February 22 - 27, 1999 Developments in international law, prepared by the Attorney-Editors of International Legal Materials The American Society of International Law
The Executive Committee
of the American Society of International Law by consensus
has decided to continue International Law In Brief.
The Committee was informed in its decision by the large
number of comments submitted by ILIB readers.
We appreciate your support.
European Court of Human Rights:
Buscarini v. San Marino, No. 24645/94 (Feb. 4, 1999)
Buscarini, Della Balda, and Manzaroli were elected
to the General Grand Council (the parliament) of San
Marino and omitted required references to the "Holy
Gospels" in their verbal oaths. The form of the
applicant's oaths was declared invalid by the General
Grand Council and the applicants were given the choice
of taking the oath on the Gospels or forfeiting their
parliamentary seats. The applicants retook the oath
including the references to the Gospels, but argued
that their rights to religious freedom and conscience
had been infringed pursuant to Article 9 of the European
Convention on Human Rights, inter alia. paras.
9, 12-13. Prior to submission of the applicant's
claim to the Commission, and four months after the applicant's
oath was sworn, San Marino passed Law no. 115 granting
new members of the General Grand Council the choice
of substituting the words "on my honour" for the words
"Holy Gospels" in General Grand Council oaths, although
the traditional wording was still mandatory for other
offices. para. 16.
San Marino argued that the oath did not limit the applicant's
religious freedom, asserting that the wording of the
oath was not religious, but maintained traditional social
and historical significance, and that the form of words
"had lost its original character." para. 32. San
Marino sought to justify the use of the oath by contending
that the religious significance of the oath had been
replaced by "the need to preserve public order, in the
form of social cohesion and the citizens' trust in their
traditional institutions." para. 36. The Court noted
that freedom of religion is "one of the foundations
of a democratic society" and and held that the oath
was contrary to Article 9 in that it "required [the
applicants] to swear allegiance to a particular religion
on pain of forfeiting their parliamentary seats." para.
34. The Court rejected San Marino's claims
based on necessity, holding that "it would be contradictory
to make the exercise of a mandate intended to represent
different views of society within Parliament subject
to a prior declaration of commitment to a particular
set of beliefs." para. 39. TT http://www.dhcour.coe.fr/eng/Judgments.htm
Hong Kong Court of Final Appeal:
Ng Ka Ling v. Director of Immigration, FACV No. 14/1998
(Jan. 29, 1999)
Ng, Tsui, and Cheung, who were mainland-born Chinese
children with at least one parent with the right of
abode in Hong Kong, brought a suit in the Hong Kong
courts challenging the validity of the Bejing
government's Immigration (Amendment) (No. 3) Ordinance.
This ordinance provided that for persons seeking permanent
resident status, the right of abode can only be established
by their holding a valid travel document affixed with
a valid certificate of entitlement. In contrast, Article
24 of the Basic Law of the Hong King Special Administrative
Region provides that children born outside of Hong Kong,
whose Chinese-national parent was born in Hong Kong
or resided there continually for seven years, have the
right of abode in Hong Kong and have the right to obtain
identity cards stating their right of abode. The
Director of Immigration acknowledged that Ng and Tsui
were permanent residents under Article 24, but that
Cheung was not, pursuant to Immigration (Amendment)
(No 2) Ordinance as she was born out of wedlock
to a permanent resident father. The Director also
asserted that the applicants were subject to the No.
3 Ordinance and therefore did not have the right of
abode.
As an initial matter, the Court of Final Appeal noted
that the Basic Law is the constitution of the Region
and the courts of the Region have jurisdiction to determine
if legislative acts of the National People's Congress
or its Standing Committee are inconsistent with the
Basic Law and "indeed [have] the duty to declare invalidity
if inconsistency is found." The Court further
noted that the purpose of the Basic Law was to accord
Hong Kong with a high degree of autonomy within the
"one country, two systems" approach, and that the constitutional
guarantees of fundamental freedoms "lie at the heart
of Hong Kong's separate system." Moreover, the Court
stated that "courts should give a generous interpretation
to the provisions ... that contain these constitutional
guarantees in order to give to Hong Kong residents the
full measure of fundamental rights and freedoms so constitutionally
guaranteed." The Court held that since the primary
provision to be interpreted is Article 24 of the Basic
Law, which is concerned with the right of abode of a
permanent resident, there was no need to seek an interpretation
from the Standing Committee under Article 158.
(Article 158 of the Basic Law requires the Court to
seek interpretations of the Basic Law from the Standing
Committee only if (1) the provisions of the Basic Law
in question (a) concern affairs which are the responsibility
of the Central People's Government, or (b) concern the
relationship of the Central Authorities and the Region;
and (2) it is necessary to interpret the provisions
to adjudicate the case.)
On the merits, the Court held that the No 3 Ordinance
was unconstitutional as it required permanent residents
of the Hong Kong SAR residing on the Mainland to obtain
a permit before they are able to exercise their constitutional
right of abode. The Court further held that differentiating
between persons born out of wedlock for the purposes
of permanent residency was unconstitutional as it violated
the principle of equality contained in both the Basic
Law and the International Covenant on Civil and Political
Rights, which remains in force for Hong Kong pursuant
to Art. 39 of the Basic Law. DL http://www.info.gov.hk/jud/whatsnew/index.htm
Hong Kong Court of Final Appeal:
Ng Ka Ling v. Director of Immigration, FACV No. 14/1998
(Feb. 26, 1999)
In response to the decision of the Court of Final Appeal
in Ng Ka Ling v. Director of Immigration, the Government
of the Hong Kong Special Administrative Region sought
a "clarification of certain parts of its decision ...
because of these very exceptional circumstances and
public interest that has been generated in the relevant
issues and their constitutional importance."
In a unanimous judgment the Court noted that "[a]fter
a judgment is given, it is for the public and the legal
profession to consider that judgment", and stated:
"The courts' judicial power is derived from the Basic
Law. Article 158(1) vests the power of interpretation
of the Basic Law in the Standing Committee. The
courts' jurisdiction to interpret the Basic Law in adjudicating
cases is derived by authorization from the Standing
Committee under Articles 158(2) and 158(3). In
our judgment on 29 January 1999, we said that the Court's
jurisdiction to enforce and interpret the Basic Law
is derived from and is subject to the provisions of
the Basic Law which provisions include the foregoing.
The Court's judgment on 29 January 1999 did not question
the authority of the Standing Committee to make an interpretation
under Article 158 which would have to be followed by
the courts of the Region. The Court accepts that
it cannot question that authority. Nor did the
Court's judgment question, and the Court accepts that
it cannot question, the authority of the National People's
Congress or the Standing Committee to do any act which
is in accordance with the provisions of the Basic Law
and the procedure therein." DL
transcript of statement by Chief Executive Tung Chee
Hwa http://www.info.gov.hk/gia/general/199902/26/0226244.htm
judgment by the Court of Final Appeal http://www.info.gov.hk/jud/whatsnew/index.htm
U.S. Supreme Court: Reno v. American-Arab
Anti-Discrimination Committee, No. 97-1252 (Feb. 24,
1999)
The respondents, Amer and others belonging to the Popular
Front for the Liberation of Palestine, challenged the
decision of the Immigration and Naturalization Service
(INS) to deport them, alleging that the INS was selectively
enforcing immigration laws against them in violation
of their rights under the First and Fifth Amendments.
The Ninth Circuit upheld an injunction against the INS
and Congress subsequently passed the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, which
contains a provision restricting judicial review of
decisions or actions to "commence proceedings, adjudicate
cases, or execute removal orders against any alien under
this Act." 8 U.S.C. sect. 1252(g). The Ninth Circuit
again found jurisdiction and upheld the District Court
on appeal of the denial of the subsequent motion to
dismiss.
Justice Scalia, writing for the Court, held that section
1252(g) barred judicial review of the decision to commence
deportation proceedings against the aliens. Scalia
further rejected the right of the Respondents to raise
selective prosecution claims, noting that "[a]s a general
matter -- and assuredly in the context of claims such
as those put forward in the present case -- an alien
unlawfully in this country has no constitutional right
to assert selective enforcement as a defense against
his deportation." Scalia noted that inquiring
into the motives behind a deportation decision would
potentially create judicial interference with the foreign
policy decisions of the Executive branch: "What
will be involved in deportation cases is not merely
the disclosure of normal domestic law-enforcement priorities
and techniques, but often the disclosure of foreign
policy objectives and (as in this case) foreign-intelligence
products and techniques. The Executive should
not have to disclose its 'real' reasons for deeming
nationals of a particular country a special threat --
or indeed for simply wishing to antagonize a particular
foreign country by focusing on that country's nationals
-- and even if it did disclose them a court would be
ill equipped to determine their authenticity and utterly
unable to assess their adequacy." DL http://laws.findlaw.com/US/000/97-1252.html
U.S. District Court (C.D. California):
Hawkins v. Comparet-Cassani, No. CV 98-5605 (C.D. Cal.),
Order
Hawkins was convicted of felony burglary and theft.
Later, the court ordered the Los Angeles County Sheriff
to place a "stun belt" on Hawkins during the sentencing
hearing. Judge Comparet-Cassani ordered the belt
to be activated and Hawkins received a 50,000 volt electric
shock in the courtroom. Subsequently, Hawkins
sought injunctions and compensation alleging that the
placement and use of the stun belt violated his rights
under the US Constitution and as derived from international
law. The court dismissed certain complaints as
barred by the Eleventh Amendment and the doctrine of
judicial immunity.
Regarding claims based on jus cogens, the court
noted although that there is a recognized right of action
against foreign officials engaging in acts of torture,
there have been no courts recognizing a similar cause
of actions against US state officials in relation to
US citizens. The court noted that although federal
courts may imply a personal cause of action for violations
of jus cogens norms, it declined to do so because
(1) domestic remedies existed, (2) Congress passed the
Torture Victim Protection Act of 1991 which addressed
actions of foreign officials and omitted domestic acts,
and (3) the court was hesitant to interfere with the
prerogatives of the legislative and executive branches,
"which must interpret what international obligations
the United States will undertake and how to implement
them domestically."
Similarly, the court rejected claims based on treaty-based
international law. As an initial matter, the court
noted that treaty-based rights are only enforceable
in US courts if the treaty is self-executing or if Congress
has passed implementing legislation. The court
held that although the Universal Declaration of Human
Rights and the Declaration on the Protection of All
Persons from Being Subjected to Torture are intended
to represent customary international law, they were
not meant to be legally binding and do not create self-executing
rights like treaties. The court noted that the
US has signed but not ratified the American Convention
on Human Rights, therefore it is not binding on the
US, and that the European Convention for the Protection
of Human Rights and Fundamental Freedoms does not bind
the US as the US neither signed nor ratified the Convention.
Moreover, the court held that two instruments signed
and ratified by the US, the International Covenant on
Civil and Political Rights and the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment do not create private rights of action
because the Senate ratified the treaties with the express
proviso that they were not self-executing and Congress
has not passed implementing legislation.
Under domestic law, the court denied the defendant's
motion to dismiss Hawkins' count seeking a permanent
injunction, granted a motion for class action certification,
and granted a preliminary injunction against the use
of stun belts. The court stated that the stun
belts, even if unactivated, had a "chilling effect"
on the conduct of defendants in court, who may elect
to forgo active participation in the trial out of fear
of receiving a 50,000 volt electric shock. "A
pain infliction device that has the potential to compromise
an individual's ability to participate in his or her
own defense does not belong in a court of law." DL
Download in Adobe pdf format: http://www.cacd.uscourts.gov/cacd/CourtInformation.nsf/04023f04c914e7338825656900691c26/
04f3cd56d59da28288256708005e946d/$FILE/hawkins.PDF
OECD: Draft Principles on Corporate
Governance, SG/GC(99)1 (Feb. 8, 1999)
The OECD is seeking public comments on the working
draft of its suggested Principles of Corporate Governance.
The Guidelines are intended to aid governments in improving
and evaluating their present frameworks for corporate
governance.
The Draft Principles suggest no single model of good
corporate governance nor does it seek to establish a
global standard, but instead highlights common foundational
elements such as the prohibition on insider trading,
the maintenance of equitable voting rights, and disclosures
of conflicts of interest. The draft is divided
into two parts. The first part contains a "blackletter"
set of principles under the headings (I) the rights
of shareholders, (II) the equitable treatment of shareholders,
(III) the role of stakeholders in corporate governance,
(IV) disclosure and transparency, and (V) the role of
the board. (Note that the functions of the "board"
may be applied to a single board of directors or the
two-tier system of management and supervisory boards.)
The second part of the document consists of annotations
and commentary. TT http://www.oecd.org/daf/governance/principles.htm
The State Department Shipping
Coordinating Committee will hold a meeting on Tuesday
afternoon , March 30th at the State Department from
1:00 to 5:00 p.m. to obtain public comment on issues
to be addressed at the April 19-24 UNESCO meeting
of governmental experts on the draft Convention on
Underwater Cultural Heritage. For further
information, contact Mr. Robert Blumberg, Office of
Ocean Affairs at (202) 647-4971.
The Hague Conference
reports that on February 9, 1999 Belgium ratified
the Hague Convention of 25 October 1980 on the Civil
Aspects of International Child Abduction and on
February 3, 1999 Israel ratified the Hague
Convention of 29 May 1993 on the Protection of Children
and Co-operation in Respect of Intercountry Adoption.
The conventions will enter into force for those states
on May 1, 1999 and June 1, 1999 respectively.
http://www.hcch.net/e/events/events.html
The International Criminal Tribunal
for Rwanda has sworn in three new judges
for its new third Trial Chamber. The three judges
are Lloyd George Williams QC, (Jamaica and Saint Kitts
and Nevis); Dionysios Kondylis, (Greece); and Pavel
Dolenc, (Slovenia). http://www.ictr.org/english/pressrel/164.htm
The Convention on the
Prohibition of the Use, Stockpiling, Production and
Transfer of Anti-Personnel Mines and on their
Destruction entered into force on March 1, 1999.
http://www.un.org/Depts/Treaty
International Law In Brief - Copyright 2000 - The
American Society of International Law Editors: Elizabeth J. Fabrizio, David A.
Levy Interns: Alice Epler, Fredrick Mudenda,
Teresa Taylor
To comment on this publication, send an e.mail message
to David A. Levy, Interim Editor at david.levy@his.com
For membership information, visit us on the Internet
http://www.asil.org
