July 6 - 16, 1999 Developments in international law, prepared by the Attorney-Editors of International Legal Materials The American Society of International Law
Supreme Court of Canada: Baker
v. Canada, No. 25823 (July 9, 1999)
Ms. Baker, a Jamaican citizen, entered Canada in August
1981 and never obtained permanent resident status.
She was ordered to be deported in December 1992.
Para. 2. Baker, a mother of four, petitioned the
deportation decision on the grounds that she is the
sole caregiver for two of her Canadian-born children,
and that the other two children depended on her for
emotional support. Para. 3. She requested
immunity from the requirement to apply for permanent
residence outside of Canada, based on the Immigration
Act, R.S.C. 1985, c. I-2, s. 114 authorizing exemptions
from regulations for "humanitarian and compassionate
considerations." Para. 7. The Immigration
Office denied her application, stating that the interests
of her children were insufficient humanitarian and compassionate
grounds to warrant processing the application for permanent
residence within Canada. Para. 5. The Trial Court
dismissed the application for judicial review but certified
the following question to the appeals court: "Given
that the Immigration Act does not expressly incorporate
the language of Canada's international obligations with
respect to the International Convention on the Rights
of the Child ["Convention"], must federal immigration
authorities treat the best interests of the Canadian
child as a primary consideration in assessing an applicant
under s.114(2) of the Immigration Act?" Paras.
8-9. The Appeals Court denied the appeal, holding
that the articles of the Convention would not impose
an obligation upon the government to give primacy to
children's interests in deportation cases because the
Convention had not been adopted in either federal or
provincial legislation. Para. 10.
The Supreme Court of Canada disagreed, stating that
the greater the impact the decision has on the person
or persons, the more stringent the procedural protections
that will be mandated. Para. 25. The Court
found that the immigration officer who denied Ms. Baker's
appeal totally dismissed the interests of Ms. Baker's
children under the humanitarian and compassionate exception.
Para. 65. The Court recognized that the provisions
of the Convention have no direct application within
Canadian law, but emphasized that "the values reflected
in international human rights law may help inform the
contextual approach to statutory interpretation and
judicial review." Paras. 69-70. The Court enumerated
the important role international human rights law has
played as an aid in interpretation of domestic law in
other common law jurisdictions. Para. 70. The
Court cited the principles of the Convention and other
international instruments such as the United Nations
Declaration on the Rights of the Child and the Universal
Declaration of Human Rights, which place special importance
on the protection of the rights and best interests of
children. Para. 71. The Court found that there
was a violation of the principles of procedural fairness
and that the exercise of humanitarian and compassionate
discretion by the immigration officer was unreasonable.
The Court therefore allowed the appeal. Para. 76. KW
http://www.droit.umontreal.ca/doc/csc-scc/en/rec/html/baker.en.html
US Second Circuit Court of Appeals:
Abankwah v. INS, No. 98-4304 (July 9, 1999)
Adelaide Abankwah, a native of Ghana and a member of
the Nkumssa tribe located in Central Ghana, fled to
the United States to seek asylum on the grounds that,
upon return to Ghana, her tribe would force her to undergo
female genital mutilation ("FGM") as a punishment for
engaging in premarital sex. The Immigration Judge
denied her request for asylum and withholding of deportation.
Although he determined that Abankwah was a credible
witness and that she could not escape her tribe within
Ghana, he found that Abankwah failed to establish an
objectively reasonable fear of FGM. He cited a
lack of objectivity because FGM is practiced primarily
in nothern Ghana, is in decline, and moreover was criminalized
in Ghana in 1994. The judge also held that Abankwah's
situation was a "personal problem" and not a "matter
of general practice imposed upon a particular social
group." Abankwah appealed the decision to the
Board of Immigration Appeals ("BIA"), which also concluded
that Abankwah failed to demonstrate an objectively reasonable
fear. The BIA found that although she was a member
of a cognizable social group, she failed to meet her
burden of proof in establishing past persecution.
The Second Circuit reversed the decision, holding that
the BIA was too exacting both in the quantity and quality
of evidence required to establish an objectively reasonable
fear. The court also noted that the practice of
FGM has been internationally recognized as a violation
of women's and female children's rights, FGM has been
criminalized under federal law, and that FGM involves
the infliction of grave harm constituting persecution.
The court stated that in the absence of documentary
proof the testimony of the applicant is enough if:
1) the testimony is credible; 2) it is persuasive; and
3) it refers to specific facts that infer the applicant
has been, or has good reason to fear that she will be,
singled out for persecution. The Second Circuit
concluded that Abankwah's testimony was credible and
persuasive, and that she had given a detailed account
of her fear that she would be subjected to FGM.
The court held that Abankwah's fear of FGM was objectively
reasonable, and that given the customs of the Nkumssa
tribe, a reasonable person who knew that she had disobeyed
a tribal taboo, and that discovery by the tribe of her
disobedience was imminent, would share Abankwah's fears.
KW http://laws.findlaw.com/2nd/984304.html
International Tribunal for the
Law of the Sea: Saint Vincent and the Grenadines v.
Guinea, The M/V "Saiga" (No. 2) July 1, 1999
This case arose out of the arrest and detention by
Guinea of the oil tanker "Saiga", which was
flying the flag of Saint Vincent and the Grenadines.
Paras. 31-35. After having all claims denied by
the Guinean courts, Saint Vincent filed a claim with
the Tribunal for the Law of the Sea. Paras. 35-39.
The Tribunal considered issues regarding, inter alia,
the registration of the Saiga, the right of hot
pursuit, the use of force, and reparations.
The Saiga, manned by a Ukranian crew, was engaged
in selling gas oil to fishing boats off the coast of
West Africa. Para. 31. The ship was south of the
southernmost tip of the Guinean exclusive economic zone
when it was attacked and boarded by a Guinean patrol
boat. Paras. 32-33. After boarding the ship the
Guinean authorities disabled the ship's engine with
gunfire, injuring two crewmembers, assaulted others
in the crew, discharged the cargo, and arrested the
ship and crew. Paras. 31-39.
Guinea claimed that Saint Vincent and the Grenadines
did not have legal standing to bring claims because
on the day of the arrest the Saiga was not validly
registered under their flag. Para. 55. Saint Vincent
and the Grenadines raised three responses: 1) the expiration
of the registry a month before the arrest did not preclude
nationality because by Vincentian law a ship had to
be deleted from the registry before its nationality
was changed; 2) Section 36(2) of the Merchant Shipping
Act stated that provisional certificates of the type
issued to the Saiga shall have the same effect
as an ordinary certificate which expires one year from
the date of entry; and 3) other overt indicators, such
as ship name and labelling, and previous acceptance
of Vincentian nationality by Guinea, precluded contesting
of the ship's nationality. Paras. 58-61. The Tribunal
referred to Article 91 of the United Nations Convention
on the Law of the Sea (UNCLOS) which allows every state
to fix its own conditions for the grant of its nationality
to ships, and held that Saint Vincent and the Grenadines
discharged its burden of establishing Vincentian nationality.
Para. 71.
Guinea contested any genuine link between the Saiga
and Saint Vincent and the Grenadines, but the Tribunal
found no guidance in the UNCLOS regarding whether the
lack of a genuine link allows a state to challenge the
nationality of a ship. Para. 80. The Tribunal
refused to infer such a provision and denied Guinea's
assertion that the lack of a genuine link precluded
Vincentian nationality. Para. 83.
Guinea objected that Saint Vincent and the Grenadines
failed to exhaust local remedies. Paras. 88-91.
The Tribunal first held that the rights of Saint Vincent
and the Grenadines - the right of freedom of navigation,
the right not to be subject to customs and contraband
laws of Guinea, the right not to be subjected to unlawful
hot pursuit, the right to prompt compliance with tribunal
judgments, and the right not to be cited before the
criminal courts of Guinea - were all rights that belong
to Saint Vincent under interational law, so Guinean
law was inapplicable. Paras. 97-98. The Tribunal
then held that application of the requirement of exhaustion
of local remedies requires a jurisdictional connection
between the petitioner and the state responsible for
the wrongful act, and that presence within a customs
radius was insufficient to establish jurisdiction. Para.
99.
Saint Vincent and the Grenadines claimed that the arrest
of the Saiga was illegal, stating that the ship
did not violate Guinean importation law merely by providing
fuel ("bunkering") to licensed fishing vessels in the
Guinean exclusive economic zone. Paras. 116-118.
The Tribunal, citing its competency to reconcile the
compatability of Guinean customs law enforcement with
the provisions of the UNCLOS, held that Guinea
did not meet the conditions of effecting an act that
was the only means necessary to safeguard an essential
interest from imminent peril without seriously imparing
the interest of the State towards which the act was
directed. Paras. 120-130. The Tribunal stated
that Guinea's extension of its customs laws to parts
of the exclusive economic zone was the only means of
protecting its interest, and that the arrest and detention
of the Saiga and subsequent events were contrary
to the UNCLOS. Para. 135. The Tribunal then declined
to address the broader issue of rights of exclusive
economic zones and bunkering. Para. 138.
The Tribunal noted that the prerequisite conditions
for hot pursuit had not been met at the time of the
incident. Paras. 139-141. While Guinea admitted
that the arrest had taken place outside of the economic
zone, the Tribunal held that hot pursuit had not been
legally effected regardless of whether Saint Vincent
and the Grenadines had violated the customs laws of
the Guinean exclusive economic zone. Para. 152.
The Tribunal noted that Guinea had gone beyond the
bounds of reasonable use of force when Guinea's patrol
boats used live ammunition on the unarmed, fully loaded
tanker. Paras. 156-159. The Tribunal
found that Guinea had failed to issue warnings to the
Saiga, and had endangered human life before and
after boarding the ship. Consequently, the Tribunal
held that Guinea had violated the rights of Saint Vincent
and the Grenadines under international law. Para.
159.
Finally, the Tribunal held that Saint Vincent and the
Grenadines was entitled to reparations for damages suffered
directly, as well as for other damages and losses by
the ship and crew. Para. 172. Guinea was
ordered to pay US $2,123,357 in damages, but the Tribunal
held that each party was to bear their own litigation
costs. Paras. 173-182.
Turkey: Law on Amending the Law
on the Establishment and Trial Procedures of State Security
Courts and the Law on Military Judges, No. 4390 (entered
into force June 22, 1999) (unofficial translation provided
by the Embassy of Turkey, Washington, D.C.)
Law No. 4390 provides that the assignment of military
judges and prosecutors at State Security Courts shall
be terminated on the date of issue of the law, and that
vacancies left by the departing military judges and
prosecutors shall be filled by appointments made by
the Supreme Council of Judges and Prosecutors. Temporary
Articles 1, 3. Article 2 states that the composition
of the State Security Court, comprised of a President,
two members, a substitute member, and the Chief Republic
Prosecutor, are to be selected from among the "first
degree judges and Republic Prosecutors." The number
of other Republic Prosecutors at the State Security
Court is determined by the Supreme Council of Judges
and Prosecutors. Article 1. Ethical investigations
and disciplinary measures for the judges and prosecutors
of the State Security Court are to be conducted "in
accordance with the laws regulating their particular
professions." Article 5. DL http://www.his.com/~dlevy/turkey.html
The Hague Conference's
preliminary draft Convention on Jurisdiction and
the Effects of Judgments in Civil and Commercial Matters,
which was adopted by the Special Commission on June
18, 1999, is available for downloading from the Hague
Conference website at ftp://hcch.net/doc/241e.rtf
Other Hague Conference documents, including status information
on Hague Conventions, are available on the Hague Conference
website at http://www.hcch.net
International Law In Brief - Copyright 2000 - The American
Society of International Law Editors: Elizabeth J. Fabrizio, Esq., Peter
C. Hansen, Esq., David A. Levy, Esq. Interns: Matthew Casebolt, Adam Hill, Giuliano
Iannaccone, Branislav Maric, Adv., Kaniah Whitehorn, Laziz
Yusupov
To comment on this publication, send an e.mail message
to David A. Levy, Interim Editor at david.levy@his.com
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