in Filartiga v. Peˇna-Irala, 630 F. 2d 876 (2d Cir. 1980), and in Kadic v. Karadzic, 70 F. 3d 232 (2d Cir. 1995), both of which establish the law of this Circuit. . . . The position adopted by the government has been rejected by every court to address the issue, including most recently this Court, Presbyterian Church of Sudan v. Talisman Energy, 244 F.Supp.2d 289, 320 (S.D.N.Y. 2003), and the Ninth Circuit Court of Appeals en banc in Alvarez-Machain v. Sosa and the United States, [331] F. 3d [604], 2003 WL 21264256, Nos. 99-56762, 99-56880 (9th Cir. June 3, 2003).2 After arguing that the Department of Justice’s interpretation of the ATCA was not entitled to deference under the Chevron doctrine,3 the amicus brief addressed the issue of the language, original intent, and subsequent practice of the ATCA. By its terms, the statute covers (i) “any civil action,” (ii) by an “alien” plaintiff, (iii) suing for a “tort,” (iv) “in violation of” international law in either customary or treaty form. Assuming that the plaintiff is an alien, the statute is satisfied so long as the underlying wrong takes tortious form and is in violation of international law. . . . This was clearly understood by eighteenth-century courts, as suggested by the first reported case involving the ATCA, Bolchos v. Darrel, 3 Fed. Cas. 1810 (D. S. Car. 1795), in which the plaintiff sought restitution for the value of slaves on a captured Spanish ship. In its opinion, the court made no mention of any additional Congressional action needed to allow the plaintiff to invoke substantive rights under the law of nations. Those rights already existed in American law by virtue of the incorporation of the law of nations into the common law of the United States. .... Contemporaneous statements by the Attorney General reaffirmed the status of the ATCA as the basis for an alien’s suit to enforce international norms. In 1795, for example, the U.S. Attorney General was asked to consider the potential liability of U.S. citizens who had aided the French in attacking the British colony in Sierra Leone. The opinion, only six years removed from the adoption of the First Judiciary Act, reveals that the First Congress understood that torts in violation of the law of nations would be cognizable at common law, just as any other tort would be: . . . there can be no doubt that the company or individuals who have been injured by these acts of hostility have a remedy by civil suit in the courts of the United States; jurisdiction being expressly given to these courts in all cases where an alien sues for a tort only, in violation of the law of nations, or a treaty of the United States.
1 Op. Att’y Gen. 57, 59 (1795) (emphasis in original). See also 26 Op. Att’y Gen. 250, 253 (1907) (“I repeat that the statutes thus provide a forum and a right of action.”). motion to dismiss for lack of personal jurisdiction. Presbyterian Church of Sudan v. Talisman Energy, 2004 WL 1920978 (S.D.N.Y. Aug. 27, 2004). 1 The United States has also filed briefs amicus curiae addressing the scope of Section 1350 in Filartiga v. Peˇna-Irala, 630 F. 2d 876 (1980) (supporting jurisdiction); Tel-Oren v. Libyan Arab Republic, 726 F. 2d 724 (D.C. Cir. 1984), cert. denied, 470 U.S. 1003 (1985) (opposing certiorari); Amerada Hess Shipping Corp. v. Argentine Republic, 830 F.2d 421 (2d Cir. 1987) (arguing that the ATCA does not provide jurisdiction over foreign sovereign); Trajano et al. v. Marcos et al., 878 F.2d 1439 (9th Cir. 1989) (offering restrictive interpretation of the ATCA); Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) (supporting jurisdiction); and Alvarez-Machain v. Sosa, [331] F.3d [604] (9th Cir. 2003) (en banc) (opposing jurisdiction). [Author’s Note: This footnote is original to the brief.] 2 Brief Amici Curiae of International Law Scholars and Human Rights Organizations in Support of Plaintiffs at 1–2 ( June 11, 2003), Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 01-9882 (S.D.N.Y.). 3 Id. at 2–4 (referring to Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984)).
P1: JtR 0521750717c08
CB951-Murphy
0 521 75071 7
August 6, 2005
12:49
International Human Rights
213
The Supreme Court has repeatedly established the criteria for determining the content and applicability of the law of nations in domestic litigation when Congress has not addressed the international standard. The touchstone is The Paquete Habana, 175 U.S. 677 (1900). . . . In Paquete Habana and its progeny, the Supreme Court approved the application of international law in U.S. courts even in the absence of positive Congressional enactment. .... In short, the Justice Department’s current insistence that the ATCA does not contain an explicit cause of action would have mystified 18th-century lawyers, who understood the law of nations to be part of American law and therefore available to claimants whose rights under that law had been abridged.4 Supreme Court ATCA Interpretation in Sosa Case The differences being expressed in the lower courts led to consideration of the ATCA by the Supreme Court in the 2004 Sosa case.1 The background of the Sosa case was as follows. In 1990, Mexican nationals acting on behalf of the U.S. Drug Enforcement Administration (DEA) kidnapped a Mexican national, Humberto Alvarez-Machain, from his office in Mexico for his alleged involvement in the murder of a DEA agent in Mexico. Alvarez was then abducted and taken to U.S. territory without the United States having requested extradition and without the involvement of Mexican authorities. After arriving in the United States, Alvarez was formally arrested by U.S. authorities and indicted. In the course of the U.S. criminal proceeding against Alvarez, the U.S. Supreme Court stated that the failure to utilize procedures under a U.S.–Mexican extradition treaty was not a bar to criminal prosecution of Alvarez, but the Court also acknowledged, without deciding, that Alvarez “may be correct” that the abduction was “shocking” and “in violation of general international law principles.”2 Ultimately, the criminal proceeding against Alvarez was dismissed due to lack of evidence.3 Alvarez then brought a civil suit against the U.S. government and numerous individual defendants.4 He charged, among other things, that his abduction was a tort in violation of the “law of nations” within the meaning of the ATCA. The district court entered summary judgment on Alvarez’s ATCA claim against one of the individual defendants, Jos´e Francisco Sosa, for kidnapping and arbitrary detention, finding that such acts – when state sponsored and done across borders – violated customary international law.5 On June 3, 2003, the Ninth Circuit Court of Appeals, sitting en banc, reviewed this finding and reached three conclusions. First, although Alvarez argued that his abduction was a violation of the “law of nations” because Mexico had not granted permission to the United States to exercise political power in Mexico, the circuit court found that Alvarez had no standing to advance such a state-to-state injury. That injury could not be vindicated by a third party because it “not only would read too much into the ATCA, but would lead to the judiciary’s intrusion into matters that are appropriately reserved for the Executive Branch.”6 4
Id. at 4–7 (footnotes omitted). For information on the Supreme Court’s view of the incorporation of customary international law into U.S. law in the Sosa case, see infra Ch. I. 2 United States v. Alvarez-Machain, 504 U.S. 655, 669 (1992). 3 See Alvarez-Machain v. United States, 107 F.3d 696, 699 (9th Cir. 1996). 4 For background on some of the initial decisions in the case, see Sean D. Murphy, United States Practice in International Law, Vol. 1: 1999–2001, at 304–06 (2002). 5 See Alvarez-Machain v. United States, No. 93-4072, 1999 U.S. Dist. LEXIS 23304, at ∗ 55–65, ∗ 70–72 (C.D. Cal. Mar. 18, 1999). At the same time, the court found that Alvarez’s claim against the U.S. government for false arrest, false imprisonment, and the resulting infliction of emotional distress fell within the scope of the Federal Tort Claims Act, 28 U.S.C. §§1346(b)(1), 2671–80 (2000) (FTCA). See 1999 U.S. Dist. LEXIS 23304, at ∗ 21–54. Yet the district court found that, while the United States was not immune from suit, the United States was not liable because Alvarez’s abduction could be justified under California law as a “citizen arrest.” Id. at ∗ 43–45. On appeal, the Ninth Circuit agreed that the United States could be sued under the FTCA, but disagreed that the law of “citizen arrest” applied, since “the DEA agents here had no authority, statutory or otherwise, to effect an extraterritorial arrest.” Alvarez-Machain v. United States, 331 F.3d 604, 641 (9th Cir. 2003). 6 331 F.3d at 616. 1
P1: JtR 0521750717c08
CB951-Murphy
214
0 521 75071 7
August 6, 2005
12:49
United States Practice in International Law 2002–2004
Second, leaving aside the issue of infringement of Mexican sovereignty, Alvarez had argued that the act of transborder kidnapping was ipso facto a violation of customary international law. Drawing upon Article 38 of the Statute of the International Court of Justice in reviewing various sources of international law, the circuit court concluded that Alvarez was wrong; such sources revealed no explicit prohibition in international law against forcible abduction (rather, they speak to general prohibitions on the restriction of an individual’s right to freedom and movement, and security of person).7 Third, while forcible abduction did not violate customary international law, the circuit court found that the “unilateral, nonconsensual extraterritorial arrest and detention of Alvarez were arbitrary and in violation of the law of nations under the ATCA.”8 In reaching this conclusion, the court relied upon the Universal Declaration of Human Rights9 and the International Covenant on Civil and Political Rights,10 and rejected defendant Sosa’s argument that the detention must be “prolonged” in order to be arbitrary. In applying this law to the facts of the case, the court found that Alvarez’s arrest and detention were arbitrary. Although an arrest warrant was issued by a U.S. court for Alvarez’s arrest, that “arrest warrant, without more, hardly serves as a license to effectuate arrests worldwide”;11 the language of the arrest warrant and U.S. rules of criminal procedure speak only to the authority of U.S. government officers acting within the jurisdiction of the United States. Moreover, while relevant U.S. criminal statutes are applicable to conduct occurring outside the United States, the court found that such extraterritorial application does not automatically carry with it the authority for U.S. agents to detain and arrest suspects around the world. Extraterritorial application, in other words, does not automatically give rise to extraterritorial enforcement authority. Such a leap is too facile. That Congress may have intended the reach of a criminal statute to extend beyond our borders does not mean that Congress also intended to give federal law enforcement officers unlimited authority to violate the territorial sovereignty of any foreign nation to enforce those laws, or to breach international law in doing so.12 On appeal to the U.S. Supreme Court, certain foreign governments and the European Commission filed amicus curiae briefs. Though not challenging the ATCA directly, the European Commission called for U.S. courts to “rigorously apply international law” both “to determine the conduct that gives rise to a violation of the law of nations” and “to determine the actors who may be subject to liability.”13 Australia, Switzerland, and the United Kingdom did directly attack the statute, asserting that for the United States to create a Federal cause of action against foreign nationals for conduct in foreign lands would interfere fundamentally with other nations’ sovereignty, complicate international and local efforts to halt and punish human rights violations, and thereby weaken the “law of nations” that the [ATCA] was intended to uphold.14 In its pleading to the U.S. Supreme Court, the Department of Justice reiterated its position that the ATCA is purely a grant of jurisdiction to U.S. courts and provides no basis for inferring a cause of action,15 as it had done in the Unocal case. Moreover, the Department asserted that no cause of action 7
Id. at 617–20. Id. at 620. GA Res. 217 (Dec. 10, 1948). 10 Dec. 16, 1996, 999 UNTS 171. By contrast, the Eleventh Circuit Court of Appeals in 2002 held, in part, that the Covenant is not self-executing and “does not create judicially-enforceable rights.” United States v. Duarte-Acero, 296 F.3d 1277 (11th Cir. 2002); see also United States v. Matta-Ballesteros, 71 F.3d 754 (9th Cir. 1995). In Duarte-Acero, the Covenant was raised by a criminal defendant who, in an effort to support dismissal of his indictment, argued that he was forcibly abducted abroad and brought to the United States. 11 331 F.3d at 623. 12 Id. at 625. 13 Brief of Amicus Curiae the European Commission in Support of Neither Party at 3–4 ( Jan. 23, 2004), Sosa v. Alvarez-Machain, 124 S.Ct. 2739 (2004). 14 Brief of the Governments of the Commonwealth of Australia, the Swiss Confederation and the United Kingdom of Great Britain and Northern Ireland as Amici Curiae in Support of the Petitioner at 27 ( Jan. 23, 2004), Sosa v. Alvarez-Machain. 15 Brief for the United States as Respondent Supporting Petitioner at 11–24 ( Jan. 2004), Sosa v. Alvarez-Machain. 8 9
P1: JtR 0521750717c08
CB951-Murphy
0 521 75071 7
August 6, 2005
12:49
International Human Rights
215
may be inferred from customary international law norms that have not been affirmatively adopted and made enforceable by the political branches. Customary international law, of course, is not created by Congress. Nor is it even necessarily ratified by the political branches in this country, which may for a number of reasons wish to decline to commit the Nation to the aspirations, objectives, or obligations expressed therein. Moreover, customary international law is fundamentally different from the statutory text on which this Court has fixed the inquiry in determining whether a private right of action exists. As Judge Cabranes recently observed in Flores:16 The determination of what offenses violate customary international law . . . is no simple task. Customary international law is discerned from myriad decisions made in numerous and varied international and domestic arenas. Furthermore, the relevant evidence of customary international law is widely dispersed and generally unfamiliar to lawyers and judges. . . . The inherently indeterminate nature of customary international law makes it a singularly illsuited basis for the creation of private rights of action. Nor, even under the Ninth Circuit’s view of [the ATCA], does the idea of judges searching through unratified treaties . . . have anything to recommend it. Indeed, if courts really had such an extraordinary power, then there would be little point in the close scrutiny given to treaties and other international conventions by the Senate and Executive in determining whether to ratify a treaty or to adopt a reservation indicating that a treaty confers no self-executing rights. But the ratification process routinely occurs without apparent recognition that the political branches’ judgments could be effectively circumvented by courts applying [the ATCA]. .... . . . Nor, especially given this Court’s decisions on the role of federal courts since Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938),17 and the text of Article I, §8, Clause 10 of the Constitution,18 is there any basis for interpreting [the ATCA] as authorizing courts to fashion a federal common law of the law of nations akin to admiralty.19
In a decision issued on June 29, 2004, the Supreme Court (per Justice Souter) agreed that the ATCA is solely a grant of jurisdiction to U.S. courts and that a cause of action must be found elsewhere.20 However, the Court did not accept the United States’ position that only customary international law norms adopted and made enforceable by the political branches could serve as the basis for such causes of action. We think it is correct, then, to assume that the First Congress understood that the district courts would recognize private causes of action for certain torts in violation of the law of nations, though we have found no basis to suspect Congress had any examples in mind beyond those torts corresponding to Blackstone’s three primary offenses: violation of safe conducts, infringement of the rights of ambassadors, and piracy. We assume, too, that no development in the two centuries from the enactment of [the ATCA] to the birth of the modern line of cases beginning with Filartiga v. Pena-Irala, 630 F.2d 876 (C.A.2 1980), has categorically precluded federal courts from recognizing
16
[Author’s Note: Flores v. Southern Peru Copper Corp., 343 F.3d 140, 154 (2d Cir. 2003).] [Author’s Note: Erie rejected the long-standing practice of federal courts to fashion a federal common law on tort, and instructed those courts to apply the laws of the several states as rules of decision in civil cases in which jurisdiction is based on diversity of citizenship.] 18 [Author’s Note: The clause provides that Congress shall have the power “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.”] 19 Brief for the United States, supra note 15, at 27–29. 20 Sosa v. Alvarez-Machain, 124 S.Ct. at 2754–55; see Brad Roth, Case Report: Sosa v. Alvarez-Machain, 98 AJIL 798 (2004). For the Court’s analysis of the customary international law as a part of U.S. law, see supra Ch. I. For the Court’s interpretation of the Federal Tort Claims Act, see supra Ch. III. 17
P1: JtR 0521750717c08
CB951-Murphy
216
0 521 75071 7
August 6, 2005
12:49
United States Practice in International Law 2002–2004
a claim under the law of nations as an element of common law; Congress has not in any relevant way amended [the ATCA] or limited civil common law power by another statute. Still, there are good reasons for a restrained conception of the discretion a federal court should exercise in considering a new cause of action of this kind. Accordingly, we think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.21 In explaining why the law of nations continues to provide a basis for causes of action in U.S. courts, the Court stated: Erie did not in terms bar any judicial recognition of new substantive rules, no matter what the circumstances, and post-Erie understanding has identified limited enclaves in which federal courts may derive some substantive law in a common law way. For two centuries we have affirmed that the domestic law of the United States recognizes the law of nations. See, e.g., Sabbatino, 376 U.S., at 423 . . . (“[I]t is, of course, true that United States courts apply international law as a part of our own in appropriate circumstances”); The Paquete Habana, 175 U.S., at 700 . . . (“International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination”); The Nereide, 13 U.S. 388 . . . (1815) (Marshall, C.J.) (“[T]he Court is bound by the law of nations which is a part of the law of the land”); see also Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641 . . . (1981) (recognizing that “international disputes implicating . . . our relations with foreign nations” are one of the “narrow areas” in which “federal common law” continues to exist). It would take some explaining to say now that federal courts must avert their gaze entirely from any international norm intended to protect individuals. . . . We think it would be unreasonable to assume that the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism. Later Congresses seem to have shared our view. The position we take today has been assumed by some federal courts for 24 years, ever since the Second Circuit decided Filartiga v. Pena-Irala, 630 F.2d 876 (C.A.2 1980), and for practical purposes the point of today’s disagreement has been focused since the exchange between Judge Edwards and Judge Bork in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (C.A.D.C. 1984). Congress, however, has not only expressed no disagreement with our view of the proper exercise of the judicial power, but has responded to its most notable instance by enacting legislation supplementing the judicial determination in some detail.22
In considering whether the norm invoked by Alvarez (prohibiting “arbitrary arrest” because no applicable law had authorized it) had “less definite content and acceptance among civilized nations than the historical paradigms familiar when [the ATCA] was enacted,”23 the Court found that the Universal Declaration of Human Rights does not impose legal obligations on states, and that the United States ratified the ICCPR with an understanding that it was not self-executing.24 The Court then considered whether such a norm had emerged as a matter of customary international law, but found that “Alvarez cites little authority that a rule so broad has the status of a binding customary norm today,” as contrasted with authorities prohibiting prolonged arbitrary detention.25 In short,
21
124 S.Ct. at 2761–62. Id. at 2764–65 (footnote omitted). The legislation referred to by the Court is the TVPA, which was enacted by Congress and signed into law by President George H.W. Bush in 1992. 23 Id. at 2765. 24 Id. at 2767. 25 Id. at 2768. 22
P1: JtR 0521750717c08
CB951-Murphy
0 521 75071 7
August 6, 2005
12:49
International Human Rights
217
“Whatever may be said for the broad principle Alvarez advances, in the present, imperfect world, it expresses an aspiration that exceeds any binding customary rule having the specificity we require.”26 Justice Scalia, in a dissent joined by Chief Justice Rehnquist and Justice Thomas, chided the majority opinion, saying that it “wags a finger at the lower courts for going too far, and then – repeating the same formula the ambitious lower courts themselves would have used – invites them to try again.”27 Justice Department ATCA Position After Sosa Decision In the aftermath of the Sosa decision, the Ninth Circuit, sitting en banc in the Unocal case (discussed above), asked the parties to submit supplemental briefs addressing the effect of the Sosa decision on the Unocal case. The Justice Department submitted an amicus brief stating: [T]he Sosa Court rejected the notion that the [ATCA] grants federal courts unencumbered common law powers to recognize and remedy international law violations. Rather, the Court went out of its way to chronicle reasons why a court must act very cautiously and with “a restrained conception of the discretion” in both recognizing [ATCA] claims and in extending liability. The Supreme Court instructed the federal courts to refrain from an “aggressive role in exercising a jurisdiction that remained largely in shadow for much of the prior two centuries.” The Court discussed at length the reasons for approaching this federal common law power with “great caution”: in general, courts must rely upon legislative guidance before exercising substantive law-making authority, and there is a heightened need of such guidance when the issues could impinge upon the “discretion of the Legislative and Executive Branches in managing foreign affairs.” The Supreme Court’s strongest cautionary note pertained to claims relating to a foreign government’s treatment of its own citizens in its own territory: “It is one thing for American courts to enforce constitutional limits on our own State and Federal Government’s power, but quite another to consider suits under rules that would go so far as to claim a limit on the power of foreign governments over their own citizens, and to hold that a foreign government or its agent has transgressed those limits.” The Court left open whether it would ever be appropriate to project the common law of the United States to resolve such extraterritorial claims. . . . Thus, under Sosa, there would have to be a clear basis and justification for a court to recognize a common law cause of action under U.S. law to govern such extraterritorial conduct. Far from there being such a basis and justification here, a number of considerations weigh strongly against doing so.1 The considerations advanced by the Justice Department were that: (1) U.S. federal common law powers should not be applied to resolve a claim centered on the treatment of foreign nationals by their own government; (2) the “significant policy decision” to impose aiding and abetting liability for an ATCA claim should be made by Congress and not the courts; (3) practical consequences counseled against adopting aiding and abetting liability, such as interference with U.S. foreign policy options; and (4) aiding and abetting liability does not satisfy Sosa’s threshold requirement that the international norm be both firmly established and well-defined.2 The Ninth Circuit scheduled the matter for oral argument in December 2004, but on the eve of the argument the parties announced a tentative settlement of the federal and state law claims. Although the terms of the settlement were not released publicly, Unocal announced that it would 26
Id. at 2769. Id. at 2776 (Scalia, J., dissenting). Supplemental Brief for the United States of America as Amicus Curiae at 2–4 (Aug. 2004), Doe v. Unocal, Nos. 00-56603 & 00-56628 (9th Cir.) (citations omitted). 2 Id. at 4–26. 27 1
P1: JtR 0521750717c08
CB951-Murphy
218
0 521 75071 7
August 6, 2005
12:49
United States Practice in International Law 2002–2004
pay the plaintiffs an unspecified amount of money and fund programs to improve the living conditions for people from the Burmese region surrounding the pipeline and “who may have suffered hardships.”3 District Court ATCA Decisions After Sosa Decision In the wake of the Sosa decision, federal district courts began applying the decision to ATCA cases. In some cases, the district court found that the alleged “tort in violation of the law of nations” fell outside the scope of the specific, universal and obligatory standard called for by Sosa. For example, in the South African Apartheid Litigation case,1 three groups of plaintiffs brought actions on behalf of individuals who suffered damages as a result of apartheid in South Africa. The plaintiffs alleged, among other things, that the defendant multinational corporations had engaged in business in apartheid South Africa in violation of international law, and thus were subject to suit in U.S. court under the ATCA. When the defendant corporations brought motions to dismiss, the court granted them, finding that: (1) the corporations’ conduct could not be regarded as state action, normally a necessary predicate to a violation of international law; (2) the corporations did not aide and abet the South African government in the commission of such a violation; and (3) the corporations’ business activities alone were not of the type that could be said to violate international law. With respect to (3), the court noted: The only materials that plaintiffs cite that even apply to defendants are a series of General Assembly resolutions that “[c]ondemn[ ] . . . transnational corporations and financial institutions that have increased political, economic and military collaboration with the racist minority regime of South Africa.” G.A. Res. 38/39, U.N. GAOR, 38th Session (1983). . . . Despite the strong rhetoric, these resolutions simply recommend that nations pass legislation that will cut off the apartheid regime from the rest of the world. They do not impose binding legal obligations. Even if this Court were swayed by the non-binding General Assembly resolutions calling for an end to defendants’ business activities in South Africa, it is clear from history and from the factors announced by the Court in Sosa, and discussed above, that the opinions expressed by these resolutions never matured into customary international law actionable under the ATCA. Moreover, as Sosa points out, this Court must be aware of the collateral consequences that would result from finding a new international law violation that would support ATCA jurisdiction. In this case, those consequences are not only far-reaching but would raise the prospect of serious impediments to the flow of international commerce. Indeed, the South African government has indicated that it does not support this litigation and that it believes that allowing this action to proceed would preempt the ability of the government to handle domestic matters and would discourage needed investment in the South African economy. . . . Similarly, the United States government has expressed its belief that the adjudication of this suit would cause tension between the United States and South Africa and would serve to hamper the policy of encouraging positive change in developing countries via economic investment. . . . As the Sosa Court made clear, these opinions as to the foreign relations consequences of this action certainly deserve great weight. 2 In other cases, however, the district court found that the alleged tort did fall within the scope of the Sosa standard. For example, a California federal district court in September 2004 found Alvaro Saravia – a Salvadoran immigrant to the United States – liable under the ATCA and TVPA for participation in the assassination of Salvadoran Archbishiop Oscar Romero.3 After being served with 3 See Unocal Press Release on Settlement Reached in Human Rights Lawsuit (Dec. 13, 2004), at . 1 In re South African Apartheid Litig., 346 F.Supp.2d 538 (S.D.N.Y. 2004). 2 Id. at 553–54. 3 Doe v. Saravia, 348 F.Supp.2d 1112 (E.D. Cal. 2004).
P1: JtR 0521750717c08
CB951-Murphy
0 521 75071 7
August 6, 2005
12:49
International Human Rights
219
the complaint in 2003, Saravia went into hiding and neither responded to the charges nor hired an attorney. The court found that the evidence presented by the plaintiff, a relative of the Archbishop, proved Saravia’s responsibility for organizing the assassination. The jurisdiction of the court was invoked under both the TVPA (for extrajudicial killing) and the ATCA (for torts in violation of the law of nations in the form of extrajudicial killing and a crime against humanity, with the latter being based on classification of the murder as a part of a widespread and systematic attack intended to terrorize the civilian population). In finding that both extrajudicial killing and crimes against humanity meet the specific, universal and obligatory standard called for by the Supreme Court in the Sosa case, the district court stated: 249. The Ninth Circuit has held that “[t]he prohibition against summary execution . . . is . . . universal, obligatory and definable.” In re Estate of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467, 1475 (9th Cir. 1994). . . . The Xuncax court, relying in part on “[a]n affidavit signed by twenty-seven widely respected scholars of international law [that] attests that every instrument or agreement that has attempted to define the scope of international human rights has ‘recognized a right to life coupled with a right to due process to protect that right,’” concluded that, “[a]s with official torture, the practices of summary execution, ‘disappearance’ and arbitrary detention have been met with universal condemnation and opprobrium.” Xuncax, 886 F.Supp. at 185 (citing Forti, 694 F.Supp. at 711). 250. Congress’ enactment of the TVPA, singling out torture and extrajudicial killing, confirms that extrajudicial killing provides a cause of action under federal law. . . . .... 252. In Sosa, the United States Supreme Court held that ATCA claims must “rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.” . . . 124 S.Ct. at 2761–62. The Sosa court identified three offenses that give rise to liability under the traditional law of nations: violation of safe conduct, infringement of the rights of ambassadors, and piracy. Id. at 2761. These offenses were universally accepted and defined with specificity. The Court relied on the criteria then available to Congress and the courts – the extensive practice between states and the work of scholars, including Blackstone and Vattel, to identify these norms. In addressing the modernization of the ATCA, the court cited with approval, cases which permitted ATCA claims for violations of international norms which were “specific, universal and obligatory.” Id. at 2765. The prohibition against crimes against humanity constitutes such a specific, universal and obligatory norm. 253. The international prohibition of crimes against humanity is explicitly codified in several multilateral agreements and has been extensively litigated in international tribunals, constituting a body of doctrinal exposition. It has been exhaustively addressed in numerous scholarly treatises. The prohibition of crimes against humanity has been defined with an ever greater degree of specificity than the three 18th-century offenses identified by the Supreme Court and that are designed to serve as benchmarks for gauging the acceptability of individual claims under the ATCA. 254. The prohibition against crimes against humanity was first recognized by the Charter of the International Military Tribunal at Nuremberg (“Nuremberg Charter”). . . . In its final ruling on the criminal liability of Nazi leaders, the International Military Tribunal acknowledged the status of crimes against humanity under international law and convicted several defendants of this crime. See The Nuremberg Trial, 6 F.R.D. 69 (1946). 255. Since the adoption of the Nuremberg Charter, the prohibition against crimes against humanity has been expressly recognized in several international instruments. See, e.g., G.A. Res. 95(I), 1 GAOR U.N. Doc. A/64/Add.1, at 188 (1946) (affirmation of principles set forth in Nuremberg Charter and decision of International Military Tribunal). . . .
P1: JtR 0521750717c08
CB951-Murphy
220
0 521 75071 7
August 6, 2005
12:49
United States Practice in International Law 2002–2004
256. Recent developments affirm the status of crimes against humanity under international law. In 1993, the United Nations Security Council established the International Criminal Tribunal for the former Yugoslavia (“ICTY”) to prosecute serious violations of international law committed in that territory, including genocide, war crimes, and crimes against humanity. . . . The International Criminal Tribunal for Rwanda (“ICTR”) was established by the Security Council in 1994 to prosecute similar violations of international law committed in Rwanda. . . . Both statutes set forth an expanded list of enumerated offenses which are crimes against humanity, including murder. 257. Both the ICTY and ICTR have affirmed the status of crimes against humanity under international law. In Tadic, for example, the ICTY noted that “the customary status of the prohibition against crimes against humanity and the attribution of individual criminal responsibility for their commission have not been seriously questioned.” Prosecutor v. Tadic, Case No. IT-94-1, (May 7, 1997), at ¶623. See also Prosecutor v. Akeyesu, Case No. ICTR-96-4-T (Sept. 2, 1998). 258. The Rome Statute of the International Criminal Court (“Rome Statute”) provides the most current definition of crimes against humanity under international law. Rome Statute of the International Criminal Court ( July 17, 1998), reprinted in 37 I.L.M. 999 (1998). . . . .... 261. Several federal courts in the United States have accepted the well-established nature of crimes against humanity and their actionability under the ATCA. See, e.g., Flores v. Southern Peru Copper Corp., 343 F.3d 140, 151 (2d Cir.2003) (“Customary international law rules proscribing crimes against humanity, including genocide, and war crimes, have been enforceable against individuals since World War II.”); Aldana v. Fresh Del Monte Produce, Inc., 305 F.Supp.2d 1285, 1299 (S.D.Fla.2003) (“Crimes against humanity have been recognized as violation of customary international law since the Nuremberg Trials in 1944.”); Sarei v. Rio-Tinto PLC, 221 F.Supp.2d 1116, 1150 (C.D.Cal.2002) (“It is well-established that a party who commits a crime against humanity violates international law and may be held liable under the ATCA.”). . . . See also United States v. Yousef, 327 F.3d 56, 105 (2d Cir.2003) (“Following the Second World War, the United States and other nations recognized ‘war crimes’ and ‘crimes against humanity,’ including ‘genocide,’ as crimes for which international law permits the exercise of universal jurisdiction”); Sosa, . . . 124 S.Ct. at 2783 (Breyer, J., concurring) (recognizing that international law views crimes against humanity as universally condemned behavior that is subject to prosecution). .... 263. These cases demonstrate that crimes against humanity constitute a specific, universal, and obligatory norm and that this norm is actionable under the ATCA.4 In light of its conclusions, the court awarded the plaintiff U.S.$10 million in compensatory and punitive damages.5 Command Responsibility in U.S. Human Rights Cases On December 2, 1980, three U.S. nuns – Maura Clarke, Ita Ford, and Dorothy Kazel – and a U.S. Catholic lay missionary – Jean Donovan – were abducted, detained, tortured, and murdered in El Salvador by members of the Salvadoran National Guard. The surviving family members of the four victims filed a case in a Florida federal court under the TVPA against two generals, Jos´e Guillermo Garc´ıa (the former Salvadoran minister of defense and public security) and Carlos Eugenio Vides Casanova (the former director-general of the Salvadoran National Guard), both of whom were in office at the time of the murders. Over the course of a three-week trial in Ford v. Garcia during 4 5
Id. at ∗ 40–44; see also Wiwa v. Royal Dutch Petroleum Co., No. 96-8386, 2002 WL 319887, at ∗ 9–10 (S.D.N.Y. Feb. 28, 2002). 348 F.Supp.2d 1112, at 1159.
P1: JtR 0521750717c08
CB951-Murphy
0 521 75071 7
August 6, 2005
12:49
International Human Rights
221
October 2000, the plaintiffs presented voluminous evidence seeking to link the two generals to the killings. By contrast, the defendants testified that they had tried to prevent the killing of civilians, that these efforts were frustrated by their subordinates, and that their attention was, in any case, principally focused on confronting the insurgency and ending the civil war. The judge instructed the jury that to find the defendants liable on a theory of command responsibility the plaintiffs needed to prove that the Guardsmen were under the “effective command” of the defendants, that the defendants knew or should have known that persons under their effective command were committing acts of torture or extrajudicial killing, and that the defendants failed to take “all necessary and reasonable measures” to prevent or repress such acts. After deliberations, the jury returned a unanimous verdict of not guilty.1 On appeal, the plaintiffs argued that the instructions to the jury were in error in placing upon plaintiffs the burden of persuasion that defendants were in “effective command” and that defendants failed to take all “necessary and reasonable measures” to prevent the atrocities. On the issue of command responsibility, the plaintiffs argued: Plaintiffs brought their claims under the TVPA, 28 U.S.C. §1350 n.1, which authorizes federal courts to entertain civil damage actions against any person who “under actual or apparent authority, or color of law, of any foreign nation” either “subjects an individual to torture” or “subjects an individual to extrajudicial killing.” The term “subjects” the victim to these crimes is deliberately comprehensive. Congress explained that the Act reaches not only the immediate perpetrators of state-sanctioned abuse but also their superiors, incorporating the well-established doctrine of command responsibility: “[A] higher official need not have personally performed or ordered the abuses in order to be held liable. Under international law, responsibility for torture, summary execution, or disappearances extends beyond the person or persons who actually committed those acts – anyone with higher authority who authorized, tolerated or knowingly ignored those acts is liable for them.” S. Rep. No. 102-249, at 9 (1991) [hereinafter, “Senate Report”] (emphasis added). See Hilao v. Estate of Marcos, 103 F.3d 767, 777 (9th Cir. 1996) (quoting Senate Report and recognizing that “[t]he principle of ‘command responsibility’ that holds a superior responsible for the actions of subordinates appears to be well accepted in U.S. and international law”); Xuncax v. Gramajo, 886 F.Supp. 162, 171–172 (D. Mass. 1995). The command responsibility doctrine is not only part of international human rights law but, as Congress’s action in enacting the TVPA reflects, is also part of the fabric of American law and public policy. The United States military, for its part, has endorsed the doctrine that commanders are responsible for the actions of their subordinates. For example, the Department of the Army Field Manual (“AFM”), The Law of Land Warfare, 27-10, Art. 501, July 18, 1956, clearly states that “[i]n some cases, military commanders may be responsible for war crimes committed by subordinate members of the armed forces, or other persons subject to their control.” See AFM, 22-100, Army Leadership, Be, Know, Do, Art. 1-60, Aug. 31, 1999 (“Command is a specific and legal position unique to the military. It’s where the buck stops.”); id., Art. 1-61 (“Command is a sacred trust. The legal and moral responsibilities of commanders exceed those of any other leader of similar position or authority.”). .... In this setting, the Senate Report (at 9) identified two prominent human rights cases as explaining the “command responsibility” doctrine subsumed by the Torture Victims Protection Act, under 1 For further background on the trial, see Sean D. Murphy, United States Practice in International Law, Vol. 1: 1999–2001, at 308 (2002).
P1: JtR 0521750717c08
CB951-Murphy
222
0 521 75071 7
August 6, 2005
12:49
United States Practice in International Law 2002–2004
which Plaintiffs brought this suit: In re Yamashita, 327 U.S. 1 (1946), and Forti v. Suarez-Mason, 672 F.Supp. 1531 (N.D. Cal. 1987). The Senate Report (at 9) described Yamashita’s holding: “[T]he Supreme Court held a general of the Imperial Japanese Army responsible for a pervasive pattern of war crimes [1] committed by his officers when [2] he knew or should have known that they were going on but [3] failed to prevent or punish them.” Yamashita was the seminal Supreme Court case recognizing the three elements of the command responsibility doctrine, as well as affirmative defenses under the doctrine. See, infra, 27–28; 33–37. The Senate Report (at 9) described the Forti holding similarly: “[A]lthough Suarez Mason was not accused of directly torturing or murdering anyone, he was found civilly liable for those acts which were committed by [1] officers under his command [2] about which he was aware and [3] which he did nothing to prevent.” .... As set forth in the Senate Report and U.S. case law, the doctrine of command responsibility requires a plaintiff to prove three and only three elements: (a) the commander had a superiorsubordinate relationship with the troops that committed the human rights abuses; (b) the commander knew, or should have known, that these troops were committing such offenses; and (c) the commander failed to prevent or repress the abuses. Once these three elements are met, a commander may be held criminally and civilly liable for the human rights violations committed by subordinates unless he presents affirmative defenses to overcome the presumption of liability. See Ilias Bantekas, The Contemporary Law of Superior Responsibility, 93 Am J. Int’l L. 573 (1999). Here, Plaintiffs proved all three elements.2 In the course of finding no plain error in the jury instructions regarding command responsibility, the Court of Appeals for the Eleventh Circuit first considered prior U.S. jurisprudence in the Yamashita case, and then relied extensively on the statutes and jurisprudence of the International Criminal Tribunals for Rwanda and the Former Yugoslavia, as well as the statute of the International Criminal Court. The court stated, in part: The recently constituted international tribunals of Rwanda and the former Yugoslavia have applied the doctrine of command responsibility since In re Yamashita, and therefore their cases provide insight into how the doctrine should be applied in TVPA cases. Recent international cases consistently have found that effective control of a commander over his troops is required before liability will be imposed under the command responsibility doctrine. The consensus is that “[t]he concept of effective control over a subordinate[ – ]in the sense of a material ability to prevent or punish criminal conduct, however that control is exercised[ – ]is the threshold to be reached in establishing a superior-subordinate relationship. . . .” Prosecutor v. Delalic (Appeals Chamber ICTY, Feb. 20, 2001) ¶256; accord id. at ¶266; Prosecutor v. Aleksovski, Judgment (Appeals Chamber ICTY, March 24, 2000) ¶76; Prosecutor v. Blaskic, Judgment (Trial Chamber ICTY, March 3, 2000) ¶¶295, 302 (“Proof is required that the superior has effective control over the persons committing the violations of international humanitarian law in question, that is, has the material ability to prevent the crimes and to punish the perpetrators thereof.”); Prosecutor v. Kayishema, Judgment (Trial Chamber ICTR, May 21, 1999) ¶229 (stating that the “material ability to control the actions of subordinates is the touchstone of individual responsibility under Article 6(3)”); Prosecutor v. Delalic, Judgment (Trial Chamber ICTY, Nov. 16, 1998) ¶¶377, 378; Prosecutor v. Akayesu, Judgment (Trial Chamber ICTR, Sept. 2, 1998) ¶491. Many of these cases dealt with the 2 Brief of Appellants at 19–23, Ford v. Garcia, 289 F.3d 1283 (11th Cir. 2002) (No. 01-10357B); see also Wiwa v. Royal Dutch Petroleum Co., No. 96-8386, 2002 WL 319887, at ∗ 15–16 (S.D.N.Y. Feb. 28, 2002).
P1: JtR 0521750717c08
CB951-Murphy
0 521 75071 7
August 6, 2005
12:49
International Human Rights
223
situation converse to the one presented here, i.e., where a superior without de jure command was accused of having de facto control over the guilty troops. These cases emphasize, nonetheless, that the command responsibility theory of liability is premised on the actual ability of a superior to control his troops. A reading of the cases suggests that a showing of the defendant’s actual ability to control the guilty troops is required as part of the plaintiff’s burden under the superior-subordinate prong of command responsibility, whether the plaintiff attempts to assert liability under a theory of de facto or de jure authority. Prosecutor v. Delalic (Appeals Chamber ICTY, Feb. 20, 2001) ¶196 (“Effective control has been accepted, including in the jurisprudence of the Tribunal, as a standard for the purposes of determining superior responsibility. . . . The showing of effective control is required in cases involving both de jure and de facto superiors.”). Explaining the difference in application of this requirement in de jure and de facto cases, the same tribunal announced, “In general, the possession of de jure power in itself may not suffice for the finding of command responsibility if it does not manifest in effective control, although a court may presume that possession of such power prima facie results in effective control unless proof to the contrary is produced.” Id. at ¶197. Notably, the tribunal said that de jure authority over the guilty troops results in only a presumption of effective control. In other contexts, this court has held that a presumption shifts the burden of production with respect to the element it concerns, but not the burden of persuasion. See Walker v. Mortham, 158 F.3d 1177, 1184 (11th Cir. 1998) (distinguishing between “presumptions” and “inferences”); see also Fed.R.Evid. 301 (noting that presumptions create a burden of production for the party against whom the presumption is directed, but do not shift the ultimate burden of persuasion). Put another way, Delalic indicates that de jure authority of a commander over the troops who perpetrated the underlying crime is prima facie evidence of effective control, which accordingly can be rebutted only by the defense putting forth evidence to the finder of fact that the defendant lacked this effective control. See Black’s Law Dictionary (7th ed. 1999) 579 (defining prima facie evidence as “[e]vidence that will establish a fact or sustain a judgment unless contrary evidence is produced”). Thus, although we do not decide the issue, we note that nowhere in any international tribunal decision have we found any indication that the ultimate burden of persuasion shifts on this issue when the prosecutor – or in TVPA cases, the plaintiff[ – ]shows that the defendant possessed de jure power over the guilty troops. To the contrary, Delalic provides a strong suggestion that it is the plaintiff who must establish, in all command responsibility cases, that the defendant had effective control over his troops. . . . .... With regard to the “necessary and reasonable measures” portion of the district court’s instruction, . . . the governing statutes of both the Rwanda and former Yugoslavia international tribunals use the precise language employed here. See Art. 6(3), Statute of the ICTR (Nov. 8, 1994); Art. 7(3), Statute of the ICTY (May 25, 1993). Despite Appellants’ claim that the defendant ordinarily bears the burden of persuasion on this element, we have found no international tribunal decision that has addressed this issue. Rather, by not explicitly identifying who possesses the burden on this element, there seems to be a tacit assumption in the tribunal cases that the prosecutor whose burden replicates the burden of the plaintiff in TVPA command responsibility cases carries the burden to prove that the defendant failed to take necessary and reasonable measures to prevent the crime or punish the guilty troops. See e.g., Prosecutor v. Blaskic, Judgment (Trial Chamber ICTY, March 3, 2000) ¶294 (“[P]roof is required that: . . . the accused failed to take the necessary and reasonable measures to prevent the crime or punish the perpetrator thereof.”). Either way, as with the issue of effective control, we find no plain error where the district court’s instruction mirrored the language of the most recent indicia of customary international law on this point, and where no clear case law exists allocating the burden of persuasion to the defendant on whether he took all necessary and reasonable measures to control his troops.
P1: JtR 0521750717c08
CB951-Murphy
224
0 521 75071 7
August 6, 2005
12:49
United States Practice in International Law 2002–2004
Although case law from recent international tribunals is sufficient to convince us that no plain error occurred here in the giving of the command responsibility instruction, we observe that the statute of the recently ratified International Criminal Court, commonly referred to as the Rome Statute, supports our holding on this matter as well. As the statute addresses the command responsibility doctrine, it provides relevant authority for the required elements in TVPA cases invoking the doctrine. Article 28 of the Rome Statute, in relevant part, reads: A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (i) That military commander either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military commander or person failed to take all necessary and reasonable measures to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. Art. 28(a), Rome Statute of the International Criminal Court ( July 17, 1998) (emphasis added). This language reinforces our holding that there was no plain error in either challenged portion of the command responsibility jury instruction.3 In a separate case against the same two generals filed under the TVPA and the ATCA, a different outcome was reached by the jury. In this case, Romagoza v. Garcia, three Salvadoran civilians alleged that they were detained and tortured from 1979 to 1983 by Salvadoran national guardsmen and police who were under the command of the two generals. The jury instructions provided: To hold a military commander liable for the acts of another under the doctrine of command responsibility, the plaintiff must prove all of the following elements by a preponderance of the evidence: (1) The plaintiff was tortured by a member of the military, the security forces, or by someone acting in concert with the military or security forces; (2) A superior-subordinate relationship existed between the defendant/military commander and the person(s) who tortured the plaintiff; (3) The defendant/military commander knew, or should have known, owing to the circumstances of the time, that his subordinates had committed, were committing, or were about to commit torture and/or extra-judicial killing; and (4) The defendant/military commander failed to take all necessary and reasonable measures to prevent torture and/or extra-judicial killing, or failed to punish subordinates after they had committed torture and/or extra-judicial killing.4 Further, the jury instructions provided that, in order to establish the existence of a “superiorsubordinate” relationship, the plaintiff “must prove, by a preponderance of the evidence, that (1) the defendant/military commander held a higher rank than, or had authority over, the person(s) accused of torturing the plaintiff, and (2) the defendant/military commander had effective control over the
3
Ford v. Garcia, 289 F.3d 1283, 1290–93 (11th Cir. 2002) (footnotes omitted). See Center for Justice and Accountability Press Release on Trial Update – Days 14 and 15, Closing Arguments and Jury Instructions ( July 18 & 19, 2002), at . 4
P1: JtR 0521750717c08
CB951-Murphy
0 521 75071 7
August 6, 2005
12:49
International Human Rights
225
person(s) accused of torturing the plaintiff.”5 The term “effective control” was defined as meaning that the defendant/military commander had the actual ability to prevent the torture or to punish the persons accused of committing the torture. In other words, to establish effective control, a plaintiff must prove, by a preponderance of the evidence, that the defendant/military commander had the actual ability to control the person(s) accused of torturing the plaintiff.6 Finally, the instructions provided that a “defendant/military commander cannot escape liability where his own action or inaction causes or significantly contributes to a lack of effective control over his subordinates.”7 On July 23, 2002, the jury returned a verdict in favor of the plaintiffs, awarding them U.S.$14.6 million in compensatory damages and U.S.$40 million in punitive damages.8
Immigration While immigration law is largely a matter of national law, in the United States the statutory provisions and related relief for aliens seeking entry as refugees, or seeking asylum, closely track the UN Convention Relating to the Status of Refugees1 and the UN Protocol Relating to the Status of Refugees.2 Consequently, interpretations by U.S. courts of U.S. immigration law are relevant in considering the interplay between U.S. law and related instruments of international law. U.S. Detention of Aliens After September 11 Attacks In the aftermath of the terrorist attacks of September 11, 2001, the U.S. Federal Bureau of Investigation (FBI) arrested numerous aliens in the United States who were engaged in suspicious activities. Further, as a preventive strategy against future terrorist operations, the FBI also arrested hundreds of other aliens. By the end of October 2001, more than 1,100 persons had been arrested and were being held without bond; the number subsequently released at the time was unknown.1 Various civil liberties and human rights organizations criticized the detention, arrest, and treatment of these aliens. The organizations charged, in part, that the United States was not abiding by its international obligations under human rights treaties. For example, in an open memorandum to U.S. Attorney General John Ashcroft in November 2001,2 Amnesty International stated: Amnesty International recognizes the government’s obligation to take all necessary measures to investigate the crimes of 11 September and protect national security. However, the organization is concerned that the government may be violating its equal obligation to ensure that any such measures include safeguards for the protection of the fundamental rights of those arrested or detained. . . . .... 5
Id. Id. Id. 8 See Center for Justice & Accountability Press Release on Florida Jury Finds Salvadoran Generals Liable for Torture, Awards $54.6 Million to Victims ( July 23, 2002), at ; David Gonzalez, Torture Victims in El Salvador Are Awarded $54 Million, N.Y. Times, July 24, 2002, at A8. 1 Convention Relating to the Status of Refugees, July 28, 1951, 19 UST 6259, 189 UNTS 150. The United States is not a party to this Convention but is derivatively bound to certain of its provisions through adherence to the Protocol. 2 Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 UST 6223, 606 UNTS 267. 1 See U.S. Dep’t of Justice Press Release on Attorney General Ashcroft Provides Total Number of Federal Criminal Charges and INS Detainees (Nov. 27, 2001), at ; Tamar Lewin, Accusations Against 93 Vary Widely, N.Y. Times, Nov. 28, 2001, at B6; Jodi Wilgoren, Swept Up in a Dragnet, Hundreds Sit in Custody and Ask, “Why?” N.Y. Times, Nov. 25, 2001, at B5; Dan Eggen, Many Held on Tenuous Ties to Sept. 11, Wash. Post, Nov. 29, 2001, at A18. 2 United States of America: Memorandum to the US Attorney General – Amnesty International’s Concerns Relating to the Post 11 September Investigations, Amnesty Int’l Doc. AMR 51/170/2001, at 1–7, 12–14 (Nov. 2001), at . 6 7
P1: JtR 0521750717c08
CB951-Murphy
226
0 521 75071 7
August 6, 2005
12:49
United States Practice in International Law 2002–2004
International standards provide that all persons who are arrested or detained (with or without charge) should be informed immediately of the reasons for the detention and notified of their rights, including the right of prompt access to and assistance of a lawyer; the right to communicate and receive visits; the right to inform family members of the detention and place of confinement; and the right of foreign nationals to contact their embassy or an international organization. Anyone arrested or detained who does not adequately understand or speak the language used by the authorities, has the right to be notified in a language they understand what their rights are and how to exercise them and to be provided with an interpreter if necessary.2 . . . Although US law requires that a detainee be informed of the right to counsel immediately upon arrest, Amnesty International is concerned that some of those arrested after 11 September were denied prompt access to counsel and were unable to inform their families of their whereabouts. Some detainees are reported to have been denied access to counsel for up to a week – far longer than is considered acceptable under international standards, even in emergencies.3 In some cases, families have reported difficulty finding out where, or even if, their relatives have been detained. . . . The lack of information and [the] secrecy surrounding detentions may prevent people from being able effectively to challenge their detention – another important right under international law.5 .... . . . [T]he USA Patriot Act . . . became law on 26 October 2001.11 Section 236(A)(a) of the Act provides for the mandatory detention of a non–US national based on the Attorney General’s certification that he has “reasonable grounds to believe” that the individual is a “terrorist”, or supporter of “terrorist activity” or “is engaged in any other activity that endangers the national security of the United States.”12 A person detained under this provision may be held for up to seven days without any charges, after which removal proceedings or charges must be instituted, or the detainee released.
While seven-day detention without judicial supervision is not as open-ended as the emergency directive issued on 19 September, Amnesty International believes that it may be contrary to international standards which provide that all arrested or detained persons should be brought promptly before a judge or judicial authority.13 Although no specific time limits are expressly contained under 2 These rights are contained, inter alia, under article 9 of the International Covenant on Civil and Political Rights (ICCPR), ratified by the USA in 1992; the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles), adopted by consensus by the United Nations (UN) General Assembly in 1988; and the Basic Principles on the Role of Lawyers, adopted by the Eighth UN Congress on the Prevention of Crime and Treatment of Offenders. [Author’s Note: The footnotes from the original Amnesty International document (starting with 2 and ending with 23) have been retained.] 3 The Human Rights Committee (which monitors states’ compliance with the ICCPR) has stressed that “all persons arrested must have immediate access to counsel.” The Body of Principles states that access to a lawyer may be restricted in the most exceptional circumstances “to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority to maintain security or good order” but that even here, this should not be delayed beyond a few days. The UN Special Rapporteur on Torture has recommended that, as torture is most frequently practised during incommunicado detention, “. . . incommunicado detention should be made illegal and persons held incommunicado should be released without delay. Legal provisions should ensure that detainees should be given access to legal counsel within 24 hours of detention.” 5 Article 9(4) of the ICCPR states: “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 the detention and order his release if the detention is unlawful.” 11 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act [of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001)]. 12 Definitions of terrorism for which non-nationals can be detained or deported under the Act are extremely broad and include membership of, or any “material support” for, any foreign or domestic organization designated as a “terrorist organization” by the Secretary of State or any group that publicly endorses acts of terrorism; and membership or support for (including soliciting funds) any group not designated as “terrorist” but deemed to support terrorism in some way. In the latter cases, the onus [is] on the non-national to prove that his or her assistance was not intended to further terrorism. 13 Principle 11(1) of the Body of Principles states: “A person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority.” This applies to all detainees, whether or not held on a criminal charge. Article 9(3) of the ICCPR states: “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 release.”
P1: JtR 0521750717c08
CB951-Murphy
0 521 75071 7
August 6, 2005
12:49
International Human Rights
227
international standards, seven-day detention before someone is initially brought before a court exceeds what has been considered acceptable in cases reviewed by the Human Rights Committee as well as the European Court of Human Rights.14 .... Section 236(A)(a) of the Patriot Act allows the Attorney General to continue to detain nonnationals certified as a danger to national security after removal proceedings have been initiated. Under the legislation, a non-national whose removal “is unlikely in the reasonably foreseeable future” may be detained indefinitely, if the Attorney General considers that release “will threaten the national security of the United States or the safety of the community or any person.” People detained under this broad provision could include non-nationals who cannot be removed because they are stateless; whose country of origin will not accept them; or who are granted relief from deportation because they would face torture if returned to their country of origin. The legislation authorizes the Attorney General to detain people under the above provisions on mere suspicion that they are a threat to national security. Although the act provides for habeas corpus review of the detention15 and six-monthly reviews by the Attorney General at which the detainee can submit evidence, it is unclear how much information the government will be required to produce in support of the certification that the non-national is a “terrorist” or supports “terrorism”. In the past, the Attorney General has detained non-nationals facing deportation on the basis of “secret evidence” of alleged terrorist links not made available to the detainees or their attorneys. Amnesty International considers that no one should be detained on the basis of evidence they are unable to review or challenge. Such a procedure lacks the essential guarantees under international law to protect people from arbitrary or wrongful deprivation of liberty. .... On 9 November 2001, the Attorney General issued a memorandum with instructions to federal prosecutors and state police anti-terrorist task forces to interview a further 5,000 named individuals in the USA on student, tourist or business visas. Although the names have not been released, sources have indicated that most people on the list are Middle-Eastern males aged between 18 and 33. Several state police chiefs have expressed concern about this directive on the ground that questioning immigrants who are not suspected of a crime – unless such interviews are strictly voluntary – may violate state laws and police guidelines which prohibit “racial profiling” (unfair treatment by law enforcement officials, including stops and searches, on the basis of race or ethnic origin). The USA has ratified the UN Convention on the Elimination of All Forms of Racial Discrimination (CERD), Article 5 of which calls on States Parties to undertake to prohibit and eliminate racial discrimination in all its forms and to guarantee to everyone the right to equality before the law. . . .21 ....
14 Members of the Human Rights Committee have questioned whether detention for 48 hours without being brought before a judge is not unreasonably long (Report of the HRC, vol. 1 (A/45/40), 1990, para. 333, Federal Republic of Germany); in a death penalty case, the Committee ruled that a delay of one week from the time of arrest before the detainee was brought before a judge was incompatible with Article 9(3) of the ICCPR: “anyone arrested or detained in a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power . . .” (McLawrence v. Jamaica, UN Doc. CCPR/C/60/D/702/1996). The European Court of Human Rights has ruled in a UK case that detaining a person for four days and six hours before bringing him before a judge was not prompt access (Brogan et al., United Kingdom, 29 November 1988, 145b Ser. A33 at 62). 15 The Act provides that “in general” judicial review of any action or decision made under Section 236(A), including judicial review of the merits of the Attorney General’s certification, is available “exclusively in habeas corpus proceedings” (Section 236(A)(a)7(b)). 21 Article 5 of CERD calls on states to “. . . guarantee the right of everyone without distinction as to race, colour, or nationality or ethnic origin, to equality before the law”, including “equal treatment before the tribunal and all other organs administering justice” and the “right to security of person and protection by the state against violence or bodily harm, whether inflicted by government officials or by any individual group or institution”. Article 26 of the ICCPR states “All persons are equal before the law and are entitled without any discrimination to 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.”
P1: JtR 0521750717c08
CB951-Murphy
228
0 521 75071 7
August 6, 2005
12:49
United States Practice in International Law 2002–2004
Amnesty International is deeply disturbed by a new interim rule introduced by the Department of Justice on 31 October 2001, which permits the Bureau of Prisons to monitor previously confidential written or verbal communications between attorneys and their imprisoned clients whenever the Attorney General certifies that “reasonable suspicion exists to believe” that an inmate may use such communication “to further or facilitate acts of terrorism”. This rule applies to all federal prisoners, and to people “held as witnesses, detainees or otherwise” by [Immigration and Naturalization Service] agents or other federal authorities. Although the Department of Justice has stated that procedural safeguards will protect the right to attorney-client confidentiality regarding legal advice,22 this rule erodes a fundamental principle under international standards, which requires governments to ensure that all arrested, detained or imprisoned people have a right to communicate with an attorney in full confidentiality.23 In testimony before the Senate Judiciary Committee in December 2001, Attorney General Ashcroft – while holding a training manual produced by the Al Qaeda terrorist organization – responded to such criticisms and justified the detentions as follows: Since those first terrible hours of September 11, America has faced a choice that is as stark as the images that linger of that morning. One option is to call September 11 a fluke, to believe it could never happen again, and to live in a dream world that requires us to do nothing differently. The other option is to fight back, to summon all our strength and all our resources and devote ourselves to better ways to identify, disrupt and dismantle terrorist networks. Under the leadership of President Bush, America has made the choice to fight terrorism – not just for ourselves but for all civilized people. Since September 11, through dozens of warnings to law enforcement, a deliberate campaign of terrorist disruption, tighter security around potential targets, and a preventative campaign of arrest and detention of lawbreakers, America has grown stronger – and safer – in the face of terrorism. .... Terrorist operatives infiltrate our communities – plotting, planning and waiting to kill again. They enjoy the benefits of our free society even as they commit themselves to our destruction. They exploit our openness – not randomly or haphazardly – but by deliberate, premeditated design. This is a seized al Qaeda training manual – a “how-to” guide for terrorists – that instructs enemy operatives in the art of killing in a free society. Prosecutors first made this manual public in the trial of the al Qaeda terrorists who bombed U.S. embassies in Africa. We are posting several al Qaeda lessons from this manual on our website today so Americans can know our enemy. In this manual, al Qaeda terrorists are told how to use America’s freedom as a weapon against us. They are instructed to use the benefits of a free press – newspapers, magazines and broadcasts – to stalk and kill their victims. They are instructed to exploit our judicial process for the success of their operations. Captured terrorists are taught to anticipate a series of questions from authorities and, in each response, to lie – to lie about who they are, to lie about what they are doing and to
22 The rule “requires that privileged information not be retained by the government monitors and that, apart from disclosures necessary to thwart an imminent act of violence or terrorism, any disclosures to investigators or prosecutors must be approved by a federal judge.” 23 Principle 18(4) of the Body of Principles states: “Interviews between a detained or imprisoned person and his legal counsel may be within sight, but not within the hearing, of a law enforcement official.” Principle 8 of the Basic Principles on the Role of Lawyers states: “All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within the sight, but not within the hearing, of law enforcement officials.”
P1: JtR 0521750717c08
CB951-Murphy
0 521 75071 7
August 6, 2005
12:49
International Human Rights
229
lie about who they know in order for the operation to achieve its objective. Imprisoned terrorists are instructed to concoct stories of torture and mistreatment at the hands of our officials. They are directed to take advantage of any contact with the outside world to, quote, “communicate with brothers outside prison and exchange information that may be helpful to them in their work. The importance of mastering the art of hiding messages is self-evident here.” Mr. Chairman and members of the committee, we are at war with an enemy who abuses individual rights as it abuses jet airliners: as weapons with which to kill Americans. We have responded by redefining the mission of the Department of Justice. Defending our nation and its citizens against terrorist attacks is now our first and overriding priority. .... We have waged a deliberate campaign of arrest and detention to remove suspected terrorists who violate the law from our streets. Currently, we have brought criminal charges against 110 individuals, of whom 60 are in federal custody. The [Immigration and Naturalization Service] has detained 563 individuals on immigration violations. .... In all these ways and more, the Department of Justice has sought to prevent terrorism with reason, careful balance and excruciating attention to detail. Some of our critics, I regret to say, have shown less affection for detail. Their bold declarations of so-called fact have quickly dissolved, upon inspection, into vague conjecture. Charges of “kangaroo courts” and “shredding the Constitution” give new meaning to the term, “the fog of war.” Since lives and liberties depend upon clarity, not obfuscation, and reason, not hyperbole, let me take this opportunity today to be clear: Each action taken by the Department of Justice, as well as the war crimes commissions considered by the President and the Department of Defense, is carefully drawn to target a narrow class of individuals – terrorists. Our legal powers are targeted at terrorists. Our investigation is focused on terrorists. Our prevention strategy targets the terrorist threat. .... Our efforts have been carefully crafted to avoid infringing on constitutional rights while saving American lives. We have engaged in a deliberate campaign of arrest and detention of law breakers. All persons being detained have the right to contact their lawyers and their families. Out of respect for their privacy, and concern for saving lives, we will not publicize the names of those detained. We have the authority to monitor the conversations of 16 of the 158,000 federal inmates and their attorneys because we suspect that these communications are facilitating acts of terrorism. Each prisoner has been told in advance his conversations will be monitored. None of the information that is protected by attorney-client privilege may be used for prosecution. Information will only be used to stop impending terrorist acts and save American lives. We have asked a very limited number of individuals – visitors to our country holding passports from countries with active al Qaeda operations – to speak voluntarily to law enforcement. We are forcing them to do nothing. We are merely asking them to do the right thing: to willingly disclose information they may have of terrorist threats to the lives and safety of all people in the United States.3
3 U.S. Dep’t of Justice Press Release on Testimony of Attorney General John Ashcroft Before the Senate Committee on the Judiciary (Dec. 6, 2001) (prepared remarks), at .
P1: JtR 0521750717c08a
CB951-Murphy
230
0 521 75071 7
August 6, 2005
12:55
United States Practice in International Law 2002–2004
Section 1001 of the USA Patriot Act directs the Office of the Inspector General (OIG) in the U.S. Department of Justice to undertake a series of actions relating to claims of civil rights or civil liberties violations allegedly committed by DOJ employees. It also requires the OIG to provide semiannual reports to Congress on the implementation of this directive. The reports issued by the OIG during 2002–2004 recounted serious mistreatment of aliens detained as a response to the September 11 attacks. For example, in June 2003, the OIG issued a 198-page report evaluating the treatment of 762 detainees who were held on immigration charges in connection with the investigation of the September 11 attacks.4 The report examined how the Department of Justice handled the detainees, including their processing, their bond decisions, the timing of their removal from the United States or their release from custody, their access to counsel, and their conditions of confinement. Among other things, the report briefly described the mistreatment of September 11 detainees in the Federal Bureau of Prisons’ (BOP) Metropolitan Detention Center (MDC) in Brooklyn, New York, finding that conditions there were excessively restrictive and unduly harsh. A more detailed report on the MDC issued in December 2003 found evidence (including videotapes) that some MDC officers slammed and bounced detainees against the wall, twisted their arms and hands in painful ways, stepped on their leg restraint chains, and punished the detainees by keeping them restrained for long periods of time.5 In addition, the report found other, systemic problems in the way detainees were treated at the MDC, including staff members’ use of a T-shirt taped to the wall in the facility’s receiving area designed to send an inappropriate message to detainees, audio taping of detainees meetings with their attorneys, unnecessary and inappropriate use of strip searches, and banging on detainees’ cell doors excessively while they were sleeping. Detention of Illegal Immigrants Cannot Be Indefinite Under the Immigration and Nationality Act, if an alien is found inadmissible and ordered removed, the Secretary of Homeland Security ordinarily must remove the alien from the country within 90 days.1 At the same time, the statute provides that the secretary may detain inadmissible aliens beyond the 90-day removal period, but only for so long as is reasonably necessary to achieve removal.2 In Zadvydas v. Davis,3 the Supreme Court interpreted the statute as authorizing the continued detention of aliens who have been admitted to the country only as long as “reasonably necessary” to effectuate their removal, but did not determine whether the “only as long as reasonably necessary” standard applied to inadmissible aliens as well.4 Sergio Suarez Martinez and Daniel Benitez arrived in the United States from Cuba in June 1980 as part of the “Mariel boatlift.” They were paroled pursuant to the Attorney General’s authority,5 which normally would have allowed them to adjust their status to that of lawful permanent resident after one year. However, Martinez and Benitez failed to qualify for this adjustment because of prior criminal convictions in the United States. Moreover, both men were convicted of additional felonies during the 1990’s. In 2000, the Attorney General revoked Martinez’s parole and he was taken into custody by the Immigration and Naturalization Service (INS). Removal proceedings were then commenced against him and he was ordered removed to Cuba. The INS, however, continued to detain him after expiration of the 90-day removal period, since the government of Cuba refused to accept the return of convicted criminals. Benitez’s parole was revoked in 1993 while he was serving his state prison term. 4 U.S. Dep’t of Justice Office of the Inspector General, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks ( June 2, 2003), at . 5 U.S. Dep’t of Justice Office of the Inspector, General Supplemental Report on September 11 Detainees’ Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York (Dec. 2003), at . 1 See 8 U.S.C. §1231(a)(1)(A) (2000). 2 Id., §1231(a)(6). 3 533 U.S. 678 (2001). 4 Id. at 689, 699. 5 See 8 U.S.C. §1182(d)(5) (2000).
P1: JtR 0521750717c08a
CB951-Murphy
0 521 75071 7
August 6, 2005
12:55
International Human Rights
231
In 1994, an immigration judge determined Benitez to be excludable and ordered him deported. At the completion of his prison term, the INS took him into custody for removal, but he continued in custody after expiration of the 90-day removal period, again because the government of Cuba would not allow his return. Both men filed a petition for a writ of habeas corpus under which to challenge their detention beyond the 90-day removal period, arguing that indefinite detention was not “reasonably necessary.” The U.S. government argued that continued detention was permissible under the statute notwithstanding Zadvydas v. Davis, since Martinez and Benitez were inadmissible aliens, such that the Zadvydas did not apply to them. With respect to Martinez, the district court found that removal was not reasonably foreseeable, and ordered the INS to release him under conditions that the INS believed appropriate.6 The Ninth Circuit Court of Appeals affirmed.7 With respect to Benitez, a separate district court also concluded that removal would not occur in the “foreseeable future,” but nevertheless denied the petition.8 That decision was affirmed by the Eleventh Circuit Court of Appeals.9 On appeal to the Supreme Court, the Court found that the two men could not be indefinitely detained, and thus affirmed the Ninth Circuit ruling while reversing that of the Eleventh Circuit. In essence, the Court concluded that even if the statutory purpose and constitutional concerns influencing the reasoning in Zadvydas did not apply for inadmissible aliens, that alone could not justify giving the same statutory text a different meaning depending on the characteristics of the aliens involved.10 It was anticipated that the Court’s decision would result in the release of more than 700 Cubans who were being held in the United States indefinitely, as well as more than 170 aliens from other countries.11 Removal of Alien Without Receiving Country’s Consent Keyse Jama was a Somali national who was admitted to the United States as a refugee and took up residency in Minneapolis. His refugee status, however, was terminated by the U.S. government in 2000 by reason of a criminal conviction.1 When he declined to designate a country to which he preferred to be removed, the immigration judge ordered him removed to Somalia, his country of birth, pursuant to the relevant provision of the Immigration and Nationality Act (INA).2 Jama filed a habeas petition to challenge such a removal, claiming that Somalia had no functioning government capable of consenting in advance to the removal, and that the U.S. government was barred from removing him in the absence of such consent. The district court agreed, but the Eighth Circuit Court of Appeals reversed, holding that the INA did not require advance acceptance by the destination country.3 On appeal to the Supreme Court, the Court agreed that the INA permits an alien to be removed to a country without the advance consent of that country’s government. The Court noted that the INA directs that removal occur to (1) the country of the alien’s choice; (2) the country of which he is a citizen; (3) the country to which he has a lesser connection; or (4) where such places are not practicable, advisable or possible, to another country whose government will accept him. According to the Court, consent by the foreign government is only necessary with respect to the fourth possibility.4 It was anticipated that the Court’s decision could result in the removal of more than 4,000 Somalis present in the United States.5
6
Martinez v. Smith, No. CV 02-972-PA (D.C. Ore. Oct. 30, 2002). Martinez v. Ashcroft, No. 03-35053, 2003 WL 23892563 (Aug. 18, 2003). Benitez v. Wallis, Case No. 5:02cv19 MMP (N. Dist. Fla. July 11, 2002). 9 Benitez v. Wallis, 337 F.3d 1289 (11th Cir. 2003). 10 Clark v. Suarez Martinez, 125 S.Ct. 716 (2005). 11 See Darryl Fears & Mary Beth Sheridan, Court Rules Against Detention of Cubans, Wash. Post, Jan. 13, 2005, at A12. 1 See Jama v. INS, 329 F.3d 630, 631 (8th Cir. 2003). 2 8 U.S.C. §1231(b)(2)(E)(iv) (2000). 3 Jama v. INS, 329 F.3d 630 (8th Cir. 2003). 4 Jama v. Immig. & Customs Enforcement, 125 S.Ct. 694 (2005). 5 See Darryl Fears & Mary Beth Sheridan, Court Rules Against Detention of Cubans, Wash. Post, Jan. 13, 2005, at A12. 7 8
P1: JtR 0521750717c08a
CB951-Murphy
232
0 521 75071 7
August 6, 2005
12:55
United States Practice in International Law 2002–2004
Canadian Deportation to United States of Death-Penalty Convict In 1987, a U.S. national named Roger Judge was convicted in a Pennsylvania state court for the first-degree murder of two individuals in Philadelphia in 1984. Two days after being sentenced to death, Judge escaped from custody and fled to Canada, where he entered the country illegally.1 After arriving in Vancouver, Judge was arrested and found guilty of two robberies and, in 1988, he was sentenced to ten years in prison.2 While serving his prison term, Canadian immigration authorities ordered that Judge be deported to the United States upon the expiry of his term. In 1997, Judge sought from the Canadian minister of citizenship and immigration a stay of his deportation until such time as a request for extradition from the United States could be sought and received.3 The minister declined to do so on ground that there was no provision under Canadian immigration law to defer deportation pending receipt of an extradition request. Judge then petitioned for relief from the Canadian federal and provincial courts, on the grounds that (1) Canada’s deportation of him to the United States, where he would face certain death, violated his right to life under section 7 of the Canadian Charter of Rights and Freedoms, and (2) Canada’s incarceration of him for ten years despite his facing certain execution in the United States at the end of his sentence violated the prohibition against cruel and unusual punishment in section 12 of the charter. The Canadian federal and provincial courts denied the petitions. While the federal court stated no reasons for the denial, the Superior Court of Quebec found that the deportation of an American fugitive facing the death penalty in the United States does not constitute cruel and unusual treatment or a breach of the principles of fundamental justice. The Court is further of the opinion that the death row phenomenon is not a factor in the circumstances of the present case which it should take into consideration in determining whether the Respondents have violated Mr. Judge’s Sections 7 and 12 Charter rights.4 Among other things, the court noted that since the United States had not sought extradition of Judge, a stay of his deportation would result in his being released as a free man in Canada, since he had completed his Canadian prison term.5 In August 1998, Canada deported Judge to the United States, where he continued to pursue postconviction relief in U.S. courts.6 In addition, on the day of his deportation, Judge filed a petition with the UN Human Rights Committee under the first optional protocol to the International Covenant on Civil and Political Rights (ICCPR).7 The petition challenged the deportation as a violation of Canada’s obligations under the ICCPR. In views rendered in August 2003, the Committee found that deportation of a person to a country where he or she could receive the death penalty did not per se violate the general right to life in ICCPR Article 6, since that article creates an exception in paragraphs 2 through 6 for the imposition of the death penalty for serious crimes.8 However, the committee further stated that, under the proper interpretation of Article 6, Canada could not take
1
For background on the murders and on Judge’s conviction, see Commonwealth v. Judge, 609 A.2d 785 (Pa. 1992). For the denial of Judge’s Canadian appeal, see R. v. Judge (B.C. Ct. App. Mar. 1, 1991), at . 3 Had the United States sought extradition, the Canadian immigration minister could have made it a condition of Judge’s surrender under the bilateral U.S.–Canada extradition treaty that Judge not be executed in the United States, since first degree murder is not punishable by death in Canada. See Treaty on Extradition, Dec. 3, 1971, as amended July 9, 1974, U.S.-Can., Art. 6, 27 UST 983, 989. 4 Judge. v. Minister of Citizenship & Immigration, 1998 Carswell Que. 2906, 1998 WL 1732172, at para. 18 (Que. C.S. Aug. 6, 1998). 5 Id., para. 17. 6 See Commonwealth v. Judge, 797 A.2d 250 (Pa. 2002). 7 Dec. 16, 1966, 999 UNTS 171, reprinted in 6 ILM 368 (1967) [hereinafter ICCPR]. The first optional protocol to the ICCPR, Dec. 16, 1966, 999 UNTS 302, reprinted in 6 ILM 383 (1967), allows states to submit themselves to a system of investigation and quasi-adjudication of individual complaints by the Human Rights Committee. Canada is a party to the first optional protocol, whereas the United States is not. 8 UN Human Rights Committee, Views on Communication No. 829/1998, UN Doc. CCPR/C/78/D/829/1998, para. 10.2 (Aug. 13, 2003). 2
P1: JtR 0521750717c08a
CB951-Murphy
0 521 75071 7
August 6, 2005
12:55
International Human Rights
233
advantage of this exception. The exception was available only to those states that have not abolished the death penalty. In effect, paragraphs 2 to 6 [of Article 6] have the dual function of creating an exception to the right to life in respect of the death penalty and laying down limits on the scope of that exception. Only the death penalty pronounced when certain elements are present can benefit from the exception. Among these limitations are that found in the opening words of paragraph 2, namely, that only States parties that “have not abolished the death penalty” can avail themselves of the exceptions created in paragraphs 2 to 6. For countries that have abolished the death penalty, there is an obligation not to expose a person to the real risk of its application. Thus, they may not remove, either by deportation or by extradition, individuals from their jurisdiction if it may be reasonably anticipated that they will be sentenced to death, without ensuring that the death sentence would not be carried out.9 The Committee also concluded that Canada violated Judge’s rights under ICCPR Articles 2 and 6 by deporting him to the United States before he could exercise an appeal to the Quebec court of appeal.10 In light of these violations, the Committee concluded that Judge was “entitled to an appropriate remedy” from Canada, “which would include making such representations as are possible to the [United States] to prevent the carrying out of the death penalty.”11 North Koreans Seeking Asylum at Diplomatic Compounds in China On May 8, 2002, two North Koreans entered the U.S. consulate in Shenyang, China, seeking asylum. On May 9, a third North Korean entered the U.S. consulate seeking asylum, and five North Koreans tried to enter the nearby Japanese consulate but were forcibly removed and detained by Chinese authorities. The incidents were part of a spate of North Korean defections to diplomatic compounds in China.1 On May 9, senior members of the House International Relations Committee sent a letter to China’s ambassador to the United States. The letter referred to the above incidents (and also to one other) and provided, in part: We fully recognize China’s right to secure its borders and the sensitivity posed by migrant issues in the northeast of your country. But those issues must be differentiated from the obligation not to repatriate people who face a well-founded fear of persecution, an obligation that both of our countries share as parties to the 1951 UN Convention Relating to the Status of Refugees and the 1967 Protocol.2 In our view, forcibly returning to North Korea any of the family members listed above would be a human tragedy and a violation of the Refugee Convention. Although North Korea’s treatment of mere food migrants may have eased since the mid-1990s, its treatment of North Koreans attempting to escape to third countries remains severe and is usually fatal. Notwithstanding North Korean assurances, such returnees are usually executed or sent to camps for political prisoners. . . .
9 Id., para. 10.4. Canada has abolished the death penalty as a matter of its national law, but has not ratified the ICCPR’s second optional protocol, GA Res. 44/128 (Dec. 15, 1989), 29 ILM 1464 (1990), on the abolition of the death penalty. 10 See Views on Communication No. 829/1998, supra note 8, para. 10.9. 11 Id., para. 12. 1 See Elisabeth Rosenthal, North Korean Migrants Pull U.S. into a Diplomatic Mess, N.Y. Times, May 12, 2002, at 4. 2 [Author’s Note: Convention Relating to the Status of Refugees, July 28, 1951, 19 UST 6259, 189 UNTS 150. The United States is not a party to this Convention but is derivatively bound to certain of its provisions (Articles 2 through 34) through adherence to the Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 UST 6223, 606 UNTS 267.]
P1: JtR 0521750717c08a
CB951-Murphy
234
0 521 75071 7
August 6, 2005
12:55
United States Practice in International Law 2002–2004
We appeal to the Government of China to allow some form of humanitarian accommodation for these people, and urge you not to contravene the treaty obligations that both of our nations share as prominent members of the international community.3 On May 14, the three North Koreans who entered the U.S. consulate were allowed by Chinese authorities to travel to South Korea.4 On May 23, the five North Koreans who were removed from the Japanese consulate were also allowed to travel to South Korea.5
3 Letter from U.S. Representatives Henry J. Hyde, Tom Lantos, James A. Leach, and Eni F. H. Faleomavaega to Chinese Ambassador Yang Jiechi (May 9, 2002) (on file with author). On May 21, senior members of the U.S. Senate introduced a concurrent resolution calling upon China to honor its obligations under the Refugee Convention and its Protocol by “making genuine efforts to identify and protect the refugees among the North Korean migrants encountered by Chinese authorities, including providing the refugees with a reasonable opportunity to petition for asylum.” S. Con. Res. 114, 107th Cong., para. 1(A) (2002). 4 See Don Kirk, North Koreans Who Defected in North China Reach Seoul, N.Y. Times, May 15, 2002, at A12. 5 See Philip P. Pan & Joohee Cho, N. Koreans Seized at Consulate Freed by China, Arrive in Seoul, Wash. Post, May 23, 2002, at A30.
P1: IWV 0521750717c09
CB951-Murphy
0 521 75071 7
August 6, 2005
14:27
Chapter IX International Criminal Law Overview International criminal law was at the forefront of United States conduct during 2002–2004. The traditional areas of treaty development on extradition and mutual legal assistance continued to feature, although this period saw a greater movement away from bilateral instruments to the development of such treaties on a global or regional level. Moreover, treaty practice in this field saw efforts to address emergent problem-areas, such as cybercrime. Non-treaty instruments were important in some instances, such as the non-binding trade controls on “conflict diamonds” organized through the Kimberley Process. The United States adopted new statutes to reinforce such instruments or to promote general norms of international law, such as through a 2003 criminal statute that protects children from transnational exploitation. At the same time, the United States reacted adversely to some efforts by other states to extend their jurisdiction, such as occurred with respect to Belgium’s universal jurisdiction statute, or through the creation of the new International Criminal Court (ICC). While the United States continued to support the ad hoc international criminal tribunals for the former Yugoslavia and for Rwanda, it aggressively pursued exemptions for U.S. persons from the ICC through the negotiation of nearly 100 bilateral agreements and through Security Council resolutions designed to shield from the ICC U.S. personnel engaged in UN peacekeeping operations. Perhaps the most publicly debated aspect of U.S. practice in this time period was the treatment under the laws of war of persons detained as a part of the conflicts in Afghanistan and Iraq. The U.S. decision not to classify Al Qaeda and Taliban detainees as prisoners of war under the Third Geneva Convention engendered considerable criticism, and led to efforts by those detainees – once brought to a U.S. military prison facility in Guant´anamo Bay, Cuba – to challenge in U.S. courts their classification as unlawful combatants, a matter taken all the way to the U.S. Supreme Court. A variety of internal U.S. government legal opinions came to light over the course of this period revealing narrow interpretations of U.S. obligations under international and national law, on topics such as what constitutes “torture” of a detainee during interrogation and when a detainee may be removed from occupied territory. The permissiveness of some of those opinions was claimed to have created a climate for abusive treatment of detainees at Guant´anamo Bay, Cuba and in Afghanistan, and such treatment in turn was found to have “migrated” to Iraq, resulting in abusive treatment of persons accepted by the United States as prisoners of war or civilian internees. Further, the U.S. government’s determination that certain U.S. nationals could be detained indefinitely in the United States as unlawful combatants, without access to legal process, resulted in extensive litigation, including a decision by the U.S. Supreme Court that the administration had to accord the detainee a fair opportunity to rebut the government’s factual assertions.
Law Enforcement Generally U.S./EU and U.S./UK Extradition Treaties Extradition refers to the formal process by which an individual is delivered from the state where he is located to a requesting state in order to face prosecution, or if already convicted, to serve a sentence.1 For the United States, an extradition from the United States normally may proceed only when there is
1
For general background, see Geoff Gilbert, Transnational Fugitive Offenders in International Law (1998).
235
P1: IWV 0521750717c09
CB951-Murphy
236
0 521 75071 7
August 6, 2005
14:27
United States Practice in International Law 2002–2004
a treaty in force between the United States and the requesting state.2 During 2002–2004, the United States had in force extradition treaties with more than one hundred foreign states.3 Moreover, in this time period the United States not only updated existing extradition treaties, but pursued new ones, including one with the European Union. On June 25, 2003, the United States signed its extradition treaty with the European Union (EU).4 The treaty is designed not to eliminate bilateral agreements between the United States and EU member states, but to supplement and selectively amend them. For example, the U.S./EU treaty sets forth a detailed list of criteria that a requested state must take into account when faced with competing extradition requests from several states.5 Further, the treaty broadens the range of extraditable offenses, requiring extradition for every offense punishable in both the requesting and requested state by more than one year in prison.6 In 2003, the United States and the United Kingdom negotiated a new extradition treaty designed, in part, to bring their bilateral relationship in line with the U.S./EU extradition treaty. Thus, under the 1972 U.S./UK extradition treaty, each state was obligated to extradite only persons who were accused or convicted of offenses listed on a schedule annexed to the treaty, as well as other offenses that were listed in relevant UK extradition law and also considered felonies under U.S. law.7 Under the 2003 treaty, the parties agree to extradite for any “extraditable offense,” defined as an offense “punishable under the laws in both States by deprivation of liberty for a period of one year or more or by a more severe penalty.”8 When transmitting the treaty to the Senate in April 2004, the U.S. government asserted that the use of such a pure “dual criminality” clause “obviates the need to renegotiate or supplement the Treaty as additional offenses become punishable under the laws in both States.”9 Article 4 of the treaty establishes bases for denial of extradition, including on the ground that extradition is sought for a political offense. Article 4(2) sets forth seven categories of offenses that shall not be considered political offenses, including “an offense for which both Parties have the obligation pursuant to a multilateral international agreement to extradite the person sought or to submit the case to their competent authorities for decision as to prosecution.”10 Article 7 on capital punishment provides: When the offense for which extradition is sought is punishable by death under the laws in the Requesting State and is not punishable by death under the laws in the Requested State, the executive authority in the Requested State may refuse extradition unless the Requesting State provides an assurance that the death penalty will not be imposed or, if imposed, will not be carried out.11 Article 18(2) of the treaty states that an extradited person “may not be the subject of onward extradition or surrender for any offense committed prior to extradition to the Requesting State unless 2 See 18 U.S.C. §§3181(a), 3184 (2000). In a limited class of cases relating to terrorism, extradition may occur in the absence of an extradition treaty. See 18 U.S.C. §§3181(b) (2000). For extradition under U.S. law, see Michael Abbell, Extradition to and from the United States (2002) (looseleaf ); M. Cherif Bassiouni, International Extradition: United States Law and Practice (2002). 3 For current U.S. bilateral and multilateral extradition treaties, see U.S. Dep’t of State, Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force on January 1, 2004 (2004). 4 Agreement on Extradition, June 25, 2003, U.S.–EU, 2003 O.J. (L 181) 27, reprinted in 43 ILM 749 (2004). This agreement, along with a U.S.–EU agreement on mutual legal assistance (discussed infra this chapter), was the first agreement ever concluded between the United States and the European Union (as opposed to with the European Community). 5 Id., Art. 10. 6 Id., Art. 4(1). 7 See Extradition Treaty, June 8, 1972, U.S.–UK, Arts. I, III, 28 UST 227, 229, 30 UNTS 167, 168–69. This Treaty was supplemented in 1985. See Supplementary Treaty, June 25, 1985, U.S.–UK, TIAS 12050, 1556 UNTS 369. 8 Extradition Treaty, Mar. 31, 2003, U.S.-UK, Arts. 1, 2(1), S. Treaty Doc. No. 108-23, at 1, 4 (2003) [hereinafter 2003 Extradition Treaty]. 9 S. Treaty Doc. No. 108-23, at V (2003) (secretary of state’s letter of submittal to the president). 10 2003 Extradition Treaty, supra note 8, Art. 4(2)(a). There are presently numerous multilateral conventions containing a “prosecute or surrender” obligation addressing terrorist acts. 11 Id., Art. 7. Similar formulations may be seen in recent U.S. extradition treaties with Argentina, France, India, Republic of Korea, Peru, and Poland.
P1: IWV 0521750717c09
CB951-Murphy
0 521 75071 7
August 6, 2005
14:27
International Criminal Law
237
the Requested State consents.”12 In his transmittal to the Senate, the president explained: The Treaty’s use of the term “surrender” (the operable term in the Rome Statute of the International Criminal Court) makes explicit that the United Kingdom will not surrender to the ICC any person extradited by the United States. The United Kingdom has recorded in a separate letter its understanding that the Treaty continues the protection implicit in the current treaty against surrender to the ICC of fugitives extradited by the United States and states in its letter that it will contest any request from the ICC for such surrender as being inconsistent with Article 98(2) of the Rome Statute.13 As of the end of 2004, the Senate had not yet provided consent to ratification of either the U.S./EU or U.S./UK treaties. Continuance of Extradition Treaty with Czech Republic In some situations, the status of older extradition treaties has been called into question. In 1925, the United States concluded an extradition treaty with Czechoslovakia.1 After the fall of Communism in eastern and central Europe in 1989–1990, Czechoslovakia split into two states: the Czech Republic (consisting of Bohemia and Moravia) and the Republic of Slovakia. In January 1993, President George H. W. Bush recognized the two new republics.2 Neither the United States nor the new Czech Republic gave notice of termination of the 1925 extradition treaty, and it continued to be included in the U.S. Department of State’s Treaties in Force during the 1990s and early 2000s as a treaty relating to Czechoslovakia, the status of which was “under review.”3 In June 2000, the Czech Republic issued an arrest warrant for Jaroslava Lorie Kastnerova, a Czech national charged with business fraud who had immigrated to the United States. The United States initiated extradition proceedings before a U.S. magistrate, but Kastnerova filed a habeas corpus petition arguing that no valid extradition treaty existed between the United States and the Czech Republic. According to Kastnerova, the U.S. Senate had consented to a treaty with Czechoslovakia, not the Czech Republic, and when Czechoslovakia dissolved, the treaty became void.4 The district court found that the treaty did remain in force and, on appeal, the Eleventh Circuit Court of Appeals agreed. The circuit court noted that U.S. courts, in analyzing whether a treaty has lapsed, defer to the executive branch’s determination on the matter. In this case, the executive branch had (1) recognized the new Czech Republic, (2) continued to list the treaty in Treaties in Force, and (3) submitted a declaration to the U.S. magistrate that the treaty remained in force and that there was a historical continuity between Czechoslovakia and the Czech Republic.5 As such, the court declined to find that the treaty was void. MLATs with Various States and the European Union In addition to extradition treaties, since the 1970s the United States has concluded numerous bilateral agreements – called “mutual legal assistance in criminal matters treaties” (MLATs) – that seek to regularize and improve the effectiveness of cooperation between the U.S. government and 12
Id., Art. 18(2) (emphasis added). S. Treaty Doc. No. 108-23, at IX–X (secretary of state’s letter of submittal to the president). Article 98(2) of the Statute of the International Criminal Court, UN Doc. A/CONF.183/9* (1998), provides that the ICC may not proceed with a request for surrender that “would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court.” 1 Treaty Concerning the Mutual Extradition of Fugitive Criminals, July 2, 1925, U.S.–Czech., 44 Stat. 2367. The Treaty was supplemented in 1935. Supplementary Extradition Treaty, Apr. 29, 1935, U.S.–Czech., 49 Stat. 3253. 2 Statement by Press Secretary Fitzwater on Recognition of the Czech and Slovak Republics, 2 Pub. Papers of George Bush 2221 (1992–1993). 3 See, e.g., U.S. Dep’t of State, Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force on January 1, 2002, at 71–72 (2002). 4 Kastnerova v. United States, 365 F.3d 980, 982–84 (11th Cir. 2004). 5 Id. at 986–87. 13
P1: IWV 0521750717c09
CB951-Murphy
238
0 521 75071 7
August 6, 2005
14:27
United States Practice in International Law 2002–2004
foreign governments on criminal matters.1 MLATs generally provide for the sharing of information and evidence related to criminal investigations and prosecutions, including for drug trafficking and narcotics-related money laundering. Both parties are obligated to assist in the investigation, prosecution, and suppression of offenses in all forms of proceedings (criminal, civil, or administrative). Among other things, the treaties address the ability of one government to summon witnesses located in the other government’s territory, to compel the production of documents and other real evidence, to issue search warrants, and to serve process. When concluding such an agreement, each country designates a central authority (e.g., for the United States, the Department of Justice) responsible for direct communication between the states on matters within the scope of the treaty.2 During 2002–2004, the United States concluded several new bilateral MLATs, including with Belize, Germany, India, Ireland, Japan, Liechtenstein, and the Russian Federation.3 On June 25, 2003, the European Union (EU) and the United States signed an MLAT,4 which, once it enters into force, will provide for cooperation between the United States and all twenty-five EU member states (previously the United States had MLATs with just eighteen of the EU states). Among other things, Article 4 of the U.S.–EU MLAT establishes a detailed mechanism for receiving information on bank accounts, thus allowing the United States to request information from an existing network of European national registries on such accounts. Article 5 calls upon the parties to establish joint investigative teams between the United States and each EU member state to facilitate criminal investigations or prosecutions. Article 6 calls for cooperation in the use of video-conferencing technology to take testimony, including the punishment in the requested state of persons who make intentionally false statements during such testimony. Article 9 sets out certain parameters for the vexing issue of disclosure to, and use by, a requesting state of personal data. Adoption of UN Convention Against Corruption In December 2000, the UN General Assembly decided to establish an ad hoc committee for the negotiation of a convention on corruption.1 After seven negotiating sessions held in Vienna from January 2002 to October 2003, the committee transmitted a final text to the General Assembly.2 On October 31, 2003, the General Assembly adopted the UN Convention Against Corruption.3 Over the course of eight chapters and seventy-one articles, the convention sets forth in detail a variety of measures states are obligated to take to strengthen international efforts to fight corruption of public officials, whether in the form of bribery, embezzlement, money laundering, or related acts. In chapter 2 (Articles 5 to 14), the convention sets forth a series of preventive measures that states 1 As of 2004, the United States had MLATs in force with respect to Anguilla, Antigua/Barbuda, Argentina, Australia, Austria, the Bahamas, Barbados, Belgium, Brazil, the British Virgin Islands, Canada, the Cayman Islands, Cyprus, the Czech Republic, Dominica, Egypt, Estonia, Greece, Grenada, Hong Kong, Hungary, Israel, Italy, Jamaica, Korea (South), Latvia, Lithuania, Luxembourg, Mexico, Montserrat, Morocco, the Netherlands, Panama, the Philippines, Poland, Romania, St. Kitts-Nevis, St. Lucia, St. Vincent, Spain, Switzerland, Thailand, Trinidad, Turkey, the Turks and Caicos Islands, Ukraine, the United Kingdom, and Uruguay. U.S. Dep’t of State Public Notice, Mutual Legal Assistance in Criminal Matters Treaties (MLATs) and Other Agreements (n.d.), at . 2 In the absence of such a treaty (or an executive agreement), the customary method of formally requesting such assistance has been through letters rogatory. For an overview of the MLATs, see 3 Bruno Ristau & Michael Abbell, International Judicial Assistance (Criminal) §§12-4-1 to -8 (1995). 3 See Treaty on Mutual Legal Assistance in Criminal Matters, Sept. 19, 2000, U.S.–Belize, S. Treaty Doc. No. 107-13 (2002); Treaty on Mutual Legal Assistance in Criminal Matters, Oct. 17, 2001, U.S.–India, S. Treaty Doc. No. 107-3 (2002); Treaty on Mutual Legal Assistance in Criminal Matters, Jan. 18, 2001, U.S.–Ir., S. Treaty Doc. No. 107-9 (2002); Treaty on Mutual Legal Assistance in Criminal Matters, July 8, 2002, U.S.–Liech., S. Treaty Doc. No. 107-13 (2002) (entered into force Aug. 1, 2003); Treaty on Mutual Legal Assistance in Criminal Matters, June 17, 1999, U.S.–Russ., S. Treaty Doc. No. 107-13 (2002) (entered into force Jan. 31, 2002); Treaty on Mutual Legal Assistance in Criminal Matters, Aug. 5, 2003, U.S.–Japan, S. Treaty Doc. No. 108-12 (2003); Treaty on Mutual Legal Assistance, Oct. 15, 2004, U.S.–Ger., S. Treaty Doc. No. 108-27 (2004). 4 Agreement on Mutual Legal Assistance in Criminal Matters, June 25, 2003, U.S.–EU, 2003 O.J. (L 181) 34, reprinted in 43 ILM 758 (2004). 1 See GA Res. 55/61 (Dec. 4, 2000). 2 See Report of the Ad Hoc Committee for the Negotiation of a Convention Against Corruption on the Work of Its First to Seventh Sessions, UN Doc. A/58/422 (Oct. 7, 2003). For the committee’s interpretive notes on the convention, see UN Doc. A/58/422/Add.1 (Oct. 7, 2003). 3 Oct. 31, 2003, GA Res. 58/4, annex (Oct. 31, 2003).
P1: IWV 0521750717c09
CB951-Murphy
0 521 75071 7
August 6, 2005
14:27
International Criminal Law
239
must undertake, including the adoption of anticorruption policies and practices, and the use of a body (or bodies) to ensure implementation of those policies and practices. Article 13(1) provides for the participation by civil society on the following terms. Each State Party shall take appropriate measures, within its means and in accordance with fundamental principles of its domestic law, to promote the active participation of individuals and groups outside the public sector, such as civil society, non-governmental organizations and community-based organizations, in the prevention of and the fight against corruption and to raise public awareness regarding the existence, causes and gravity of and the threat posed by corruption. This participation should be strengthened by such measures as: (a) Enhancing the transparency of and promoting the contribution of the public to decisionmaking processes; (b) Ensuring that the public has effective access to information; (c) Undertaking public information activities that contribute to non-tolerance of corruption, as well as public education programmes, including school and university curricula; (d) Respecting, promoting and protecting the freedom to seek, receive, publish and disseminate information concerning corruption. That freedom may be subject to certain restrictions, but these shall only be such as are provided for by law and are necessary: (i) For respect of the rights or reputations of others; (ii) For the protection of national security or ordre public or of public health or morals. Chapter 3 of the convention (Articles 15 to 42) requires parties to criminalize embezzlement, money laundering, and the bribing of their own and foreign government officials in relation to the conduct of international business. The chapter also calls upon parties to “consider adopting” laws to establish other acts as criminal offenses, including trading in influence, abuse of functions, illicit enrichment, and bribery in the private sector. The chapter contains a series of articles on measures for promoting adherence to such criminal laws – for example, measures for freezing and confiscating the proceeds of a crime, overcoming bank secrecy laws, and cooperation among law enforcement authorities of the parties. Chapter 4 (Articles 43 to 50) is devoted to international cooperation, and addresses issues such as extradition and procedures for mutual legal assistance. Chapter 5 (Articles 51 to 59) on asset recovery establishes a system whereby assets recovered in one jurisdiction can be returned to the beneficial owners located in another. Chapter 6 (Articles 60 to 62) addresses technical assistance and information exchange. Chapter 7 (Articles 63 to 64) creates a conference of the states parties (which will meet regularly) and a permanent secretariat that are responsible for following up on the implementation of the convention. Chapter 8 (Articles 65 to 71) contains final provisions. In voting to adopt the convention, the U.S. permanent representative to the United Nations stated: Ten years ago, bribes were still tax deductible in some countries and no international anticorruption treaties existed. Today’s resolution is therefore a milestone achievement in the global effort to ensure transparency, fairness and justice in public affairs. This is vital not only to the rule of law, but to the fundamental confidence citizens must have for representative government and private enterprise to succeed. Corruption and democracy are incompatible; corruption and economic prosperity are incompatible; and corruption and equal opportunity are incompatible.
P1: IWV 0521750717c09
CB951-Murphy
240
0 521 75071 7
August 6, 2005
14:27
United States Practice in International Law 2002–2004
As a consequence, I am pleased to say that the draft convention we consider for adoption represents the first globally negotiated anti-corruption treaty and will likely be the first anti-corruption treaty applied on a truly global level. It is more comprehensive than any existing anti-corruption treaty and provides the first agreed multilateral framework for Governments to cooperate in the recovery of illicitly obtained assets.4 On December 9–11, 2003, ninety-seven states signed the convention at a high-level signing conference held at Merida, Mexico.5 U.S. Attorney-General John Ashcroft signed the convention on behalf of the United States.6 The convention will enter into force on the ninetieth day after the date of the deposit of the thirtieth instrument of ratification or acceptance.7 As of the end of 2004, the United States had not yet ratified the convention. Senate Consideration of Other Multilateral Treaties During 2002–2004, the president transmitted to the Senate several other law enforcement treaties for advice and consent.1 In testimony before the Senate Foreign Relations Committee on June 17, 2004, a State Department official discussed the value to the United States of entering into five such treaties: the Inter-American Convention Against Terrorism;2 the Council of Europe Convention on Cybercrime;3 and the UN Convention Against Transnational Organized Crime, along with two of its supplementary protocols on trafficking in persons and on migrant smuggling.4 In recent years, the world community as a whole has had to confront a rising tide of transborder crime of many types. The multilateral law enforcement conventions before you today reflect that the United States has been working together with other countries – indeed, leading efforts – at the United Nations as well as at regional organizations like the Council of Europe and the Organization of American States, to improve our collective abilities to prevent and punish terrorist crimes, computer crimes, and organized crimes such as those involving the exploitation of persons. They break new ground legally, and provide essential and practical tools for international cooperation. These law enforcement instruments are innovative in containing definitions of certain serious crimes – computer crime and trafficking in persons, for example – on which there never previously has been an international consensus. Now we not only agree collectively on what constitutes such crimes, but also commit ourselves to punish them comparably and to extradite fugitives and otherwise assist in the investigation and prosecution of persons who commit them. These instruments also contain breakthroughs in methods for providing and obtaining assistance to and from other countries. The investigation of computer crimes, for instance, requires real-time 4 UN Doc. A/58/PV.50, at 19 (Oct. 31, 2003). Existing regional conventions on corruption include: OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, Dec. 17, 1997, OECD Doc. DAFFE/IME/BR (97)20, 37 ILM 1 (1998), at ; OAS Inter-American Convention Against Corruption, Mar. 29, 1996, OAS Doc. B-58, 35 ILM 724 (1996), at ; Council of Europe Criminal Law Convention on Corruption, Jan. 27, 1999, Europ. T.S. No. 173, reprinted in 38 ILM 505 (1999); and Organization of African Unity Convention on Preventing and Combating Corruption, July 11, 2003, at . 5 See UN Office on Drugs and Crime, Signatories to the UN Convention Against Corruption (n.d.), at . 6 See U.S. Dep’t of State Press Release on Signing of the UN Convention Against Corruption (Dec. 10, 2003), at . 7 UN Convention Against Corruption, supra note 3, Art. 68. 1 On transmittal of treaties generally, see infra Annex. 2 June 3, 2002, S. Treaty Doc. No. 107-18 (2002), OAS G.A. Res. 1840 (June 3, 2002). 3 Nov. 23, 2001, S. Treaty Doc. No. 108-11 (2003), Europ. T.S. No. 185. For background on the convention, see Sean D. Murphy, United States Practice in International Law, Vol. 1: 1999–2001, at 347–49 (2002). 4 Nov. 15, 2000, S. Treaty Doc. No. 108-16 (2003), G.A. Res. 55/25, annexes I (main convention), II (trafficking in persons), & III (migrant smuggling) (Nov. 15, 2000).
P1: IWV 0521750717c09
CB951-Murphy
0 521 75071 7
August 6, 2005
14:27
International Criminal Law
241
coordination in tracing electronic communications across borders, and the Cybercrime Convention commits parties to do just that. The Transnational Organized Crime Convention similarly details procedures for mutual legal assistance that will be able to function effectively without the need to resort solely to cumbersome domestic law processes. And to ensure that fugitive terrorists in our hemisphere are brought to justice, the OAS Terrorism Convention eliminates the possibility that they could hide behind assertions that their crimes are “political offenses.” .... The Inter-American Convention Against Terrorism was negotiated as a direct response to the attacks on the United States of September 11, 2001. Within 10 days of the attacks, the foreign ministries of the OAS member states endorsed the negotiation of a regional convention against terrorism, and the resulting convention was adopted by the OAS General Assembly and opened for signature nine months later on June 3, 2002. .... The Convention builds upon other multilateral and bilateral instruments already in force. Following the model of the 1999 International Convention for the Suppression of Financing of Terrorism,5 the Convention incorporates by reference the offenses set forth in ten counter-terrorism instruments listed in Article 2 of the Convention to which the United States is already a party. The cooperative measures set forth in the rest of the Convention will thus be available for a wide-range of terrorism-related offenses, including hijackings, bombings, attacks on diplomats, and the financing of terrorism. . . . Parties are required under the Convention to “endeavor to become a party” to these ten counterterrorism instruments. In addition to facilitating the implementation of the Convention, this obligation also furthers the United States’ interest in securing the broadest possible adherence to these instruments and advances implementation of United Nations Security Council Resolution 1373, which calls upon states to become parties to these instruments “as soon as possible.”6 .... The Committee also has before it the Council of Europe Convention on Cybercrime, the product of years of study and work by experts from a wide range of countries. Although it was negotiated in a European forum, the United States played a leading role in its development. .... The Convention has three main parts, each of which provides important law enforcement benefits for the United States. First, it requires Parties to criminalize certain conduct related to computer systems. For example, Article 2 requires parties to criminalize “illegal access” into computer systems, including activities known as “hacking.” By requiring Parties to establish these kinds of substantive offenses, the Convention will help deny safe havens to criminals, including terrorists, who can cause damage to U.S. interests from abroad using computer systems. Second, it requires Parties to ensure that certain investigative procedures are available to enable their domestic law enforcement authorities to investigate cybercrime offenses effectively and obtain electronic evidence (such as computer data) of crime. In this way, the convention will enhance the ability of foreign law enforcement authorities to investigate crimes effectively and expeditiously, including those committed by criminals against U.S. individuals, U.S. government agencies, and other U.S. institutions and interests.
5 [Author’s Note: International Convention for the Suppression of Financing of Terrorism, Oct. 12, 2000, S. Exec. Rep. No. 107-2 (2000).] 6 [Author’s Note: S.C. Res. 1373, para. 3(d) (Sept. 28, 2001).]
P1: IWV 0521750717c09
CB951-Murphy
242
0 521 75071 7
August 6, 2005
14:27
United States Practice in International Law 2002–2004
Third, in a manner analogous to other law enforcement treaties to which the United States is a party, the Convention requires Parties to provide each other broad international cooperation in investigating computer-related crime and obtaining electronic evidence, in addition to assisting the extradition of fugitives sought for crimes identified under the Convention. It provides mechanisms for U.S. law enforcement authorities to work cooperatively with their foreign counterparts to trace the source of a computer attack and, most importantly, to do so immediately when necessary, 24 hours a day, 7 days a week. The Convention would therefore enhance the United States’ ability to receive, as well as render, international cooperation in preventing, investigating, and prosecuting computer-related crime. Because such international cooperation is vitally important to our efforts to defend against cyber attacks and generally improve global cybersecurity, support for the Cybercrime Convention has been identified as a key initiative in the 2003 National Strategy to Secure Cyberspace.7 .... The United Nations Convention against Transnational Organized Crime (“TOC Convention”) is the first and only global instrument designed specifically to combat the dangerous contemporary phenomenon of criminal groups operating internationally. During the second half of the 1990’s, the United States and its [Group of Eight (G-8)] allies, concerned about the rapid spread of organized crime across borders no longer frozen by Cold War geopolitics, recognized the need for coordinated international action. The United Nations also embraced the idea, and negotiations on the Convention took place under UN auspices in 1999 and 2000. Developing and developed countries from all regions participated actively, reflecting their awareness of the serious threat transnational organized crime poses to the effectiveness of their governments. .... The Convention focuses on the offenses that are characteristic of transnational organized crime and on the key methods of international cooperation for combating it. It is buttressed by three protocols concentrating on particularly problematic manifestations of transnational organized crime, all of which were negotiated simultaneously with the main Convention. Two of these protocols, on trafficking in persons and on alien smuggling, are before you today. Adherence to each of the protocols is optional. States can only join the Protocols if they also join the main Convention, because the protocols rely directly upon the cooperation and other mechanisms set out in the Convention. One of the Convention’s key achievements is to require Parties to ensure that their national criminal laws meet the criteria set forth in the Convention with respect to four offenses characteristic of transnational organized crime – participation in an organized criminal group, laundering of the proceeds of serious crime, corruption of domestic public officials, and obstructing justice by intimidating witnesses and justice and law enforcement officials. Since the relevant U.S. criminal laws already provide for broad and effective application in these areas, we can comply with the Convention’s criminalization obligations without need for new legislation. The value of these Convention provisions for the United States is that they oblige other countries that have been slower to react legislatively to the threat of transnational organized crime to adopt new criminal laws in harmony with ours. . . . [A] second important feature of the Convention is that it provides a blueprint for international cooperation. Few global criminal law conventions are so detailed and precise in setting out mechanisms for extraditing fugitives and assisting foreign criminal investigations and prosecutions. Many countries, particularly in the developing world, lack existing bilateral extradition or mutual
7 [Author’s Note: White House, National Security Strategy to Secure Cyberspace, at 52 (Feb. 2003), at .]
P1: IWV 0521750717c09
CB951-Murphy
0 521 75071 7
August 6, 2005
14:27
International Criminal Law
243
legal assistance treaty relationships with one another, but now will be able to rely on this Convention to fill that legal gap for many serious crimes. For the United States, the Convention will not create entirely new extradition relationships, as we will continue to rely on our extensive web of bilateral treaties for that purpose, but it will broaden some of our older existing treaties by expanding their scope to include the offenses described above. By contrast, we will be able to use the Convention as a basis for new relationships with countries with which we lack bilateral mutual legal assistance treaties (MLATs), primarily those in parts of Asia, Africa, and the Middle East. The Convention fully incorporates all the safeguard provisions the U.S. insists upon in our bilateral MLATs, and thereby ensures that we may deny requests that are contrary to our essential interests or are improperly motivated. .... . . . The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, originally proposed and drafted by the United States, has the potential to be a powerful international law enforcement instrument, requiring countries to criminalize trafficking and providing a broad framework for international cooperation to prosecute traffickers, prevent trafficking, and protect trafficking victims. . . . . . . [T]he Trafficking Protocol, the first binding international instrument to define the term “trafficking in persons,” creates obligations to make certain acts criminal. It also contains provisions designed to protect the victims of trafficking and addressing prevention, cooperation, and other measures. ....
The second protocol supplementing the Transnational Organized Crime Convention is the Protocol against the Smuggling of Migrants by Land, Sea and Air. The purposes of this protocol are to prevent and combat the smuggling of migrants, and to promote cooperation among States Parties to that end, while protecting the rights of smuggled migrants. . . . In the Migrant Smuggling Protocol, the Parties designed an instrument that balances law enforcement provisions with appropriate protection of the rights of smuggled migrants. . . . First, the Protocol obligates States Parties to accept the return of smuggled migrants who are its nationals or permanent residents at the time of return. It is the first binding international instrument to codify this longstanding general principle of customary international law. Consistent with their obligations under international law, states parties must also take appropriate measures to preserve and protect certain rights of smuggled migrants. Parties are not precluded from prosecuting a smuggled person for illegal entry or other criminal violations. The Protocol recognizes the pervasiveness of migrant smuggling via the seas, and sets forth procedures for interdicting vessels engaged in such smuggling. States Parties taking measures against a vessel engaged in migrant smuggling must ensure the safety and humanitarian handling of the persons on board and, within available means, that any actions taken with regard to the vessel are environmentally sound. States Parties must take care not to endanger the security of the vessel or its cargo, or prejudice the commercial or legal interests of the flag State or any other interested State. The Protocol also contains provisions requiring international cooperation to prevent and suppress migrant smuggling by seas in accordance with the international law of the sea.8
8 Consideration of Pending Multilateral Law Enforcement Treaties: Hearing Before the Senate Foreign Relations Comm., 108th Cong. (June 17, 2004) (prepared testimony of Samuel M. Witten, Deputy Legal Adviser, U.S. Dep’t of State).
P1: IWV 0521750717c09
CB951-Murphy
244
0 521 75071 7
August 6, 2005
14:27
United States Practice in International Law 2002–2004
As of the end of 2004, the Senate had not provided advice and consent to ratification of these law enforcement treaties. Hate-Speech Protocol to Cybercrime Convention On November 23, 2001, the Council of Europe and additional “observer” states, including the United States, signed the Convention on Cybercrime (discussed above), the first international treaty in this field.1 The convention entered into force on July 1, 2004, albeit without U.S. ratification. Due largely to resistance by the United States, the final convention did not include certain provisions designed to eliminate racist Internet sites by defining and criminalizing “hate speech” on computer networks. A key objective of such provisions would have been to prevent “unlawful hosting,” whereby persons posting racist comments aimed at one state locate their Internet servers in another state with less strict hate-speech regulations. After adoption of the Cybercrime Convention, a Council of Europe committee of experts proceeded to draft a hate-speech protocol to the Convention. In reacting to a report of that committee that concluded that an “unlawful hosting” provision would be permissible under U.S. law,2 the United States asserted: The United States deplores racism and xenophobia, and the violence and other harmful conduct that racist and xenophobic groups often seek to foster. The United States also supports dialogue among Internet users, providers, and others regarding racist and xenophobic content. However, as the Report suggests, there are a number of factors – legal, as well as political, ethical, and technological – that would impose significant constraints on the implementation of any provision restricting racist and xenophobic content on the Internet. Foremost among these factors for the United States is our Constitution’s protection of freedom of speech and expression. .... The United States does not have criminal laws criminalizing or prohibiting racist speech per se. The First Amendment to the United States Constitution imposes severe constraints on state action that restrains or punishes speech based on its content. Nor are the restrictions of the First Amendment necessarily limited to materials originating in the United States or to publications with a purely American audience. Under U.S. law, the First Amendment affords protection (to varying degrees) to the interests of both “speakers” and “listeners,” and these protections may under certain circumstances apply to speech that originates outside the United States and to speech that originates in the United States but that has a primarily foreign audience. The Report appears to assume that certain Web sites contain messages “aimed exclusively at an audience in a . . . state [outside the originating nation].” It is not at all certain that the First Amendment would be inapplicable to such a site located within the United States. In any event, it would be difficult, in a country as diverse as the United States, to identify United States-based web sites that are “aimed exclusively at an audience” abroad.3 U.S. industry and public interest groups, in a letter to U.S. Secretary of State Colin Powell and U.S. Attorney General John Ashcroft, expressed a concern that [e]ven if the U.S. does not sign the Protocol, there is a real threat that other countries could attempt to exert extra-territorial jurisdiction over parties in countries that are not signatories to the Protocol. Recent international litigation, such as the Yahoo! Case,4 has demonstrated that governments with 1
European Convention on Cybercrime, Nov. 23, 2001, S. Treaty Doc. No. 108-11 (2003), Europ. T.S. No. 185. See Council of Europe Committee of Experts on the Criminalisation of Acts of a Racist and Xenophobic Nature Committed Through Computer Systems, Racism and Xenophobia in Cyberspace, COE Doc. 9263 (Oct. 12, 2001), at . 3 Letter from U.S. Dep’t of Justice Assistant Attorney Generals Ralph F. Boyd, Jr. and Michael Chertoff to the Chairman of the Council of Europe PC-RX Committee (Dec. 13, 2001) (on file with author). 4 [Author’s Note: In the Yahoo! case, a U.S. court issued a declaratory judgment stating that a French court order requiring that the Internet service provider Yahoo! block access in France to Nazi materials available through Yahoo!’s Internet site was a “real and 2
P1: IWV 0521750717c09
CB951-Murphy
0 521 75071 7
August 6, 2005
14:27
International Criminal Law
245
very different legal regimes from our own, but which are also signatories to the CoE Convention, have asserted concurrent jurisdiction over Internet conduct that occurs on computer servers in the U.S. and is lawful in the U.S., simply because the content is accessible in the signatory country.5 In April 2002, the Council of Europe committee of experts adopted a draft hate-speech protocol,6 which was then submitted to the Council of Europe Parliamentary Assembly. In September, the Parliamentary Assembly recommended that the protocol be adopted, with certain changes. In January 2003, the Council of Europe Committee of Ministers adopted the protocol and it was opened for signature.7 The protocol requires, among other things, that parties criminalize “distributing or otherwise making available racist and xenophobic material to the public through a computer system.”8 Such material is defined as any written material, any image or any other representation of ideas or theories, which advocates, promotes or incites hatred, discrimination or violence, against any individual or group of individuals, based on race, colour, descent or national or ethnic origin, as well as religion if used as a pretext for any of these factors.9 By the end of 2004, two states had ratified the protocol (Albania and Slovenia) and another twentytwo states had signed it.10 The United States neither signed nor ratified the protocol, and was not expected to do so. U.S. Law in Support of Diamond Controls Beginning in the 1990s, trafficking in diamonds developed into a significant means by which rebel movements in Africa supported themselves financially. In particular, the civil wars in Angola and Sierra Leone both involved insurgent forces that exploited the illicit diamond trade to generate funds used to purchase arms and otherwise sustain their military efforts.1 In order to address the threat to peace and security from such conflicts, the Security Council adopted resolutions prohibiting states from importing illicit diamonds – ones not accompanied by a certificate of origin issued by the relevant government – directly or indirectly from those states.2 The nature of the diamond trade, however, poses significant problems for implementing the Security Council’s resolutions, which rely on effective certification mechanisms. Diamonds are a fungible commodity, and they derive from multiple sources and pass through multiple middlemen. They are continuously cut, sorted, and mixed prior to retail sale. They can be stolen, smuggled, and mixed with legitimate diamonds.3 In the absence of cooperation among states to develop a standardized system of certification, it has proven difficult to control the trade in illicit diamonds. Through the “Kimberley Process” – a voluntary negotiating process among states (with participation by industry representatives through the World Diamond Council) – an International Certification
immediate” threat to Yahoo!’s First Amendment rights. Yahoo!, Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 169 F.Supp.2d 1181 (N.D. Cal. 2001).] 5 Letter from American Civil Liberties Union et al. to Secretary of State Colin L. Powell and Attorney-General John Ashcroft (Feb. 7, 2002), at . 6 See Draft of the First Additional Protocol to the Convention on Cybercrime Concerning the Criminalisation of Acts of a Racist and Xenophobic Nature Committed Through Computer Systems, COE Doc. PC-RX (2002) 15, Draft No. 11 (May 14, 2002), at . 7 Additional Protocol to the Convention on Cybercrime, Concerning the Criminalisation of Acts of a Racist and Xenophobic Nature Committed through Computer Systems, Jan. 29, 2003, Europ. T.S. No. 189, at . 8 Id., Art. 3(1). 9 Id., Art. 2(1). 10 See . 1 See, e.g., John L. Hirsch, Sierra Leone: Diamonds and the Struggle for Democracy (2001); Greed and Grievance: Economic Agendas in Civil Wars (Mats Berdal & David M. Malone eds., 2000). 2 For Angola, see SC Res. 1173 (June 12, 1998); SC Res. 1176 (June 24, 1998). For Sierra Leone, see SC Res. 1306 (July 5, 2000); SC Res. 1343 (Mar. 7, 2001). 3 See Global Witness, A Rough Trade (1998), at .
P1: IWV 0521750717c09
CB951-Murphy
246
0 521 75071 7
August 6, 2005
14:27
United States Practice in International Law 2002–2004
Scheme was developed.4 The scheme provides for each state in which diamonds are produced to establish controls over rough diamonds from the mine to the point of export; to impose requirements for the transport of diamonds from the point of export (in particular, that they be accompanied by a Kimberley Process certificate); and thereafter to cooperate in a system of tracking the movement of the diamonds.5 States meeting at Interlaken, Switzerland, in November 2002 issued a declaration calling for adherence to the Kimberly Process Certification Scheme by January 2003.6 In April 2003, President Bush signed into law the “Clean Diamond Trade Act.”7 The “findings” of the statute state in part: (1) Funds derived from the sale of rough diamonds are being used by rebels and state actors to finance military activities, overthrow legitimate governments, subvert international efforts to promote peace and stability, and commit horrifying atrocities against unarmed civilians. During the past decade, more than 6,500,000 people from Sierra Leone, Angola, and the Democratic Republic of the Congo have been driven from their homes by wars waged in large part for control of diamond mining areas. . . . .... (4) The United Nations Security Council has acted at various times under chapter VII of the Charter of the United Nations to address threats to international peace and security posed by conflicts linked to diamonds. Through these actions, it has prohibited all states from exporting weapons to certain countries affected by such conflicts. It has further required all states to prohibit the direct and indirect import of rough diamonds from Angola and Sierra Leone unless the diamonds are controlled under specified certificate of origin regimes and to prohibit absolutely for a period of 12 months the direct and indirect import of rough diamonds from Liberia. (5) In response, the United States implemented sanctions restricting the importation of rough diamonds from Angola and Sierra Leone to those diamonds accompanied by specified certificates of origin and fully prohibiting the importation of rough diamonds from Liberia. In order to put an end to the emergency situation in international relations, to maintain international peace and security, and to protect its essential security interests, and pursuant to its obligations under the United Nations Charter, the United States is now taking further action against trade in conflict diamonds. (6) Without effective action to eliminate trade in conflict diamonds, the trade in legitimate diamonds faces the threat of a consumer backlash that could damage the economies of countries not involved in the trade in conflict diamonds and penalize members of the legitimate trade and the people they employ. To prevent that, South Africa and more than 30 other countries are involved in working, through the ‘Kimberley Process’, toward devising a solution to this problem. As the consumer of a majority of the world’s supply of diamonds, the United States has an obligation to help sever the link between diamonds and conflict and press for implementation of an effective solution.8 The statute requires the United States to adhere to the Kimberley Process or a system determined by the president to “meet substantially the standards, practices, and procedures” of the Kimberley 4 The first meeting of this process was held in Kimberley, South Africa, in May 2000 at the initiative of African diamond-producing states. The UN General Assembly has endorsed the work of the Kimberley Process. See GA Res. 55/56 (Dec. 1, 2000). 5 See Essential Elements of an International Scheme of Certification for Rough Diamonds, Kimberley Process Working Doc. 1/2002 (Mar. 20, 2002). The document is available online at . Nonmembers may access some Kimberley Process documents, but not this particular one, at . The Kimberley scheme was welcomed by the United Nations. See S. C. Res. 1459 ( Jan. 28, 2003); G. A. Res. 59/144 (Feb. 28, 2005). 6 See Alan Cowell, 40 Nations in Accord on “Conflict Diamonds,” N.Y. Times, Nov. 6, 2002, at A6. 7 Pub. Law No. 108-19, 117 Stat. 631 (2003) (to be codified at 19 U.S.C. §§3901–13). 8 Id. §2.
P1: IWV 0521750717c09
CB951-Murphy
0 521 75071 7
August 6, 2005
14:27
International Criminal Law
247
Process.9 The statute permits the president to waive the requirement for a limited period with respect to a foreign state that is taking steps to implement a Kimberley Process system or for reasons of U.S. “national interests.”10 Under the statute, all persons in the United States and all U.S. nationals or residents must maintain full records regarding their export from or import to the United States of any rough diamonds, must furnish such records when requested,11 and are exposed to civil and criminal penalties for violation of the statute and its implementing orders and regulations.12 The President is directed to establish a Kimberly Process Implementation Coordinating Committee consisting of various members of the president’s cabinet (or their designees), and to provide annual reports to Congress on implementation of the program.13 Section 15 of the statute provides that it takes effect on the date on which the president certifies to Congress that either (1) an applicable waiver has been granted by the World Trade Organization or (2) an applicable decision in a Security Council resolution under Chapter VII is in effect. In his signing statement, President Bush asserted: If Section 15 imposed a mandatory duty on the President to certify to the Congress whether either of the two specific events has occurred and whether either remains in effect, a serious question would exist as to whether section 15 unconstitutionally delegated legislative power to international bodies. In order to avoid this constitutional question, I will construe the certification process set forth in section 15 as conferring broad discretion on the President. Specifically, I will construe section 15 as giving the President broad discretion whether to certify to the Congress that an applicable waiver or decision is in effect. Similarly, I will construe section 15 as imposing no obligation on the President to withdraw an existing certification in response to any particular event. Rather, I will construe section 15 as giving the President the discretion to determine when a certification that an applicable waiver or decision is no longer in effect is warranted.14 In July 2003, President Bush issued an executive order implementing the statute, assigning the tasks under the statute to the Departments of Treasury and State.15 U.S. Law Against Sex Tourism On April 30, 2003, President George W. Bush signed into law the “Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003” (also referred to as the “PROTECT Act”).1 Among other things, the new law provides that any person who enters the United States, as well as any U.S. national or permanent resident who travels abroad, for the purpose of engaging in sexual acts with children (persons under the age of eighteen) can be prosecuted in the United States for such acts, and fined or imprisoned for up to thirty years.2 In a speech to the UN General Assembly in September 2003, President Bush stated: Each year an estimated 800,000 to 900,000 human beings are bought, sold or forced across the world’s borders. Among them are hundreds of thousands of teenage girls and others as young as 5 who fall victim to the sex trade. This commerce in human life generates billions of dollars each year, much of which is used to finance organized crime. There’s a special evil in the abuse and exploitation of the most innocent and vulnerable. The victims of sex trade see little of life before they see the very worst of life, an underground of brutality 9
Id., §§3(2), 4(a). Id., §4(b). Id., §5(b). 12 Id., §8. 13 Id., §§11, 12. 14 Statement on Signing the Clean Diamond Act, 39 Weekly Comp. Pres. Doc. 491 (Apr. 25, 2003). 15 Exec. Order 13,312, 68 Fed. Reg. 45, 151 (July 29, 2003). 1 Pub. L. No. 108-21, 117 Stat. 650 (2003) (to be codified in scattered sections of 18 U.S.C.). 2 See id. §105, 117 Stat. 653 (to be codified at 18 U.S.C. §2423). 10 11
P1: IWV 0521750717c09
CB951-Murphy
248
0 521 75071 7
August 6, 2005
14:27
United States Practice in International Law 2002–2004
and lonely fear. Those who create these victims and profit from their suffering must be severely punished. Those who patronize this industry debase themselves and deepen the misery of others. And governments that tolerate this trade are tolerating a form of slavery. This problem has appeared in my own country, and we are working to stop it. The PROTECT Act, which I signed into law this year, makes it a crime for any person to enter the United States or for any citizen to travel abroad for the purpose of sex tourism involving children. . . . .... We must show new energy in fighting back an old evil. Nearly two centuries after the abolition of the transatlantic slave trade and more than a century after slavery was officially ended in its last strongholds, the trade in human beings for any purpose must not be allowed to thrive in our time.3 The day after the president’s speech, the U.S. government announced that it had initiated the first prosecution under the PROTECT Act.4 A U.S. national, Michael Clark Lewis, was indicted in Seattle on charges of engaging in illicit sexual conduct in June 2003 in Cambodia with two boys, ages ten and thirteen. Clark reportedly admitted upon arrest that he had been engaging in such acts with children in Cambodia for several years and that he normally paid them two dollars for each act.5 In March 2004, Clark pled guilty to the charges, but reserved the right to challenge the legality of the statute. Clark then challenged the statute on various grounds, including that the statute was not a proper exercise of extraterritorial jurisdiction and that the statute was not reasonable under international law. In rejecting the first of these grounds, a district court in April 2004 found that application of the statute extraterritorially could be based on the “nationality principle” or, alternatively, on the “universality principle” since “the sexual abuse criminalized by this statute is universally condemned.”6 In rejecting the second ground, the court accepted that “[e]ven if principles of international law serve as bases for extraterritorial application of a law, international law also requires that such application of the law be reasonable.”7 However, in this instance, the court found application of the statute to be reasonable. Although there is only a minimal link between the activity sought to be regulated by this statute and the territory of the United States, several . . . factors favor a finding of reasonableness here. There is a strong connection between the United States and its citizens (and resident aliens) who commit the illicit activity. The prohibition against sexual activity with young children is considered desirable and is widely accepted. There is very little likelihood of conflict with regulation by other states.8 Searching of Foreign Mail Inconsistent with International Law Under the U.S. Trade Act of 2002,1 the U.S. Customs Service was authorized to search foreign mail passing through the United States without a court warrant. However, the statute stated: Not later than 3 months after the date of enactment of this section, the Secretary of State shall determine whether the application of [this authority] to foreign mail transiting the United States that is imported or exported by the United States Postal Service is being handled in a manner 3
Address to the UN General Assembly, 39 Weekly Comp. Pres. Doc. 1256, 1259–60 (Sept. 23, 2003). See U.S. Attorney’s Office, Western District of Washington, Press Release on Man Charged with Traveling to Cambodia and Engaging in Illicit Sex with Minors Is First Person Charged Under New Provision of the Protect Act (Sept. 24, 2003), at . 5 See Blaine Harden, Veteran Indicted on Sex Charges, Wash. Post, Sept. 25, 2003, at A5. 6 United States v. Clark, 315 F.Supp.2d 1127, 1131 (W. D. Wash. 2004). 7 Id. at 1132. 8 Id. 1 Pub. Law No. 107-210, §344, 116 Stat. 933, 986–88 (2002) (to be codified at 19 U.S.C. §1583 note). 4
P1: IWV 0521750717c09
CB951-Murphy
0 521 75071 7
August 6, 2005
14:27
International Criminal Law
249
consistent with international law and any international obligation of the United States. [This authority] shall not apply to such foreign mail unless the Secretary certifies to Congress that the application . . . is consistent with international law and any international obligation of the United States.2 While the U.S. Department of Homeland Security strongly favored the ability to conduct such searches, the U.S. Department of State considered such searches inconsistent with U.S. international obligations,3 such as under the Constitution of the Universal Postal Union4 and its associated treaties and regulations. In October 2003, the U.S. Department of State Deputy Secretary, Richard L. Armitage, issued the following determination concerning whether the U.S. Customs Service could search foreign mail transiting the United States without a warrant. Pursuant to section 3449(b) of the Trade Act of 2002, 19 U.S.C. 1583 note (Pub. L. 107-210), and Delegation of Authority No. 245 (Apr. 23, 2001), I hereby determine that the provision of the Trade Act authorizing the US Customs Service to search foreign mail transiting the United States without a warrant is not consistent with international law and the international obligations of the United States.5 U.S. Reaction to Belgian Universal Jurisdiction Law On June 16, 1993, Belgium passed the “Law Relative to the Repression of Serious Violations of the International Conventions of Geneva of August 12, 1949, and of the Protocols I and II of June 8, 1977.”1 The law allowed an individual (whether Belgian or not) to file a criminal complaint in a Belgian court against any person for international crimes in violation of the four 1949 Geneva Conventions and their additional Protocols,2 even when the acts were committed by non-Belgians, against nonBelgians, and outside of Belgium. After a complaint has been filed, a magistrate investigates it and may issue a warrant for the arrest of the accused. On February 10, 1999, the law was renamed “Law Relative to Serious Violations of International Humanitarian Law” and amended to cover genocide and crimes against humanity.3 The definition for genocide contained in the amended law was taken from Article 2 of the 1948 Genocide Convention.4 The definition of crimes against humanity was taken from Article 7 of the 1998 Rome Statute of the International Criminal Court,5 although only eight of the eleven substantive offenses in the Rome Statute were listed in the Belgian law. The 1999 amendment also provided, like the Rome Statute, that no immunity based on “official capacity” would preclude application of the law.6 2
Id. See Richard Boucher, Spokesman, U.S. Dep’t of State Daily Press Briefing (Oct. 29, 2003), at . July 10, 1964, 16 UST 1291, 611 UNTS 7. 5 68 Fed. Reg. 61713 (Oct. 29, 2003). 1 Loi du 16 juin 1993 relative a` la r´epression des infractions graves aux Conventions internationales de Gen`eve du 12 aoˆut 1949 et aux Protocoles I et II du 8 juin 1977, Moniteur Belge 17751 (Aug. 5, 1993), reprinted in Eric David, La Loi Belge sur Les Crime de Guerre, 28 Rev. Belge de Droit Int’l 668, 680 (1995). 2 Geneva Convention [I] Relative to the Amelioration of the Condition of the Wounded and Sick Members of Armed Forces in the Field, Aug. 12, 1949, 6 UST 3114, 75 UNTS 31; Geneva Convention [II] Relative to the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 UST 3217, 75 UNTS 85; Geneva Convention [III] Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135; Geneva Convention [IV] Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3526, 75 UNTS 287; Protocol [I] Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 UNTS 609; Protocol [II] Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 UNTS 3. 3 Loi relative a` la r´epression des violations graves de droit international humanitaire, Moniteur Belge 9286 (Mar. 23, 1999). The amended law is reproduced in translation at 38 ILM 918 (1999). 4 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, Art. 2, 78 UNTS 277, 280. 5 See UN Doc. A/CONF.183/9*, Art. 7 (July 17, 1998), 37 ILM 999, 1004 (1998), at [hereinafter Rome Statute]. 6 See Loi relative a` la r´epression des violations graves de droit international humanitaire, supra note 3, Art. 5(c). Article 27 of the Rome Statute provides that the statute “shall apply equally to all persons without any distinction based on official capacity.” Rome Statute, supra note 5, Art. 27. 3 4
P1: IWV 0521750717c09
CB951-Murphy
250
0 521 75071 7
August 6, 2005
14:27
United States Practice in International Law 2002–2004
The Belgian law was widely recognized as the most far-reaching example of a state exercising “universal jurisdiction.”7 During the first decade of the law’s existence, some thirty legal complaints were filed against a variety of government officials worldwide, including against Rwandans for genocide, General Augusto Pinochet of Chile, Cuban President Fidel Castro, Iraqi President Saddam Hussein, Palestinian leader Yasser Arafat, and Israeli Prime Minister Ariel Sharon.8 In the case against Sharon – for his alleged role as Israeli defense minister in the 1982 massacre of refugees by Christian militiamen in camps outside Beirut – the Belgian Supreme Court held on February 12, 2003, that official immunity does protect a prime minister from prosecution while serving in office, but does not protect him after he leaves office. Moreover, the Supreme Court (reversing an earlier intermediate court ruling to the contrary) found that a prosecution may proceed against, and international arrest warrants may be issued for, a defendant who is located outside of Belgium.9 Several criminal complaints were filed against U.S. officials under the Belgian law. Among these complaints was one filed in March 2003 against former President George H. W. Bush and several of his senior advisers, including former Chairman of the Joint Chiefs of Staff Colin Powell, for their alleged roles in a U.S. attack on a bunker in Baghdad in February 1991. Powell, who at the time of the complaint was serving as secretary of state for President George W. Bush, reacted to those complaints (not just the one against him) as follows: We have cautioned our Belgian colleagues that they need to be very careful about this kind of . . . legislation because it makes it hard for us to go places that put you at such easy risk. And I know it’s a matter of concern at NATO Headquarters. . . . NATO is concerned about this because it affects the ability of people to travel into . . . Belgium. . . .10 In May 2003, as a means of assuaging such concerns, Belgium amended the 1993 law for a second time.11 Among other things, the new amendment provided exclusive discretion to a Belgian federal government prosecutor as to whether to prosecute a criminal complaint in certain situations – when the act at issue was not committed on Belgian territory, when the alleged offender was not Belgian or was not located in Belgium, and when the victim was not Belgian or had not resided in Belgium for at least three years.12 In addition, the new amendment provided that the federal prosecutor should refrain from prosecuting a complaint when, out of respect for Belgium’s international obligations, the matter is better brought before either an international tribunal or before another national tribunal (on the assumption that such tribunal is competent, independent, impartial, and fair).13 Thus, when a complaint involved no direct link to Belgium and concerned officials of a democratic state (such as the United States), it was expected that the complaint would be referred to that state. On May 14, 2003, several Iraqi and Jordanian nationals filed a criminal complaint under the Belgian statute against U.S. General Tommy Franks for alleged war crimes in commanding U.S. forces during the invasion of Iraq in March 2003.14 Although the complaint was immediately referred by Belgian 7
See, e.g., M. Cherif Bassiouni, Universal Jurisdiction for International Crimes, 42 Va. J. Int’l L. 81, 145–47 (2001). See Redress, Universal Jurisdiction in Europe 18–21 (1999), at ; Lynda Hurst, Belgium Reins in War-Crime Law, Toronto Star, June 29, 2003, at F4. 9 See H.S.A. v. S.A., Cour de Cassation, No. P. 02.1139.F/1 (Feb. 12, 2003); see also Marlise Simons, Sharon Faces Belgian Trial After Term Ends, N.Y. Times, Feb. 13, 2003, at A14. The text of the Sharon decision is available through the case locator at . For an International Court of Justice ruling that a Congo foreign minister enjoys immunity while in office from a Belgian arrest warrant issued under the Belgian law, see Arrest Warrant of 11 April 2000 (Congo v. Belg.) (Int’l Ct. Justice Feb. 14, 2002), 41 ILM 536 (2002), at . 10 U.S. Dep’t of State Press Release on Interview by International Wire Services with Colin Powell, U.S. Secretary of State, Washington, D.C. (Mar. 18, 2003), at . 11 See Loi modifiant la loi du 16 juin 1993 relative a` la r´epression des violations graves du droit international humanitaire et l’article 144ter du Code judiciaire, Moniteur Belge 24846 (May 7, 2003); see also Richard Bernstein, Belgium Rethinks Its Prosecutorial Zeal, N.Y. Times, Apr. 1, 2003, at A8 (reporting on accelerated parliamentary action on the amendment in the aftermath of the suit against former President Bush). 12 See Loi modifiant la loi du 16 juin 1993 relative a` la r´epression des violations graves du droit international humanitaire et l’article 144ter du Code judiciaire, supra note 11, Art. 5. 13 Id. 14 The text of the criminal complaint is available in French at . 8
P1: IWV 0521750717c09
CB951-Murphy
0 521 75071 7
August 6, 2005
14:27
International Criminal Law
251
authorities to the United States for disposition, U.S. officials expressed outrage at the commencement of such an action. [T]he lawsuit that was lodged is ludicrous. . . . We certainly expect that the Belgian Government will take the necessary action to dismiss the lawsuit under its laws. As we have also said before, the Belgian Government needs to be diligent in taking steps to prevent abuse of its legal system for political ends.15 Moreover, U.S. officials threatened that the existence of the Belgian law could have severe repercussions on Belgium’s status as the host country of the North Atlantic Treaty Organization (NATO). U.S. Secretary of Defense Donald Rumsfeld asserted: Belgium needs to realize that there are consequences to its actions. This law calls into serious question whether NATO can continue to hold meetings in Belgium and whether senior U.S. officials, military and civilian, will be able to continue to visit international organizations in Belgium. . . . [C]ertainly until this matter is resolved we will have to oppose any further spending for construction for a new NATO headquarters here in Brussels until we know with certainty that Belgium intends to be a hospitable place for NATO to conduct its business. . . . 16
Though also expressing concern about the filing of politically motivated complaints, Belgian officials initially emphasized that the May 2003 amendment provided sufficient safeguards against any abuse.17 After another criminal complaint was filed in June against President George W. Bush and UK Prime Minister Tony Blair for the use of force against Iraq and Afghanistan,18 Belgium announced that it would amend the law for a third time because the prior amendments “have proved to be insufficient.”19 In August 2003, Belgium replaced the 1993 law with one of much narrower jurisdictional scope.20 The new law limits the filing of criminal complaints to situations in which the suspect is either a Belgian national or residing in Belgium, or in which the victim is either a Belgian national or has resided in Belgium for at least three years.21 Once a criminal complaint is filed, a Belgian federal prosecutor retains sole and unreviewable discretion to initiate a prosecution, and may decline to do so, based on “respect for Belgium’s international obligations,” when there is an independent alternative international or national tribunal available.22 Further, the law precludes the filing of complaints against sitting heads 15
Philip T. Reeker, Deputy Spokesman, U.S. Dep’t of State Daily Press Briefing at 6 (May 14, 2003), at . Donald Rumsfeld, Secretary of Defense, U.S. Dep’t of Defense News Transcript (June 12, 2003), at ; see Vernon Loeb, Rumsfeld Says Belgian Law Could Imperil Funds for NATO, Wash. Post, June 13, 2003, at A24; see also Richard Boucher, Spokesman, U.S. Dep’t of State Daily Press Briefing at 10–11 (June 13, 2003), at (noting that the “Secretary of State has raised these concerns in public and in private with the Belgians. The Secretary of Defense has raised them in public and in private with the Belgians. The goal is to get them to change the law, and none of these other questions will arise”); David Wastell, America Threatens to Move NATO After Franks Is ‘Charged,’ Sunday Telegraph, May 18, 2003, at 31 (quoting the chairman of the (U.S.) Joint Chiefs of Staff as considering the need to relocate NATO headquarters if Belgium failed to prevent such lawsuits in the future). 17 See Craig S. Smith, Belgium Resists Pressure from U.S. to Repeal War Crimes Law, N.Y. Times, June 14, 2003, at A5 (quoting Belgian Foreign Minister Louis Michel). 18 See New War Crimes Suits Filed Against Bush, Blair in Belgium, Deutsche Presse-Agentur, June 20, 2003; Philip T. Reeker, Deputy Spokesman, U.S. Dep’t of State Daily Press Briefing at 3–6 (June 20, 2003), at . 19 See Craig S. Smith, Belgium Plans to Amend Law on War Crimes, N.Y. Times, June 23, 2003, at A8; Belgian Ministry of Foreign Affairs, Press Release on the Law on Universal Jurisdiction Reviewed (June 24, 2003), at . 20 See Loi relative aux violations graves du droit international humanitaire, Moniteur Belge 40506 (Aug. 7, 2003); see also Belgian Ministry of Foreign Affairs Press Release on Conseil des Ministres: Loi de competence universelle (July 14, 2003), at (“La loi de 1993, modifi´ee en 1999 et 2003, est abrog´ee. Les dispositions utiles sont int´egr´ees en droit commun. L’avant projet de loi est bas´e sur une e´tude comparative de la l´egislation en vigueur dans une s´erie des pays occidentaux. Cette e´tude a r´ev´ele que la plupart de ces pays avaient instaur´e une comp´etence universelle limit´ee, tout en conservant n´eanmoins les r`egles d’immunit´e du droit international et du droit coutumier ainsi qu’un point de rattachement personnel (auteur et/ou victime) ou territorial clair avec le pays. . . . On aboutit ainsi a` une l´egislation lin´eaire et transparent qui ne laisse plus de place a` une appreciation politique d’opportunit´e des affaires. . . .”). 21 Loi relative aux violations graves du droit international humanitaire, supra note 20, Arts. 14–16. 22 Id., Art. 16. If the prosecution refuses to prosecute based on considerations unrelated to the merits of the complaint, however, and the facts giving rise to the complaint occurred after June 30, 2002, the minister of justice must notify the International Criminal Court. 16
P1: IWV 0521750717c09
CB951-Murphy
252
0 521 75071 7
August 6, 2005
14:27
United States Practice in International Law 2002–2004
of state and foreign ministers, as well as against other individuals enjoying immunity in Belgium based on treaties.23 Finally, the law prohibits acts of enforcement in furtherance of a prosecution against any person staying in Belgium either at the official invitation of Belgian authorities or in connection with an international organization based in Belgium and with which Belgium has entered into a headquarters agreement.24 In September 2003, because of the new changes in the law, the Belgian Supreme Court dismissed all pending cases against U.S. officials.25
Law of War: Status of Guant´anamo Bay Detainees Decision Not to Regard Persons Detained in Afghanistan as POWs In the course of the armed conflict in Afghanistan that was a response to the terrorist attacks of September 2001, the United States detained hundreds of persons associated with either the de facto Taliban government or Al Qaeda forces. Though initially held in Afghanistan or on U.S. naval vessels in the region, twenty such persons were transported by early January 2002 to the U.S. naval station at Guant´anamo Bay, Cuba.1 By the end of February, 300 detainees of approximately thirty different nationalities were being held at the Guant´anamo Bay camp, while another 194 were being held at camps in Afghanistan.2 By November 2003, 660 detainees were at Guant´anamo Bay, and 64 detainees (mostly Afghans and Pakistanis) had been sent back to their home countries.3 As of March 2004, about 610 individuals were still being held at Guant´anamo Bay, while 119 detainees had been released and another 12 transferred to their own countries for continued detention.4 Photographs of the initial prisoners arriving at Guant´anamo Bay showed them kneeling on the ground, manacled, wearing blue surgical masks, ear cups, and large blackened goggles – which the United States asserted to be necessary security precautions during transport. The prisoners were then held in cells with concrete floors, chain-link fence walls, and corrugated metal roofs, kept fully lit at night. Concern that the prisoners were not being treated in accordance with international standards led to criticisms from foreign governments, nongovernmental human rights organizations, and the UN High Commissioner for Human Rights.5 The United States asserted that the detainees were not shackled when in their cells and that they slept on the same foam mats as U.S. soldiers when in the field, received culturally appropriate food, were clothed with orange jump suits, were provided extensive medical treatment, were allowed to shower and exercise on a daily basis, and had access to a Muslim imam (who is a U.S. Navy chaplain). Although the detainees’ heads were shaved, according to U.S. officials, in order to prevent the spread of lice, they were then allowed to regrow their beards.6 The United States interrogated the detainees for information on Al Qaeda operations; in doing so, the camp commander asserted that there was “no torture, no whips, no bright lights, no drugging.”7
23
Id., Art. 13. Id. See Glenn Frankel, Belgian War Crimes Law Undone by Its Global Reach, Wash. Post, Sept. 30, 2003, at A1. 1 See Katharine Q. Seelye, First “Unlawful Combatants” Seized in Afghanistan Arrive at U.S. Base in Cuba, N.Y. Times, Jan. 12, 2002, at A7. 2 See Katharine Q. Seelye, Rumsfeld Lists Outcomes for Detainees Held in Cuba, N.Y. Times, Feb. 27, 2002, at A10. Most of the initial detainees reportedly were Saudi nationals. See John Mintz, Most Detainees Are Saudis, Prince Says, Wash. Post, Jan. 29, 2002, at A12. 3 See Charles Lane, Justices to Rule on Detainees’ Rights, Wash. Post, Nov. 11, 2003, at A1. 4 See U.S. Dep’t of Defense Press Release on Transfer of Afghani and Pakistani Detainees Complete, No. 180-04 (Mar. 15, 2004); see also U.S. Dep’t of Defense Press Release on Transfer of Juvenile Detainees Completed, No. 057-04 (Jan. 29, 2004). Department of Defense press releases are available at . 5 See T. R. Reid, U.S. Pressed on Detainees’ Treatment, Wash. Post, Jan. 17, 2002, at A15; John Mintz, Treatment of Detainees in Cuba Questioned, Wash. Post, Jan. 16, 2002, at A13. 6 See Katharine Q. Seelye, On Defensive, General Says Prisoners Get Mats, Even Bagels, N.Y. Times, Jan. 17, 2002, at A14; Katharine Q. Seelye, Rumsfeld Defends Treatment by U.S. of Cuba Detainees, N.Y. Times, Jan. 23, 2002, at A1. 7 John Mintz, At Camp X-Ray, a Thawing in the Animosity and Fear, Wash. Post, Feb. 3, 2002, at A3; see John Mintz, Captives Resist U.S. Questioning, Wash. Post, Feb. 7, 2002, at A1. U.S. officials said that information obtained from the detainees assisted in identifying a possible terrorist attack in the United States or Yemen in early February 2002. See David Johnston, Attack Possible in U.S. or Yemen, the F.B.I. Warns, N.Y. Times, Feb. 12, 2002, at A1. 24 25
P1: IWV 0521750717c09
CB951-Murphy
0 521 75071 7
August 6, 2005
14:27
International Criminal Law
253
Delegates representing the U.S. Congress, foreign governments, the media, and the International Committee for the Red Cross were permitted to visit the camp to see the detainees.8 Concern about the treatment of the detainees led to questions about their exact status under Article 4 of the Third Geneva Convention9 and about who should decide such matters.10 The U.S. Army’s Operational Law Handbook states: The initial combat phase will likely result in the capture of a wide array of individuals. The U.S. applies a broad interpretation to the term “international armed conflict” set forth in common Article 2 of the Conventions. Furthermore, [Department of Defense (DoD)] Directive 5100.77, the DoD Law of War Program, states that U.S. Forces will comply with the [law of war] regardless of how the conflict is characterized. Judge advocates, therefore, should advise commanders that, regardless of the nature of the conflict, all enemy personnel should initially be accorded the protections of the [Third Geneva Convention], at least until their status may be determined. . . . When doubt exists as to whether captured enemy personnel warrant continued [prisoner-of-war] status, Art. 5 [of the Third Geneva Convention] Tribunals must be convened. It is important that judge advocates be prepared for such tribunals. During the Vietnam conflict, a Directive established procedures for the conduct of Art. 5 Tribunals; however, no comparable Directive is presently in effect.11 Despite the process contemplated in the handbook, as soon as the United States began capturing Al Qaeda and Taliban prisoners, U.S. officials referred to the detainees as “unlawful combatants,” whom the United States regarded as falling outside the protections of the Third Geneva Convention, but who would nevertheless be treated humanely.
8 See Philip Shenon, Britain Defends U.S. Treatment of Detainees at Guant´anamo, N.Y. Times, Jan. 22, 2002, at A12; Katharine Q. Seelye, Criticized, U.S. Brings Visitors to Prison Camp, N.Y. Times, Jan. 26, 2002, at A6; John Mintz, Media Given a Tour of Tent Hospital, Wash. Post, Feb. 4, 2002, at A3; Elizabeth Becker, Red Cross Man in Guant´anamo: A “Busybody,” but Not Unwelcome, N.Y. Times, Feb. 20, 2002, at A10. 9 Article 4 of Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135 (Third Geneva Convention), provides:
A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy: (1) Members of the armed forces of a Party to the conflict as well as numbers of militias or volunteer corps forming part of such armed forces. (2) Members of other militias and members of other volunteer corps . . . belonging to a Party to the conflict and operating in or outside their own territory, . . . provided that such militias or volunteer corps . . . fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war. (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. In the course of the debate over the applicability of the Third Geneva Convention, some commentators noted that the United States had not declared war on Afghanistan. The United States had adopted a joint resolution, however, authorizing the use of armed force in response to the September 11 attacks. See Pub. L. No. 107-40, 115 Stat. 224 (2001). In any event, Article 2 of the Third Geneva Convention provides that the Convention applies to “all cases of declared war or of any other armed conflict” between two or more states “even if the state of war is not recognized by one of them.” 10 Article 5 of the Third Geneva Convention, supra note 9, provides, in part: Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. 11
U.S. Department of the Army, Operational Law Handbook 22 (2002).
P1: IWV 0521750717c09
CB951-Murphy
254
0 521 75071 7
August 6, 2005
14:27
United States Practice in International Law 2002–2004
The U.S. legal rationale for denying the detainees prisoner-of-war status under the Third Geneva Convention initially was unclear and changed somewhat over time. In early January 2002, the Department of Justice Office of the Legal Counsel (OLC) in a draft memorandum took the view that (1) the Third Geneva Convention could not apply to members of a nonstate organization, such as Al Qaeda, (2) the conflict was not an internal conflict such that Al Qaeda members could benefit from the protections of Article 3 common to the four 1949 Geneva Conventions,12 and (3) in any event, Al Qaeda members failed to meet the requirements set forth in Article 4(A)(2) of the Third Geneva Convention. Further, since Afghanistan was not a functioning state during the conflict and the Taliban was not recognized as a legitimate government, Afghanistan did not continue as a party to the Third Geneva Convention, which therefore could not apply to members of the Taliban.13 Reflecting these initial views, on January 18, 2002, President Bush initially decided (without making any public announcement) that the Third Geneva Convention did not apply to any of the detainees. On January 19, U.S. Secretary of Defense Donald Rumsfeld instructed the chairman of the Joint Chiefs of Staff to inform “combatant commanders” that (1) Al Qaeda and Taliban individuals are not entitled to prisoner-of-war (POW) status for purposes of the 1949 Geneva Conventions; and (2) combatant commanders should treat such individuals, when detained, humanely and, “to the extent appropriate and consistent with military necessity, in a manner consistent” with those Conventions.14 By cable of January 21, the chairman so instructed the unified commands and services of the U.S. military.15 The next day, January 22, OLC transmitted the final version of its memorandum – entitled “Application of Treaties and Laws to al Qaeda and Taliban Detainees” – both to the White House counsel to the president and to the Department of Defense general counsel.16 The memorandum concluded that the Third Geneva Convention as a whole does not apply to Al Qaeda since (1) “Al Qaeda is not a State” and (2) the members of Al Qaeda failed to satisfy the four basic criteria for POW status for persons who are not part of a regular armed force: they were not under the command of responsible individuals, did not wear insignia, did not carry arms openly, and did not obey the laws of war.17 The memorandum also concluded that the United States was not obligated to extend the protections of the Third Geneva Convention to persons who were a part of the Taliban militia, even though Afghanistan was a party to that Convention and the Taliban operated as the de facto government of most of the territory of Afghanistan. According to the memorandum, the president has the unilateral power under Article II of the Constitution to suspend all or parts of treaties at his discretion, as part of his plenary control over the conduct of foreign relations.18 The president could exercise that power to suspend temporarily U.S. obligations under the Third Geneva Convention toward Afghanistan on the ground that Afghanistan had become a “failed state” and could not fulfill its international obligations.19 The memorandum stated that, as a matter of international law, the 12 Common Article 3 provides that in “the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum,” certain basic protections, such as prohibitions on “violence to life and persons” and on “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” Third Geneva Convention, supra note 9, Art. 3 (emphasis added); but see Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep. 14, para. 218 (July 27) (“There is no doubt that, in the event of international armed conflicts, these rules [of common Article 3] also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court’s opinion, reflect what the Court in 1949 called “elementary considerations of humanity.”). 13 See Draft Memorandum from John Yoo, Deputy Assistant Attorney General, and Robert J. Delahunty, Special Counsel, U.S. Department of Justice, to William J. Haynes II, General Counsel, Department of Defense (Jan. 9, 2002) (on file with author). 14 Memorandum from the Secretary of Defense Donald H. Rumsfeld to the Chairman of the Joint Chiefs of Staff (Jan. 19, 2002). This memorandum, as well as many of the related memoranda and materials discussed below, are available on the Internet site of George Washington University’s National Security Archive, . Further, such memoranda are reproduced in various compendiums. See The Torture Papers: The Road to Abu Ghraib (Karen Greenberg & Joshua Dratel eds., 2004). 15 Cable from the Chairman of the Joint Chiefs of Staff to U.S. Military Unified Commands and Services (Jan. 21, 2002). 16 Memorandum from Assistant Attorney General Jay S. Bybee to White House Counsel Alberto R. Gonzales and Dep’t of Defense General Counsel William J. Haynes II (Jan. 22, 2002) [hereinafter Bybee Memorandum (Jan. 22, 2002)]. 17 Id. at 9–10. The four basic criteria appear in the Third Geneva Convention, supra note 9, Art. 4(A)(2). 18 Bybee Memorandum (Jan. 22, 2002), supra note 16, at 11–13. 19 Id. at 13–22.
P1: IWV 0521750717c09
CB951-Murphy
0 521 75071 7
August 6, 2005
14:27
International Criminal Law
255
president’s ability to suspend the Third Geneva Convention was a “close question.”20 Nevertheless, the memorandum asserted: A blanket non-suspension rule makes little sense as a matter of international law and politics. If there were such a rule, international law would leave an injured party effectively remediless if its adversaries committed material breaches of the Geneva Conventions. Apart from its unfairness, that result would reward and encourage non-compliance with the Conventions. . . . Without a power to suspend, . . . parties to the Geneva Conventions would only be left with . . . meager tools to remedy widespread violation of the Conventions by others.21 Even if it was determined that the Third Geneva Convention applied to Taliban prisoners, those prisoners might be denied its protections if the president determined that they all, as a class, could be said to fall outside the definition of prisoners of war. The memorandum noted, however, that the Justice Department had not been apprised of how Taliban units were organized and operated, and thus the Department was not in a position to apply its legal analysis to the Taliban.22 The memorandum also addressed whether deviations from the 1949 Geneva Conventions (in particular, the Third Geneva Convention) in the treatment of detainees would violate those or other treaties, and violate the U.S. War Crimes Act.23 After noting that the War Crimes Act criminalizes “grave breaches” of the 1949 Geneva Conventions, the memorandum asserted: Failure to follow some of the regulations regarding the treatment of POWs, such as difficulty in meeting all of the conditions set forth for POW camp conditions, does not constitute a grave breach within the meaning of Geneva Convention III, art. 130. Only by causing great suffering or serious bodily injury to POWs, killing or torturing them, depriving them of access to a fair trial, or forcing them to serve in the Armed Forces, could the United States actually commit a grave breach.24 Although the War Crimes Act also criminalizes violations of common Article 3 of the 1949 Geneva Conventions, the memorandum concluded that common Article 3 “refers specifically to a condition of civil war, or a large-scale armed conflict between a State and an armed movement within its own territory,”25 and not to a transnational armed conflict, such as U.S. actions against Afghanistan or Al Qaeda. Deviations necessary to ensure protection of U.S. armed forces guarding prisoners are, it was asserted, permissible,26 as are deviations that are necessary because immediate compliance is not feasible.27 Finally, it was argued that customary international law related to these questions placed no constraints upon the president since customary international law is not federal law.28 Upon learning of the president’s initial decision, U.S. Secretary of State Colin Powell requested that President Bush reconsider, arguing that the Third Geneva Convention should be regarded as applying to both Al Qaeda and the Taliban. On January 25, White House Counsel Alberto Gonzales drafted a memorandum to President Bush addressing Secretary Powell’s views, and stating that he found “the arguments for reconsideration and reversal unpersuasive.”29 Among other things, Gonzales stated that the “war against terrorism is a new kind of war,” and that “this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions
20
Id. at 23. Id. at 24–25. Id. at 30–32. 23 18 U.S.C. §2441 (2000). The War Crimes Act provides that it is a criminal offense to commit acts that violate the provisions of any of several treaties governing the laws of war. 24 Bybee Memorandum (Jan. 22, 2002), supra note 16, at 5. 25 Id. at 6. 26 Id. at 28–29. 27 Id. at 29–30. 28 Id. at 32–37. 29 Draft Memorandum from White House Counsel Alberto R. Gonzales to President George W. Bush, at 3 (Jan. 25, 2002). 21 22
P1: IWV 0521750717c09
CB951-Murphy
256
0 521 75071 7
August 6, 2005
14:27
United States Practice in International Law 2002–2004
requiring that captured enemy be afforded such things as commissary privileges, scrip (i.e., advances of monthly pay), athletic uniforms, and scientific instruments.”30 Gonzales’ memorandum to the president resulted in further memoranda by Secretary Powell to Gonzales,31 from Attorney General John Ashcroft to President Bush,32 and from Department of State Legal Adviser William H. Taft IV to Gonzales.33 The central matter addressed by these memoranda was whether President Bush should determine that (1) the Third Geneva Convention did not apply at all with respect to Afghanistan during the U.S. intervention or (2) the Convention did apply to the conflict in Afghanistan, although members of Al Qaeda and the Taliban individually or as a group were not entitled to POW status under the Convention. The first option remained the preference of the Justice Department, since it would purportedly minimize various legal risks of liability, litigation, and criminal prosecution. The second option was preferred by the State Department, since the first option purportedly would “reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the law of war for our troops, both in this specific conflict and in general,” would have “a high cost in terms of negative international reaction,” and would be challenged in international fora, such as the International Court of Justice.34 The State Department’s position was supported by the legal adviser to the chairman of the joint chiefs of staff and by many of the lawyers of the military services.35 The White House counsel then sought the views of the Justice Department on whether members of the Taliban could be determined as a group not to be entitled to POW status under the Third Geneva Convention, based on facts provided to the Justice Department by the U.S. Department of Defense. In a memorandum of February 7, OLC stated that, in its view, the president could determine that no members of the Taliban militia were entitled to POW status. First, Article 4 of the Third Geneva Convention, which defines those persons who are to be considered prisoners of war, contains certain provisions addressing only members of regular armed forces.36 The memorandum noted that “the Taliban have described themselves as a militia, rather than the armed forces of Afghanistan.”37 Second, Article 4 also allows militia and volunteer corps to qualify as prisoners of war, but only if they meet four basic criteria38 – and the Taliban failed to meet three of those criteria. The Taliban had “no organized command structure whereby members of the Taliban militia report to a military commander who takes responsibility for the actions of his subordinates.”39 The Tailiban did not wear any distinctive uniform or other insignia; rather, they “wore the same clothes they wore to perform other daily functions, and hence they would have been indistinguishable from civilians.”40 The Taliban did not follow the laws of war and, instead, “regularly engaged in practices that flouted fundamental international legal principles,” such as failing to distinguish between combatants and
30
Id. at 2. Draft Memorandum from Secretary of State Colin Powell to White House Counsel Alberto R. Gonzales (Jan. 26, 2002) [hereinafter Powell Memorandum]; see Katharine Q. Seelye, Powell Asks Bush to Review Stand on War Captives, N.Y. Times, Jan. 27, 2002, at 1; William Safire, Colin Powell Dissents, N.Y. Times, Jan. 28, 2002, at A21; Katharine Q. Seelye & David E. Sanger, Bush Reconsiders Stand on Treating Captives of War, N.Y. Times, Jan. 29, 2002, at A1. 32 Letter from Attorney General John Ashcroft to President George W. Bush (Feb. 1, 2002). 33 Memorandum from William H. Taft IV to White House Counsel Alberto R. Gonzales (Feb. 2, 2002); see also R. Jeffrey Smith, Lawyer for State Dept. Disputed Detainee Memo, Wash. Post, June 24, 2004, at A7 (reporting that a letter from Taft to the Justice Department described OLC’s legal advice as “seriously flawed” and “incorrect as well as incomplete,” and that classified memoranda by senior lawyers in the Air Force, Army, Marine Corps, and Navy expressed similar views). 34 Powell Memorandum, supra note 31, at 2–3. 35 Final Report of the Independent Panel to Review DoD Detention Operations 33–34 (Aug. 24, 2004), at [hereinafter Schlesinger Report]. In May 2004, Secretary of Defense Rumsfeld appointed an independent commission of experts, chaired by former Secretary of Defense James Schlesinger, to review all the materials relating to the allegations of abuse of detainees, and to provide advice on “the cause of the problems and what should be done to fix them.” See Memorandum from Secretary of Defense Rumsfeld to James R. Schlesinger, Harold Brown, Tillie K. Fowler, and Charles A. Horner (May 12, 2004). This memorandum and other materials relating to the Schlesinger Report may be found at . 36 Third Geneva Convention, supra note 9, Arts. 4(A)(1), (3). 37 Memorandum from Assistant Attorney General Jay S. Bybee to White House Counsel Alberto R. Gonzales 2 (Feb. 7, 2002) Bybee Mem. (Feb. 7, 2002). 38 Third Geneva Convention, supra note 9, Art. 4(A)(2). 39 Bybee Memorandum (Feb. 7, 2002), supra note 37, at 2. 40 Id. at 3. 31
P1: IWV 0521750717c09
CB951-Murphy
0 521 75071 7
August 6, 2005
14:27
International Criminal Law
257
noncombatants, and killing for racial or religious purposes.41 Third, even if one were to regard the Taliban as qualifying as members of a regular armed force, the memorandum asserted that “the four basic conditions that apply to militias must also apply, at a minimum, to members of armed forces who would be legally entitled to POW status.” As such, the Taliban fell outside the definition of persons who qualify as POWs.42 The OLC memorandum also considered whether the president could determine that the Taliban as a group fell outside the Third Geneva Convention, as opposed to making determinations on a person-by-person basis. Although the Third Geneva Convention provides that, when there is “doubt” regarding whether persons are entitled to POW status, they should be accorded such status until a “competent tribunal” determines the matter,43 OLC asserted that a presidential determination that members of the Taliban as a whole fall outside the Third Geneva Convention would remove any doubt as to their status, thus obviating the need for individualized determinations by a competent tribunal.44 Having received the OLC memorandum, President Bush issued his decision as part of an internal U.S. government memorandum. a. I accept the legal conclusion of the Department of Justice and determine that none of the provisions of [the Third Geneva Convention (hereinafter Geneva)] apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world because, among other reasons, al Qaeda is not a High Contracting Party to Geneva. b. I accept the legal conclusion of the Attorney General and the Department of Justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time. Accordingly, I determine that the provisions of Geneva will apply to our present conflict with the Taliban. I reserve the right to exercise this authority in this or future conflicts. c. I also accept the legal conclusion of the Department of Justice and determine that common Article 3 of Geneva does not apply to either al Qaeda or Taliban detainees, because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to “armed conflict not of an international character.” d. Based on the facts supplied by the Department of Defense and the recommendation of the Department of Justice, I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with al Qaeda, al Qaeda detainees also do not qualify as prisoners of war.45 Nevertheless, the president also stated in the internal memorandum, “As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”46 The public statement released by the White House asserted: United States Policy. The United States is treating and will continue to treat all of the individuals detained at Guantanamo humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Third Geneva Convention of 1949. The 41
Id. Id. at 4–7. See supra note 10. 44 Bybee Memorandum (Feb. 7, 2002), supra note 37, at 7–8. 45 Memorandum from President George W. Bush to the Vice President, the Secretaries of State and Defense, the Attorney General, and Other Officials 1–2 (Feb. 7, 2002). 46 Id. at 2. 42 43
P1: IWV 0521750717c09a
CB951-Murphy
258
0 521 75071 7
August 6, 2005
14:37
United States Practice in International Law 2002–2004
President has determined that the Geneva Convention applies to the Taliban detainees, but not to the al-Qaida detainees. Al-Qaida is not a state party to the Geneva Convention; it is a foreign terrorist group. As such, its members are not entitled to POW status. Although we never recognized the Taliban as the legitimate Afghan government, Afghanistan is a party to the Convention, and the President has determined that the Taliban are covered by the Convention. Under the terms of the Geneva Convention, however, the Taliban detainees do not qualify as POWs. Therefore, neither the Taliban nor al-Qaida detainees are entitled to POW status. Even though the detainees are not entitled to POW privileges, they will be provided many POW privileges as a matter of policy. All detainees at Guantanamo are being provided: three meals a day that meet Muslim dietary laws; water; medical care; clothing and shoes; shelter; showers; soap and toilet articles; foam sleeping pads and blankets; towels and washcloths; the opportunity to worship; correspondence materials, and the means to send mail; the ability to receive packages of food and clothing, subject to security screening. The detainees will not be subjected to physical or mental abuse or cruel treatment. The International Committee of the Red Cross has visited and will continue to be able to visit the detainees privately. The detainees will be permitted to raise concerns about their conditions and we will attempt to address those concerns consistent with security. Housing. We are building facilities in Guantanamo more appropriate for housing the detainees on a long-term basis. The detainees now at Guantanamo are being housed in temporary open-air shelters until these more long-term facilities can be arranged. Their current shelters are reasonable in light of the serious security risk posed by these detainees and the mild climate of Cuba.47 POW Privileges the Detainees will not receive. The detainees will receive much of the treatment normally afforded to POWs by the Third Geneva Convention. However, the detainees will not receive some of the specific privileges afforded to POWs, including: access to a canteen to purchase food, soap, and tobacco;48 a monthly advance of pay;49 the ability to have and consult personal financial accounts;50 the ability to receive scientific equipment, musical instruments, or sports outfits.51 Many detainees at Guantanamo pose a severe security risk to those responsible for guarding them and to each other. Some of these individuals demonstrated how dangerous they are in uprisings at Mazar-e-Sharif and in Pakistan. The United States must take into account the need for security in establishing the conditions for detention at Guantanamo.52 The White House statement did not provide details about whether there were any Al Qaeda forces that were integrated into the regular Taliban army that should also be regarded as covered by the Third Geneva Convention. Further, the White House statement did not explain whether at some point any of the detainees might be able to take advantage of the “competent tribunal” mentioned in Article 5 of the Third Geneva Convention to determine whether they should be accorded prisoner-of-war status. The administration apparently was of the view that, given the president’s decision, there was no “doubt” regarding the status of any of the detainees, and consequently that the use of such tribunals 47 [Author’s Note: See Third Geneva Convention, supra note 9, Art. 25 (providing that prisoners of war “shall be quartered under conditions as favorable as those for the forces of the Detaining Power who are billeted in the same area.”)]. 48 [Author’s Note: See id., Art. 28.] 49 [Author’s Note: See id., Art. 60.] 50 [Author’s Note: See id., Arts. 64–65.] 51 [Author’s Note: See id., Art. 72.] 52 White House Fact Sheet on Status of Detainees at Guantanamo (Feb. 7, 2002), at ; see Katherine Q. Seelye, In Shift, Bush Says Geneva Rules Fit Taliban Captives, N.Y. Times, Feb. 8, 2002, at A15; John Mintz & Mike Allen, Bush Shifts Position on Detainees, Wash. Post, Feb. 8, 2002, at A1.
P1: IWV 0521750717c09a
CB951-Murphy
0 521 75071 7
August 6, 2005
14:37
International Criminal Law
259
was not necessary or required.53 Finally, the White House statement did not indicate what protections, if any, these detainees had under other conventions, such as under the Fourth Geneva Convention on the protection of civilians,54 Protocol I to the 1949 Geneva Conventions,55 the International Covenant on Civil and Political Rights,56 or other instruments. While the White House public statement did not clarify exactly why, under the terms of the Geneva Convention, the Taliban detainees did not qualify as prisoners of war, other administration sources stated publicly that it was because they failed to meet the requirements of Article 4(A)(2) of the Third Geneva Convention. U.S. Secretary of Defense Donald Rumsfeld stated: With respect to the Taliban, the Taliban also did not wear uniforms, they did not have insignia, they did not carry weapons openly, and they were tied tightly at the waist to al Qaeda. They behaved like them, they worked like them, they functioned like them, they cooperated with respect to communications, they cooperated with respect to supplies and ammunition, and there isn’t any question in my mind . . . but that they are not, they would not rise to the standard of, a prisoner of war.57 At the time, the practical effect of not regarding the detainees as prisoners of war under the Third Geneva Convention was not clear, since the Bush administration asserted that it would treat the detainees humanely and in a fashion consistent with the principles of the Convention. While prisoners of war are obligated only to provide their name, rank, and serial number, the Third Geneva Convention does not preclude further questioning of prisoners of war, although it does prohibit physical and mental torture, as well as other forms of coercion.58 Prisoners of war are to be repatriated “after the cessation of active hostilities,”59 but the potentially open-ended military campaign against Al Qaeda operatives left unclear when such a cessation would occur. Further, any prisoners of war convicted of war crimes would remain incarcerated for the duration of their sentences. Various obligations contained in the Third Geneva Convention would have proved cumbersome to implement – such as the ones noted in the White House statement, and also perhaps various procedural protections if a prisoner were to be prosecuted.60 At a conference in London on February 20, U.S. Ambassador-at-Large for War Crimes Issues Pierre-Richard Prosper summarized the U.S. position as follows: These aggressors initiated a war that under international law they have no legal right to wage. The right to conduct armed conflict, lawful belligerency, is reserved only to states and recognized armed forces or groups under responsible command. Private persons lacking the basic indicia of organization or the ability or willingness to conduct operations in accordance with the laws of armed conflict have no legal right to wage warfare against a state. The members of al Qaida fail to meet the criteria to be lawful combatants under the law of war. In choosing to violate these laws and customs of war and engage in hostilities, they become 53 See Katharine Q. Seelye, Detainees Are Not P.O.W.’s, Cheney and Rumsfeld Declare, N.Y. Times, Jan. 28, 2002, at A6 (quoting Secretary of Defense Rumsfeld that “[t]here is no ambiguity in this case”). 54 Geneva Convention [IV] Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3526, 75 UNTS 287. 55 Protocol I Additional to the 1949 Geneva Conventions provides a range of fundamental guarantees to all persons arrested who do not qualify as prisoners of war. See Protocol [I] Additional to the Geneva Conventions of 12 August 1949, and Relating to the Victims of International Armed Conflicts, June 8, 1977, Art. 75, 1125 UNTS 3, 16 ILM 1391. While the United States has not ratified Protocol I, government officials have previously asserted that the United States supports the fundamental guarantees contained in Article 75. See Michael J. Matheson, The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 Am. U.J. Int’l L. & Pol’y 419, 427–28 (1987). 56 Dec. 19, 1966, 999 UNTS 171. 57 U.S. Dep’t of Defense News Transcript on Secretary Rumsfeld Media Availability en Route to Camp X-Ray (Jan. 27, 2002), at . 58 Third Geneva Convention, supra note 9, Art. 17. 59 Id., Art. 118. 60 Id., Arts. 99–108.
P1: IWV 0521750717c09a
CB951-Murphy
260
0 521 75071 7
August 6, 2005
14:37
United States Practice in International Law 2002–2004
unlawful combatants. And their conduct, in intentionally targeting and killing civilians in a time of international armed conflict, constitute war crimes. As we have repeatedly stated, these were not ordinary domestic crimes, and the perpetrators cannot and should not be deemed to be ordinary “common criminals.” .... . . . [W]e have concluded that the Geneva Conventions do apply, however, to the Taliban leaders who sponsored terrorism. But, a careful analysis through the lens of the Geneva Convention leads us to the conclusion that the Taliban detainees do not meet the legal criteria under Article 4 of the convention which would have entitled them to POW status. They are not under a responsible command. They do not conduct their operations in accordance with the laws and customs of war. They do not have a fixed distinctive sign recognizable from a distance. And they do not carry their arms openly. Their conduct and history of attacking civilian populations, disregarding human life and conventional norms, and promoting barbaric philosophies represents firm proof of their denied status. But regardless of their inhumanity, they too have the right to be treated humanely. ....
We will continue, with the help of the international community, to seek and neutralize terrorist cells around the world while maintaining a respect for fundamental human rights for all. Looking into the future, the fate of the detainees will be determined through careful deliberation and thought. We will investigate, we will determine which cases are the most important to prosecute and we will bring those who bear responsibility to justice.61 ICRC Reaction to the U.S. Decision The administration’s position engendered criticism from European allies and from several scholars of international law.1 A spokesperson for the International Committee of the Red Cross reacted to the new U.S. position by stating that the organization “stands by its position that people in a situation of international conflict are considered to be prisoners of war unless a competent tribunal decides otherwise.”2 The formal, written press release stated: The International Committee of the Red Cross (ICRC) welcomes the United States’ reaffirmation of the applicability of the Third Geneva Convention to the international armed conflict in Afghanistan, and its recognition of the treaty’s importance and value. International Humanitarian Law foresees that the members of armed forces as well as militias associated to them which are captured by the adversary in an international armed conflict are protected by the Third Geneva Convention. There are divergent views between the United States and the ICRC on the procedures which apply on how to determine that the persons detained are not entitled to prisoner of war status. The United States and the ICRC will pursue their dialogue on this issue. The ICRC remains firmly convinced that compliance with international humanitarian law in no manner constitutes an obstacle to the struggle against terror and crime.
61 Pierre-Richard Prosper, Ambassador-at-Large for War Crimes Issues, Status and Treatment of Taliban and al-Qaida Detainees, Remarks at Chatham House, London, United Kingdom (Feb. 20, 2002), at . 1 See, e.g., Adam Roberts, The Prisoner Question, Wash. Post, Feb. 3, 2002, at B1 (“[T]he elasticity of Article 4 must have limits somewhere, and it seems probable that al Qaeda detainees would be ineligible for POW status. The Taliban are more problematic. A plausible argument could be made that they scrape by, most likely under the heading of ‘members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.’”) 2 See U.S. POW Decision Criticized, Wash. Post, Feb. 9, 2002, at A22.
P1: IWV 0521750717c09a
CB951-Murphy
0 521 75071 7
August 6, 2005
14:37
International Criminal Law
261
International humanitarian law grants the detaining power the right to legally prosecute prisoners of war suspected of having committed war crimes or any other criminal offence prior to or during the hostilities. The United States has demonstrated its respect and support for the ICRC’s humanitarian mandate and activities in past and present conflict situations. ICRC delegates continue to be able to visit all persons detained by US forces both in Afghanistan and Guantanamo Bay, in accordance with the organization’s mandate set forth in the Third Geneva Convention.3 Inter-American Human Rights Commission Reaction In February 2002, U.S.-based human rights lawyers filed a petition with the Inter-American Commission on Human Rights challenging the U.S. decision on the status of the detainees. In March 2002, the Commission issued a decision on “precautionary measures” requesting the United States “to take the urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal.”1 The decision read, in part: The Commission notes preliminarily that its authority to receive and grant requests for precautionary measures under Article 25(1) of its Rules of Procedure is, as with the practice of other international decisional bodies, a well-established and necessary component of the Commission’s processes. Indeed, where such measures are considered essential to preserving the Commission’s very mandate under the OAS Charter, the Commission has ruled that OAS member states are subject to an international legal obligation to comply with a request for such measures. .... . . . [W]hile its specific mandate is to secure the observance of international human rights protections in the Hemisphere, this Commission has in the past looked to and applied definitional standards and relevant rules of international humanitarian law in interpreting the American Declaration2 and other Inter-American human rights instruments in situations of armed conflict.
In taking this approach, the Commission has drawn upon certain basic principles that inform the interrelationship between international human rights and humanitarian law. It is well-recognized that international human rights law applies at all times, in peacetime and in situations of armed conflict. In contrast, international humanitarian law generally does not apply in peacetime and its principal purpose is to place restraints on the conduct of warfare in order to limit or contain the damaging effects of hostilities and to protect the victims of armed conflict, including civilians and combatants who have laid down their arms or have been placed hors de combat. Further, in situations of armed conflict, the protections under international human rights and humanitarian law may complement and reinforce one another, sharing as they do a common nucleus of non-derogable rights and a common purpose of promoting human life and dignity. In certain circumstances, however, the test for evaluating the observance of a particular right, such as the right to liberty, in a situation of armed conflict may be distinct from that applicable in time of peace. In such situations, international law, including the jurisprudence of this Commission, dictates that it may be necessary 3
ICRC Press Release on Geneva Convention on Prisoners of War (Feb. 9, 2002), at . Organization of American States, Inter-American Commission on Human Rights, Pertinent Parts of Decision on Request for Precautionary Measures (Mar. 12, 2002) (footnotes omitted) (on file with author). 2 [Author’s Note: The American Declaration of the Rights and Duties of Man was adopted by the Organization of American States (OAS) on May 2, 1948 in the form of a non-binding resolution. At the same time, the Commission and the Inter-American Court of Human Rights have asserted that a state’s obligations under the OAS Charter are reflected in the American Declaration. See, e.g., Advisory Opinion on Interpretation of the American Declaration of the Rights and Duties of Man, Inter-Am. Court H.R. (ser. A) No. 10, para. 45 (1990) (declaring that the American Declaration is “a source of international obligations related to the Charter of the Organization” for member states of the OAS ). The United States is an OAS member state.] 1
P1: IWV 0521750717c09a
CB951-Murphy
262
0 521 75071 7
August 6, 2005
14:37
United States Practice in International Law 2002–2004
to deduce the applicable standard by reference to international humanitarian law as the applicable lex specialis. .... Specifically with regard to the request for precautionary measures presently before it, the Commission observes that certain pertinent facts concerning the detainees at Guantanamo Bay are well-known and do not appear to be the subject of controversy. These include the fact that the government of the United States considers itself to be at war with an international network of terrorists, that the United States undertook a military operation in Afghanistan beginning October 2001 in defending this war, and that most of the detainees in Guantanamo Bay were apprehended in connection with this military operation and remain wholly within the authority and control of the United States government. It is also well-known that doubts exist as to the legal status of the detainees. This includes the question of whether and to what extent the Third Geneva Convention and/or other provisions of international humanitarian law apply to some or all of the detainees and what implications this may have for their international human rights protections. According to official statements from the United States government, its Executive Branch has most recently declined to extend prisoner of war status under the Third Geneva Convention to the detainees, without submitting the issue for determination by a competent tribunal or otherwise ascertaining the rights and protections to which the detainees are entitled under US domestic or international law. To the contrary, the information available suggests that the detainees remain entirely at the unfettered discretion of the United States government. Absent clarification of the legal status of the detainees, the Commission considers that the rights and protections to which they may be entitled under international or domestic law cannot be said to be the subject of effective legal protection by the State. In light of the foregoing considerations, and without prejudging the possible application of international humanitarian law to the detainees at Guantanamo Bay, the Commission considers that precautionary measures are both appropriate and necessary in the present circumstances, in order to ensure that the legal status of each of the detainees is clarified and that they are afforded the legal protections commensurate with the status that they are found to possess, which may in no case fall below the minimum standards of non-derogable rights. On this basis, the Commission hereby requests that the United States take the urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal.3 The United States responded to the Commission’s request on April 11, May 28 and July 15. Among other things, the United States asserted that the detention of enemy combatants in time of armed conflict is not subject to review by the Commission. According to the United States, the law of armed conflict and human rights law are distinct bodies of law, and the facts at issue in this instance concern the law of armed conflict (specifically, international humanitarian law), over which the Commission has no jurisdiction. Put simply, the Commission’s jurisdiction does not include the application of the law of armed conflict, the lex specialis governing the status and treatment of persons detained during armed conflict. To be sure, many of the principles of human treatment found in the law of armed conflict find similar expression in human rights law. And some of the principles of armed conflict may be explicated by analogy or by reference to human rights principles. Yet the Petitioners confuse an overlap of principles with an overlap of jurisdiction. To say that both human rights law and law of armed conflict draw on similar principles of treatment is not to say that bodies with jurisdiction over the one law have jurisdiction over the other.4 3
Id. (footnotes omitted). Additional Response of the United States to Request for Precautionary Measures – Detainees in Guantanamo Bay, Cuba, at 3–4 (July 15, 2002) (on file with author). 4
P1: IWV 0521750717c09a
CB951-Murphy
0 521 75071 7
August 6, 2005
14:37
International Criminal Law
263
Further, the United States maintained that the Commission had no mandate to request the United States to implement precautionary measures and, even if such a mandate existed, such measures would not be binding.5 The non-binding nature of Commission recommendations corresponds with the structure of the Commission Statute. Article 20 of the Statute of the Commission grants the Commission authority only: To make recommendations to [non-parties to the American Convention], when it finds this appropriate, in order to bring about more effective observance of fundamental human rights. The Commission has authority to offer recommendations to all OAS members, and has enhanced power to request the Court6 to issue provisional measures against Convention States-Parties. Because Court-ordered measures are generally stronger sanctions than mere recommendations, in order to comply with the meaning of the text on its face, the authority of the Commission to make recommendations under Article 20 must be less powerful than such measures; that is, it must be non-binding. To find otherwise would conflict with the facial intent to preserve for the Court the authority to issue provisional measures against States-Parties to the American Convention.7 Ability of Detainees to Obtain Federal Habeas Corpus Review On December 28, 2001, the Office of Legal Counsel of the U.S. Department of Justice (OLC) provided advice to the Department of Defense regarding the possibility of habeas corpus review being sought in U.S. courts by aliens held at Guant´anamo Bay. Guant´anamo is physically a part of Cuban territory but is under a long-term lease that grants “complete jurisdiction and control” in Guant´anamo to the United States. The Justice Department took the view that “the great weight of authority” indicated that federal courts would not have jurisdiction to entertain such habeas actions, but cautioned that such actions might not be dismissed for lack of jurisdiction.1 Thereafter, various efforts were made in U.S. courts to bring habeas actions on behalf of Guant´anamo detainees. Coalition of Clergy v. Bush. On January 20, 2002, a group referring to themselves as the “Coalition of Clergy, Lawyers, and Professors” filed a petition for a writ of habeas corpus in a federal district court in California regarding the Guant´anamo detainees. The group alleged that because the detainees were being held incommunicado and had been denied access to legal counsel, the petition was being filed on their behalf. In a decision rendered February 21, the district court rejected the petition on three grounds. First, the court found that the petitioners did not have standing to seek the petition, since they lacked a sufficient relationship with the detainees.2 Second, the court found that it lacked jurisdiction to issue the writ because the detainees were not within the territorial jurisdiction of the court.3 Third, the court found that the petition could not be transferred to another court, since no federal district court anywhere in the United States has jurisdiction over the petition. In reaching this third conclusion, the court discussed in depth the Supreme Court’s decision in Johnson v. Eisentrager.4 In Johnson, Mr. Justice Jackson described “the ultimate question” as “one of jurisdiction of civil courts of the United States vis-a-vis military authorities in dealing with enemy aliens
5
Id. at 16–29. [Author’s Note: The Inter-American Court of Human Rights is the judicial organ of the American Convention on Human Rights, Nov. 22, 1969, 1144 UNTS 123, reprinted in 9 ILM 673 (1970). The United States is not a party to this convention.] 7 Id. at 19–20. 1 Memorandum from Deputy Assistant Attorneys General John Yoo and Patrick Philbin to Dep’t of Defense General Counsel William J. Haynes II (Dec. 28, 2001), at . 2 Coalition of Clergy v. Bush, 189 F.Supp.2d 1036, 1040–44 (C.D. Cal. 2002). 3 Id. at 1044–45. 4 339 U.S. 763 (1950). The opinion was written by Justice Robert H. Jackson, the former U.S. chief prosecutor at Nuremberg. 6
P1: IWV 0521750717c09a
CB951-Murphy
264
0 521 75071 7
August 6, 2005
14:37
United States Practice in International Law 2002–2004
overseas.” Id. at 765. The case arose out of World War II. The habeas petitioners were twentyone German nationals who claimed to have been working in Japan for “civilian agencies of the German government” before Germany surrendered on May 8, 1945. They were taken into custody by the United States Army and convicted by a United States Military Commission of violating laws of war by engaging in continued military activity in Japan after Germany’s surrender, but before Japan surrendered. The Military Commission sat in China with the consent of the Chinese government. After trial and conviction there, the prisoners were repatriated to Germany to serve their sentences in a prison whose custodian was an American Army officer. While in Germany, the petitioners filed a writ of habeas corpus claiming that their right under the Fifth Amendment to due process, other unspecified rights under the Constitution and laws of the United States and provisions of the Geneva Convention governing prisoners of war all had been violated. . . . .... In all key respects, the Guantanamo detainees are like the petitioners in Johnson: They are aliens; they were enemy combatants; they were captured in combat; they were abroad when captured; they are abroad now; since their capture, they have been under the control of only the military; they have not stepped foot on American soil; and there are no legal or judicial precedents entitling them to pursue a writ of habeas corpus in an American civilian court. Moreover, there are sound practical reasons, such as legitimate security concerns, that make it unwise for this or any court to take the unprecedented step of conferring such a right on these detainees. .... Johnson establishes that whether the Guantanamo detainees can establish jurisdiction in any district court depends not on the nature of their claims but on whether the Naval Base at Guantanamo Bay is under the sovereignty of the United States. Petitioners argue that the detainees are now within the territorial jurisdiction of the United States and thus are entitled to a writ of habeas corpus. But there is a difference between territorial jurisdiction and sovereignty, and it is the latter concept that is key. See United States v. Spelar, 338 U.S. 217 (1949), in which the Supreme Court observed, “We know of no more accurate phrase in common English usage than ‘foreign country’ to denote territory subject to the sovereignty of another nation.” The Court finds that Guantanamo Bay is not within the sovereign territory of the United States and therefore rejects petitioners’ argument. The legal status of Guantanamo Bay is governed by a lease agreement entered into by the United States and Cuba in 1903 and extended by those countries in 1934. See Lease to the United States of Lands in Cuba for Coaling and Naval Stations, Feb. 16–23, 1903, U.S.-Cuba, T.S. No. 418 (“Lease Agreement”); Treaty Between the United States of America and Cuba Defining Their Relations, May 29, 1934, art. III, 48 Stat. 1682, 1683. The 1903 agreement provides that the United States shall lease Guantanamo Bay from the Republic of Cuba for use as a coaling or naval station. Lease Agreement, art. I. Article III of the 1934 Treaty provides that the 1903 lease shall “continue in effect” until the parties agree to modify or abrogate it. As to the legal status of Guantanamo Bay so long as it is leased to the U.S., the 1903 agreement states: While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas. Lease Agreement, art. III.
P1: IWV 0521750717c09a
CB951-Murphy
0 521 75071 7
August 6, 2005
14:37
International Criminal Law
265
It is telling that in their brief petitioners do not even mention the first clause of the 1903 agreement, which provides that Cuba explicitly retained sovereignty. The omission suggests that they realize that sovereignty is the dispositive issue. .... In addition to the express terms of the Lease Agreement, the only federal courts that have addressed the issue have held that Guantanamo Bay is not within the sovereign territory of the United States and is not the functional equivalent of United States sovereign territory. In Cuban American Bar Assoc. v. Christopher, 43 F.3d 1412, 1425 (11th Cir.1995), cert. denied, 515 U.S. 1142 and 516 U.S. 913 (1995), the Eleventh Circuit had to determine whether Cuban and Haitian migrants temporarily detained at the Guantanamo Bay Naval Base could assert rights under various United States statutes and the United States Constitution. Cuban American Bar Assoc., 43 F.3d at 1421. Citing the language of the Lease Agreement quoted above, the Court of Appeals stated “the district court erred in concluding that Guantanamo Bay was a ‘United States territory.’ We disagree that control and jurisdiction is equivalent to sovereignty.” Id. at 1425. The Court of Appeals then went on to reject the argument that United States military bases which are leased abroad and remain under the sovereignty of foreign nations are “‘functionally equivalent’ to being . . . within the United States.” Id. See also Bird v. United States, 923 F.Supp. 338, 342–43 (D. Conn. 1996) (holding that sovereignty over Guantanamo Bay rested with Cuba and therefore plaintiff’s tort claim was barred under the “foreign country” exception of the Federal Tort Claims Act). The court finds the analyses and conclusions of these courts persuasive.5 The Ninth Circuit affirmed on the ground that the petitioners lacked standing, but vacated the district court’s jurisdictional ruling based on Eisentrager.6 According to the appeals court, the district court could not reach questions as to whether it or any other court had jurisdiction over the petitions of the detainees since there was no custodian of the detainees within the district court’s territorial jurisdiction.7 Gherebi v. Bush. In a separate case, however, a panel of the Ninth Circuit did reach the question of whether Eisentrager remained a bar to federal court jurisdiction over such a petition. In Gherebi v. Bush, an individual named Belaid Gherebi filed a habeas petition before a California federal court in 2002 on behalf of his brother, a detainee at Guant´anamo, alleging various violations of U.S. constitutional and international law. The district court dismissed the petition based on the holding in Johnson v. Eisentrager.8 On December 18, 2003, the Ninth Circuit Court of Appeals reversed the lower court’s decision.9 With respect to the Guantanamo detainees, the government contends that, under [Johnson v. Eisentrager], the touchstone of the jurisdictional inquiry is sovereignty – not mere territorial jurisdiction – and that the United States does not maintain sovereignty over the territory at issue. Jurisdiction is foreclosed, the government argues, because although the 1903 Lease agreement . . . which governs the terms of Guantanamo’s territorial relationship to the United States cedes to the U.S. “complete jurisdiction and control” over the Base, it recognizes the “continuance of ultimate sovereignty” in Cuba. . . . . . . [W]e do not read [Johnson v. Eisentrager] as holding that the prerequisite for the exercise of jurisdiction is sovereignty rather than territorial jurisdiction. Nor do we believe that the jurisdiction the United States exercised over Landsberg Prison in Germany is in any way analogous to the jurisdiction that this nation exercises over Guantanamo. When the [Johnson v. Eisentrager] petitioners 5 6 7 8 9
189 F.Supp.2d at 1046–51. Coalition of Clergy v. Bush, 310 F.3d 1153 (9th Cir. 2002). Id. at 1164. Gherebi v. Bush, 262 F.Supp.2d 1064 (C.D. Cal. 2003). Gherebi v. Bush, 352 F.3d 1278 (9th Cir. 2003).
P1: IWV 0521750717c09a
CB951-Murphy
266
0 521 75071 7
August 6, 2005
14:37
United States Practice in International Law 2002–2004
were detained in Landsberg, the limited and shared authority the U.S. exercised over the Prison on a temporary basis nowhere approached the United States’ potentially permanent exercise of complete jurisdiction and control over Guantanamo, including the right of eminent domain. . . . We have also treated Guantanamo as if it were subject to American sovereignty: we have acted as if we intend to retain the Base permanently, and have exercised the exclusive, unlimited right to use it as we wish, regardless of any restrictions contained in the Lease or continuing Treaty.10 Consequently, the court found that the United States is exercising sole territorial jurisdiction over Guant´anamo, and that such jurisdiction requires that U.S. courts be available for habeas petitions with respect to detention in that territory. Alternatively, the court held that the U.S. actually exercises sovereignty over Guant´anamo. The government argues that, under the plain terms of the Lease, the “continuance” of Cuba’s “ultimate” sovereignty means that Cuba retains “maximum” or “definitive” sovereignty over the Base during the indefinite period of U.S. reign, and consequently, that Guantanamo cannot be classified as U.S. sovereign territory. . . . We conclude that, as used in the Lease, “ultimate sovereignty” can only mean temporal and not qualitative sovereignty. We also conclude that, during the unlimited and potentially permanent period of U.S. possession and control over Guantanamo, the United States possesses and exercises all of the attributes of sovereignty, while Cuba retains only a residual or reversionary sovereignty interest, contingent on a possible future United States’ decision to surrender its complete jurisdiction and control.11 In addition to the plain language of the lease, the Court also found that because the U.S. government had for years used Guant´anamo in a manner inconsistent with the lease’s terms – over the protests of the Cuban government – “whatever question may have existed about our sovereignty previously, our insistence on our right to use the territory for any and all purposes we desire . . . removes any doubt that our sovereignty over Guantanamo is complete.”12 Finally, the Court compared the Guant´anamo lease to the treaty related to the U.S.-run Panama Canal Zone, and pointed out that the U.S. government had at one time considered U.S. “sovereignty [over] the Canal Zone not an open or doubtful question.”13 As in the case of the Canal Zone, the Court reasoned, the United States is exercising a jurisdictional regime over Guant´anamo (for example, by conducting civil and criminal prosecutions for activities occurring there), which “is unparalleled with respect to the nature of the cession of quintessentially sovereign powers to the United States.” Although (like the case of the Canal Zone) the lease did not contain words expressly transferring sovereignty to the United States, the lease “transferred all of the power and authority that together constitute ‘sovereignty,’ and therefore transferred sovereignty itself.”14 Pending the Supreme Court’s decision in the Rasul v. Bush case (discussed below), however, the Ninth Circuit in the Gherebi case suspended its order reversing the California district court.15 Al Odah v. United States. At the same time that those cases were proceeding in California courts, the D.C. federal district court consolidated the petitions of three separate groups of relatives on behalf of twelve Kuwaiti nationals, two Australians, and two British nationals, all detained at Guant´anamo. The district court then dismissed the petitions, finding that “aliens detained outside the sovereign territory of the United States [may not] invok[e] a petition for a writ of habeas corpus.”16 Unlike the decision reached by the Ninth Circuit in the Gherebi case (discussed above), the D.C. Circuit
10 11 12 13 14 15 16
Id. at 1285–87. Id. at 1291. Id. at 1294–95. Id. at 1296–97 (citing a 1907 opinion by the U.S. attorney general). Id. at 1297–98. Gherebi v. Bush, No. 03-55785 (9th Cir. Dec. 18, 2003) (order). Rasul v. Bush, 215 F.Supp.2d 55, 68 (D.D.C. 2002).
P1: IWV 0521750717c09a
CB951-Murphy
0 521 75071 7
August 6, 2005
14:37
International Criminal Law
267
affirmed the district court’s dismissal of the petitions,17 relying on Johnson v. Eisentrager.18 The Court reasoned: [T]he Guantanamo detainees have much in common with the German prisoners in Eisentrager. They too are aliens, they too were captured during military operations, they were in a foreign country when captured, they are now abroad, they are in the custody of the American military, and they have never had any presence in the United States. . . . [U]nder Eisentrager these factors preclude the detainees from seeking habeas relief in the courts of the United States.19 Rasul v. Bush. Given this split in the circuits, and the importance of the issue, the U.S. Supreme Court in November 2003 granted a writ of certiorari for two of the cases that had been consolidated before the D.C. Circuit, as well as the Gherebi case, but only for the purpose of addressing the question of whether U.S. courts have jurisdiction over the habeas petitions (not whether the detentions are unlawful).20 In June 2004, the Court issued its decision in Rasul v. Bush. Congress has granted federal district courts, “within their respective jurisdictions,” the authority to hear applications for habeas corpus by any person who claims to be held “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §§2241(a), (c)(3). The statute traces its ancestry to the first grant of federal court jurisdiction. . . . .... The question now before us is whether the habeas statute confers a right to judicial review of the legality of Executive detention of aliens in a territory over which the United States exercises plenary and exclusive jurisdiction, but not “ultimate sovereignty.” .... Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control. Not only are petitioners differently situated from the Eisentrager detainees, but the Court in Eisentrager made quite clear that all six of the facts critical to its disposition were relevant only to the question of the prisoners’ constitutional entitlement to habeas corpus. [Johnson v. Eisentrager, 339 U.S. 763, 777 (1950).] The Court had far less to say on the question of the petitioners’ statutory entitlement to habeas review. Its only statement on the subject was a passing reference to the absence of statutory authorization: “Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.” Id., at 768. .... Because subsequent decisions of this Court have filled the statutory gap that had occasioned Eisentrager’s resort to “fundamentals,” persons detained outside the territorial jurisdiction of any federal district court no longer need rely on the Constitution as the source of their right to federal habeas review. In Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 495 (1973), this Court held, contrary to [Ahrens v. Clark, 335 U.S. 188 (1948), a case relied upon by the Eisentrager court], that the prisoner’s presence within the territorial jurisdiction of the district court is not “an 17 18 19 20
Al Odah v. United States, 321 F.3d 1134, 1136 (D.C. Cir. 2003). Id. at 1141. Id. at 1140. Al Odah v. United States, 540 U.S. 1003 (2003).
P1: IWV 0521750717c09a
CB951-Murphy
268
0 521 75071 7
August 6, 2005
14:37
United States Practice in International Law 2002–2004
invariable prerequisite” to the exercise of district court jurisdiction under the federal habeas statute. Rather, because “the writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody,” a district court acts “within [its] respective jurisdiction” within the meaning of §2241 as long as “the custodian can be reached by service of process.” 410 U.S., at 494–495. . . . .... In the end, the answer to the question presented is clear. Petitioners contend that they are being held in federal custody in violation of the laws of the United States. No party questions the District Court’s jurisdiction over petitioners’ custodians. . . . Section 2241, by its terms, requires nothing more. We therefore hold that §2241 confers on the District Court jurisdiction to hear petitioners’ habeas corpus challenges to the legality of their detention at the Guantanamo Bay Naval Base.21 In the aftermath of the Rasul decision, the Ninth Circuit Court of Appeals reversed the California district court’s decision in the Gherebi case and transferred it to the federal district court for the District of Columbia.22 After the transfer, that district court found that it had jurisdiction to hear the petition.23 By the end of 2004, some nineteen habeas corpus cases had been filed in the district court on behalf of nearly seventy detainees.24 After the Supreme Court’s ruling that the detainees at Guant´anamo Bay had a right to challenge their detentions through habeas actions, the U.S. government informally notified the detainees of their right,25 but for several months precluded them from having contact with attorneys, due to the government’s insistence that the attorneys have security clearances and accept other restrictions.26 Ultimately, the U.S. government agreed to permit meetings between the detainees and their attorneys, but only subject to special procedures, including audio and video “real time” monitoring of such meetings and a post hoc “classification review” of any notes taken during those meetings, as well as any mail between the detainees and their counsel. Certain detainees, however, objected to these procedures before the federal district court. In a decision rendered in October 2004, the district court found that the government could not abrogate the attorney-client privilege by insisting on such procedures and had to accord speedy access for the detainees to their attorneys. According to the court, the government’s national security concerns could be addressed by a protective order under which counsel for the detainees would be required to treat all information they received from the detainees as confidential.27 The U.S. government chose not to appeal the ruling. Reviews and Releases of Detainees at Guant´anamo Bay As of September 2004, there were approximately 550 individuals being held at Guant´anamo Bay. While some individuals continued to be brought to Guant´anamo Bay from Afghanistan for detention,1 more than 150 detainees had been released by September 2004. Of those released, reports emerged of some previously detained individuals engaging in militant activities in Afghanistan and Iraq,2 while others sued U.S. government officials in U.S. court for alleged violations of their human rights.3 In 21
Rasul v. Bush, 124 S.Ct. 2686, 2692–95, 2698 (2004). Gherebi v. Bush, 374 F.3d 727 (9th Cir. 2004). Gherebi v. Bush, 338 F.Supp.2d 91 (D.D.C. 2004). 24 See Carol D. Leonnig & John Mintz, Judge Says Detainees’ Trials Are Unlawful, Wash. Post, Nov. 9, 2004, at A1. 25 See Josh White, U.S. to Tell Detainees of Rights, Wash. Post, July 10, 2004, at A7. 26 See, e.g., Carol D. Leonnig, U.S. Stymies Detainee Access Despite Ruling, Lawyers Say, Wash. Post, Oct. 14, 2004, at A11. Formal written notification containing the address for communications to the D.C. district court were provided in December 2004. See Carol D. Leonnig, Pentagon Tells Detainees About Their Right to Go to Court, Wash. Post, Dec. 16, 2004, at A21. 27 Al Odah v. United States, 346 F.Supp.2d 1 (D.D.C. 2004). 1 See U.S. Dep’t of Defense Press Release on Transfer of Detainees Completed, No. 935-04 (Sept. 22, 2004). Department of Defense press releases are available at . 2 See Associated Press, Ex-U.S. Detainee Now Leading Kidnappers, Wash. Post, Oct. 13, 2004, at A16; John Mintz, Released Detainees Rejoining the Fight, Wash. Post, Oct. 22, 2004, at A1. 3 See Four Former Detainees Sue U.S. Officials, Seek Damages, Wash. Post, Oct. 28, 2004, at A13 (reporting a suit by former detainees alleging that they had been beaten, stripped naked, and threatened by dogs). 22 23
P1: IWV 0521750717c09a
CB951-Murphy
0 521 75071 7
August 6, 2005
14:37
International Criminal Law
269
addition to the outright release of detainees, by September 2004 a further fifty-six detainees had been transferred by the U.S. government to the custody of the detainees’ own governments for continued detention or possible release under restrictions (four to France, five to Morocco, twenty-nine to Pakistan, seven to Russia, four to Saudi Arabia, one to Spain, one to Sweden, and five to the United Kingdom).4 According to the United States, the governments of the transferred detainees provided assurances that the individuals would continue to be detained, tried, or otherwise be subjected to unspecified measures to protect the security of the United States and its allies.5 The U.S. government indicated that it would “continue to obtain agreements with other countries that would permit the transfer of many more [detainees].”6 Combatant status review tribunals. In the wake of the Supreme Court’s decision in the Rasul case (discussed above), the U.S. government instituted a process at Guant´anamo Bay for “combatant status review tribunals.”7 The sole purpose of this process was to determine whether each detainee at Guant´anamo Bay was properly determined to be a “combatant” (not to determine whether they were a “prisoner of war”), a determination that had previously been made by the president on a generalized basis. As a part of this process, the detainees were not assigned lawyers, but were assigned U.S. military personnel to assist them in representing their views to the tribunal. By late 2004, more than 300 hearings had been held and more than 130 decisions reached, all but one in favor of continued detention.8 The detainee released who was found not to be an enemy combatant was a Pakistani who had been picked up on the battlefield in Afghanistan in January 2002 and held by the U.S. government for almost three years.9 “Continuing Threat” Hearings. The United States announced in March 2004 that it would also institute an annual review process, in which each detainee’s case would be assessed in order to determine whether the individual continued to pose a threat to the United States or its allies, or whether he should be released.10 Final review procedures were adopted in May 200411 and an implementation directive was issued in September 2004.12
4 See, e.g., U.S. Dep’t of Defense Press Release on Transfer of Detainees Completed, No. 932-04 (Sept. 22, 2004); see also U.S. Dep’t of Defense Press Release on Transfer of Juvenile Detainees Completed, No. 057-04 (Jan. 29, 2004). The proposed release of 22 Chinese Muslims in October 2004 was complicated by concerns that the Uighurs (from northwest China) might face torture or execution if returned to China. 5 See, e.g., Richard Boucher, Spokesman, U.S. Dep’t of State Press Statement on Transfer of Russian Nationals from Guantanamo, No. 2004/219 (Mar. 1, 2004), at (“The United States has transferred seven Russian nationals detained at Guantanamo to the control of the Government of Russia to face criminal charges relating to their terrorist activities during an armed conflict. The transfer is the result of discussions between our two governments over the past year, including assurances that the individuals will be detained, investigated and prosecuted, as appropriate, under Russian law and will be treated humanely in accordance with Russian law and obligations.”); U.S. Dep’t of Defense Press Release on Transfer of British Detainees Complete, No. 155-4 (Mar. 9, 2004) (“The British government has agreed to accept the transfer of these detainees and to take responsibility to ensure that the detainees do not pose a security threat to the United States or our allies.”); U.S. Dep’t of State Press Release on Transfer of Danish National from Guantanamo, No. 2004/180 (Feb. 19, 2004) (“This decision is based on assurances provided by the Government of Denmark that it will accept responsibility for its national and take appropriate and specific steps to ensure that he will not pose a continued threat to the United States or the international community.”), at . 6 U.S. Dep’t of Defense Press Release on Secretary Rumsfeld Remarks to the Greater Miami Chamber of Commerce (Feb. 13, 2004) (stating that “some of these detainees will be tried before military commissions for serious crimes. . . . Some will be transferred back to their home countries if those countries are willing to take responsibility for them. Others who may no longer pose a continuing threat to our security will be released.”). 7 See Deputy Secretary of Defense Paul Wolfowitz, Order Establishing Combatant Status Review Tribunal (July 7, 2004), at ; see also U.S. Secretary of the Navy, Memorandum on Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants Detained at Guantanomo Bay Naval Base, Cuba (July 29, 2004), at ; John Mintz, Pentagon Sets Hearings for 595 Detainees, Wash. Post, July 8, 2004, at A1. 8 See Carol D. Leonnig & John Mintz, Judge Says Detainees’ Trials Are Unlawful, Wash. Post, Nov. 9, 2004, at A1. 9 See Josh White, Suspect is Freed From Guantanamo, Wash. Post, Sept. 9, 2004, at A3. 10 U.S. Dep’t of Defense, Administrative Review Procedures for Enemy Combatants in the Custody of the Department of Defense at Guantanamo Bay Naval Base, Cuba (Draft Memorandum), para. 1 (Mar. 2, 2004), at . 11 See Deputy Secretary of Defense Paul Wolfowitz, Order on Administrative Review Procedures for Enemy Combatants in the Control of the Department of Defense at Guantanomo Bay Naval Base, Cuba (May 11, 2004) [hereinafter Order on Administrative Review Procedures], at . 12 See U.S. Dep’t of Defense, Implementation of Administrative Review Procedures for Enemy Combatants Detained at U.S. Naval Base Guantanomo Bay, Cuba (Sept. 14, 2004), at .
P1: IWV 0521750717c09
CB951-Murphy
270
0 521 75071 7
August 6, 2005
15:6
United States Practice in International Law 2002–2004
Under the review process, an administrative review board, composed of three military officers with relevant training, assesses each detainee and recommends whether the individual should continue to be detained.13 The final decision, however, rests with a Department of Defense civilian, appointed by the president with the advice and consent of the Senate14 (the secretary of the navy was so designated for this task). “To the extent consistent with security,” the government of the detainee’s nationality may submit to the review board written information “of any nature, including information related to the threat posed by the enemy combatant to the United States and its allies.”15 A designated military officer presents to the board the reasons and evidence for and against continued detention.16 The detainee may present information to the board at a hearing and is supposed to have access to the presentations of his home government and the military officer “to the extent it is both necessary to his presentation . . . and consistent with national security.”17 The detainee is assisted by a military officer, who may also serve as his spokesman at the board hearing.18 In December 2004, the Department of Defense conducted the first of its administrative review hearings.19 Plans for Trials of Detainees at Guant´anamo Bay On November 13, 2001, President Bush issued a military order allowing special U.S. military tribunals to try foreigners charged with terrorism, including members of Al Qaeda for the attacks of September 11, 2001.1 On March 21, 2002, the U.S. Department of Defense issued Military Commission Order No. 1, which set forth guidelines and standards concerning the members of the military commissions, trial procedures, admissibility of evidence, procedural safeguards for the defendants, the review process, and conviction and sentencing.2 The military commission order provides that military commissions have jurisdiction over “violations of the laws of war and all other offenses triable by military commission.”3 The secretary of defense may either appoint members or designate an appointing authority to do so.4 Each commission will consist of from three to seven members, plus alternates, drawn from officers in the U.S. armed forces.5 The presiding officer shall be a judge advocate from any branch of the armed forces.6 Other judge advocates shall serve as the commission’s chief prosecutor and the chief defense counsel, who will, for each case, designate a prosecutor and defense counsel from their respective offices.7 Alternatively, those accused may seek other military officers or, at their own expense, civilian attorneys to represent them.8 The prosecutor’s office prepares the charges, which are to be approved by the appointing authority and then forwarded to the accused.9 Unless a plea agreement is entered, the matter is to proceed to a
13
Order on Administrative Review Procedures, supra note 11, paras. 2(B)(i)–(ii), 3(F)(i)–(iv). Id., paras. 2(B)(i), 3(F)(v). Id., para. 3(A)(i). 16 Id., para. 3(A)(ii). 17 Id., para. 3(A)(iii). 18 Id., para. 3(C). 19 See U.S. Dep’t of Defense News Release on Defense Department Conducts First Administrative Review Board, No. 1292-04 (Dec. 14, 2004). 1 Military Order of November 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 16, 2001), reprinted in 41 ILM 252 (2002); see Sean D. Murphy, United States Practice in International Law, Vol. 1: 1999–2001, at 438–41 (2002). For an account of the internal U.S. government deliberations leading up to the issuance of the military order, and the subsequent reactions, see Tim Golden, After Terror, a Secret Rewriting of Military Law, N.Y. Times, Oct. 24, 2004, at 1; Tim Golden, Administration Officials Split Over Stalled Military Tribunals, N.Y. Times, Oct. 25, 2004, at A1. For legal analysis of the military order, see Agora: Military Commissions, 96 AJIL 320 (2002). 2 See U.S. Dep’t of Defense, Procedures for Trials by Military Commissions of Certain Non–United States Citizens in the War Against Terrorism, 68 Fed. Reg. 39,373 (July 1, 2003) (to be codified at 32 CFR pt. 9), reprinted in 41 ILM 725 (2002) [hereinafter Military Commission Order No. 1]. The order and associated military instructions (discussed below) may be accessed online at . 3 Id., para. 3(B). 4 Id., para. 2. 5 Id., para. 4(A)(1)–(3). 6 Id., para. 4(A)(4). 7 Id., para. 4(B), (C). 8 Id., para. 4(C)(3). 9 Id., para. 6(A). 14 15
P1: IWV 0521750717c09
CB951-Murphy
0 521 75071 7
August 6, 2005
15:6
International Criminal Law
271
“full and fair” trial that is conducted “impartially and expeditiously.”10 The trial proceedings are to be open, including to the public and press, unless otherwise decided by the presiding officer (as may be necessary, for example, in order to protect classified information).11 Evidence shall be admitted if, in the opinion of the presiding officer or a majority of the commission, the evidence “would have probative value to a reasonable person.”12 Witnesses may testify under oath and are subject to crossexamination.13 Other evidence may be presented, though protective orders may be issued regarding classified or sensitive information.14 In each particular case, commission members deliberate and vote in closed conference. The order provides: A Commission member shall vote for a finding of Guilty as to an offense if and only if that member is convinced beyond a reasonable doubt, based on the evidence admitted at trial, that the Accused is guilty of the offense. An affirmative vote of two-thirds of the members is required for a finding of Guilty.15 A finding of not guilty may not thereafter be changed.16 Upon a finding of guilty, the commission may impose a sentence appropriate to the offense – which may include the death penalty when so recommended by a unanimous seven-member commission.17 Once the case is administratively complete, it is sent to a review panel of three military officers designated by the secretary of defense. The panel, which may include civilians temporarily commissioned as military officers for this purpose,18 then reviews the finding and either transmits it to the secretary of defense with a recommendation as to disposition or returns the case to the appointing authority for further proceedings. Upon receiving a recommendation as to disposition, the secretary of defense reviews the case and either returns the case for further proceedings or transmits it to the president with a recommended disposition (unless the president has delegated the matter to the secretary of defense). At that point, a final decision is entered that approves, disapproves, or changes the finding.19 The order includes the following section on procedures to be accorded to the accused: A. The Prosecution shall furnish to the Accused, sufficiently in advance of trial to prepare a defense, a copy of the charges in English and, if appropriate, in another language that the Accused understands. B. The Accused shall be presumed innocent until proven guilty. C. A Commission member shall vote for a finding of Guilty as to an offense if and only if that member is convinced beyond a reasonable doubt, based on the evidence admitted at trial, that the Accused is guilty of the offense. .... E. The Prosecution shall provide the Defense with access to evidence the Prosecution intends to introduce at trial and with access to evidence known to the Prosecution that tends to exculpate the Accused. . . . F. The Accused shall not be required to testify during trial. A Commission shall draw no adverse inference from an Accused’s decision not to testify. This subsection shall not preclude admission of evidence of prior statements or conduct of the Accused. 10 11 12 13 14 15 16 17 18 19
Id., para. 6(B)(2). Id., para. 6(B)(3). Id., para. 6(D)(1). Id., para. 6(D)(2). Id., para. 6(D)(3), (5). Id., para. 6(F). Id., para. 6(H)(2). Id., para. 6(F), (G). Id., para. 6(H)(4); see 10 U.S.C. §603 (2000). Military Commission Order No. 1, supra note 2, para. 6(H)(5), (6).
P1: IWV 0521750717c09
CB951-Murphy
272
0 521 75071 7
August 6, 2005
15:6
United States Practice in International Law 2002–2004
G. If the Accused so elects, the Accused may testify at trial on the Accused’s own behalf and shall then be subject to cross-examination. H. The Accused may obtain witnesses and documents for the Accused’s defense, to the extent necessary and reasonably available as determined by the Presiding Officer. . . . The Appointing Authority shall order that such investigative or other resources be made available to the Defense as the Appointing Authority deems necessary for a full and fair trial. I. The Accused may have Defense Counsel present evidence at trial in the Accused’s defense and cross-examine each witness presented by the Prosecution who appears before the Commission. J. The Prosecution shall ensure that the substance of the charges, the proceedings, and any documentary evidence are provided in English and, if appropriate, in another language that the Accused understands. The Appointing Authority may appoint one or more interpreters to assist the Defense, as necessary. K. The Accused may be present at every stage of the trial before the Commission . . . unless the Accused engages in disruptive conduct that justifies exclusion by the Presiding Officer. Detailed Defense Counsel may not be excluded from any trial proceeding or portion thereof. L. Except by order of the Commission for good cause shown, the Prosecution shall provide the Defense with access before sentencing proceedings to evidence the Prosecution intends to present in such proceedings. . . . M. The Accused may make a statement during sentencing proceedings. N. The Accused may have Defense Counsel submit evidence to the Commission during sentencing proceedings. O. The Accused shall be afforded a trial open to the public (except proceedings closed by the Presiding Officer). . . . P. The Accused shall not again be tried by any Commission for a charge once a Commission’s finding on that charge becomes final. . . . 20 On the day that the order was issued, Department of Defense officials asserted that even if an accused was acquitted, he might still be kept in custody indefinitely as a threat to U.S. national security.21 Although the order drew less criticism than the November 2001 military order issued by President Bush, various human rights organizations remained highly critical.22 For example, Amnesty International noted: The Pentagon’s guidelines confirm that commissions would allow a lower standard of evidence than is admissible in the ordinary courts, including hearsay evidence. Such evidence, and the possible use of secret evidence and anonymous witnesses, is particularly troubling given that the commissions will have the power to hand down death sentences. There is an ever-growing body of evidence of the error-prone, discriminatory and arbitrary nature of the death penalty system in the ordinary US civilian courts. . . . The potential for irrevocable miscarriages of justice in the case of death sentences handed down by military commissions admitting lower standards of evidence and lacking the right of appeal, can only be even greater. .... 20 21 22
Id., para. 5. See Katharine Q. Seelye, Pentagon Says Acquittals May Not Free Detainees, N.Y. Times, Mar. 22, 2002, at A13. See John Mintz, Tribunal Rules Aim to Shield Witnesses, Wash. Post, Mar. 22, 2002, at A1.
P1: IWV 0521750717c09
CB951-Murphy
0 521 75071 7
August 6, 2005
15:6
International Criminal Law
273
. . . Disturbingly, the Pentagon’s guidelines do not expressly exclude statements extracted under torture or other coercive methods. Under international law, any statement made as a result of torture is inadmissible in evidence, except in proceedings against the alleged perpetrator of the torture. Other international standards exclude not only any statements extracted under torture, but also those elicited as a result of other cruel, inhuman or degrading treatment or punishment. The Human Rights Committee, in its interpretation of the International Covenant on Civil and Political Rights (ICCPR),23 has stated that the “law must prohibit the use or admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment”. These statements apply not only to statements made by the accused, but also to statements made by any witness. Guideline 16 of the UN Guidelines on the Role of Prosecutors24 requires that prosecutors refuse to use any evidence that they have reasonable grounds to believe was obtained under such methods.
The Pentagon’s procedures for the military commissions state that a defendant “shall not be required to testify during trial”, but also state that this “shall not preclude admission of evidence of prior statements or conduct of the Accused”. Article 14(3)(g) of the ICCPR states that anyone charged with a criminal offence shall “[n]ot be compelled to testify against himself or to confess guilt.” The Human Rights Committee has stated that “[i]n considering this safeguard the provisions of article 7 and article 10, paragraph 1, should be borne in mind. In order to compel the accused to confess or to testify against himself, frequently methods which violate these provisions are used. The law should require that evidence provided by means of such methods or any other form of compulsion is wholly unacceptable.”25 Amnesty International also criticized the lack of any right of appeal to an independent and impartial court, as envisaged in Article 14(5) of the ICCPR.26 By contrast, the U.S. Department of State Legal Adviser maintained that the military commission procedures are consistent with international law and practice. Indeed, in a number of respects the procedures represent improvements on past practice. In preparing the procedures, the Pentagon not only listened carefully but also took into account the constructive advice and concerns raised by other governments and the non-governmental community. The procedures offer essential guarantees of independence and impartiality, and afford the accused the protections and means of defense recognized by international law. They provide, in particular, protections consistent with those set out in the 1949 Geneva Conventions, the customary principles found in Article 75 (Fundamental Guarantees) of the Additional Protocol I to the Geneva Conventions, and the International Covenant on Civil and Political Rights. Even though many of these specific provisions may not be legally required under international law, the military commission procedures nevertheless comport with all of them.27 On April 30, 2003, the Department of Defense issued a series of instructions providing further details on the operation of the commissions.28 Military Commission Instruction No. 129 states that 23
[Author’s Note: Dec. 16, 1966, S. Exec. Doc. No. 36E (1978), 999 UNTS 171.] [Author’s Note: Guidelines on the Role of Prosecutors, Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, U.N. Doc. A/CONF.144/28/Rev.1 at 189 (1990).] 25 Amnesty International, Memorandum to the US Government on the Rights of People in US Custody in Afghanistan and Guant´anamo Bay 51–53 (Apr. 2002), at (footnotes omitted). 26 Id. at 56. 27 U.S. Dep’t of State Legal Adviser William H. Taft IV, U.S. Military Commissions: Fair Trials and Justice (Mar. 22, 2002), at . 28 For relevant Department of Defense briefings, see U.S. Dep’t of Defense News Transcript on Background Briefing on the Release of Military Commission Instructions (May 2, 2003); U.S. Dep’t of Defense News Transcript on Briefing on Military Commissions (May 22, 2003), at . 29 See U.S. Dep’t of Defense, Military Commission Instructions, 68 Fed. Reg. 39,379, 39,380 (July 1, 2003) (to be codified at 32 C.F.R. §§10.4(a), 10.5). 24
P1: IWV 0521750717c09
CB951-Murphy
274
0 521 75071 7
August 6, 2005
15:6
United States Practice in International Law 2002–2004
such instructions will be issued by the general counsel of the Department of Defense and that they must be construed in a manner consistent with the president’s 2001 military order and the Department of Defense’s 2002 military order. The instruction states, however, that while noncompliance with the instructions may lead to sanctions by the Department of Defense or by a presiding officer of a military commission, it would “not, of itself, constitute error, give rise to judicial review, or establish a right to relief for the Accused or any other person.”30 Military Commission Instruction No. 2 establishes the crimes and elements for trials by military commission. Two basic requirements are that “[a]ll actions taken by the Accused that are necessary for the completion of a crime must be performed with general intent,” and that the conduct in question must be wrongful – that is, “done without justification or excuse cognizable under applicable law.”31 For conduct that is required to have a connection with armed hostilities, the instruction provides a definition of the nexus required, stating in part: This element does not require a declaration of war, ongoing mutual hostilities, or confrontation involving a regular national armed force. A single hostile act or attempted act may provide sufficient basis for the nexus so long as its magnitude or severity rises to the level of an “armed attack” or an “act of war,” or the number, power, stated intent or organization of the force with which the actor is associated is such that the act or attempted act is tantamount to an attack by an armed force.32 The instruction then lists eighteen substantive offenses that constitute war crimes, spelling out the elements required for each offense. The offenses are: (1) willful killing of protected persons, (2) attacking civilians, (3) attacking civilian objects, (4) attacking protected property, (5) pillaging, (6) denying quarter, (7) taking hostages, (8) employing poison or analogous weapons, (9) using protected persons as shields, (10) using protected property as shields, (11) torture, (12) causing serious injury, (13) mutilation or maiming, (14) use of treachery or perfidy, (15) improper use of flag of truce, (16) improper use of protective emblems, (17) degrading treatment of a dead body, and (18) rape.33 The instruction then lists, and provides elements for, eight other offenses that are not war crimes but that are nevertheless triable by military commission: (1) hijacking or hazarding a vessel or aircraft, (2) terrorism, (3) murder by an unprivileged belligerent, (4) destruction of property by an unprivileged belligerent, (5) aiding the enemy, (6) spying, (7) perjury or false testimony, and (8) obstruction of justice related to military commissions.34 In addition to being culpable for directly perpetrating the offense, the instruction lists, and provides elements for, seven other ways that an accused may be criminally liable: (1) aiding and abetting, (2) solicitation, (3) command/superior responsibility – perpetrating, (4) command/superior responsibility – misprision, (5) accessory after the fact, (6) conspiracy, and (7) attempt.35 Military Commission Instruction Nos. 3 and 4 set forth the responsibilities of the prosecutors and defense counsel, respectively.36 Military Commission Instruction No. 5 establishes the policies and procedures for the creation of a pool of qualified civilian defense counsel who may represent the accused before military commissions at no expense to the United States. Attorneys seeking qualification as a member of the pool must submit an application to the Department of Defense and must satisfy requirements relating to fitness both to practice law and to have access to classified information. Applications are accepted or rejected by the chief defense counsel for the military commissions.37 30
Id. at 39,380 (to be codified at 32 CFR §§10.4(c), 10.6). See U.S. Dep’t of Defense, Crimes and Elements of Trials by Military Commission, 68 Fed. Reg. 39,381, 39,381–82 (July 1, 2003) (to be codified at 32 CFR §11.4). 32 Id. at 39,382 (to be codified at 32 C.F.R. §11.5(c)). 33 Id. at 39,382–84 (to be codified at 32 C.F.R. §11.6(a)). 34 Id. at 39,384–85 (to be codified at 32 CFR §11.6(b)). 35 Id. at 39,385–87 (to be codified at 32 CFR §11.6(c)). 36 See U.S. Dep’t of Defense, Responsibilities of the Chief Prosecutor, Prosecutors, and Assistant Prosecutors, 68 Fed. Reg. 39,387 (July 1, 2003) (to be codified at 32 C.F.R. pt. 12); U.S. Dep’t of Defense, Responsibilities of the Chief Defense Counsel, Detailed Defense Counsel, and Civilian Defense Counsel, 68 Fed. Reg. 39,389 (July 1, 2003) (to be codified at 32 C.F.R. pt. 13). 37 See U.S. Dep’t of Defense, Qualification of Civilian Defense Counsel, 68 Fed. Reg. 39,391 (July 1, 2003) (to be codified at 32 C.F.R. pt. 14). On the difficulties of obtaining applicants, see Neil A. Lewis, Rules Set Up for Terror Tribunals May Deter Some Defense 31
P1: IWV 0521750717c09
CB951-Murphy
0 521 75071 7
August 6, 2005
15:6
International Criminal Law
275
Military Commission Instruction No. 6 specifies the reporting obligations of military commission personnel to members of the Department of Defense.38 Military Commission Instruction No. 7 notes that the 2002 Department of Defense military order permits wide latitude in sentencing, and states: The sentence determination should be made while bearing in mind that there are several principal reasons for a sentence given to those who violate the law. Such reasons include: punishment of the wrongdoer; protection of society from the wrongdoer; deterrence of the wrongdoer and those who know of his crimes and sentence from committing the same or similar offenses; and rehabilitation of the wrongdoer. In determining an appropriate sentence, the weight to be accorded any or all of these reasons rests solely within the discretion of commission members. All sentences should, however, be grounded in a recognition that military commissions are a function of the President’s war-fighting role as Commander-in-Chief of the Armed Forces of the United States and of the broad deterrent impact associated with a sentence’s effect on adherence to the laws and customs of war in general.39 The final instruction, Military Commission Instruction No. 8, addresses various administrative procedures, including appointment and removal of commission members, certification of interlocutory questions, implied duties of the presiding officer, and advance disclosures by prosecution and defense counsel to one another regarding evidence to be presented.40 With respect to such advance disclosures, the instruction provides, in particular, that “[t]he Prosecution shall provide the Defense with access to evidence known to the Prosecution that tends to exculpate the Accused as soon as practicable, and in no instance later than one week prior to the scheduled convening of a military commission.”41 By May 2003, the Department of Defense reportedly had prepared a list of persons who are allegedly associated with the terrorist organization Al Qaeda and who, the department believed, should be tried before the military commissions.42 In July 2003, the Department of Defense announced that President Bush had determined that six detainees held at Guant´anamo Bay were subject to his military order of November 2001.43 Nine more detainees were added to the list in July 2004.44 On February 24, 2004, the Department of Defense announced the first two detainees to be charged with crimes before the military commissions: Ali Hamza Ahmad Sulayman Al Bahlul and Ibrahim Ahmed Mahmoud Al Qosi.45 Both Al Bahlul46 and Al Qosi47 were charged with willfully and knowingly conspiring with Al Qaeda to “commit the following offenses triable by military commission: attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; destruction of property by an unprivileged belligerent; and terrorism, said conduct being in the context of and Lawyers, N.Y. Times, July 13, 2003, at 1; Katharine Q. Seelye, Staffing Defense at Guant´anamo, N.Y. Times, May 23, 2003, at A16 (quoting officials of the National Association of Criminal Defense Lawyers to the effect that the rules for the commissions were so adverse to the defense that it “would be unethical for any attorney to agree to the conditions they’ve set”). 38 See U.S. Dep’t of Defense, Reporting Relationships for Military Commission Personnel, 68 Fed. Reg. 39,394 (July 1, 2003) (to be codified at 32 C.F.R. pt. 15). 39 See U.S. Dep’t of Defense, Sentencing, 68 Fed. Reg. 39,395, 39,396 (July 1, 2003) (to be codified at 32 CFR §16.3(a)). 40 See U.S. Dep’t of Defense, Administrative Procedures, 68 Fed. Reg. 39,396 (July 1, 2003) (to be codified at 32 C.F.R. pt. 17). 41 Id. at 39,398 (to be codified at 32 C.F.R. §17.6(b)). 42 See John Mintz, List Created of Captives to Be Tried by Military Tribunals, Wash. Post, May 3, 2003, at A17. 43 See U.S. Dep’t of Defense Press Release on President Determines Enemy Combatants Subject to His Military Order (July 3, 2003). 44 See U.S. Dep’t of Defense Press Release on Presidential Military Order Applied to Nine More Combatants (July 7, 2004). 45 See U.S. Dep’t of Defense Press Release on Two Guantanamo Detainees Charged, No. 122-04 (Feb. 24, 2004). 46 The U.S. government charged that, in furtherance of a conspiracy, Al Bahlul voluntarily traveled from Yemen to Afghanistan with the express intent of supporting Osama bin Laden’s cause and participated in military training in Afghanistan. Thereafter, Al Bahlul allegedly was assigned to work in the Al Qaeda media office and created several instructional and motivational videotapes on behalf of Al Qaeda (including a video glorifying the attack on the USS Cole) to inspire its members and others to continue violent attacks against property and nationals (both military and civilian) of the United States and other countries. Al Bahlul allegedly was tasked to handle media relations relating to the September 11 attacks, and served before and after September 11 as a bodyguard to bin Laden. Charge Sheet at para. 15, United States v. Al Bahlul (U.S. Mil. Comm’n n.d.), at . 47 The U.S. government charged that Al Qosi became a member of Al Qaeda in 1989 while in Sudan, where he passed information among, and provided logistical support to, Al Qaeda cells operating there. After traveling to Afghanistan, Al Qosi allegedly underwent Al Qaeda military training and then became a key Al Qaeda financial officer. Among other things, he smuggled weapons and signed checks on behalf of bin Laden. From 1996 until his capture, Al Qosi allegedly served as one of bin Laden’s bodyguards and drivers. Charge Sheet at para. 19, United States v. Al Qosi (U.S. Mil. Comm’n n.d.), at .
P1: IWV 0521750717c09
CB951-Murphy
276
0 521 75071 7
August 6, 2005
15:6
United States Practice in International Law 2002–2004
associated with armed conflict.”48 Similar charges were later brought against two more detainees: an Australian, David Hicks; and a Yemeni, Salim Ahmed Hamdan. By the fall of 2004, all four military commissions relating to the four charged detainees had been convened and were in various stages of their proceedings. After military counsel was appointed for Hamdan in December 2003, the counsel filed a demand for charges and speedy trial under Article 10 of the Uniform Code of Military Justice (UCMJ). On February 23, 2004, the legal advisor to the Appointing Authority ruled that the UCMJ did not apply to Hamdan’s detention. On April 6, Hamdan’s counsel filed a petition for mandamus (because he had been charged before a military commission) or habeas corpus before a federal district court in the state of Washington. On July 9, Hamdan was formally charged with conspiracy to commit several offenses: attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; destruction of property by an unprivileged belligerent; and terrorism.”49 Following the Supreme Court’s decision in Rasul v. Bush and the Ninth Circuit’s decision in Gherebi that such cases should be transferred to the District of Columbia (discussed above this chapter), Hamdan’s case was transferred to the D.C. federal district court. On November 8, 2004, that court reached several findings adverse to the position of the U.S. government with respect to trials by military commission. The district court held50 that: (1) the court was not required to abstain from claims that Hamdan was not subject to trial by military commission and that he was entitled to protections of Third Geneva Convention as a prisoner of war (POW); (2) Hamdan could be tried for war crimes with which he was charged only by a court-martial duly convened under the UCMJ, unless a competent tribunal determined that Hamdan was not entitled to POW status; (3) the Third Geneva Convention was a self-executing treaty; (4) a military commission set up to try and possibly punish an enemy combatant accused of a crime, that was configured in advance to permit introduction of evidence and testimony of witnesses out of the presence of the accused, was substantively different from, and fatally “contrary to or inconsistent with,” the statutory requirements for a court-martial regularly convened under UCMJ; and (5) the trial of Hamdan before a military commission would have been unlawful, unless the commission’s rule that permitted exclusion of Hamdan from commission sessions, and withholding of evidence from him, was amended so that it was consistent with, and not contrary to, the UCMJ. At the same time, the court found that: (1) abstention by the court was appropriate on the question of whether common Article 3 of Geneva Conventions would have been violated by trying Hamdan for his alleged war crimes before a military commission; (2) giving the president the final review of a finding of guilt by a military commission was not contrary to or inconsistent with the UCMJ; and (3) Hamdan’s right to speedy trial could not be evaluated prior to the reaching of a verdict. In light of the decision, the Department of Defense stopped all commission proceedings at Guant´anamo Bay.51 On November 22, Hamdan’s attorneys filed a motion with the U.S. Supreme Court for immediate review of the district court’s decision, arguing that waiting for the U.S. government to appeal the case would prolong the detainee’s captivity and leave the military commission process in limbo. On December 6, 2004, the Supreme Court denied the motion.52 As of the end of 2004, the district court’s decision was on appeal at the D.C. Circuit Court of Appeals.
Law of War: Permissible Means for Interrogating Detainees Background The 1949 Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), to which the United States is a party, provides that prisoners of war “must at all times be 48
See Charge Sheet at para. 14, United States v. Al Bahlul (U.S. Mil. Comm’n n.d.), supra note 46. See U.S. Dep’t of Defense Press Release on Military Commission List of Charges for Salim Ahmed Hamdan (July 9, 2004), at . 50 Hamdan v. Rumsfeld, 344 F.Supp.2d 152 (D.D.C. 2004). 51 See Carol D. Leonnig & John Mintz, Judge Says Detainees’ Trials Are Unlawful, Wash. Post, Nov. 9, 2004, at A1. 52 Hamdan v. Rumsfeld, 125 S.Ct. 680 (2004). 49
P1: IWV 0521750717c09
CB951-Murphy
0 521 75071 7
August 6, 2005
15:6
International Criminal Law
277
humanely treated” and that “[n]o physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.”1 The U.S. War Crimes Act provides that it is a criminal offense to commit acts that violate the provisions of any of several treaties governing the laws of war.2 The Convention Against Torture, to which the United States is also a party, prohibits governments from engaging in acts of torture, which are defined as any act – when done by a person acting in an official capacity – by which “severe pain or suffering, whether physical or mental,” is intentionally inflicted on a person for such purposes as obtaining information from him. The Convention also prohibits cruel, inhuman, and degrading treatment or punishment.3 In 1994 the United States enacted a statute criminalizing the commission of torture by a U.S. national outside the United States.4 During 2002–2004, the U.S. executive branch engaged in an extensive internal struggle over the permissible means for interrogating persons allegedly associated with the terrorist organization Al Qaeda who were captured or detained during the U.S. intervention in Afghanistan which began in late 2001, or elsewhere. As discussed below, the Department of Justice Office of Legal Counsel (OLC) issued a memorandum in August 2002 that set the tone thereafter for interrogation techniques developed with respect to the “unlawful combatants” detained in Afghanistan and at Guant´anamo Bay. In reports issued in the summer of 2004, following investigations initiated by the U.S. government, it was concluded that the harsher practices used for interrogating such “unlawful combatants” had “migrated” to U.S. military operations in Iraq after the March 2003 intervention there (discussed infra Chapter X), resulting in wrongful treatment of Iraqi detainees even though they were protected under the 1949 Geneva Conventions. A brief summary of the U.S. government’s memoranda and reports on this issue, with particular attention to the legal analyses contained therein, appears below.5 Lack of Miranda Rights for Detainees As enemy combatants in Afghanistan first came into custody, an initial issue arose as to whether interrogation of them could prejudice the ability to prosecute the detainees at some later point before a military commission. On February 26, 2002, the U.S. Department of Justice Office of the Legal Counsel (OLC) provided a memorandum to the U.S. Department of Defense focused on the U.S. constitutional protection against self-incrimination, especially in light of the Supreme Court’s decision in Miranda v. Arizona.1 The memorandum advised that Miranda did not apply in the context of a trial by military commission for violations of the laws of war; thus, statements obtained from detainees without Miranda warnings would be admissible before military commissions.2 Moreover,
1 Geneva Convention [III] Relative to the Treatment of Prisoners of War, Aug. 12, 1949, Arts. 13, 17, 6 UST 3316, 3328, 75 UNTS 135, 150. The Convention entered into force in October 1950. Similarly, the Fourth Geneva Convention provides that civilians detained by an occupying power
are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. Geneva Convention [IV] Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Art. 27, 6 UST 3516, 3536, 75 UNTS 287, 306; see also id., Art. 31, 6 UST at 3538, 75 UNTS at 308 (“No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.”). Further, torture and inhumane treatment of prisoners of war or protected civilians are considered war crimes under the 1949 Geneva Conventions. 2 18 U.S.C. §2441 (2000). 3 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, pmbl., Art. 1, 1465 UNTS 85, reprinted in 23 ILM 1027. 4 18 U.S.C. §2340A (2000). 5 Many of the memoranda and materials relating to them are available on the Internet site of George Washington University’s National Security Archive, . Further, they may also be found in certain compendiums. See The Torture Papers: The Road to Abu Ghraib (Karen Greenberg & Joshua Dratel eds., 2004). 1 384 U.S. 436 (1966). In Miranda, the Supreme Court decided that the Fifth Amendment of the U.S. Constitution (which provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself”) required that persons taken into custody be given certain warnings and be informed of their right to counsel. 2 Memorandum from Assistant Attorney General Jay S. Bybee to Dep’t of Defense General Counsel William J. Haynes II, at 4–6 (Feb. 26, 2002).
P1: IWV 0521750717c09
CB951-Murphy
278
0 521 75071 7
August 6, 2005
15:6
United States Practice in International Law 2002–2004
such statements would likely be admissible in U.S. federal courts since the rationale of Miranda was to deter undesirable practices of law enforcement personnel. When interrogations occur for purposes of obtaining information for military operations and for intelligence purposes (and not for law enforcement purposes or for a war crimes investigation), Miranda’s deterrent rationale would not apply, with the implication that the case’s holding should not extend to cover information gained from such interrogations.3 If the motive for the interrogation is mixed (for example, if used for both intelligence gathering and law enforcement purposes), then the memorandum advised that the result may be fact dependent, but that, on balance, Miranda should not apply.4 The memorandum also asserted that detained persons were not constitutionally entitled to access to counsel until such time as a criminal prosecution is commenced.5 Justice Department 2002 Opinion on What Constitutes Torture When the Al Qaeda operations chief, Abu Zubaida, was captured by the United States in early 2002, he reportedly refused to divulge significant information to U.S. Central Intelligence Agency (CIA) interrogators. Consequently, the CIA reportedly wished to use more coercive interrogation techniques, but was concerned with potentially committing violations of international or U.S. law. Consequently, the CIA sought legal advice within the U.S. government on how much pain and suffering a U.S. intelligence officer could inflict on a prisoner without violating the law.1 In August 2002, the Department of Justice Office of the Legal Counsel (OLC) provided both a summary of its views in a letter2 and a detailed explanation in a fifty-page memorandum.3 OLC advised the White House that, in the context of interrogations conducted outside the United States against enemy combatants, the Convention Against Torture “prohibits only the most extreme forms of physical or mental harm.”4 Further, it reserves criminal penalties for “torture” alone, and not for “cruel, inhumane, or degrading treatment or punishment.”5 According to the memorandum, the U.S. statute enacted to implement the Convention6 criminalizes an act only when the defendant, under color of law, specifically intended to, and in fact did, cause severe physical or mental pain or suffering.7 Moreover, physical pain amounting to “torture” under the statute is not the mere infliction of pain and suffering. Rather, the “victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result.”8 The memorandum reviewed various international decisions, including those of the European Court of Human Rights, regarding the use of sensory deprivation techniques and concluded that such techniques do not constitute torture.9 More broadly, OLC concluded that if persons could be prosecuted under the U.S. statute for interrogating detainees pursuant to the president’s power as commander-in-chief, it would unconstitutionally infringe on the president’s authority to conduct war.10 Any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President. There can be little doubt that intelligence operations, such as the detention and interrogation of enemy 3
Id. at 6–23. Id. at 23–25. Id. at 27. 1 See R. Jeffrey Smith & Dan Eggen, Gonzales Helped Set Course for Detainees, Wash. Post, Jan. 5, 2005, at A1. 2 Letter from Deputy Assistant Attorney General John C. Yoo to White House Counsel Alberto R. Gonzales (Aug. 1, 2002). 3 Memorandum from Assistant Attorney General Jay S. Bybee to White House Counsel Alberto R. Gonzales Regarding Standards of Conduct for Interrogation Under 18 U.S.C. §§2340–2340A (Aug. 1, 2002) [hereinafter Bybee Memorandum (Aug. 1, 2002)]. 4 Id. at 16. 5 Id. at 14–22. 6 18 U.S.C. §§2340–2340A (2000). 7 Bybee Memorandum (Aug. 1, 2002), supra note 3, at 2–13. 8 Id. at 13. 9 Id. at 27–31. 10 Id. at 31–39. 4 5
P1: IWV 0521750717c09
CB951-Murphy
0 521 75071 7
August 6, 2005
15:6
International Criminal Law
279
combatants and leaders, are both necessary and proper for the effective conduct of a military campaign. Indeed, such operations may be of more importance in a war with an international terrorist organization than one with the conventional armed forces of a nation-state, due to the former’s emphasis on secret operations and surprise attacks against civilians. . . . Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield.11 Moreover, even if an interrogator was prosecuted, OLC found that certain defenses to a charge of torture would be available – based on necessity or on self-defense, defense of others, or defense of the nation as a whole.12 If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate Section 2340A, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that his actions were justified by the executive branch’s constitutional authority to protect the nation from attack.13 DOD-Approved Interrogation Techniques at Guant´anamo Bay According to the U.S. Department of Defense (DOD), interrogations of Al Qaeda and Taliban detainees from January to December 2002 were undertaken in accordance with the “doctrine” set forth in Army Field Manual [FM] 34–52.1 That manual sets forth seventeen interrogation techniques, such as direct questioning of detainees and the use of incentives for them to provide information.2 On October 11, 2002, the commander of the joint task force at Guant´anamo Bay, Cuba – where hundreds of detainees were being held – asked the commander of U.S. Southern Command for permission to use new interrogation techniques that would result in more exploitable intelligence.3 According to an independent panel convened by the secretary of defense in 2004, the request was a reaction “to tenacious resistance by some detainees to existing interrogation methods, which were essentially limited to those in Army Field Manual 34-52.”4 The memorandum requested that three categories of interrogation techniques be approved. Techniques in the first category would include yelling at the detainee, deceiving the detainee, and having the interrogator identify himself as from a country with a reputation for harsh treatment of detainees. Techniques in the second category would include the use of stress positions for a period of four hours; solitary confinement for up to thirty days; deprivation of light and auditory stimuli; interrogations lasting twenty-four hours; removal of clothing (that is, nudity); and “[u]sing detainees individual phobias (such as fear of dogs) to induce stress.”5 The third category included four techniques: making the detainee believe death or severe pain was imminent for him or his family; exposure to cold weather or water; use of a “wet towel and dripping water to induce the misperception of suffocation”; and “mild non-injurious physical contact, such as grabbing, poking in the chest with the finger, and light pushing.”6 Accompanying 11
Id. at 39. Id. at 39–46. Id. at 46. 1 See U.S. Dep’t of Defense News Release on DOD Provides Details on Interrogation Process (June 22, 2004), at . 2 U.S. Dep’t of the Army, Intelligence Interrogation, ch. 3 (Field Manual 34-52, Sept. 28, 1992). The manual has been periodically revised; unlike the current version, the prior version authorized interrogators to control the lighting, heating, food, clothing, and shelter given to detainees, albeit “within the limits of the Geneva and Hague Conventions, as well as the standards of conduct outlined in the [Uniform Code of Military Justice].” See U.S. Dep’t of the Army, Intelligence Interrogation, ch. 3 (Field Manual 34-52, May 8, 1987). 3 Memorandum from Major General Michael Dunlavey to Commander of U.S. Southern Command (Oct. 11, 2002) [hereinafter Dunlavey Memorandum]. 4 Final Report of the Independent Panel to Review DoD Detention Operations 35 (Aug. 24, 2004), at [hereinafter Schlesinger Report]. 5 Dunlavey Memorandum, supra note 3, enclosure 1, at 1–2 (the requested interrogation techniques were described in an enclosed memorandum, also dated October 11, from Lieutenant Colonel Jerald Phifer to General Dunlavey). 6 Id. at 2–3. 12 13
P1: IWV 0521750717c09
CB951-Murphy
280
0 521 75071 7
August 6, 2005
15:6
United States Practice in International Law 2002–2004
the memorandum was the legal analysis by the lawyer for the joint task force, whose conclusion was that the enhanced interrogation techniques would not violate applicable U.S. or international law.7 The commander of the U.S. Southern Command transmitted the request to the chairman of the Joint Chiefs of Staff, stating that “despite our best efforts, some detainees have tenaciously resisted our current interrogation methods.”8 Although the commander stated that he thought the first two categories of techniques were “legal and humane,”9 he also noted: I am uncertain whether all the techniques in the third category are legal under US law, given the absence of judicial interpretation of the US torture statute. I am particularly troubled by the use of implied or expressed threats of death of the detainee or his family. However, I desire to have as many options as possible at my disposal and therefore request that Department of Defense and Department of Justice lawyers review the third category of techniques.10 On December 2, 2002, Secretary of Defense Rumsfeld authorized the use of the techniques in the first and second categories, and also the fourth technique (mild, non-injurious physical contact) in the third category.11 As a result of a concern expressed by the Department of the Navy General Counsel Alberto J. Mora, Secretary Rumsfeld rescinded on January 15, 2003, his December 2002 authorization of the interrogation techniques in the second and third categories for use at Guant´anamo Bay, but noted that such techniques might be approved if “warranted in an individual case.”12 In January 2003, Secretary Rumsfeld directed that a working group of lawyers within the U.S. Department of Defense be formed to report to him more broadly regarding legal constraints on the interrogation of persons detained by the United States in the “war on terrorism” – including those held at Guant´anamo Bay.13 In the process of gathering information, that working group was provided a list of interrogation techniques in use in Afghanistan by special operations forces; it included “some not explicitly set out in FM 34-52.”14 Completed on April 4, 2003, and relying heavily on the August 2002 memorandum by the U.S. Department of Justice, the Department of Defense working group report15 concluded that the Convention Against Torture applied to the interrogation of the detainees but noted that, when the Convention was ratified, the “U.S. Government believed existing state and federal criminal law was adequate to fulfill this obligation [not to torture], and did not enact implementing legislation.”16 Further, the working group report indicated that the United States had filed an express reservation that it considered itself bound to the prohibition on cruel, inhuman, and degrading treatment or punishment only to the extent that such treatment or punishment is prohibited by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution.17 In short, the Convention did not impose any greater requirements than already existed under U.S. law. As for the application of U.S. statutes to the interrogation of the detainees, the report found that the 1994 statute did not apply to interrogations 7 Memorandum from Staff Judge Advocate Diane E. Beaver, Commander of Joint Task Force 170, Guantanamo Bay, Cuba, on Legal Review of Aggressive Interrogation Techniques (Oct. 11, 2002); Memorandum from Staff Judge Advocate Diane E. Beaver, Commander of Joint Task Force 170, Guantanamo Bay, Cuba, on Legal Brief on Proposed Counter-resistance Strategies (Oct. 11, 2002). 8 Memorandum from General James T. Hill, Commander of U.S. Southern Command, to Chairman of the Joint Chiefs of Staff (Oct. 25, 2002). 9 Id. 10 Id. 11 Memorandum from Dep’t of Defense General Counsel William J. Haynes II to Secretary of Defense (Nov. 27, 2002) (indicating the secretary’s subsequent approval on December 2). 12 Memorandum from Secretary of Defense Donald H. Rumsfeld to Commander of U.S. Southern Command (Jan. 15, 2003). 13 Memorandum from Secretary of Defense Donald H. Rumsfeld to Dep’t of Defense General Counsel William J. Haynes II (Jan. 15, 2003). The Department of Defense general counsel appointed the general counsel of the Air Force to head the working group. See Memorandum from Dep’t of Defense General Counsel William J. Haynes II to Dep’t of the Air Force General Counsel (Jan. 17, 2003). 14 Schlesinger Report, supra note 4, at 36. These techniques were apparently contained in a February 2003 document on “standard operating procedures” for special operations forces. Military intelligence personnel involved in such interrogations in Afghanistan (a company of the 519th Military Intelligence Battalion) were later deployed to Iraq. Id. 15 See Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations (Apr. 4, 2003). 16 Id. at 5. 17 Id. at 6.
P1: IWV 0521750717c09
CB951-Murphy
0 521 75071 7
August 6, 2005
15:6
International Criminal Law
281
at Guant´anamo Bay, because the U.S. naval station there was within the definition of “the special maritime and territorial jurisdiction (SMTJ) of the United States” and thus was outside the scope of the statute.18 In any event, the report asserted that since “the President enjoys complete discretion in the exercise of his Commander-in-Chief authority including in conducting operations against hostile forces,” any relevant U.S. criminal statutes “must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority.”19 In considering the possibility of prosecutions of U.S. personnel for interrogations, the report argued that the 1994 statute is violated only if the defendant’s precise objective is to inflict severe pain; by contrast, “[i]f the defendant acted knowing that severe pain or suffering was reasonably likely to result from his actions, but no more, he would have acted only with general intent.”20 Further, “the defense of superior orders will generally be available for U.S. Armed Forces personnel engaged in exceptional interrogations except where the conduct goes so far as to be patently unlawful.”21 The report recommended thirty-five interrogation techniques, including use of nudity, threatening dogs, and sleep deprivation. In light of this legal analysis, Secretary Rumsfeld, on April 16, 2003, approved twenty-four interrogation techniques (out of the thirty-five examined by the working group) for use at Guant´anamo Bay, including “[s]ignificantly increasing the fear level in a detainee” and “[a]ttacking or insulting the ego of a detainee, not beyond the limits that would apply to a POW.”22 The memorandum did not expressly authorize use of physical contact, nor the use of dogs, stress positions, or nudity.23 The independent panel appointed by the secretary of defense in August 2004 found that such additional techniques were used on two Guant´anamo detainees, enabling interrogators to “gain[] important and time-urgent information in the process.”24 According to an internal Army report also issued in August 2004, however, the techniques used at Guant´anamo Bay were wide-ranging, and “included the use of stress positions, isolation for up to thirty days, removal of clothing, and the use of detainees’ phobias (such as the use of dogs).”25 More graphic descriptions of such tactics appeared in anonymous interviews with the press26 and in internal reports by agents of the Federal Bureau of Investigation (FBI) and other officials who witnessed the treatment.27 In November 2004, the New York Times reported that, in a confidential memorandum to the U.S. government in July, the International Committee of the Red Cross (ICRC) – which had completed a month-long visit at Guant´anamo – found that the U.S. military had intentionally used psychological and sometimes physical coercion “tantamount to torture” on the Guant´anamo detainees. Among other
18
Id. at 7–8. Id. at 20–21. Id. at 8–9. 21 Id. at 33. 22 Memorandum from Secretary of Defense Donald H. Rumsfeld to Commander of US Southern Command, on Counter-resistance Techniques in the War on Terrorism, Tab A, at 1–2 (Apr. 16, 2003). 23 After its investigation and analysis of the memoranda of the Department of Justice OLC in August 2002 and of the Department of Defense working group of lawyers convened in early 2003, the independent panel appointed by the secretary of defense also concluded: 19 20
In the initial development of these Secretary of Defense policies, the legal resources of the Services’ Judge Advocates General and General Counsels were not utilized to their full potential. Had the Secretary of Defense had a wider range of legal opinions and more robust debate regarding detainee policies and operations, his policy of April 16, 2003 might well have been developed and issued in early December 2002. This would have avoided the policy changes which characterized the Dec 02, 2002 to April 16, 2003 period. Schlesinger Report, supra note 4, at 8; see id. at 36 (same quote except “would” replaced by “could”). 24 Id., at 36. According to a one-page summary that the White House released to reporters in June 2004, some of those additional techniques, such as physical contact, were not used. White House Press Release on GTMO Interrogation Techniques (June 22, 2004), at . 25 Major General Fay, Investigating Officer, AR 15-6 Investigation of the Abu Ghraib Prison and 205th Military Intelligence Brigade, at 29 (Aug. 25, 2004), at . 26 See, e.g., Neil A. Lewis, Broad use of Harsh Tactics is Described at Cuba Base, N.Y. Times, Oct. 17, 2004, at 1 (“One regular procedure that was described by people who worked at Camp Delta, the main prison facility at the naval base in Cuba, was making uncooperative prisoners strip to their underwear, having them sit in a chair while shackled hand and foot to a bolt in the floor, and forcing them to endure strobe lights and screamingly loud rock and rap music played through two close loudspeakers while the air-conditioning was turned up to maximum levels, said one military official who witnessed the procedure.”). 27 Many such documents were released in late 2004 due to a Freedom of Information Act request pursued by the American Civil Liberties Union. For links to the documents, see ; see also Dan Eggen & R. Jeffrey Smith, FBI Agents Allege Abuse of Detainees at Guantanamo Bay, Wash. Post, Dec. 21, 2004, at A1.
P1: IWV 0521750717c09
CB951-Murphy
282
0 521 75071 7
August 6, 2005
15:6
United States Practice in International Law 2002–2004
things, the report claimed that some doctors and other medical workers at Guant´anamo participated in planning for interrogations, which the ICRC regarded as a “flagrant violation of medical ethics.”28 “Migration” of Guant´anamo Bay Techniques to Iraq After the U.S.-led invasion of Iraq in March 2003, U.S. military forces established and operated a series of detention facilities there. By the summer of 2003, the operational order from the U.S. Central Command concerning interrogation of detainees in Iraq provided that standard Army Field Manual [FM] 34-521 procedures would be used,2 and the U.S. government’s official position remained that Iraqi detainees were entitled to the protections of the 1949 Geneva Conventions.3 However, an independent panel appointed by the secretary of defense determined in August 2004 that the procedures actually used on the ground in Iraq became a combination of FM 34-52 and additional interrogation techniques that had “migrated” from earlier use at Guant´anamo Bay and by special operations forces in Afghanistan, even though some of those techniques were no longer authorized for Guant´anamo Bay. Moreover, such techniques were formally authorized in September 2003 by the U.S. military commander in Iraq. The panel’s report stated: Interrogators and lists of techniques circulated from Guantanamo and Afghanistan to Iraq. During July and August 2003, a Company of the 519th [Military Intelligence] Battalion was sent to the Abu Ghraib detention facility to conduct interrogation operations. Absent guidance other than FM 34-52, the officer in charge prepared draft interrogation guidelines that were a near copy of the Standard Operation Procedure created by [special operations forces]. It is important to note that techniques effective under carefully controlled conditions at Guantanomo became far more problematic when they migrated and were not adequately safeguarded. In August 2003, [Major General] Geoffrey Miller [who had served in Guant´anamo] arrived to conduct an assessment of [Department of Defense] counterterrorism interrogation and detention operations in Iraq. He was to discuss current theater ability to exploit internees rapidly for actionable intelligence. He brought to Iraq the Secretary of Defense’s April 16, 2003 policy guidelines for Guantanamo – which he reportedly gave to [military authorities in Iraq] as a potential model – recommending a command-wide policy be established. He noted, however, the Geneva Conventions did apply to Iraq. In addition to these various printed sources, there was also a store of common lore and practice within the interrogator community circulating through Guantanamo, Afghanistan and elsewhere. At the operational level, in the absence of more specific guidance from [the U.S. Central Command (CENTCOM)], interrogators in Iraq relied on FM 34-52 and on unauthorized techniques that had migrated from Afghanistan. On September 14, 2003, [the U.S. military commander in Iraq] signed the theater’s first policy on interrogation which contained elements of the approved Guantanamo policy and elements of the [special operations forces] policy.4 Policies approved for 28 See Neil A. Lewis, Red Cross Finds Detainee Abuse in Guant´anamo, N.Y. Times, Nov. 30, 2004, at A1; see also Josh White & John Mintz, Red Cross Cites “Inhumane” Treatment at Guantanamo, Wash. Post, Dec. 1, 2004, at A10. 1 See U.S. Dep’t of Defense News Release on DOD Provides Details on Interrogation Process (June 22, 2004), at . 2 See Final Report of the Independent Panel to Review DoD Detention Operations 36 (Aug. 24, 2004), at [hereinafter Schlesinger Report]. 3 See, e.g., U.S. Dep’t of Defense News Transcript on Secretary Rumsfeld Media Availability Enroute to Baghdad (May 13, 2004), at (“the United States government announced with respect to Iraq that the Geneva Conventions apply. [Conventions] III and IV apply for the Iraqi prisoners of war and apply to the civilian non-military detainees. That has been the case from the beginning.”). 4 [Author’s Note: The report notes that the September 14 memorandum by the U.S. commander in Iraq authorized “a dozen interrogation techniques beyond Field Manual 34-52” and “five beyond those approved for Guantanamo.” Moreover, in issuing this authorization, the commander (Lieutenant General Ricardo S. Sanchez), “using reasoning from the President’s Memorandum of February 7, 2002 which addressed ‘unlawful combatants,’ believed additional, tougher measures were warranted because there were ‘unlawful combatants’ mixed in with Enemy Prisoners of War and civilian and criminal detainees.” Schlesinger Report, supra note 2, at 9–10.
P1: IWV 0521750717c09
CB951-Murphy
0 521 75071 7
August 6, 2005
15:6
International Criminal Law
283
use on al Qaeda and Taliban detainees who were not afforded the protection of [enemy prisonerof-war] status under the Geneva Conventions now applied to detainees who did fall under the Geneva Convention protections. CENTCOM disapproved the September 14, 2003 policy resulting in another policy signed on October 12, 2003 which essentially mirrored the outdated 1987 version of FM 34-52. The 1987 version, however, authorized interrogators to control all aspects of the interrogation, “to include lighting and heating, as well as food, clothing, and shelter given to detainees.” This was specifically left out of the 1992 version, which is currently in use. This clearly led to confusion on what practices were acceptable. We cannot be sure how much the number and severity of abuses would have been curtailed had there been early and consistent guidance from higher levels. Nonetheless, such guidance was needed and likely would have had a limiting effect.5 Similarly, according to an internal U.S. Army report issued in August 2004, certain techniques that Secretary of Defense Rumsfeld initially had authorized for use at Guant´anamo Bay – such as nudity and intimidating detainees with dogs – were brought to Iraq in mid-to-late 2003. For example, the report found: The use of nudity as an interrogation technique or incentive to maintain the cooperation of detainees was not a technique developed at Abu Ghraib, but rather a technique which was imported and can be traced through Afghanistan and [Guant´anamo Bay]. As interrogation operations in Iraq began to take form, it was often the same personnel who had operated and deployed in other theaters and in support of [the global war on terrorism], who were called upon to establish and conduct interrogation operations in Abu Ghraib. The lines of authority and the prior legal opinions blurred. They simply carried forward the use of nudity into the Iraqi theater of operations. The use of clothing as an incentive (nudity) is significant in that it likely contributed to an escalating “dehumanization” of the detainees and set the stage for additional and more severe abuses to occur.6 U.S. military authorities in Iraq kept altering the interrogation policies, such that by October 2003 “interrogation policy in Iraq had changed three times in less than 30 days.”7 U.S. Abuse of Iraqi Detainees at Abu Ghraib Prison The largest of the detention facilities established and operated in Iraq after the U.S.-led invasion in March 2003 was at the Abu Ghraib prison outside Baghdad. The U.S. army unit responsible for running the Abu Ghraib prison was the 800th Military Police Brigade, an army reserve unit based in Uniondale, New York. On October 12, Lt. Gen. Ricardo S. Sanchez – the U.S. commander of the combined joint task force in Iraq – reportedly signed a classified memorandum calling for interrogators at Abu Ghraib to work with military police guards to “manipulate an internee’s emotions
By contrast, an internal U.S. Army report issued in August 2004 states that the “overwhelming evidence in this investigation shows that all ‘detainees’ at Abu Ghraib[, the largest U.S.-run prison facility in Iraq,] were civilian internees” as defined in the Fourth Geneva Convention. See Major General Fay, Investigating Officer, AR 15-6 Investigation of the Abu Ghraib Prison and 205th Military Intelligence Brigade, at 12 (Aug. 25, 2004), at [hereinafter Fay Report].] 5 See Schlesinger Report, supra note 2, at 37-38; Fay Report, supra note 4, at 29; see also Lieutenant General Anthony R. Jones, AR 15–6 Investigation of the Abu Ghraib Prison and 205th Military Intelligence Brigade, at 14–15, 21– 22 (Aug. 25, 2004) (finding that interrogation techniques approved and developed for detainees in Afghanistan and Guant´anamo Bay for persons not protected by the Geneva Conventions were authorized for use in Iraq for persons who were so protected), at . 6 Fay Report, supra note 4, at 10; see Josh White & Scott Higham, Use of Dogs to Scare Prisoners Was Authorized, Wash. Post, June 11, 2004, at A1 (reporting on sworn statements provided to military investigators); Mark Bowden, Lessons of Abu Ghraib, Atlantic Monthly, July/Aug. 2004, at 37, 40 (“There are reports that Administration lawyers quietly drafted a series of secret legal opinions last year that codified the ‘aggressive’ methods of interrogation permitted at U.S. detention facilities – which, if true, effectively authorized in advance the use of coercion.”). 7 Fay Report, supra note 4, at 28.
P1: IWV 0521750717c09
CB951-Murphy
284
0 521 75071 7
August 6, 2005
15:6
United States Practice in International Law 2002–2004
and weaknesses” and to assume control over the “lighting, heating . . . food, clothing, and shelter” of those being questioned.1 From the start of the occupation of Iraq, representatives of the International Committee of the Red Cross (ICRC) were allowed access to Iraqi detainees, which included not just Iraqi prisoners of war but also Iraqi civilians detained on suspicion of terrorist activities and common criminal offenses. The ICRC made such visits from March to November 2003, and during that time regularly submitted observations and recommendations to the coalition forces regarding the treatment of such detainees. In response to ICRC concerns, Brig. Gen. Janis L. Karpinski (U.S.A. Res.), commander of the 800th Military Police Brigade, in late November reportedly wrote to the ICRC that “military necessity” required the isolation of prisoners of “significant intelligence value” and that they were not entitled to “obtain full [Geneva Convention] protection.”2 In February 2004, the ICRC submitted in confidence a twenty-four-page written report to the United States.3 Among other things, the report concluded that abuse of Iraqi detainees by U.S. military intelligence personnel as part of the interrogation process was widespread, harsh, and brutal, and, in some cases, “might amount to torture.”4 Such reports of abuse of the Iraqi detainees, as well as reports of escapes and lapses in accountability of U.S. personnel, prompted General Sanchez to request that the U.S. Central Command appoint an officer to investigate the conduct of the 800th Military Police Brigade, principally at Abu Ghraib prison. Major General Antonio Taguba was so appointed on January 31. Over the course of a month, General Taguba headed a team that reviewed reports of prior military investigations, reviewed numerous photos and videos taken by U.S. personnel at Abu Ghraib prison, and analyzed approximately fifty witness statements by military police and military intelligence personnel, potential suspects, and detainees. Moreover, the Taguba investigation conducted its own interviews and collected additional evidence.5 In late February, General Taguba issued his report, in which he found [t]hat between October and December 2003, at the Abu Ghraib Confinement Facility (BCCF), numerous incidents of sadistic, blatant, and wanton criminal abuses were inflicted on several detainees. This systemic and illegal abuse of detainees was intentionally perpetrated by several members of the military police guard force . . . of the Abu Ghraib Prison (BCCF). The allegations of abuse were substantiated by detailed witness statements . . . and the discovery of extremely graphic photographic evidence.6 General Taguba determined that the intentional abuse of detainees by military police personnel included the following acts: (1) “Punching, slapping, and kicking detainees[, and] jumping on their naked feet”; (2) “Videotaping and photographing naked male and female detainees”; (3) “Forcibly arranging detainees in various sexually explicit positions for photographing”; (4) “Forcing detainees to remove their clothing and keeping them naked for several days at a time”; (5) “Forcing naked 1 R. Jeffrey Smith, Memo Gave Intelligence Bigger Role: Increased Pressure Sought on Prisoners, Wash. Post, May 21, 2004, at A17 (quoting the memorandum of Oct. 12, 2003). 2 Douglas Jehl & Neil A. Lewis, U.S. Military Disputed Protected Status of Prisoners Held in Iraq, N.Y. Times, May 23, 2004, §1, at 12 (quoting Brig. Gen. Karpinski). 3 See Report of the International Committee of the Red Cross (ICRC) on the Treatment by Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Conventions in Iraq During Arrest, Internment and Interrogation (Feb. 2004), at [hereinafter ICRC Report on Iraq Detainees]. The ICRC Report on Iraq Detainees was not made public but was leaked to the Wall Street Journal, which posted the report on its Internet site. See David S. Cloud et al., Red Cross Found Widespread Abuse of Iraqi Prisoners, Wall. St. J., May 7, 2004, at A1; see also IRCR Press Release on Iraq: ICRC Explains Position over Detention Report and Treatment of Prisoners (May 8, 2004), at . 4 ICRC Report on Iraq Detainees, supra note 3, at para. 24. 5 Article 15-6 Investigation of the 800th Military Police Brigade (n.d.) [hereinafter Taguba Report]. The report was not meant for public release, but – even though portions of it were classified – it was leaked and became widely available by May 2004 on the Internet. See, e.g.,