Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law December 22 , 2006
In this case the United States Supreme Court examined whether conduct that is a felony under state law but a misdemeanor under the Federal Controlled Substances Act is a felony "punishable under the "Controlled Substances Act" 18 U.S.C. 924(c)(2) for the purposes of immigation law. In an opinion delivered by Justice Souter, the Court ruled that it is not.
The Immigration and Nationality Act (INA) defines "aggravated felony" to include a "drug trafficking crime," which it includes at 18 U.S.C. 924(c) as "any felony punishable under the Controlled Substances Act." Section 101(a)43 of the INA indicates that "aggravated felony" applies to offenses in violation of Federal or state law, or, in some circumstances, the "law of a foreign country."
Jose Antonio Lopez entered the U.S. illegally in 1986, but became a legal permanent resident in 1990. Seven years later he was arrested in South Dakota for violating state laws, and he pled guilty to aiding and abetting possession of cocaine, and was sentenced to five years in jail, but was released after 15 months for good conduct. Upon his release, the Immigration and Naturalization Service (INS) instigated removal proceedings against him because: 1) his state conviction involved a controlled substance; and 2) it was an aggravated felony.
Lopez admitted to the controlled substance violation but contested the aggravated felony decision because it would preclude him from being able to obtain discretionary cancellation of removal. An Immigration Judge ultimately held that because Lopez’s drug crime was a felony under state law, it was an aggravated felony, and the judge ordered that he be removed and both the Bureau of Immigration Appeals and the Court of Appeals affirmed. The United States Supreme Court reversed.
In its ruling, the Court noted that while South Dakota state law makes it a felony to help someone possess cocaine, federal law does not see 21 U.S.C. 844(a). The Government argued for turning simple possession into “trafficking”, and while the Court noted that Congress may define an “aggravated felony” in an unexpected way, Congress would have had to have indicated to courts that this was its intent, while this did not appear to be Congress’s intent here. The Court emphasizes that the Government conceded that it had never initiated a prosecution under 18 U.S.C. 924(c)(1)(A) where the “drug trafficking crime” was a state felony but a federal misdemeanor.
Humanitarian Law Project v. U.S. Depart. Treasury (November 27, 2006)
The plaintiffs consist of five organizations and two U.S. citizens working to support the Partiya Karkeran Kurdistan (Kurdistan Workers’ Party) (“PKK”), a political organization representing the Kurds in Turkey; and the Liberation Tigers of Tamil Eelan (“LTTE”), an organization fostering the self-determination for the Tamil residents of Sri Lanka. The plaintiffs alleged that the Turkish and Sri Lankan governments respectively subjected both groups to human rights abuses and discrimination. The plaintiffs possess four principal goals to: 1) train the PKK and the LTTE in human rights advocacy and peacemaking negotiations; 2) provide humanitarian assistance to the PPK and the LTTE; 3) help reconstruct the damaged infrastructure of the tsunami damaged areas of Sri Lanka; and 4) provide psychiatric counseling for tsunami survivors.
The plaintiffs brought suit challenging Executive Order 13224 that President George Bush signed September 23, 2001, pursuant to the emergency powers vested in him by the International Emergency Economic Powers Act (“IEEPA.”) In the E.O. the President lists twenty-seven organizations and individuals as specially designated global terrorists (SDGTs), including the plaintiff organizations. The IEEPA permits the President to declare a national emergency to handle any “unusual and extraordinary threat” to the national security, foreign policy, or economy of the U.S. with its source, either partial or entire, outside the U.S. After issuing the Executive Order (E.O.), President Bush delegated authority to the Secretary of Treasury to issue regulations to implement it. The Department of Treasury’s Office of Foreign Assets Control (OFAC) issued a series of regulations. The E.O. blocked the property and interests in property of the twenty-seven groups and individuals that it identified as SDGTs.
Plaintiffs contested five elements of the Executive Order and Implementing Regulations. They allege that: 1) the E.O.’s ban on services is unconstitutionally vague because it does not notify the public and plaintiffs of the conduct to which it pertains; 2) the regulations are vague because they fail to define “specially designated terrorist group,” permitting the President to define which persons and entities fall within its ambit; 3) the President’s designation authority in the E.O. is unconstitutionally vague; 4) the E.O.’s ban on being “otherwise associated with” a terrorist group is vague and overbroad because it penalizes persons and entities from exercising their First Amendment right to freedom of association; and 5) the regulations’ licensing provision violates both the First and Fifth Amendments because it lacks substantive and procedural safeguards to ascertain which individuals or groups qualify for a license, and provides authorities with limitless discretion to grant or deny a license. In the alternative, the plaintiffs urged the court to limit the IEEPA to preclude enforcement unless a specific organization or person specifically intended to assist the illegal activities of a SDGT. The defendants moved for summary judgment on the grounds that the plaintiffs lacked standing.
The District Court denied the defendant’s motion to dismiss and found that the plaintiffs have standing both to challenge the President’s authority to designate SDGTs under the E.O. as well as to bring their First Amendment challenge to the “otherwise associated with” provision of the E.O. It granted the plaintiffs’ motion for summary judgment on two grounds: 1) that the President’s authority to designate SDGTs is unconstitutionally vague on its face; and 2) “the otherwise associated with” provision in the E.O. is unconstitutionally vague and overbroad. It denied the plaintiffs’ motion for summary judgment in all other respects.
The court found the President’s authority in the E.O. to designate SDGTs unconstitutionally vague on its face because it provides no rationale why twenty-seven organizations were designated as terrorist groups, and processes are lacking for challenging designations that the President makes, and nothing in the E.O. appears to limit the President’s ability to make additional designations of groups as terrorist organizations.
The E.O. permits the Secretary of the Treasury to name an individual or organization to be a SDGT if he finds someone to be “otherwise associated with” a SDGT. The court found the “otherwise associated with” provision in the E.O. to be unconstitutionally vague and overbroad because it contains no definable criteria for naming persons and organizations SDGTs.
Eritrea-Ethiopia Boundary Commission Statement by the Commission
Pursuant to the Algiers Agreement of December 12, 2000, the Eritrea-Ethiopia Boundary Commission was created to define the border between the nations based upon colonial treaties and international law. Both nations agreed to abide by the Commission’s “delimitation and demarcation determinations” regarding their border.
After hearing oral arguments of the parties, and after reviewing voluminous written pleadings, the Commission issued its Delimitation Decision of April 13, 2002. This decision set forth the principal points of the border, along with coordination points, and both parties indicated their acceptance of it. The Commission at first envisioned having pillars placed to demark the boundary, and it issued demarcation instructions March 21 and 22, 2003. Both parties then began to object and obstruct various aspects of the process, and both failed to reply to the Commission’s request to meet August 24, 2006. The Commission has reported every three months to the United Nations Secretary-General, and he has transmitted the information regarding the parties’ impeding the process to the UN Security council. The Security Council, in turn, has issued fourteen resolutions urging the parties to meet their duties under the Algiers accord, without success. September 29, 2006, the Security Council passed Resolution 1710, calling on both nations to cooperate fully with the Commission and to take steps to resume the demarcation process. On October 6, 2006, the Commission wrote to the parties inquiring how they planned to implement the demand of the Security Council. In response, Eritrea indicated that no further implementation could be achieved until Ethiopia accepted without reservation the boundary that the Commission established in April 13, 2002, but to date, Ethiopia has not replied to Eritrea’s request. Neither party accepted the invitation of the Commission to meet in The Hague November 20, 2006.
In its November 27, 2006 statement, the Commission describes how the Algiers agreement created an international institution and giving it a number of roles and authorities, and that international law requires it to interpret its rules to achieve the purpose the parties had in mind. In this case, that objective is to conclude the border dispute as soon as possible by establishing a boundary as precisely as possible. Because the parties have been uncooperative regarding the placement of pillars to establish the boundary, the Commission therefore decided to use image processing and terrain modeling to demarcate the boundary by grid and geographical coordinates. In an attachment to its statement, the Commission offers the parties a list of boundary points to construct permanent boundary pillars. The Commission proposes that the parties weigh their arguments and attempt to reach consensus by the end of November 2007. If they cannot, the Commission decided that the boundary would be established as it set forth in this 2006 statement, and the mandate of the Commission will then have been met. The Commission noted that it was guided by the United Nations Security Council and Secretary-General established the Iraq-Kuwaiti border in 1993.
United States: Hamdan v. Rumsfeld, (D.D.C.)( December 13, 2006)
This is the first decision after the passage of the Military Commissions Act of 2006 (Pub. L. 109-366) (the Act) applying the Act to the case that led to the United States Supreme Court Hamdan v. Rumsfeld decision. Judge James Robertson dismissed Salim Ahmed Hamdan’s petition for habeas corpus, finding that he lacks a constitutional entitlement to petition for the writ, and the “jurisdiction stripping” provisions of the Act blocked him from availing himself of it statutorily.
After enactment and Presidential signature of the Military Commission Act of 2006, the government sought to dismiss Hamdan’s petition for a writ of habeas corpus for lack of subject matter jurisdiction. The government based its motion on section 7 of the Act, that amended the federal habeas statute 28 U.S.C. § 2241 by striking the current subsection (e) and adding a new one. The new language prevents a “court, justice, or judge” from having jurisdiction to “hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”
Counsel for Hamdan argued that the Act failed to provide sufficient clarity to apply its jurisdiction stripping provisions retroactively.
In his opinion Judge Robertson traces the history of the writ of habeas corpus from its development in English Common Law, to modern history. He notes that the “[w]rit became a favorite tool of both Parliament and the judiciary in battling the monarch’s assertion of unbridled power.” The language in the Constitution permits suspension of the writ only in cases of “rebellion or invasion.” U.S. Const. art. I, §9, cl. 2.
In dicta, Judge Robertson noted that because there has been neither an invasion nor a rebellion, the writ has not been suspended and survives the Act. He states “[i]f and to the extent that the MCA operates to make the writ unavailable to a person who is constitutionally entitled to it, it must be unconstitutional.” He did however, find Eisentrager v. Johnson, 339 U.S. 763 (1950), controlling authority on the availability of the constitutional habeas to enemy aliens. Eisentrager involved two Germans living in China after World War II. A military commission tried them and convicted of war crimes and sent to Germany to serve their sentences. The United States Supreme Court held that they were not constitutionally entitled to habeas relief because they were not within territory over which the U.S. is sovereign, and their “offense” capture, trial, and punishment all occurred outside of the territorial jurisdiction of a U.S. court. Judge Robertson thus found that the Suspension Clause does not “guarantee the right to petition for habeas corpus to non-resident enemy aliens captured and detained outside of the United States.”
At its May 2005 meeting, the Heads of State and Government of the Council of Europe member states decided to convene a group to weigh the long-term effectiveness of the European Court of Human Rights “control mechanism,” and Protocol 14. Protocol 14 is deigned to permit the court procedural flexibility to process all of the applications before it, while still being able to focus on the most critical ones. It has not yet entered into force. The Council of Europe thus established a group of “wise persons” composed of representatives of the nation states. The group held a series of meetings in 2005-2006 and issued an interim report in May 2006. The final report incorporates much of that document.
The report emphasizes that because the European Convention on Human Rights forms part of the national law of the member states, the national courts of member states should provide the first line of defense for human rights, so that the “principle of subsidiarity is one of the cornerstones of the system” for protecting human rights in Europe. While the report notes that allowing individuals, non-governmental organizations, or other groups to apply for access to the court is one of its most fundamental and unique aspects, it has also facilitated an explosion of applications to the court, most of which are inadmissible. For example, at the end of September 2006, there were 89,000 pending applications before the court. The report voices the concern that the huge volume of applications threatens the ability of the court to cope with its workload.
The wise persons recommended 10 improvements to the court: 1) greater flexibility of the procedure fo reforming the judicial machinery; 2) establishment of a new judicial filtering mechanism; 3) enhancing the audthority of the Court’s case-law in the states parties; 4) forms of cooperation between the court and national courts—advisory opinions; 5) improvement of domestic remedies for redressing violations of the Convention; 6) the award of just satisfaction; 7) the “pilot judgment” procedure; 8) friendly settlements and mediation; 9) extension of the duties of the Commissioner for Human Rights; and 10) the institutional dimension of the control mechanism.
United Nations Secretary-General Kofi Annan: Farewell Speech at the Truman Library (December 11, 2006)
As Kofi Annan's tenure as United Nations Secretary General comes to an end, he gave a speech at the Harry S. Truman library in Kansas City, Missouri to impart five "lessons" he has learned in his role as Chief Administrator of the United Nations:
1. "In today's world, the security of every one of us is linked to that of everyone else."
2. "We are not only responsible for each other's security. We are also, in some measure, responsible for each other's welfare. Global solidarity is both necessary and possible."
3. "Both security and development ultimately depend on respect for human rights and the rule of law."
4. "States must be accountable to each other, and to a broad range of non-state actors, in their international conduct."
5. "We can only do all these things by working together through a multilateral system, and by making the best possible use of the unique instrument bequeathed to us by Harry Truman and his contemporaries, namely the United Nations."
Organization for Security and Co-Operation in Europe: Decision No. 14/06 Enhancing Efforts to Combat Trafficking in Human Beings, Including for Labour Exploitation, Through a Comprehensive and Proactive Approach (December 5, 2006)
At its December 5, 2006 meeting, the Ministerial Council of the Organization for Security and Co-Operation in Europe (OCSE) called on participating states to continue collaborating with the Special Representative on Combating Trafficking in Human Beings to improve the realization of OCSE anti-trafficking commitments. It urged participating states to advocate a holistic approach to combat human trafficking that employs gender-sensitive methods and incorporates national, regional, and international agreements, as well as collaboration between a wide range of governmental entities including law enforcement, labor inspectors, medial institutions, victim support services, immigration and border services, and urged participation from the business community. To achieve such wide-ranging representation it recommended that participating states develop National Referral Mechanisms (NRMs) as well as to name national coordinators to lead the efforts. The OCSE Ministerial Council further encouraged participating states to ameliorate research and data collection and analysis on the issue, with particular sensitivity to safeguarding the confidentiality of the data. Where possible, states are to disaggregate data by gender, age, and other appropriate indicators. It urged states to work with international and non-governmental organizations to strive to prevent repatriated individuals from being re-trafficked by focusing on areas that make former victims of trafficking particularly vulnerable such as poverty, discrimination, lack of education and economic opportunities, sexual abuse, and domestic violence. It urged states to perform risk assessments so that the safety of victims of trafficking is considered before repatriation. The Ministerial Council emphasized the critical need of supplying victims with access to justice, including providing them with counseling services as well as information about their legal rights in a language that they understand.. It called on participating states to implement their duties under the United Nations Convention against Transnational Organized Crime (Palermo Convention) and its protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children.
Organization for Security and Co-operation in Europe: Brussels Ministerial Statement on Supporting and Promoting the International Legal Framework Against Terrorism
At its fourteenth meeting, the Organization for Security and Co-operation in Europe (OSCE) Ministerial Council reaffirmed its commitment to combat terrorism in all of its forms, and it called terrorism "a crime that has no justification, whatever its motivation or origin." It emphasized that counter-terrorism efforts must be undertaken with "full respect" for the rule of law, and in accord with its obligations under international law, with particular emphasis upon international human rights, refugee, and humanitarian law. , and emphasized its commitment to the international legal framework against terrorism including the universal conventions and protocols on the prevention and suppression of terrorism, UN Security Council resolutions, the UN Global counter-Terrorism Strategy, and regional and bilateral agreements on terrorism. It called upon participating states to implement United Nations (UN) Security Council resolutions aimed at combating terrorism, as well as joining universal conventions and protocols against terrorism, and to implement them through national legislation. It urged participating states to consider joining the International Convention for the Suppression of Acts of Nuclear Terrorism, the United Nations Convention against Transnational Organized Crime, and the United Nations Convention against Corruption.
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