March 18-31, 2000 Developments in international law, prepared by the Attorney-Editors ofInternational Legal Materials The American Society of International Law
Bundesgerichtshof of the Federal
Republic of Germany: Egon Krenz, Gunter Schabowski,
and Gunter Kleiber, 5 StR 632/98 (November 8, 1999)
The Fifth Strafsenat of the Bundesgerichtshof of the
Federal Republic of Germany ("Bundesgerichtshof") affirmed
the State Court of Berlin's ("Landgerichts Berlin")
manslaughter convictions of Egon Krenz, the former General
Secretary of East Germany ("GDR"), and two others. The
defendants had been found criminally liable for participating
in resolutions passed by the GDR Politburo and
National Security Counsel that had led to several fatal
shootings at the Berlin Wall between 1984 and 1989.
While the State Attorney's Office ("State Attorney")
appealed the type and length of sentence (which ranged
from three to six and a half years), the defendants
appealed their convictions on substantive and procedural
grounds.
The Bundesgerichtshof rejected the State Attorney's
appeal of the sentence, finding the sentence to have
been within the discretion of the trial court. The Bundesgerichtshof
also found the merits of the defendants' substantive
and procedural appeal to be without merit.
The Bundesgerichtshof rejected the defendants' allegation
that testimony presented at court, taken as true by
the Landgerichts Berlin, could not be consistent with
the defendants' guilt. Sect. B(I)(1). Two high ranking
former GDR border officers had testified to having never
received orders to shoot escaping refugees to death,
even as a last resort. Sect. B(I)(1)(a). The soldiers
testified instead that the standing orders were to shoot
only people violating the border, and then only in the
legs. Id.
The court found that no reversible error had occurred
because the difference between the testimony and the
orders was merely a difference of implied meaning.
The Bundesgerichtshof found an implied order to kill
can easily exist when soldiers are ordered to fire on
refugees with machine guns. Sect. B(I)(1)(b)(aa).
The Bundesgerichtshof agreed with the Landgerichts Berlin
that the expressions used in the official orders differed
substantially from what the orders had actually meant.
Sect. B(I)(1)(b)(cc). The Bundesgerichtshof
also rejected Krenz's argument that the GDR was not
sovereign in the areas of national security and in shaping
the border regime, (Sect. B(I)(2)), and concluded that
the defendants still maintained some discretion. Id.
The Bundesgerichtshof further rejected the defendants'
argument that there was a break in the chain of causation
in regard to one death due to the resolution in question
being traceable to their predecessors in power. Sect.
B(II)(1)(a). The Bundesgerichtshof found it unreasonable
to require the Landgerichts Berlin to inquire of specific
soldiers whether they were acting under the new orders
or the old orders. Id. Nor did the Bundesgerichtshof
accept the defendants' argument that the differences
in the concept of causation between the FRG and GDR
were different enough to warrant a reversal. Sect. B(II)(1)(a)(cc).
The Bundesgerichtshof held that the actions of the
accused were illegal and unjustified under both GDR
border law and the doctrine of State Practice. Sect.
B(II)(2). The Bundesgerichtshof found that while
the shooting of refugees was "legal" and even sanctioned
under GDR law, such legal doctrines could serve as neither
justification nor excuse for manslaughter. Id. The Bundesgerichtshof
found no mistake of law in the Landgerichts Berlin's
review, and affirmed the use of the GDR's milder law
under Art. 315(1)(1) of the German Reunification Agreement.
Sect. B(II)(1). MC
U.S. Ninth Circuit Court of Appeals:
United States v. Lombera Camorlinga, No. 98-50347
(March 6, 2000)
Jose Lombera-Camorlinga, a Mexican citizen, was arrested
upon entering Calexico, California with 39.3 kilograms
of marijuana in his vehicle. Although officers
gave Mr. Lombera his Miranda rights they did not inform
Mr. Lombera of his rights under the Vienna Convention
on Consular Relations ("Convention"), nor did
they contact a Mexican consular post of Mr. Lombera's
arrest. At trial Mr. Lombera moved to suppress
his post-arrest statements because they were allegedly
obtained in violation of Convention Article 36.
The district court denied the motion, but on appeal
a panel of the U.S. Ninth Circuit Court of Appeals ("Ninth
Circuit") held that "(1) the Vienna Convention
creates judicially enforceable individual rights, and
(2) suppression may serve as a remedy for the violation
of these rights if the foreign national can demonstrate
prejudice." Rehearing the case en banc, the Ninth
Circuit overturned the panel's decision and denied suppression
of the evidence on the ground that more common remedies
exist for violation of the Convention, such as damages
or equitable relief.
The Ninth Circuit determined that neither the language
nor operation of the Convention suggests that Article
36 was intended to create an exclusionary rule preventing
a State Party to the Convention from using illegally
obtained evidence against defendants, as the drafters
of the Convention did not have in mind uniquely American
rights. The Ninth Circuit found that while Article
36(1)(b) requires that the consular post of the foreign
state be informed without delay of its citizen's arrest
or detention, the Ninth Circuit held that the defendant's
post-arrest statements should not be excluded solely
because he made them before being told of his right
to consular notification.
In concluding that Article 36 creates no judicially
enforceable individual rights, the Ninth Circuit noted
the Supreme Court's holding in Breard v. Greene that
the Convention "arguably" creates individual rights,
but under its preamble is designed "not to benefit individuals
but to ensure the efficient performance of functions
by consular posts."
The dissenting opinion of Judges Boochever, Browing,
Thomas and Wardlaw emphasized that the majority
had avoided deciding whether Article 36 creates an enforceable
right to consular notification to avoid prejudice.
The judges noted that the only current form of monitoring
for this right is the State Department's practice of
"investigating reports of violations and apologizing
to foreign governments, and working with domestic law
enforcement to prevent further violations when necessary."
The dissenting judges concluded that the Convention
should be interpreted so as to conform to the due process
principles of the U.S. Constitution, and asserted that
foreign nationals have individual rights under the Convention.
SZ
U.S. D.C. Circuit Court of Appeals:
Tom Campbell, Member, U.S. House of Representatives,
et al. v. William Jefferson Clinton, No. 99-5214
(February 18, 2000)
On March 24, 1999 President Clinton undertook NATO-led
air strikes against Yugoslavia in response to alleged
ethnic cleansing in Kosovo. Two days later and
pursuant to the War Powers Resolution ("WPR"), the President
submitted to Congress a report stating that the action
had been undertaken by his authority as Commander and
Chief. On April 26, Congress voted against: 1)
an authorization of air strikes; 2) a declaration of
war; and 3) requiring the President to immediately end
U.S. participation. Congress also voted to fund
U.S. involvement in the operation.
Before the bombing ended, U.S. Rep. Tom Campbell and
30 other congressmen opposing U.S. involvement sought
in D.C. district court a declaratory judgment that the
President's use of U.S. armed forces was: 1) unlawful
under the WPR; and 2) unconstitutional under the War
Powers Clause ("WP Clause") of the U.S. Constitution.
The congressmen alleged, inter alia, that the President
had violated the WPR by allowing congressionally unauthorized
bombing to continue after the motions to authorize air
strikes and declare war were defeated. The congressmen
further alleged that the President had nullified their
votes by waging war without congressional authorization
and in excess of his authority.
The D.C. district court dismissed the congressmen's
case for lack of standing, and the D.C. Circuit Court
("D.C. Circuit") affirmed on appeal, holding that the
congressmen had an adequate remedy in their legislative
power to bring about a political solution. The
D.C. Circuit rejected the congressmen's vote- nullification
claim under Coleman v. Miller, a case in which the U.S.
Supreme Court granted standing to state legislators
to challenge the state lieutenant governor's tie-breaking
vote to ratify a federal constitutional amendment.
The D.C. Circuit distinguished Coleman from the congressmen's
case in finding that while the Coleman senators would
have been legislatively powerless to rescind the ratification
of a federal constitutional amendment, the congressmen
in the instant case could have ended U.S. involvement
with a sufficient majority vote against the President's
executive action.
The D.C. Circuit found the congressmen's case to fall
under the U.S. Supreme Court's decision in Raines v.
Byrd, in which U.S. congressmen were held to lack "legislative
standing" in federal court to challenge an Act by reason
of their legislative remedy to repeal or otherwise circumvent
the Act. The D.C. Circuit determined that Congress has
a "broad range of legislative authority" to stop a president's
war making, and held under Raines that congressmen "may
not challenge the President's war-making powers in federal
court." The D.C. Circuit also held that standing on
the WP Clause claim was precluded by the same reasoning.
Judges Silberman and Tatel both concurred with the
majority decision. Judge Silberman stated that
the D.C. Circuit lacks "judicially discoverable and
manageable standards" for addressing the congressmen's
case, and that the WP Clause claim even more closely
implicates the political question doctrine against judicial
interference. Judge Silberman asserted, however,
that the majority incorrectly concluded that a past
vote is not nullified if a future vote can be cast on
the issue. Judge Silberman noted that such reasoning
carries the illogical implication that "you did not
lose yesterday's battle because you can fight again
tomorrow."
Judge Tatel did not share Judge Silberman's view that
the case posed a non-justiciable political question,
and stated that the court does have judicially discoverable
and manageable standards to resolve war powers challenges.
Judge Tatel asserted that determining whether U.S. involvement
in Yugoslavia amounts to "war" within the meaning of
the WP Clause "is no more standardless than any other
question regarding the constitutionality of government
action." JJ
WTO Panel Report: Canada - Certain
Measures Affecting the Automotive Industry, WT/DS139/R
and WT/DS142/R (February 11, 2000)
Japan and the European Communities ("Complainants")
challenged before a WTO panel ("Panel") Canada's
customs exemption ("Exemption") for motor-vehicle imports
by motor-vehicle manufacturers qualifying in or before
1989. Paras. 10.1, 10.5. Under the currently applicable
Canadian Motor Vehicles Tariff Order 1998 and a number
of Special Remission Orders, Canada allows these manufacturers
duty-free importation of certain categories of motor
vehicles provided that they: 1) establish local production
of the same class of vehicles being imported under the
exemption; 2) meet a Canadian value-added requirement
("CVA Requirement"); and 3) meet a production-to-sales
ratio requirement ("Ratio Requirement"). Paras. 10.1,
10.4-5.
The Complainants argued that the Exemption violates
the GATT's Article I.1 most-favored-nation requirement,
in that the Exemption entails de facto discrimination
in favor of products of certain countries. Para. 10.17.
Japan also alleged that the Exemption was not "immediately
and unconditionally" applied to all WTO Member producers,
and was conditioned on criteria unrelated to the product
itself. Id. The Panel rejected Canada's counter-argument
that importers may be treated differently on the basis
of criteria other than the national origin of their
products, (Para. 10.40), and concluded that while GATT
Article I.1 does not preclude "origin-neutral" terms
and conditions, Canada's interpretation was too narrow.
Id. The Panel noted that such limits cause the geographic
distribution of imports benefitting from the Exemption
to be determined by the commercial decisions of a closed
category of importers rather than a broader, open-ended
group of importers. Para. 10.46.
The Panel also rejected Canada's argument that Exemption
benefits are properly extended under GATT Article XXIV
to its trading partners within the NAFTA free-trade
area. Paras. 10.52, 10.57. The Panel found that
the Exemption wis unjustifiable under GATT Article XXIV
because the Exemption applies to products imported from
countries not party to a customs union or free trade
area with Canada. Para. 10.55. The Panel also found
that the Exemption does not provide for duty-free importation
of all like products originating in the NAFTA area.
Para. 10.56.
The Panel agreed with the Complainants that the CVA
Requirement violates Article III:4 of the GATT by factoring
in only costs of domestic parts and production, (Paras.
10.70, 10.76), thus effectively modifying the conditions
of competition between imported and domestic products
and providing an incentive to use Canadian products.
Para. 10.76. The Panel held that excluding imported
products from the CVA requirements has an unfair impact
on the competition between imported and domestic products
even though the CVA requirements do not by law require
the use of domestic products. Paras. 10.82, 10.90.
The Panel rejected the European Communities' claim
that the Ratio Requirements create an incentive for
manufacturers to limit the sales of imported motor vehicles,
(Para. 10.150), finding that although the Ratio Requirements
limit the value of vehicles that could be imported duty-free,
they do not limit the internal sale of such vehicles
once imported. Para. 10.148.
The Panel agreed with the Complainants' contention
that the Exemption is a subsidy contingent upon export
performance in violation of the Agreement on Subsidies
and Countervailing Measures, (Para. 10.151), in that
the Exemption represents a financial contribution by
the Canadian Government that confers a benefit. Para.
10.170. The Panel rejected, however, the
Complainants' contention that the subsidy is contingent
on the use of domestic over imported goods, finding
that a manufacturer could satisfy the CVA requirements
"without using any domestic goods whatsoever." Paras.
10.216, 10.222.
The Panel held that the Exemption violates the most-favored-nation
principle of Article II of the GATS (Para. 10.264),
rejecting Canada's contention that no competition exists
at the wholesale trade level. Paras. 10.249, 10.253-54.
The Panel concluded that distribution operators could
be considered as service suppliers regardless of whether
actual competition exists in the wholesale trade market,
and potential competition cannot be ruled out between
wholesalers and manufacturers, or between wholesalers
and retailers. Paras. 10.253-54. The Panel also found
that the CVA Requirements violate Article XVII of GATS
by according less favorable treatment to like services
of other Members, by constituting an incentive to purchase
services supplied in Canada. Paras. 10.304, 10.308.
The Panel recommended that the WTO Dispute Settlement
Body request Canada to bring its measures into conformity
with its WTO obligations, and to withdraw the Exemption
as an "export subsidy" without delay within 90 days.
Paras. 11.3-11.7. MB
Office of the High Representative:
Statute of the Brcko District of Bosnia and Herzegovina
(December 7, 1999)
On December 7, 1999 the Joint Commission for the Implementation
of the Final Arbitration Award for the Brcko District
issued the final version of the Statute of the Brcko
District ("Statute") to serve as the starting point
for the establishment of the Brcko District ("District").
On March 8, 2000 Robert W. Farrand, the Supervisor of
Brcko, declared the Statute to be in force.
The Statute defines Brcko's boundaries as the "complete
territory of the Brcko Municipality with the boundaries
as of 1 January 1991," (Art. 5), and establishes the
Bosnian, Croatian and Serbian languages, with the equal
use of the Latin and Cyrillic alphabets, as the official
languages of the District. Art. 7. The Statute
also adopts the flag and coat of arms of Bosnia and
Herzegovina. Art. 3.
The Statute divides the District's government into
three branches: 1) the District Assembly; 2) the District
Government; and 3) the District Courts. Art. 20.
The District Assembly is to be composed of twenty-nine
Councilors to be elected in free, fair, direct and general
elections by secret ballot. Art 24. The
Statute grants the Assembly the competence to,
inter alia: 1) elect and dismiss the president and vice-president
of the Assembly, as well as the mayor of the District;
2) monitor fiscal matters; and 3) evaluate formally
at least once each year the performance of the mayor,
the head of the District Revenue Agency, and the chief
of police. Art 23.
The mayor is to be elected by the Assembly, and
is empowered to select department heads based on professional
criteria. Arts. 47-48. The mayor is responsible
for implementing the laws of Bosnia and Herzegovina
in the District, as well as submitting draft laws and
budget proposals to the Assembly. Art. 50.
The mayor also appoints the chief of police and deputies
with the consent of the Assembly. Art. 60. Under
the Statute a cooperative law enforcement arrangement
shall be established between the District Police and
Entity Police Authorities regarding hot pursuit of criminal
suspects. Art. 61.
The Statute establishes an independent judiciary consisting
of the Basic Court and the Appellate Court. Art.
62. The Statute also establishes the prosecutor's
office as independent from the judiciary and the district
police, (Art. 63), and grants judges, lay-judges and
prosecutors criminal or civil immunity for acts carried
out or opinions expressed in the performance of their
duties. Art. 68.
In the coming week the ASIL will be holding its Annual
Meeting, the theme of which is "International Law In
Ferment." The Brief will provide daily
coverage of the events.
International Law In Brief - Copyright 2000 - The American
Society of International Law Editor: Peter C. Hansen, Esq. Interns: Matthew Brinton, Matthew Casebolt,
Jae Jo, Branislav A. Maric, Adv., Sam Zengotitabengoa
To comment on this publication, send an e.mail message
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