Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law March 31, 2008
Don't Miss ASIL's 102nd Annual Meeting: The Politics of International Law!
For additional information on the program and to register visit:
http://www.asil.org/events/am08/about.html
JUDICIAL AND SIMILAR PROCEEDINGS
United States Supreme Court: Medellin v. Texas (March 25, 2008)
Click here for document. (Approximately 80 pages).
Chief Justice Roberts delivered the Court's opinion in which Justices Alito, Kennedy, Scalia, and Thomas joined. Justice Stevens issued a concurring opinion. Justice Breyer delivered a dissenting opinion in which Justices Ginsburg and Souter joined.
With Chief Justice Roberts writing for the majority, the United States Supreme Court (Court) held that neither the International Court of Justice's decision in the Case Concerning Avena and Other Mexican Nationals(Mex. v. U.S.) 2004 I.C.J. 12 (Avena), nor President's Bush's memorandum to the Attorney General constituted directly enforceable federal law that pre-empted state criminal law limits on filing successive petitions for habeas. It thus affirmed the decision of the Texas Court of Criminal Appeals dismissing Medellin's habeas petition.
José Ernesto Medellin, a Mexican national, participated in the gang rape and murder of two teenage Texas girls on June 24, 1993. After police arrested him and read him his Miranda warnings, Medellin confessed to the crime on June 29, 1993. The local police failed however to provide Medellin with his right under Article 36 (1) of the Vienna Convention on Consular Relations (Vienna Convention) to notify the Mexican Consulate of his detention. Texas convicted Medellin of capital murder and sentenced him to death, and this conviction was affirmed on appeal in May 1997.
The case has a complex procedural history. Medellin first raised the police failure to notify him of his Vienna Convention rights in a state post conviction petition for a writ of habeas corpus. The Texas trial court held that the claim was procedurally defaulted because Medellin failed to raise it at trial and the Texas Court of Criminal Appeals affirmed. Medellin then filed a habeas petition in Federal District Court which also held that his claim was procedurally defaulted. Medellin then appealed for a certificate of appealability to the Fifth Circuit Court of Appeals. While this writ was pending, the International Court of Justice (ICJ) issued its decision in Avena holding that the U.S. violated the Vienna Convention rights of Medellin and other Mexican nationals on death row by failing to notify them of their right to contact their consulate. The ICJ held that the U.S. had to provide review and reconsideration of the Mexican's sentences, by "means of its own choosing." The Fifth Circuit then denied the certificate of appealability. The Supreme Court granted Medellin's petition for a writ of certiorari in 2005, but before the Court could hear oral argument, President Bush issued a Memorandum to the Attorney General (Memorandum) informing him that the U.S. would "discharge its international obligations" under the ICJ Avena decision by having state courts "give effect" to it. Relying upon the Memorandum and Avena, Medellin filed another habeas petition in Texas. The Supreme Court dismissed the first petition for a writ of certiorari as improvidently granted because the Texas proceeding might have offered Medellin the relief he sought and thus the federal claim might have been barred. The Texas Court of Criminal Appeals then dismissed Medellin's habeas application as an abuse of the writ. The Supreme Court granted certiorari a second time in 2007.
In his opinion, Chief Justice Roberts articulated the two principal issues before the Court as being: 1) whether Avena has automatic domestic legal effect; and 2) whether President Bush's Memorandum alters the Court's determination that Avena is not binding in domestic state and federal courts. He opined that because the Optional Protocol to the Vienna Convention, the UN Charter, and the ICJ statute are not self-executing, Avena does not constitute automatically binding domestic law.
The U.S. withdrew from the Optional Protocol regarding resolving disputes about the Vienna Convention before the ICJ in 2005 after the Avena decision. The Court notes that in any event, the Optional Protocol did not address the effect of, or compliance with, ICJ judgments. Rather, Article 94 of the UN Charter addresses this issue. Pursuant to Article 94(1) of the UN Charter, member nations agree to "undertake" to comply with ICJ decisions in cases in which they are parties. The Court nevertheless does not view the Article as directing domestic courts to enforce judgments, but rather articulating UN members' commitment to take some action in the future to comply. It provides two additional reasons why ICJ decisions are not automatically enforceable in domestic courts. The first is that the enforcement provision of Article 94(2) is a non-judicial remedy which provides that noncompliance with ICJ decisions may be addressed by a referral to the UN Security Council. The second is the fact that the ICJ hears disputes between nations rather than individuals, and, Article 59 of the ICJ statute provides that ICJ decisions have no binding force beyond the parties to a given case.
With respect to President Bush's Memorandum, while the Court notes that the President's interests in ensuring reciprocal compliance with the Vienna Convention, protecting relations with foreign governments, and demonstrating a commitment to international law are important ones, they nevertheless do not permit the Court to discard "first principles." The Court enunciates these as being the need for Presidential authority to act to arise from either Congressional action or the Constitution. It then examines the three prong framework for considering executive action set forth in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); 1) when the President acts pursuant to Congressional authorization (either express or implied) his power is the strongest; 2) when he acts without either Congressional grant or denial of authority he possesses a mid-level of power; or 3) when he acts incompatibly with Congress, his power is the lowest. The Court rejected the Solicitor General's argument that the Optional Protocol and the U.N. Charter authorized the President's Memorandum and that it therefore fell within the first Youngstown category because the President lacks the authority to unilaterally transform a non-self-executing treaty into one that is self-executing; only Congress holds this power.
The Court likewise rejected Medellin's argument that the memorandum was a valid exercise of the President's "Take Care" power pursuant to the U.S. Constitution Art. II, §3 because that power permits the President to execute laws, not make them, and Avena was not a domestic law.
In his concurrence Justice Stevens notes that while he agrees with the dissent that the Vienna Convention on Consular Relations is a self-executing treaty, he is persuaded by the majority that the treaties at issue do not permit the Court to enforce the ICJ Avena decision. He too examines the "undertakes to comply" language in Article 94(1) of the UN Charter and notes that absent a presumption, the language anticipates future action by political branches. Justice Stevens emphasizes both that the costs of failing to respect the ICJ decision are "significant" and that the Court's decision does not exclude future appropriate action by Texas.
In his dissent, joined by Justices Ginsburg and Souter, Justice Breyer opines that Avena is enforceable as a matter of domestic law because the treaty obligations upon which the judgment is based are self-executing. He articulates a number of reasons why the relevant treaty provisions are self-executing. He notes that the language of the treaties supports direct judicial enforceability. He cautions that the majority's approach has deleterious practical ramifications including the fact that the U.S. is a party to at least 70 treaties with ICJ dispute settlement provisions similar to the Optional Protocol many of which the Court has found to be self-executing. Further, he notes that neither the President nor Congress has conveyed concern about the direct judicial enforcement of Avena.
Canada Federal Court: In the Matter of Amnesty Int'l Canada v. Chief of the Defense Staff for the Canadian Forces (March 12, 2008)
Click here for document. (Approximately 85 pages).
Writing for the Federal Court of Canada (Court) Justice Anne Mactavish held that while detainees in the custody of Canadian forces in Afghanistan have rights accorded to them under international law, international humanitarian law, and the Afghani Constitution, they do not have rights under the Canadian Charter of Rights and Freedoms (Charter), and that further, the Charter is inapplicable to the conduct in this case. She thus dismissed the cause of action.
Amnesty International Canada and the British Columbia Civil Liberties Association (applicants) brought suit against General Rick Hillier, Chief of Defense Staff, Canadian Forces, the Minister of National Defense, and the Attorney General of Canada, to challenge the transfers or possible transfers of persons detained by the Canadian Forces in Afghanistan. The Court granted the applicants public interest standing to bring suit. The applicants alleged that the arrangements between Canada and Afghanistan for those transferred to custody of Afghani authorities or other countries failed to provide sufficient substantive or procedural safeguards to ensure that the detainees would not be subjected to a high risk of being tortured. They sought a declaration that §§ 7, 10, and 12 of the Canadian Charter of Rights and Freedoms apply to persons whom the Canadian forces detain in Afghanistan, and a "writ of prohibition" prohibiting detainees from being transferred until adequate safeguards are in place. The applicants also sought a writ of mandamus compelling the respondents to examine the status of detainees previously transferred to Afghani officials, as well as requiring the respondents to return the detainees.
The recent Supreme Court of Canada decision R. v. Hape (see 46 ILM 813 (2007)) set forth the principle that Canadian enforcement jurisdiction in a foreign state will not be extended without the consent of the foreign state. The Federal Court of Canada applied the two-prong test that the Supreme Court of Canada enunciated in R. v. Hape regarding extraterritorial application of the Charter through the section articulating who is bound by the Charter §32(1): 1) whether the conduct is that of a Canadian state actor; and 2) whether an exception to the principle of sovereignty applies to justify the application of the Charter to the extraterritorial activities of the Canadian state actor. The first test of Hape was met because Canadian forces were involved. The second factor however, was not, because Afghanistan did not consent to the application of Canadian law, or any other nation's law, in Afghanistan. Rather, Canada and Afghanistan explicitly cited international law as governing the treatment of detainees in Canada's custody.
The Court likewise rejected the applicants' argument that the Charter should have extraterritorial effect without Afghanistan's consent. The applicants contended that while Hape involved law enforcement, this case was an extraordinary one involving military activities on foreign territory and thus was readily distinguishable. The applicants urged the Court to accept "effective military control of the person" as the test to be used for exterritorial applicability of the Charter. They cited a number of decisions from other international jurisdictions to support this argument including Al Skeini et al. v. Secretary of State for Defence [2007] UKHL 26; Rasul v. Bush, 542 U.S. 466 (2004); Omar et al. v. Secretary of the United States Army¸ 479 F.3d 1 (D.C. Cir. 2007); Bankovic v. Belgium, 11 BHRC 435, 2001-XII Eur. Ct. H.R. 333 (GC); and Issa v. Turkey, (2004) 41 EHRR 567. The Court distinguished all of these cases however, finding persuasive the fact that Canada is not serving as an occupying power in Afghanistan and this standard could result in a patchwork approach to jurisdiction in Afghanistan because of the various members of the international community detaining individuals there. Justice Mactavish instead cited international humanitarian law as the desirable framework to govern these detainees.
The Court likewise rejected the applicants' argument for the application of a "fundamental human rights exception" to justify the application of extraterritorial application of the Charter; emphasizing that the Supreme Court of Canada did not create such an exception in Hape.
European Court of Justice Grand Chamber: Commission of the European Communities v. Germany (February 26, 2008)
Click here for document. (Approximately 10 pages).
The European Court of Justice (ECJ) Grand Chamber dismissed a Commission of the European Communities (Commission) action against Germany. The ECJ held that the Commission failed to demonstrate that Germany violated its obligations to ensure compliance with the protected designation of origin (PDO) regulation No. 2081/92 regarding companies using the term "parmesan" on products from outside the Parmigiano Reggiano, region of Italy.
After receiving a number of complaints, the Commission asked Germany in April 2003 to inform companies not to market certain cheeses as "parmesan" that did not meet the requirements of PDO regulation No. 2081/92 Article 2 which allows the registration of protected designations of origin and geographical indications for certain agricultural products and foods. Article 13 of the Regulation protects registered names against misuse, imitation, or evocation, unless the name is a generic one. Article 10 of the regulation requires member states to ensure compliance with the PDO regulation and to establish inspection structures that will ensure that agricultural products and food with protected names meet the regulatory requirements. Germany argued that pursuant to Article 3(1) of the regulation, the term "parmesan" had become a generic term for hard cheeses that were grated or meant to be grated and thus the use of the term did not violate the regulation. After an exchange of formal notices and responses in 2003 and 2004 between the parties, the Commission brought suit at the ECJ. Italy and the Czech Republic joined the suit with the Commission, while Denmark and Austria supported Germany.
The ECJ held that Germany failed to show that the name "parmesan" had become generic. Because Germany had passed legislation allowing a variety of parties to bring suit to challenge the unlawful use of a PDO the ECJ held that Germany had taken the action it needed to comply with regulation No. 2081/92.
United States Court of Appeals for the Federal Circuit: Gerdau Ameristeel Corp. v. United States and ICDAS Celik Enerji Tersane Ve Ulasim Sanayi (March 12, 2008)
Click here for document. (Approximately 13 pages).
The Federal Court of Appeals (Court) found in favour of Gerdau Ameristeel Corporation (Gerdau), vacated the prior dismissal of the Court of International Trade (CIT), and remanded the case for further proceedings.
The U.S. Department of Commerce (DOC) determined in 1997 that certain steel concrete reinforcing bars (rebar) from Turkey were being sold in the United States at less than fair value. After the International Trade Commission concurred in this finding and determined that an industry in the United States was materially injured, the DOC issued an Antidumping Order (1997 Antidumping Order) assessing antidumping duties. Pursuant to 19 U.S.C. §1675, interested parties may seek annual administrative reviews of DOC antidumping orders and challenge these reviews by appealing them to the CIT under 19 U.S.C. §1516a(a)(2); and then appeal to the Federal Circuit pursuant to 28 U.S.C. §1295(a)(5). After the DOC conducted a number of administrative reviews of the 1997 Antidumping Order, it assigned only a deminimis dumping margin to the products of the Turkish rebar producer ICDAS Celik Enerji Tersane ve Ulasim Sanayi (ICDAS) (in the Fifth and Sixth Review) pursuant to 19 C.F.R. §351.106(c)(2). A dumping margin is the amount by which the price in the exporting country exceeds the price it is sold in or to the U.S.
As a domestic manufacture of rebar and thus an affected party, Gerdau challenged the Sixth administrative review of the antidumping order in the CIT on December 29, 2004 seeking to avoid the revocation of the 1997 Antidumping Order. Gerdau alleged that the DOC had significantly understated ICDAS's dumping margin in the Sixth review because of three measurement errors and wanted the CIT to declare the DOC's determination unlawful and remand for redetermination. On December 14, 2004 and February 11, 2005, the U.S. Customs and Border Protection Agency liquidated ICDAS's entries. Gerdau did not move to enjoin this liquidation. ICDAS moved to dismiss the appeal, arguing that the liquidation of the entries rendered the appeal moot. The CIT concurred and held that it lacked subject matter jurisdiction and dismissed the case. Gerdau appealed to the Federal Court of Appeals seeking a redetermination of the antidumping margin conducted in the Sixth Review and claiming that the appeal was not mooted by the liquidation because it had ramifications for the entire antidumping duty order.
The Federal Court of Appeals held that the CIT erred when it dismissed the cause of action because the results of the Sixth Review affected other matters which could have the potential to avert the revocation of the entire 1997 Antidumping Order under 19 C.F.R. §351.2229(b)(2)(i). The Court also dismissed the appellees contention that Gerdau lacked the requisite jurisdiction for his claim because challenges brought pursuant to 19 U.S.C. §1516(a)(2)(B)(iii) could only pertain to one review period and Gerdau tried to challenge a potential future revocation. After interpreting the statute, the Court held instead that Gerdau's claim was not without jurisdictional basis as the statute allowed for the review of the calculation of the dumping margin, a matter legally distinct from the specific liquidated goods even after the liquidation.
Resolution of the Twenty-Fifth Meeting of Consultation of Ministers of Foreign Affairs, Organization of American States (RC.25/RES.1/08) (March 17, 2008)
The Twenty-Fifth Meeting of Consultation of Ministers of Foreign Affairs of the Organization of American States (OAS) rejected the March 1, 2008 incursion by Colombian military forces and police personnel into the territory of Ecuador to carry out an operation against a group of the Revolutionary Armed Forces of Colombia (FARC) who were encamped on the Ecuadorian side of the border.
In rejecting Colombia's incursion, the Meeting of Ministers resolved that it was "carried out without the knowledge or prior consent of the Government of Ecuador, since it was a clear violation of Articles 19 and 21 of the OAS Charter."
The Meeting of Ministers, which is held under Article 61 of the Charter to consider problems of an urgent nature and of common interest to the American states, also reaffirmed the full applicability of (i) "the principles enshrined in international law of respect for sovereignty, abstention from the threat or use of force, and noninterference in the internal affairs of other states" and (ii) the principle of territorial sovereignty, as codified in Articles 19 and 21 of the OAS Charter, respectively. It also referred to these principles as "founding principles of the inter-American system-principles that are binding on all its member states in all circumstances," and "vital for harmonious relations among the nations of the Americas."
The Resolution noted Colombia's "full apology" for the events that occurred, as well as the country's pledge that they would not be repeated under any circumstances. But it also reaffirmed the commitment of all member states "to combat threats to security caused by the actions of irregular groups or criminal organizations, especially those associated with drug trafficking."
Notably, while the United States supported the Resolution's effort to build confidence between Colombia and Ecuador, it took issue with the conclusion to "reject" Colombia's incursion into Ecuador because "it [was] highly fact-specific and fail[ed] to take account of other provisions of the OAS and United Nations Charters," such as the right of self-defense under Article 22 of the OAS Charter and Article 51 of the U.N. Charter.
The Meeting of Ministers was held in Washington, D.C., on March 17, 2008. It concluded its session by instructing the OAS Secretary General, José Miguel Insulza, to implement a mechanism to restore a climate of confidence between Ecuador and Colombia.
ILIB is a free-of-charge electronic resource. To sign up for ILIB or ASIL Insights, click here.
To comment on this publication, send an e-mail message to Susan Notar, ILM Managing Editor at snotar@asil.org
