July 26 - 30, 1999 Developments in international law, prepared by the Attorney-Editors of International Legal Materials The American Society of International Law
U.S. Court of Appeals for the Second
Circuit: United States v. An Antique Platter, No. 97-6319
(July 12, 1999)
Haber, a New York art dealer, travelled to Sicily to
meet a Swiss dealer regarding the purchase of a Sicilian
gold platter from the 4th Century B.C. Haber
purchased the platter for $1.2 million and took possession
in Switzerland. He contacted his New York customs
broker in order to process the paperwork necessary to
obtain release of the platter prior to formal entry
into the United States. The customs form listed
the platter's country of origin as Switzerland, and
stated the platter's value at $250,000. Haber
returned to the US with the platter and later transferred
it to Steinhard, who displayed it in his home from 1992
to 1995.
Under Italian patrimony laws an archaeological item
is presumed to belong to the state unless its possessor
can show private ownership prior to 1902. In 1995,
the Italian government submitted a letters rogatory
request to the United States seeking assistance in investigating
the platter's exportation, and asking the U.S. to confiscate
it so that it could be returned to Italy. The
platter was seized from Steinhard pursuant to a warrant.
The United States then filed an in rem civil
forfeiture action, asserting that forfeiture was proper
under 18 U.S.C. sect. 545, which prohibits the importation
of merchandise into the United States "contrary to law",
and states that items imported in such a manner "shall
be forfeited." The U.S. government argued that
the importation of the platter was illegal because 18
U.S.C. sect. 542 prohibits the making of false statements
in the course of importing merchandise into the United
States. The U.S. government also claimed that
forfeiture was proper under 19 U.S.C. sect. 1595a(c)
because the platter was stolen property under the National
Stolen Property Act (NSPA) as a result of the violation
of Italy's patrimony laws. The district court
upheld the government's motion for summary judgment.
Steinhard appealed, asserting "(i) the false statements
on the customs forms were not material under 18 U.S.C.
[sect.] 542, (ii) stolen property under [the NSPA] does
not encompass property presumed to belong to the state
under Italian patrimony laws, (iii) both statutes afford
him an innocent owner defense, and (iv) the forfeiture
violated the Eighth Amendment."
The Second Circuit affirmed, rejecting all of Steinhard's
claims. The court applied a "natural tendency" test
to determine if a false statement is material, holding
that "a false statement is material under [S]ection
542 if it has the potential significantly to affect
the integrity or operation of the importation of the
importation process as a whole, and that neither actual
causation nor harm to the government need to be demonstrated."
The Second Circuit held that the misstatement of the
platter's country of origin was material because it
has the potential "significantly to affect . . . the
manner in which customs handles the assessment and passage
of goods into the United States." The court did
not examine the materiality of the misstatement of value
because the misstatement of origin was held to be sufficient
for purposes of summary judgment. The Second Circuit
further held that under the terms of Section 545, Congress
did not intend an innocent owner defense, and the defense
was not implicit in the Due Process Clause. Moreover,
the Second Circuit rejected the alleged violation of
the Excessive Fines Clause of the Eighth Amendment,
as the forfeiture was non-punitive in nature.
Finally, the Second Circuit held that it did not need
to address whether the NSPA incorporates concepts of
property such as those contained in the Italian patrimony
laws. GI http://laws.findlaw.com/2nd/976319.html
European Communities-Court of First
Instance: Hautala v. Council of the European Union,
No. T-14/98 (July 19, 1999)
In December 1993, the Council of the European Union
("Council") adopted Decision 93/731/EC on public access
to documents. Article 4(1) provided that "access
to a Council document shall not be granted where its
disclosure could undermine: the protection of the public
interest (public security, international relations,
monetary stability, court proceedings, inspections,
and investigations.)" Para. 12. In 1996, Heidi
Hautala, a member of the European Parliament, submitted
a question to the Council requesting clarification of
the eight criteria for arms exports, as defined by the
Council. Paras. 13-14. The Council replied that
"the Political Committee approved a report from the
Working Group on Conventional Arms Exports, with a view
to further enhancing of the common criteria." Para.
15. The report was never formally approved by
the Council, and it was drawn up under a special correspondence
system which limited its distribution. Para. 17. Hautala
submitted a confirmatory application for access to the
report, but the Council rejected the request, stating
that the report's release could be harmful to its relations
with other countries. Paras. 19-21. Hautala thereupon
lodged a complaint with the Court of First Instance.
Para. 23.
The Council raised a jurisdictional objection, asserting
that the report dealt with questions falling within
Title V of the Treaty of European Union, which expressly
excludes jurisdiction of the Court of Justice. Para.
36. The court held that the content of the report
had no effect on its jurisdiction. Para. 41. "The
fact that under Article L of [the Treaty on European
Union] the Court of First Instance does not have jurisdiction
to assess the lawfulness of acts falling within Title
V thus does not exclude its jurisdiction to rule on
public access to those acts." Para. 42.
The court rejected Hautala's first assertion that the
confirmatory application was given inadequate consideration
by the Council. Para. 71. It further dismissed her second
argument that access to the report would not harm foreign
relations. Paras. 72. The court limited its review to
verifying whether the decision of the Council was properly
reasoned. Id. The court found that the
Council produced the report for internal use, not general
publication, and the report contained information that
could cause tension with non-member states. Para. 73.
Finally, the court looked at whether the Council overreached
Article 4(1) of Decision 93/731 by refusing to grant
access to passages in the report that were not covered
by the protection of public interest exception. Para.
75. The court maintained that the Council could
decide to grant partial access to the report. Para.
77. The court turned to its decision in Svenska
Journalistforbundet stating that "the objective
of Decision 93/731 is to give effect to the principle
of the largest possible access for citizens to information
with a view to strengthening the democratic character
of the institutions." Para. 83 The court concluded
that the Council would achieve its goal of public access
to documents if it removed the passages that might harm
institutional relations. Para. 85. The court decided
that Article 4(1) of Decision 93/731 must be interpreted
under the principle of proportionality and the right
to information. Para. 87. The court ultimately
annulled the Council's decision which refused access
to the report of the Working Group on Conventional Arms
Exports. KW http://europa.eu.int/eur-lex/en/index.html
European Court of Human Rights:
Selmouni v. France, No. 25803/94 (July 28, 1999)
Selmouni, a Netherlands and Moroccan national, was
visibly injured during interrogation by police in France
in 1992, paras. 9-20, and was ultimately sentenced to
fifteen years' imprisonment. Para. 26.
On February 1, 1993 Selmouni lodged a criminal complaint
against the police. Para. 28. After an investigation,
four officers were committed for trial on charges of
assault committed collectively and with violence and
coercion. Paras. 38, 49, 57. The officers
were convicted by the Versailles Criminal Court March,
1999, para. 59, but in July, 1999 the Versailles Court
of Appeal acquitted the officers on the charge of indecent
assault for lack of evidence. The Court of Appeal
did, however, hold them guilty of "assaulting and wounding
with or under the threat of a weapon, occasioning total
unfitness for work for less than eight days . . . by
police officers in the course of their duty and without
legitimate reason." Para. 65. The officers
were given suspended sentences of twelve to fifteen
months. Id. The officer in charge
was sentenced to eighteen months' imprisonment, of which
fifteen were suspended. Id.
Selmouni requested the European Court of Human Rights
("the Court") to find that there had been a violation
of Article 3 of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("The Convention")
as a result of his torture during police custody.
Paras. 69-70. Selmouni also requested the Court
to find a violation of Article 6 sec. 1 of the Convention,
on the ground that his civil claims had not been heard
within a reasonable time. Selmouni further requested
the Court to award him just satisfaction under Article
41 of the Convention. Para. 69.
Dealing first with Selmouni's torture claim, the Court
noted that Article 3 distinguishes "torture" from "inhuman
and degrading treatment" on the grounds that "torture"
involves "deliberate inhuman treatment causing very
serious and cruel suffering." Para. 96.
Moreover, the Court stated that the ultimate test was
whether Selmouni's injuries could be defined as "severe"
under Article 1 of the UN Convention against Torture.
The Court accepted medical and testimonial evidence
establishing that Selmouni had suffered physical and
mental pain and suffering inflicted in part to extract
confessions. Para. 98. The Court also found
that the officers had committed the acts in the performance
of their duties. Id. The Court found that
the violence used against Selmouni caused "severe" pain
and suffering that was particularly serious and cruel,
para. 105, and which constituted "torture" under Article
3. Id.
Turning to Selmouni's Article 6 sec. 1 claim, the Court
noted that the proceedings against the officers, to
which Selmouni had applied to join as a civil party,
para. 28, had already lasted for more than six years
and seven months, and that a number of delays had been
attributable to the judicial authorities. Para.
117. The Court concluded that Article 6 sec. 1
been violated, on the grounds that its "reasonable time"
requirement had been exceeded. Para. 118.
The Court awarded Selmouni FF500,000 in damages, and
FF113,364 for costs and expenses. Paras. 123,
130. Selmouni's request to be transferred to the
Netherlands' prisons, and to have the compensation award
exempted from attachment by France, were denied for
lack of jurisdiction. Paras. 124-26, 132-33.
GI http://www.dhcour.coe.fr/eng/Judgments.htm
U.S. District Court - Middle District
of Alabama, Made in the USA Foundation v. United States,
No. CV-98-PT-1794 (July 1999) (Memorandum Opinion)
The Made in the USA Foundation, the United Steel Workers
of America and one of its locals, and three named individuals
filed suit in the district court alleging that the North
American Free Trade Agreement ("NAFTA"), and the NAFTA
Implementation Act (the "Implementation Act"), are unconstitutional,
in that the NAFTA was not enacted pursuant as an Article
II formal treaty with the advice and consent of the
Senate. The District Court held that the formal
Article II treaty process was not the exclusive constitutional
means for the federal government to enter into an agreement
with a foreign sovereign, and that the NAFTA and its
Implementation Act were concluded and enacted in a constitutional
matter. The Memorandum Opinion noted that although
it has jurisdiction to consider the constitutionality
of observed procedures, "[o]ne thing is clear.
This court does not have jurisdiction to review the
wisdom of NAFTA or to determine whether it is in the
best interest of the Nation."
The court considered five issues:
1) Do the individual plaintiffs ("voter plaintiffs")
have standing to raise the claim?
2) Do the foundation, the union, and its local ("institutional
plaintiffs") have standing to raise the claim?
3) Does the political question doctrine prevent the
court from exercising jurisdiction?
4) Do the NAFTA and the Implementation Act constitute
a "treaty" under Art. II, sect. 2 ('the Treaty Clause")
of the Constitution?
5) Even if the NAFTA and the Implementation Act constitute
a "treaty" under the Treaty Clause, was NAFTA's "making
and implementation" authorized by other provisions of
the Constitution?
The court rejected the contention that the voter plaintiffs
have standing arising out of alleged dilution of the
votes of their elected representatives in the Senate,
in that they failed to demonstrate that they had been
singled out for any unfavorable treatment. The court
found standing for the institutional plaintiffs and
rejected the government's contention that: 1) the NAFTA
is separate and distinct from the Implementation Act;
and 2) the alleged injuries claimed by the institutional
plaintiffs relating to lost jobs, inter alia,
are derived from the Implementation Act. The court
refused to apply the political question doctrine to
prudentially decline jurisdiction, holding that if courts
have the power to determine whether substantive provisions
of international agreements are constitutional, courts
should also have "both the authority and responsibility"
to determine whether the procedures used to adopt international
agreements conform to constitutional requirements.
The court held that whether the NAFTA is a "treaty"
under the Treaty Clause was "a somewhat academic question,"
given that both the institutional plaintiffs and the
government ultimately agree that it is a treaty - the
government through its arguments that the NAFTA could
have been completed through either a form of congressional/executive
agreement, or through the process outlined in the Treaty
Clause, and the plaintiffs by virtue of their assertion
that the only constitutional means of completing the
NAFTA was pursuant to the Treaty Clause. The court
held that "the Commerce Clause, coupled with the Necessary
and Proper Clause and the President's foreign relations
powers, provides sufficient authority for the completion
of NAFTA, exclusive or not." Finally, the court considered
the plenary scope of the Foreign Commerce power of Congress,
and held that the NAFTA and the Implementation Act were
made and approved in a constitutional manner.
The court held that "the President had the authority
to negotiate and conclude NAFTA pursuant to his executive
authority and pursuant to the authority granted to him
by Congress in accordance with the terms of the Omnibus
Trade and Competitiveness Act of 1988...and the Trade
Act of 1974 ... as further approved by the Implementation
Act." (citations omitted).
The Memorandum Opinion, dated July 23, 1999, gives
the United States ten days to submit and serve a proposed
judgment, and the plaintiffs a further ten days to submit
and serve objections as to form, after which the court
will enter a final judgment. DL http://www.alnd.uscourts.gov/nafta.htm
The National Conference of
Commissioners on Uniform Laws (NCCUSL) approved
the Uniform Electronic Transactions Act and the
Uniform Computer Information Transactions Act.
http://www.law.upenn.edu/library/ulc/ulc.htm
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, Adv.
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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