Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law March 10, 2008
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RESOLUTIONS, DECLARATIONS, AND OTHER DOCUMENTS
United Nations Security Council Resolution 1803 Non-proliferation (March 3, 2008)
The United Nations Security Council issued its fourth resolution against Iran in two years (see also Resolutions 1696, 1737, 1747) on March 3, 2008. In resolution 1803 the Security Council reaffirms its commitment to the Nuclear Non-Proliferation Treaty (NPT) and the need for all states parties to the NPT to comply with their treaty obligations pursuant to Articles 1 and II to perform research and use of nuclear energy for peaceful purposes. It notes with concern the reports of the International Atomic Energy Agency (IAEA) that Iran has not suspended its uranium enrichment and heavy water processing activities as previous Security Council Resolutions (SCRs) required it to do. Iran has further not resumed cooperation with the IAEA under the Additional Protocol. It emphasizes that China, France, Germany, the Russian Federation, and the United States are willing to explore an overarching strategy with Iran to address its nuclear issues based upon their June 2006 proposals. Acting pursuant to Article 41 of Chapter VII of the UN Charter, it requires Iran to take steps to ensure confidence in the peaceful nature of its nuclear program and comply with SCR 1737. It imposes a travel ban on specific individuals whom the Security Council has identified as being associated or supporting Iran’s proliferation sensitive activities, and authorizes states to perform inspections of Iran Air Cargo and Iran Shipping Line if there are reasonable grounds to believe that they are carrying prohibited goods. It calls upon states to prevent Iran from obtaining goods used for prohibited activities, and for them to avoid financial transactions with Bank Melli and Bank Saderat that might help to promote proliferation sensitive nuclear activities.
Kosovo Declares its Independence from Serbia (February 17, 2008)
The Assembly of the Republic of Kosovo declared its independence from Serbia February 17, 2008. Kosovo has been under United Nations interim administration since 1999.
In its Declaration of Independence (Declaration) Kosovo proclaims that it is an independent and sovereign state that is secular and multi-ethnic. Kosovo will accept the recommendations of UN Special Envoy Martti Ahtisaari for a Comprehensive Settlement plan. Kosovo plans to adopt a Constitution as soon as possible that incorporates human rights norms particularly those contained in the European Convention on Human Rights. Kosovo welcomes the continued presence of the North Atlantic Treaty Organization (NATO) in Kosovo until Kosovar institutions are able to perform such duties themselves. Kosovo expresses its allegiance with Europe and its intent to take steps to become a member of the European Union. It agrees to follow the principles set forth in the UN Charter, the Helsinki Final Act, and the Organization on Security and Cooperation in Europe.
Canadian Lumber Trade Alliance v. United States (Fed. Cir. February 25, 2008)
Click here for document. (Approximately 44 pages).
The United States Court of Appeals for the Federal Circuit (Court) affirmed the declaratory judgment of the Court of International Trade (CIT). The CIT held in the that the U.S. Customs and Border Protection (Customs) violated a provision of the North American Free Trade Agreement Implementation Act (NIA) (19 U.S.C. §3301-3473) by applying the Continued Dumping and Subsidy Offset Act (CDSOA)(Pub. L. 106-387 (2000) repealed by the Deficit Reduction Act of 2005 Pub. L. 109-171); to antidumping and countervailing duties on goods imported from Canada. The Court also modified the injunction that the CIT issued to pertain only to red spring wheat from Canada because subsequent events rendered the action moot with respect to the softwood lumber and magnesium industries.
The case arose from a trade dispute between the United States and Canada concerning the import of softwood lumber, magnesium and red spring wheat. Pursuant to the CDSOA, Customs would distribute the collected antidumping duties on imported goods from Canada to the U.S. producers in the industries harmed by the anticompetitive conduct. In April 2005 the plaintiffs, Canadian Producers and the Canadian government, argued that because the CDSOA does not specify that it applies to goods from NAFTA countries it should be construed so as not to apply to them in light of section 408 of the NIA. They argued that Canadian Producers would very likely suffer economic injury in the form of increased competition. The complaint sought, inter alia, an injunction against further distribution of duties assessed on their goods and a declaratory judgment to interpret the CDSOA in their favor pursuant to section 408 of the NIA, both of which the Court of International Trade granted. The Court, however, declined to instruct Customs to recoup the duties already distributed to the domestic producers. The Court also denied standing to the Government of Canada because it could not demonstrate injury in-fact independent of injury to the Canadian Producers.
After the CIT issued its decision, the U.S. and Canada entered into the Softwood Lumber Agreement in 2006. Under it, the U.S. agreed to revoke the antidumping and countervailing duty orders on softwood lumber from Canada, and instructed Customs to refund all deposits collected. In July 2006 Customs also revoked the countervailing duty orders on pure and alloy magnesium from Canada. The U.S. and the Domestic Producers appealed the judgment in favor of the Canadian Producers. The Government of Canada responded with a timely cross-appeal against the dismissal of its claims for lack of standing.
The United States Court of Appeals opined that the CIT properly interpreted the CDSOA in light of section 408 of the NIA. Thus the CDSOA did not apply to antidumping and countervailing duties assessed on goods imported from Canada or Mexico and issued a declaratory judgement to that effect. In addition, the Court affirmed standing for at least one of the Canadian Producers while at the same time dismissing the claims of the Canadian government for lack of standing.
The European Court of Justice Grand Chamber: Sabine Mayr v. Bäckerei und Konditorei Gerhard Flöckner OHG (February 26, 2008)
The European Court of Justice (ECJ) interpreted Directive 92/85/EEC on safety and health at work of pregnant women and held that the Directive did not cover a worker who, at the time of her dismissal, had not had her in vitro fertilized ova implanted into her uterus. The Court did find however, that a claimant could rely on the protection against discrimination on grounds of sex if her dismissal was based on reasons connected to her in vitro fertilization treatment because the dismissal would be contrary to the principle of equal treatment for men and women found in the Directive 76/207/EEC.
Ms. Mayr, an Austrian waitress employed by Bäckerei und Konditorei Gerhard Flöckner (Bäcekerei) in Salzburg, Austria, underwent attempted in vitro fertilization and hormone treatments in January 2005. After Ms. Mayr’s doctor certified her as being sick after she had worked at Bäckerei less than three months, her boss dismissed her with two weeks notice. Ms. Mayr claimed that she should be entitled to her full salary and granted pro rata remuneration from her employer. She also claimed protection against dismissal after the in vitro fertilization of her ova had taken place, although the ova had not been implanted in her uterus. Ms. Mayr argued that she should have been considered pregnant from the time her ova had been fertilized, even if the ova had not been implanted. She asserted that her dismissal violated Austrian law prohibiting the dismissal of pregnant workers from the beginning of their pregnancy to the end of their maternity leave.
The court of first instance (Landesgericht Salzburg) found in favor of Ms. Mayr because pursuant to Austrian Supreme Court precedent (Oberster Gerichtshof) fertilization is regarded as the starting point of pregnancy and thus the protection from dismissal begins with the fertilization of the ovum. The court held that this should also apply to in vitro fertilization cases. A higher regional court acting as the appellate court for employment and social welfare cases (Oberlandesgericht Linz) disagreed with the lower court’s finding holding that “pregnancy which is independent of the female body is unimaginable” and thus that pregnancy only began once the fertilized ovum had been implanted in the woman’s uterus. Ms. Mayr appealed the judgment to the Austrian Supreme Court. Because the Supreme Court had previously decided only cases of in utero conception, it took the view that the case raised a novel question of interpretation of Community law and thus stayed the proceedings to refer the relevant question to the European Court of Justice.
The European Court of Justice agreed with the appellate court’s findings. It decided not to extend the protections under the Council Directive 92/85/ on the safety and health at work of pregnant workers to Ms. Mayr because it was concerned that this could allow for the benefits of the protection to be enjoyed by women even if the transfer of the fertilized ova into the uterus was postponed for a number of years or even abandoned altogether in the future.
On the other hand, the Court opined that the treatment that Ms. Mayr underwent affects only women. Therefore, the dismissal of a worker solely based on her undergoing follicular puncture and transfer of fertilized ova into her uterus would be discriminatory on grounds of sex and thus contrary to the equal treatment guarantees found for workers in the Council Directive 76/207/EEC. The Court directed the highest Austrian Court (Oberster Gerichtshof) to determine whether based on the facts Ms. Mayr’s dismissal was truly based on her undergoing in vitro fertilization treatment or impermissible gender discrimination.
Vietnam Ass’n for Victims of Agent Orange v. Dow Chemical Co. (2d Cir. February 22, 2008)
Click here for document. (Approximately 35 pages).
The Federal Court of Appeals for the Second Circuit (Court) affirmed the holding of the District Court dismissing the Plaintiffs’ Alien Tort Statute suit on the grounds that they failed to demonstrate a violation of international law. It also affirmed the District Court’s dismissal of Plaintiffs’ domestic tort claims as being barred by the Government Contractor defense.
Plaintiffs, a group of Vietnamese nationals, brought suit September 14, 2004, against U.S. corporations under the Alien Torts Statute, 28 U.S.C.§1350, domestic tort, and Vietnamese law for injuries they sustained after being exposed to Agent Orange and other herbicides that the defendants manufactured and the U.S. military used during the Vietnam war. The plaintiffs alleged that the U.S. military violated international law by using the chemicals in South Vietnam from 1962 to 1970 and that the defendants either aided and abetted the military by providing it with Agent Orange, or alternatively, were liable in their corporate capacities. Plaintiffs sought monetary damages and injunctive relief. Defendants moved to dismiss the suit November 2, 2004, under Federal Rule of Civil Procedure (FRCP)12(b)(6) for failure to state a claim upon which relief could be granted. They asserted that Plaintiffs’ cause of action failed to meet the standards that the United States Supreme Court articulated in Sosa v. Alvarez-Machain, 452 U.S. 692 (2004) of asserting a well-defined and universally-accepted rule of international law. Defendants also claimed that the Plaintiffs lacked standing, their suit was nonjusticiable under the political question doctrine, and that the government contractor defense also prevented their claims. Defendants also moved for partial summary judgment under FRCP 56 to dismiss Plaintiff’s claims as being time barred by statute of limitations. The United States government submitted a Statement of Interest (SOI) January 12, 2005, in support of the Defendants. The District Court issued its opinion and order, as amended March 28, 2005 see In re Agent Orange Prod. Liab. Litig., 373 F.Supp. 2d 7 (E.D.N.Y. 2005). The District Court rejected the Defendants’ argument that Plaintiffs’ claims were nonjusticiable and held that the Plaintiffs’ claims were not subject to statutes of limitation or the contractor defense, it nonetheless granted Defendants’ 12(b)(6) motion on the grounds that Plaintiffs’ failed to meet the Sosa standards for demonstrating violations of international law. The Plaintiffs appealed contending that Defendants violated customary international law norms against the use of “poisoned weapons” and the infliction of unnecessary suffering.
In affirming the dismissal of Plaintiffs’ claims, the Second Circuit examined the 1925 Geneva Protocol for the Prohibition of the Use in Asphyxiating Poisonous or Other Gases and of Bacteriological Methods of Warfare (Protocol), which entered into force for the U.S. February 8, 1928; and found that the Protocol did not constitute binding customary international law during the war in Vietnam. It found compelling a lack of mens rea on the part of the U.S. military to injure the Vietnamese people. It reasoned that the U.S. military used Agency Orange as a defoliant to prevent U.S. troops from being ambushed, rather than intentionally as a “weapon of war against human populations.”
German Federal Constitutional Court: Winsemann (February 27, 2008)
Click here for document. (Approximately 40 pages, in German).
In a case interpreting the German Constitution, the German Federal Constitutional Court held that certain broadly formulated provisions of the Constitutional Protection Act adopted by the State of North-Rhine Westphalia (NRW) were unconstitutional. The Court held that the law which allowed investigations into personal computers or other information technology devices violated an individual’s right to privacy. The ruling expands upon the level of current protection afforded to personal data/information stored on IT systems and communications transferred online under the German constitution. The Court held for the first time that data stored or exchanged on a personal computer is covered under the basic rights to confidentiality and integrity enshrined in German Basic Constitutional Law. At the same time, the Court decided that in compelling or exceptional circumstances secret intrusions into an IT system and its data would be permissible if clear evidence could show that a concrete threat to life, limb, or other legally protected interests existed. Nevertheless, any law enforcement authorities’ intrusions would have to be authorized by a competent court on a case-by-case basis.
Bettina Winsemann, a journalist and member of the German political party “Die Linke” and three lawyers, including former Interior Minister Gerhart Baum, challenged the constitutionality of the provisions found in the NRW state law. The law had widely permitted intelligence investigators in NRW to use Trojan-like software to covertly search personal computers and online network communications to detect criminal activity. Recognizing the wider implications of the decision, head judge Hans-Juergen Papier emphasized the Court’s interest in balancing the interests of the state to monitor Internet usage as a useful tool to combat terrorism and the individual’s interest in a right to privacy.
The Court recognized the crucial role personal computers play in citizen’s self-development and emphasized the importance of guaranteeing adequate protection for online users. This was based on the Court’s conclusion that tapping into data could often reveal considerable amount of information about a users’ behavior and communication profile. Because the basic rights of Article 10, granting privacy of telecommunications (“Telekommunikationsgeheimnis”), and Article 13, enshrining privacy of the home (“Unverletzlichkeit der Wohnung”), of the German basic law did not afford enough protection for online users, the Court held that its decision should close the loopholes in the legislation and afford more protection for Germany’s citizens.
The Court, concerned with protecting civil liberties, security interests and aiding in the prevention of terrorists attacks, created a framework for the local investigators to conduct online surveillance under strict conditions. It held that any intrusion into a suspect’s computer was allowed in exceptional cases and would have to be approved by a judge. The Court reiterated that under the current law it is not permissible to collect or evaluate personal data that pertained strictly to people’s private lives, and if found in the course of an investigation, the data would have to be quickly deleted. Nonetheless, the Court decided to uphold part of the law that was more narrowly defined. It concerned the intelligence agency’s authorization to request information about money transfers and its clients from banks and other finial service provider.
The Court’s decision has been interpreted by many as setting the ground for a disputed federal law governing the Federal Police’s ability to use virus-like software to monitor the activities of suspected terrorists’ online.
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